Without pursuing this inquiry further, it is sufficient to say that I am not entirely free from doubt, upon the evidence before me, as to the validity of the Wood patent; and therefore, bearing in mind the rules which govern the courts in motions of this character, whatever may be the ultimate conclusion of the court upon final hearing, it is clearly my duty to deny the present motion. Motion denied.

REED and others, Copartners, v. LAWRENCE and others.

SAME v. CHASE and others.

(Circuit Court, S. D. Michigan, W. D. September 19, 1887.)

REHEARING-NEWLY-DISCOVERED EVIDENCE-ADJUDICATION DE Novo.

Upon a rehearing, for the purpose of considering the effect of newly-discovered evidence as to the validity of reissue No. 9,148, of the Garver patent, dated April 13, 1880, when such evidence is not sufficient to disturb the decree, the circuit court will not make the rehearing the pretext for adjudicating upon the controversy de novo, it having twice been heard before a justice of the supreme court, although the circuit court has serious doubt of the correctness of the superior decision.

On Rehearing. For opinion on former decision and rehearing, see 25 Fed. Rep. 94, and 29 Fed. Rep. 915.

W. G. Howard and J. W. Osborn, for complainants.

Edwards & Stewart and John R. Bennett, for defendants.

SEVERENS, J. The newly-discovered evidence in these causes having been brought in, they have been reargued before the circuit and district judges, and upon consideration thereof the court holds that, although there are marks of suspicion upon it which fairly provoke criticism, the evidence must be regarded as establishing the fact that Willett did in fact for many years use a harrow, with teeth constructed as claimed by the defendants; that the use was sufficient to make it public within the meaning of that term; that the use had been discontinued and gone out of sight when the Garver patent was issued; but we do not hold that the recollection of it was so far obliterated as to prevent its being an anticipation of that patent, if intrinsically sufficient. We are of the opinion, however, that the Willett harrow cannot be regarded as a sufficient development of the features of the Garver patent, sustained by the former decree in this case as to constitute it such an anticipation as would invalidate the patent; it was a casual but vague and inchoate conception of the principles developed in Garver's invention If, as has been settled in this litigation, until the supreme court shall have expressed its opinion upon the subject otherwise, the hay rakes and teeth in evidence in these causes, having the same conformation and attachments, or substantially so, with their adaptation to some parts of the work of a

harrow pointed out in the specifications on which patents had issued, so that all that remained for the inventor to do was to widen and stiffen the teeth, did not anticipate Garver's invention, it is impossible to hold that the Willett harrow anticipated it.

The argument on the present hearing covered (and almost necessarily so) the whole range of the cases upon their merits, and it was stoutly claimed on behalf of the defendants that we should now adjudicate upon the controversy de novo. Although, if we were at liberty to go over the ground already passed by the court at former hearings, we would have great difficulty in reaching the results already attained by adjudication thereon, and especially in regard to the validity of the second reissue of the Garver patent, still the fact is to be remembered that these adjudications have been made by a judge whose great abilities ought to insure respect, and (what we are constrained to think would be obligatory upon us,) whose superior rank in the judicial order should restrain us from annulling his decisions. The cases have been twice heard, before the justice of the supreme court allotted to this circuit.

It would be doing violence to the rightful and decorous course of judicial practice, if upon the pretext of a rehearing, had for the purpose of considering the effect of newly-discovered evidence, which it is found cannot disturb the decree, we should proceed to overhaul the result hitherto declared by superior authority, however widely we might differ, if the matter were fairly open to us.

The result is that the decree made on the rehearing in 1885, and which was vacated for the purpose of letting in the newly-discovered evidence, must be restored.

JACKSON, J., concurs in this opinion.

TORRENT v. DULUTH LUMBER Co.

(Oircuit Court, D. Minnesota. October 15, 1887.`

APPEAL-REHEARING-MISQUOTATION OF TESTIMONY.

A rehearing will not be granted because the court in its opinion misquoted the testimony, where such misquotation does not change the opinion.

Parker & Burton and P. H. Gunckel, for complainant.

West & Bond, for defendant.

case.

NELSON, J. This is a petition for a rehearing and reargument of the In the opinion of the court heretofore delivered in this case (30 Fed. Rep. 830) the court (page 835) misquotes the testimony, viz.: "It has to have it on," quoted from Robert Orm's testimony, should read: "They all have to have something to hold the tooth-bar up to the log;" but such misquotation does not change the opinion of the court.

The petition for rehearing and reargument is denied; final decree ordered; accounting waived; appeal taken and allowed; bond on appeal fixed at $500.

THE TANGIER.1

SOCIETA ANONIMA AGRUMARIA DI NAVIGAZIONE v. ANGIER and others.

(District Court, 8. D. New York. June 24, 1887.)

1. FREIGHT-DAMAGE TO CARGO-DISPUTE AS TO ALLOWANCE FOR Damage. Where a vessel delivers a consignment of fruit, a portion of which is damaged, it is incumbent upon her to ascertain the amount of damage before retaining a part of the consignment for balance of freight, in order that she may not, by retaining an unreasonable amount, become liable for the storage and selling charges.

2. SAME.

When a ship is, by her charter-party, entitled to her whole freight, "upon a true delivery" of the cargo, and she delivers a portion in a damaged condition, she is entitled only to the specified freight less the damages for the loss on the cargo.

When the cargo is partly damaged, the refusal of the ship's agents to deliver cargo, except on the payment of a precise sum by consignee, which is in excess of the amount due, dispenses with the necessity of a tender by the consignee.

4. SAME STATEMENT OF CASE.

The steam-ship T. brought a consignment of fruit to the libelant, of which 54 boxes were missing, and others were damaged by theft of portions of the contents. Libelant refused, therefore, to pay the freight thereon without an allowance by the ship for the damage, and the ship, insisting upon payment of the "lump sum " for which the vessel had been chartered, retained 735 boxes of fruit pending payment of the balance of freight. This suit was brought against the agents of the ship for damages for refusal to deliver the balance of the consignment, and, after the filing of the libel herein, the 735 boxes were sold, under a stipulation between the parties that they should be so sold for account of whom it might concern, without prejudice to the claim in suit. The charter-party provided that the lump freight was to become due "on a true delivery of the cargo. "Each party made an offer of settlement, which was not accepted. Neither party made efforts for an actual adjustment of the loss. The evidence before the court was not sufficient to determine the exact loss to the consignment. Held that, if the amount demanded by the ship in its offer of settlement was in excess of the amount actually payable by libelant for balance of freight, the ship should account to the libelant for the value of the packages retained by her, less the amount first due the ship. If the ship's demand was not in excess of what was justly due her, the expenses of the subsequent detention and sale were a charge against the libelant, and it would be entitled only to what might remain of the proceeds of the sale after payment of the freight due, and the expenses of storage and sale A reference was ordered to ascertain the exact amount due.

The libel in the above case was filed to recover damages for refusal to deliver certain boxes of fruit forming part of the cargo of the steam-ship Tangier from Palermo to New York. The libelants on the thirteenth of March, 1884, chartered the steamer from the owners to take a cargo of

'Reported by Edward G. Benedict, Esq., of the New York bar.

fruit at the lump sum of £1,550, or about $7,500, the balance, after certain specified payments, to be paid "on the true delivery of the cargo" at New York. A cargo was afterwards shipped on board, for which on April 2, 1884, a bill of lading was signed by the master, reciting the delivery of 23,731 packages. Upon arrival at New York, April 26, 1884, the cargo was discharged upon the wharf. All the cargo was delivered to the libelant's agents or consignees, except 54 boxes, which, upon count, were found missing, and 735 other boxes, which on the morning of May 3d were lying upon the wharf, and which Messrs. Bowing and Archibald, the ship's agents, held in their custody until the balance of the charter money should be paid. The libelants, in the course of the delivery of the cargo, had already paid the steamer's agent upwards of $7,000 on account of freight. Against the balance of the freight they claimed that, in addition to certain allowances provided for in the charter, a credit and set-off should be allowed on account of the 54 missing boxes, as well as for the loss on 60 additional "robbed boxes," from which some fruit had been taken. Irrespective of this set-off, the difference between the amount of freight paid and that due upon the whole cargo, under the charter, would be from $300 to $400. At an interview between the agents of the ship and the libelants' agent and counsel on the morning of May 3d, the latter demanded the delivery of the remaining goods, and offered to give a bond, with security, for what might be due upon account of freight, or to deposit with third persons $600 for the same purpose. The agents of the ship refused to accept either of these offers, but offered to deliver the 735 boxes on a deposit with themselves of the whole balance of freight without any offset, and refused to deliver the remaining goods otherwise, except upon the payment of 40 cents per box for the remaining boxes as delivered, which they offered to deliver on such payment. No agreement being reached, the 735 boxes were stored by the ship, and, after the filing of this libel, were sold under a stipulation between the parties that the goods should be sold for account of whom it might concern, without prejudice to the claim in suit.

Ullo, Reubsamen & Hubbe, for libelants.

Butler, Stillman & Hubbard, for respondents.

BROWN, J. The pleadings and the evidence sufficiently establish a shortage of 54 boxes of fruit. Upon a count of the boxes remaining on the wharf on May 3d, in addition to those already delivered, there were 54 less than the number called for by the bill of lading. The bill of lading, indeed, contained the stipulation that "no claim should be made for any loss arising from difference in marks, numbers, or contents," and excepted the acts of "robbers, thieves," etc. Under the latter clause, the burden of proof would fall, in the first instance, on the libelant to show some prima facie evidence of neglect or fault in the ship, whereby the loss in the "robbed" boxes occurred. No such evidence, however, was offered, and the loss on these boxes proved to be too small to be worth further mention. If the exception of loss through "difference in numbers" could be construed as equivalent to a declara

tion that the ship was not to be held responsible for the precise number of packages specified in the bill of lading as taken on board, upon which I express no opinion, the burden of proof would rest upon the libelant to show the actual number shipped. Matthiessen v. Gusi, 29 Fed. Rep. 794. But the libel in the third article specifically alleges the shipment of 23,731 packages, and the answer admits that the steamer "did load cargo at Palermo as specified in the third article," without any denial anywhere of the number alleged. This admission dispenses with any further proof by the libelant of the number shipped, and casts upon the ship the presumption of negligence in the loss of the missing 54 packages, and the duty of showing that the loss arose either without her fault, or from some other specific cause excepted in the bill of lading. This has not been done, and the ship must be deemed answerable, therefore, for the 54 cases.

As the ship's right to her whole freight was conditioned "upon the true delivery" of the whole cargo, the demand by her agents that the entire freight should be paid was not legally justifiable. She was only entitled to her specified freight, less the damages for the loss of the missing packages, for which she was presumptively liable. Her lien, and the right to hold the remaining 735 packages, were limited to the balance remaining after deducting the offset. The libelants, on the other hand, had no right to the delivery of the 735 packages, except on the payment of this balance. They could not legally require the ship's agents to accept, in lieu of cash, for this balance, either a bond with security, or a deposit with third persons. Prudence would doubtless recommend that each should agree upon some amicable arrangement for the due security of both. Brittan v. Barnaby, 21 How. 527, 534. But the law cannot compel a new agreement, nor fix its terms. If the parties came to no satisfactory arrangement, each was equally bound, at its peril, if it would avoid further responsibility, and the liability of further loss, to ascertain at once the true amount of the offset, so as not to exceed its legal rights in any demands upon the other. The Eddy, 5 Wall. 481; Twelve Hundred and Sixty-Five Vitrified Pipes, 14 Blatchf. 274.

The libelant, upon tendering a sum sufficient to cover what was really due, if delivery was refused, could immediately libel the vessel, and hold her for the value of the goods retained. If the libelant refused to pay the proper sum demanded for the balance of freight, not only could the goods be rightly retained in custody, but they could be stored, and subsequently sold by the respondents at the libelants' risk and charge. It was the duty, as I have said, of the ship to aid in ascertaining the deduction to be made from the specified freight, because the deduction itself was an allowance to be made on account of the ship's own fault in not making a "true delivery" of the whole cargo; and because the mode of adjustment by offset, for the loss of a part of the goods, is an equitable release of the ship from the strict conditions of the charter and bill of lading, by which the payment of the entire freight as a lump sum was conditioned upon a delivery of the entire cargo, which the ship had by her negligence become unable to perform.