These claims were rejected by the Patent Office for want of novelty. The applicant acquiesced, and amended his claims so that they read as follows:

"(1) A fire-proof ceiling or wall, consisting of a thin series of plates or blocks, placed edge to edge and provided with registering mortises in the adjacent edges of the plates or blocks, and metallic tenons for connecting the plates or blocks, at the sides and ends, substantially as set forth."

"(2) A fire-proof plate or block provided with grooves in its sides and ends and with mortises in its grooved sides and ends, substantially as set forth."

The claims were again rejected by the Patent Office for want of novelty. The applicant acquiesced, and thereupon by amendment he introduced the claim which appears in the patent. The claim specifies as constituents not only blocks provided with grooves in their sides and ends, but also provided with registering mortises in the grooved edges thereof, substantially as described. The registering mortises as described in the specification and shown in the drawings are distinct from and supplementary to the grooves, and some register transversely and some longitudinally, and they have a distinct and supplementary office in the composite structure. The specification reads as follows:

"The ends of the plates or blocks, a, are provided with mortises for receiving tenons, d, which extend into the corresponding mortises of the adjacent ends of the plates or blocks, so that the plates or blocks, a, are connected in a longitudinal direction with the plates at the ends of the same." These mortises, as well as the grooves in the ends of the blocks, are omitted by the defendants in constructing dumb-waiter shafts, which are the only walls made by them. The walls in these shafts are only a single block in width, and it would be impracticable to connect the plates at the corners by mortises and tenons such as are shown in the patent. It is true the defendants use the top and bottom grooves in the block, and thereby get the benefit of the more ample mortar space; and they also use a tenon laid in the grooves, and bent at right angles so as to enter the corresponding grooves at the corner of the wall; but as it was old to use the grooves for mortar spaces, and old to use tenons and mortar in binding the blocks of the wall together, it is quite impossible to discover what they have done which they were not entitled to do, or how they infringe, so long as they have not used the registering mortises described in the specification and enumerated in the claim. The patent is one in which there is no room for the application of the doctrine of equivalents. The claim must be confined, in view of the prior art and the action of the Patent Office, to a combination of the specific parts mentioned. The patentee thought only of a wall or ceiling in which a number of blocks were to be laid side by side, and framed his specification accordingly. If it had occurred to him that walls might be built consisting of single stones, one laid on top of the other, it is not improbable that he could have devised some means of binding the corners together by tenons; but this did not occur to him, and he did not devise any means for that purpose. It in

volved practically as much invention to dispense with his registering mortises in the ends of the block, and utilize the groove with a right-angled tenon to bind the blocks together at the corners, as it did to bring into one structure the parts which he assembled together.

STANCLIFT v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. August 18, 1905.)

No. 2,150.

DISTURBING THE PEACE-EVIDENCE-SUFFICIENCY TO SUSTAIN VERDICT. Testimony that one drew a six-shooter, said "Let's shoot 'em up!" put his weapon in his pocket, and walked off, and that the witness subsequently heard shooting in the direction he went, constitutes no substantial evidence of the offense of disturbing the peace of a town.

(Syllabus by the Court.)

In Error to the United States Court of Appeals in the Indian. Territory.

For opinion below, see 82 S. W. 882.

Francis R. Brennan, for plaintiff in error.

William M. Mellette and E. L. Kistler, for the United States. 'Before SANBORN and HOOK, Circuit Judges, and ADAMS, District Judge.

SANBORN, Circuit Judge. This writ of error challenges a judgment for disturbing the peace, rendered under section 1800 of Mansfield's Digest of the Laws of Arkansas (Ind. T. Ann. St. 1899, § 1143), which is in force in the Indian Territory. The grand jury in their indictment charged that the plaintiff in error, on October 1, 1902, did "disturb the peace and quiet of the town and neighborhood of Elam, Indian Territory, by loud and unusual noise, by abusive, violent, obscene, and profane language, by threatening to fight, by quarreling, by challenging to fight, by fighting, by shooting off a gun, the said gun being then and there a firearm, and by brandishing a gun, the said gun being then and there a firearm." After a plea of not guilty had been interposed, a trial was had. A single witness testified that the plaintiff in error came to his place in Elam, pulled out his six-shooter, waved it, said "Let's go shoot 'em up!" put his six-shooter in his clothes, walked off toward the northwest, and that after he went away the witness heard some shooting pretty nearly in the same direction. There was no other evidence in support of the charge. Counsel for defendant below at the close of the evidence requested the court to instruct the jury to return a verdict in his favor. This request was refused, and an execption was noted. The instruction should have been given. There was no substantial testimony to sustain the case of the government, much less to establish it beyond a reasonable doubt.

The judgment of the court for the Western District of the Indian Territory, and of the United States Court of Appeals of the Indian Territory, which affirmed that judgment, must be reversed, and the case must be remanded, with instructions to grant a new trial.

BLEAKLEY v. CITY OF NEW YORK.

(District Court, S. D. New York. July 28, 1905.)

1. SHIPPING-INJURY OF CHARTERED VESSEL BY ICE-NEGLIGENCE OF CHAR

TERER.

A charter of a scow under a verbal charter being bound as a bailee for hire to use reasonable care and diligence to protect the property from injury is liable for its loss by being crushed by floating ice, where it was left on the north side of a pier in North river at a place exposed on the north, and generally regarded as dangerous on an ebb tide when there was ice moving in the river.

2. SAME INEVITABLE ACCIDENT.

An injury to a vessel which could have been foreseen and might reasonably have been expected in the ordinary course of events cannot be considered as happening through inevitable accident.

In Admiralty. Recovery of damages for the sinking of scow, hired by the city, from contact with ice, while lying on the northerly side of pier at foot of 134th Street, North River.

Alexander & Ash, for libellant.

John J. Delany and E. Crosby Kindleberger, for respondent.

ADAMS, District Judge. This action was brought by Cara R. Bleakley to recover the damages she suffered in consequence of injuries to her scow No. 38, by reason of being crushed and sunk by ice at the pier at the foot of 134th Street, North River, on the 22nd day of February, 1904. The scow was hired by the city for an indefinite period under a verbal charter and was being used, under the control of the Department of Street Cleaning, to remove street sweepings from the northerly part of the city. For that purpose she was sent to 134th Street and at first moored on the south side of the pier. Subsequently she was moved under the dumping board on the north side of the pier, where she received a load and was afterwards sunk.

The question of liability arises out of the alleged neglect of the performance by the city of its duty to the scow under its relation of bailee for hire. There is no substantial controversy with respect to the measure of such duty, it being well established that the bailee is bound to exercise the diligence of a prudent man with respect to the property in his charge and for any default is responsible to the owner. Smith v. Bouker, 49 Fed. 954, 955, 1 C. C. A. 481. And see The Three Brothers (D. C.) 134 Fed. 1001. The city contends that it performed its duty and that the accident was an inevitable one. The libelant on the other hand urges that there was a failure on the part of the city to observe the care which it owed to the boat.

It appears from the testimony that the place in question has been quite generally regarded among boatmen, having that class of business to perform, as a dangerous place on the ebb tide when there is ice moving in the river. The city's witnesses, not experienced as boatmen, say that it is not a dangerous place under such circumstances, as is proved by the fact that very few accidents. have happened. Some accidents have, however, occurred, causing injury to boats subject to the ice and that a greater number could not be shown is probably being due to good fortune more than proper management, because the place having no protection from the north and the ebb tide setting the ice on the pier, it is obviously not a place where boats can be left with any reasonable assurance that they will not be injured.

There is no merit in the contention that the accident was inevitable. With the exercise of proper care, the result could have been anticipated and provided against. An accident which could have been foreseen and expected in the ordinary course of events can not be considered as happening without the agency and neglect of man. It is apparent that the ice which had collected about the pier, would leave there upon a change of wind, which was liable to occur at any time, and being set free from the shore and carried up the river, it would be borne by the tide against the northerly side of the pier upon a change of the tide to ebb. That is what happened here. The fact that the ice was brought back in a large and dangerous field might have been expected. Doubtless in many instances, the ice broke away in smaller quantities and was more or less ground up before its return, so that it was not harmful in its effects upon the boats lying there, but it is well known that moving ice is dangerous to ordinary boats and when possible that they should be kept free from its contact. Risk to a boat lying on the northerly side of the pier when ice was in the river and liable to be carried against it was a matter which should have been taken notice of. The case is distinguishable from The Transfer No. 2 (D. C.) 56 Fed. 313, on such ground and is more in accord with The Ship John Tucker, 5 Ben. 366, Fed. Cas. No. 7,431, where Judge Blatchford said (page 370 of 5 Ben. [Fed. Cas. No. 7,431]):

"But the circumstances do not bring it within the category of a case of inevitable accident. Union Steamship Co. v. N. Y. & Va. Steamship Co., 24 How. 307 [16 L. Ed. 699]; The Morning Light, 2 Wall. 550 [17 L. Ed. 862]; The Louisiana, 3 Wall. 164 [18 L. Ed. 85]; Vantine v. The Lake, 2 Wall. Jr., 52 [Fed. Cas. No. 16,878]; The Moxey, 1 Abb. Adm. Rep. 73 [Fed. Cas. No. 9,894]; The Brooklyn, 4 Blatchf. 365 [Fed. Cas. No. 1,939]; The Baltic, 2 Ben. 452 [Fed. Cas. No. 823]. The movement of the ice, with the ebb tide, which was the cause of the damage, was not a thing that arose suddenly and unexpectedly, but was to be anticipated and guarded against by the ship, even if her attention had not been specially called to it by the steamboat. It was not a vis major, in the sense of the rule. The ship was bound to secure herself so that her fastenings would not be broken or torn away, when the tide should change."

It seems that the city was consulting its convenience in the removal of sweepings etc. from the northern part of the city and

urges the necessity of the use of the pier for such purpose. While it was doubtless expedient to use the pier, such plea can have no effect in relieving a bailee from results due to its neglect of duty to the particular piece of property which it has hired and impliedly undertaken to return uninjured to the-owner, save from ordinary wear and tear, if reasonable care and prudence will accomplish the result.

Decree for the libellant, with an order of reference.

THE HORACE P. SHARES.

(District Court, D. Connecticut. July 12, 1905.)

No. 1,397.

COLLISION-SAILING VESSELS-FAULT OF OVERTAKING VESSEL.

In a suit for collision off Cape Henry, on a clear day, between two sailing vessels on courses varying not more than one point, evidence considered, and held to show that libelants' was the overtaking vessel, and in fault for the collision in failing to change her course and keep out of the way.

In Admiralty. Suit for collision.

Peter S. Carter, for libelants.

Carpenter, Park & Symmers, for claimant.

PLATT, District Judge. The libelants seek to recover damages sustained by the schooner Edith S. Walen in a collision with the three-masted schooner Horace P. Shares on the 6th day of June, 1903, about 4 o'clock in the afternoon, at a point about 10 miles east of Cape Henry. The Walen was working about the fishing grounds in that vicinity, and the Shares was running light from New Haven, and bound for Brunswick, Ga. It is idle to follow out the various notions which encompassed the pleader when he filed this libel. It now appears that the weather was clear, and the wind a moderate south by east breeze, leaving a smooth sea, at the time of the collision. The Shares was sailing southwest by west, not closer, however, to the wind than six points. The Walen was heading southwest, but she sailed faster, and at least one point closer to the wind, than the Shares. Both vessels were sailing upon the port tack. This brings us at once to the gist of the matter, viz., to determine from the evidence which was the overtaking vessel. Tapper, the wheelman of the Walen, gave his testimony on March 23, 1904. No further testimony for libelants was taken until July 20, 1904. He states that he had been at the wheel of the Walen for half an hour before the collision; that as he took the wheel he first observed the Shares; that the Walen was on the port tack; that he steered by the wind, which was south by east, and that his course was southwest; that the Walen had more sail for her size than the Shares; that the Shares was upon the port tack; that standing at the wheel he had to look between the fore and main riggings to