486
vol. 45.
. tome, invie\y', of the an(t s.copeof the third claim. of patent, that if ,the court a. claim covers not !illluivalents but also sub!ltitutes for an. apparatus Which ill ol)e.element of the claim, then the defendants' contrivance embodies the set. forth in tllird of plaintitls i patent."
Now, by well-settled rtlles, the Murt is to look at what the patentee the means by he acconiplishes the re'mIt, and another person does not infnngfJlnless he makes uSE) of the.same or equivalent":rnellps for accomplishirigthe same result.. I know ina certain class· of .cases the supreme court .have given a very Ii beral construction as towhat'constitQtes anequiva:lent, but I do not think that either of the patents involved in these sUlts cQmes within. that class of cases which deal"ri,thpioneer inventions.. ,The defendants.' machine does not employ. the connecting devices which were novel with Campbell. Over the bank. of keys a fiat.plate is by lugs upon the same shaft as the keys. , When any key is actuated, the hooked end of this plate lifts 0. bolt, which is engaged with a projection upon the drawer beneath, and when the bolt is liftedtbe drawer is thrown open by a spring behind it. When the dooris shut the bolt rises over the incline, Ilnd falls on Hs fotward holding the drawer closed. this simple contrivance does away with the somewhat complicated system of toggle levers in combination with a sliding bar, which is the connecting mechanism invented by'Campbell,' and found described in his patent. Holding that the defendant's' machine is not within the Campbell patent, I must direct that the bill be dismissed. Bills Uismissed.· .'
KELLY
et al. v, THE ToPSY.
(Pf8trict Oourt. D. South Carol.ina. February 16, 1891.) 1. ADMIlULTY-SE4MEN'S W'AGES-COSTS-PROCTOR'S FEES.
The fee of libelant's proctor a reference in a proceeding In admiralty, not beinl{ the 'fees enumerate!! In· Rev.. St. U. S. tit. HI,. c. 16, than which none others are allowed to be taxed as costs under Id. § 823, cannot be so taxed·
Where Inal1 admiraltypr9ceedingfor seanlen's wages against a foreign vessel a commissioner, in the absence of the the q.istrict, heard the testimony, and iS8ued'pro<les8 under Rev. St. U. S. §§ 4546,4547, and the libelant's proctor, beginning. to fear that the statute wasll,ot applicable, sent telegrams to the judge, asking him tOJs8ue or authorize w,arrant of whicbhe declined t9 do, such telegrams were for the convemence of the counsel, to. save traveling explinse5, and theD;loneypaid thereforoannot be taxed 85 costs,&S moneypropedy&wlnecessarily expElnded. B. Bllllli-COMllISsIONER'S COsis. for lIeamen's wages there were four seamen whose cause of complamt was the same, they should be joined as complainants, under Rev. St. U. S. § 4547, and the commissioner is entitled to charge for issuing, filing, and returning but One summons on the master, and for but one certifioate that adtnii'Mt:t procellsshould issue, though'in fact he issued four summonses and made .four certificates. . ' . . '" SAJoIE-DEPOSITlQNS.
.. SAME-TEx,EC'iaAMS.
Under Itilv;·St.U. e. t 4547;'authoriZing the issue of admiralty process in proceedings for seamen's wages on the certificate of a commissioner in the absence of the
.
.' .
KELLY"; THE TOPSY.
487
ju.lge, the diScretion' oftlie commi$sioner'is absolute, and he is not required to take and send up any depositipns with certifi,cate, and he canno,t charge fees for, tile same, to be taxed as costi!. "
In Admiralty'. C. B. Northrop, for libelants. H. Sinkler and I. N. Nat/lans, for claimant. SIMONTON, J. The question comes up on the taxation of costs by the clerk. In this taxation the clerk has allowed as part of .the costs of libelant's proctor $5 for attending a reference, and as part of the disbUrSements $8.40 for telegrams sent by him. The clerk has also allowed the 'commissioner certain costs. Thes'e items are excepted to. 1. Costs of Attending a Reference. Section 823 of the Revised Statutes of the United States provides that no other compensation than that stated in the chapter of which it is a part be taxed and allowed to proctors in the courts of the United States. The Baltimore, 8 Wall. 892. This refers to taxed costs only imposed by way of penalty. It does not interfere with any charges made by the proctor against his own client, resting on usage in his state or upon special contract. Section 828, Rev. Nor does it exclude expenses and disbursements incurred in the suit properly allowable to the party. The F. Merwin, 10 Ben. 407. The charge of attending a reference, if allowable at all, must be allowed as costs. There is no authority in section 824, or in the chapter to which it belongs for such a charge. It is disallowed. 2. Telegrams. As to the item of $8.40 for telegrams. It seerus that the amount paid for telegrams sent in the progress of a suit have been allowed when it il3 l:!hownby affidavit thatthe money has been properly and necessarily expended. Hussey v. Bradley, 5 Blatchf. 210. In this connection see Simpson v. 110 Sticks, 7 Fed. Rep. ,243. In the present case, the judge being absent holding court in the western district, libelant's proctor, in a claim for seaman's wages, went before a commissioner of and, producing testimony, obtained his certificate that there was sufficient cause upon which to found admiralty process. Sections 4546, '4547, Rev. St. Thereupon the clerk of this court issued the warrant of arrest against the vessel. The vessel being under arrest, the proctor for libelant began to fear that these sections did not apply to the case of a foreign vessel. He then sent telegrams to the judge, who was in North Carolina, outside of the territorial limits of his district, asking him to issue or to authorize his warrant of arrest. This WBS done by way of precaution, to rectify what was feared might have been 1\ hlunder. The judge declined to interfere, because, under the circumstances, he had no right to do so. He was absent from the district. The commissioner had entertained jurisdiction of the case,alld had acted. The vessel was already in custody. If, therefore, the proctor had attended the judge inpers(}n, and had made a formal motion, this motion would have been rf'fused. Upon such refusal the traveling expenses of the proctor could not have been allowed to him. Hussey v. Bradley, supra. The telegrams sent as a matter of convenience to the counsel, and
488
FEDERAL REPORTER,
to save the traveling expenses which a personal visit would necessitate. A jbrtinrl; the charge for them cannot be allowed. 3. The 008ts of the Commissioner. The claim was for seamen's wages passed on by the commissioner under sections 4546, 4547. The last of these sections requires that all the seamen having cause of complaint of like kind shall be joined as complainants. 'rhere were four seamen whose cause of complaint was the same. The commissioner charges for issuing, filing, and returning four summonses on the master. Only one summons w,as necessary, and only one can be charged for. So he charges for four certificates that a:dmiralty process. should issue. Only one certificate.canbe charged for. He also charges 25 folios of testimony, at 20 cents, The fee-bm (section 847, Rev. St.) allows 20 cents a folio for taldng and certifying depositions to file. Section 4547 , Rev. St., does not require the filing of any depositions; indeed, does not require the taking of any depositions. The commissioner is authorized to make inquiry, and in his discretion to send up the certificate. His discretion js absolute, and no one has the right to question it. Therefore he need not senlt up any testimony, and cannot charge for it. The exceptions on the above items are sustained. In all other rethe taxation is confirmed.
THE
FRANK AND WILLIE. 1 THE FRANK AND WILLIE.
SWIFT et al. v.
(Dl8trlct OO'Ulrt. S. D. New York. February 9, 1891.) 1.SEAHBN....,W,4.G!lS ON VOY,4.GE BROUN UP-FORElIGN PORT..
9. SilIE....:111S0H,4.RGEl Oil' SEAMEN-So4.LE Oil' VESSEL BY}lAI(S:B:AL.
In Admiralty. Suit for seamen's wages. Hylaid &- Zabriskie, for libelants. E. G. Benedict, for respondent. BROWN,J. The libelants, seamen on the small British schooner The Frank and Willie, shipped on board at New Brunswick September 15, 1890, for a term of six months, to be returned at St. Johns. Onthe fir..st voyage to New York, upon discharging the schooner, a seaman . I
Rflported by Edward G. Benedict, Esq., of the New York ba.r.