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The Yuba.

believed himself to be the first inventor or discoverer of the thing patented, the same shall not be held to be void on account of the invention or discovery, or any part thereof, having been before known or used in any foreign country, it not appearing that the same, or any substantial part thereof, had before been patented, or described in any printed publication." It is claimed, that the time referred to by the terms, "having been before known or used in any foreign country," is the time when the application for the patent was made; and that the terms, "had before been patented or described in any printed publication," refer, also, to the time when such application was made, and not to the time when the original invention or discovery was made. If there be any doubt as to the construction which this proviso should receive, when considered by itself, the true construction of it is free from doubt, when it is considered in connection with other sections, and with the whole scope of the Act. Viewed in such connection, it must be held, that the time referred to by the terms above recited, is the time when the original invention or discovery of the patentee was made, and not the time when he presented his application to the Commissioner. Any other or different construction of this proviso would be in conflict with the whole scope of the Act, and with the plain and clear enactments of certain parts of it, and would make several of its sections irreconcilable with each other.

With this view of the case, the motion for a new trial must be denied.

THE YUBA.

Where a vessel entered a port of distress, and necessary repairs were made upon her on her credit, and afterwards, it being impossible to procure funds in any other way, a loan was made on bottomry to pay for the repairs, and the money was applied to paying for them: Held, that it was no objection to a recovery on the bottomry bond, that the repairs were made before the loan was effected.

The Yuba.

It having been necessary to discharge the cargo, to enable the extent of the damage to the vessel to be ascertained and the repairs to be made, the bill of a stevedore was a proper charge, as incidental to the repairs. So, also, a charge for commissions in procuring the loan was proper, as incidental to the loan, it being impossible to raise the loan only through an agent. Charges for repairs and other expenses allowed, as being customary at the bottomry port, although high, and a premium of twenty per cent. on the bottomry bond also allowed.

Some of the charges might be reduced, as between the claimants and the persons rendering the services, but the lender upon bottomry in good faith, and under circumstances which justified the loan, cannot be held responsible for the reasonableness of the charges in the repair of the vessel.

(Before NELSON, J., Southern District of New York, September 17th, 1859.).

THIS was a libel in rem, filed in the District Court against the bark Yuba, to recover the amount of a bottomry bond on the vessel, executed at New Orleans. The District Court dismissed the libel, and the libellant appealed to this Court.

Francis R. Coudert, for the libellant.

Charles Donohue, Dexter A. Hawkins, and Joseph Lovell, for the claimants.

NELSON, J. I am satisfied, that the repairs of the vessel at New Orleans, into which port she entered in distress, were necessary; and that the money was lent on the bottomry bond in good faith, for the purpose of paying for those repairs, and was applied to paying for them.

The objection, that the repairs were made before the loan was effected, and, hence, that the loan was not necessary in order to procure the repairs and enable the vessel to proceed on her voyage, is not tenable. The repairs were made upon the credit of the vessel, and the loan was indispensable to relieve her from the charges.

The discharge of the cargo became necessary, to enable the surveyors to ascertain the extent of the damage, and the ship master to make the repairs. That service was incidental to the repairs, and without it they could not be made, and, hence, the stevedore's bill was a proper charge. So, in respect

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The Yuba.

to the commissions for the procurement of the loan. They were incidental to the loan itself, as it could be raised, in the given case, only through an agency. This principle is applicable, also, to several other items objected to.

The charges for the repairs and other expenses connected therewith are high, and may be unreasonable; but, the weight of the proof shows that they are the customary charges and expenses in the port of New Orleans. The premium of twenty per cent. on the bottomry bond is objected to as exorbitant and out of all proportion to the risk, but I cannot so hold, upon the proofs in the case.

If the question was between the claimants and the persons rendering the services to the vessel, I might be disposed to cut down some of the charges, notwithstanding the evidence in support of them. But I think that the lender upon bottomry in good faith, and under circumstances which justified the loan, cannot be justly held responsible for the reasonableness of the charges in the repair of the vessel. He would be required, if held to this responsibility, to take upon himself the burden of contracting for or superintending all repairs.

Reasonable exertions were made by the consignee of the vessel to procure the funds from her owners and agents in New York, but they declined making the advances, or rather admitted their inability to make them, and the parties at the port of distress were left to raise the money as they best could.

Upon this view of the case, I must reverse the decree below, and decree, in favor of the libellant, the amount of the bottomry bond, except the $192.44 paid to the captain.

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The District Court has no jurisdiction to enforce, in a suit in rem, in Admiralty, a claim for materials and labor, for the repair of a steamboat engaged in running upon waters wholly within the limits of the State of New York.

(Before NELSON, J., Southern District of New York, September 20th, 1859.

THIS was a libel in rem, filed in the District Court, against the steamboat Troy, to recover for materials supplied to and work done upon that vessel, in July, 1857. The Troy was engaged in running upon the Hudson River, between the port of Troy and the port of New York, touching at intermediate places, exclusively within the State of New York.

Richard H. Huntley, for the libellants.

Welcome R. Beebe, for the claimants.

NELSON, J. The question involved in this case is, whether the Court below had jurisdiction of the libel. In the case of Allen v. Newberry, (21 How., 244,) the Supreme Court held, that the District Court for Wisconsin had no jurisdiction over a contract of affreightment of goods between the port of Two Rivers and the port of Milwaukee, both being within the same State, because the contract related to the purely internal commerce of the State, which was not within the cognizance of the Admiralty. And, again, at the same term, in the case of Maguire v. Card, (Id., 248,) it was held, that the District Court for California had no jurisdiction over a contract for supplies furnished to the Goliah, a steamboat engaged in the business of navigation and trade on the Sacramento River, between ports exclusively within the State of California. The Court regarded that case as governed by the principle decided in Allen v. Newberry. The case of Maguire v. Card comes fully up to the one in hand. The principle is, that a contract

Butterfield v. Boyd.

arising out of the trade and navigation of a vessel engaged in the purely internal commerce of a State, is governed by State laws, and belongs exclusively to State cognizance. In the case of the Goliah, the supplies furnished were coal. In the present case, they are materials and labor for the repair of

the vessel.

I make no question under the local law giving a lien in the case, for the suit was commenced before the rule was made refusing any longer to recognize and enforce such a lien in the Admiralty. That rule did not take effect till May 1st, 1859. All suits commenced previous to that time were saved.

I must, therefore, for the reason given, reverse the decree of the Court below, for want of jurisdiction in that Court, and dismiss the libel.

CARLOS BUTTERFIELD vs. JOHN J. BOYD AND OTHERS.

A libel for a collision dismissed, on a conflict of testimony as to which vessel caused the collision by drifting against the other.

Even if it appeared that the respondent's vessel drifted against the other, the burden would be on the libellant to show that the drift could have been prevented, or was occasioned by mismanagement.

A steamer ought not, with a floodtide tending to set her towards a sailing vessel engaged in casting off a hawser by which she is being towed by a tug, to take a position so near to the sailing vessel that a collision will ensue from drifting.

A steamer, with steam up and sails set, is bound to make an effort to avoid a collision with a sailing vessel, which is likely to result from drifting.

(Before NELSON, J., Southern District of New York, September 21st, 1859.)

THIS was a libel in personam, filed in the District Court, by the owner of the Mexican steamer Iturbide, against the owners of the ship Mercury, to recover damages occasioned by a collision between the two vessels.

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