cheese-making apparatus as sufficient per se to negative invention in introducing and adapting these appliances. The appliances for a double hot-water circulation shown in those patents are quite dissimilar in details of construction and arrangement to those of the patent in suit, and it is doubtful whether their use in supplying heated water to control the temperature of milk during the process of cheese making can be regarded as a cognate use.

As organized, the heating apparatus supplied a practical and efficient adjunct to the fire engines, and its value is shown by its adoption and use by the officers of the fire department, and the fact that after it was introduced there was no attempt by them to find a substitute for it, or to improve it. In short, it fulfilled the requirements of the service for which it was designed with a degree of success not before attained or subsequently exceeded. It did not evince a high order of inventive talent to organize and construct it, but we think it did evince enough of thought and creative faculty to support a patent, and re-enforce the presumption of validity arising from the grant.

Among the defenses interposed was that of an implied license to the defendants to use the invention. This defense was based upon Brickill's conduct in equipping two of the steam fire engines of the fire department with his patented apparatus before making his application for a patent, and in permitting other engines to be equipped with it while he remained in the employ of the department. The court below was of the opinion that a license to use the invention with the first two engines was to be implied, but that none was to be implied as to the others. There is no assignment of error challenging the correctness of the decree in respect to this defense. The defense was not argued at the bar, although it is urged in the brief for the appellants. Under the circumstances we do not feel called upon to consider it further than to say that we think the court below disposed of it correctly.

The views which have been expressed compel a construction of the claim which incorporates into it the tank and its connections as constituents. The terms of the claim, read with the descriptive matter of the specification, would seem to require such a construction; but, inasmuch as the patent would be void for want of inventive novelty if these constituents were omitted, this construction is imperative.

In adjudging the recovery of profits for which the defendants have been made liable the decree in the court below has proceeded upon a misconception of the scope of the patent. Profits were awarded upon the accounting upon the basis of the saving to the defendants during the term of the patent of the difference in cost between keeping the water in the engine boilers of the fire department heated by coal instead of by gas as fuel. This was upon the theory that, as Brickill was the first to contrive apparatus in which the heating could be practically accomplished by using coal as the fuel, his patent was to be regarded as a pioneer. It is not a pioneer in the most latitudinarian sense of that much abused term. It is true he was the first to use for the heating of water in a steam fire engine boiler the wellknown devices for heating water in one reservoir by heating water

with coal or other fuel in another and establishing circulation between the two bodies of water. In doing this he was merely applying old devices to use on a new occasion, and his patent would have been void for want of invention had it not been that in the organization of his apparatus he introduced supplementary devices which had nothing to do with heating the water, but were useful in preserving some of the other parts, and which, because they were new, gave patentable novelty to his apparatus as an entirety. In such a case the infringer is not liable to the patentee for the profit he has made by the use of the entire apparatus. He is liable only for such as has accrued from the use of that part of it which was new, and which he has used without right. McCreary v. Canal Co., 141 U. S. 462, 463, 12 Sup. Ct. 40, 35 L. Ed. 817.

The defendants have been held liable as though the tank and its connections formed no part of the invention secured by the patent, and in the accounting before the master the consideration that the use of the rest of the apparatus was open to the public was ignored. No evidence was introduced before him for the purpose of showing the relative expense or gain of using the patented apparatus and similar apparatus without the tank and the tank connections; in other words, there was none directly to the question of profits realized by the defendants by using that part of the apparatus which they were at liberty to use without accountability to the complainants.

In estimating the saving the defendants were charged with the difference in cost between heating by using coal with the patented apparatus and using gas for fuel with the so called "ring burner." This assumes that the ring burner was the only practical contrivance which could have been resorted to. We are of the opinion that the Dinham apparatus should not have been disregarded as a standard of comparison. It was used for several months, not experimentally, but in the ordinary course of business at the engine house. It was less acceptable to the employés of the department than the patented apparatus, and they were annoyed because its use required them to keep watch upon the quantity of water in the boiler and frequently draw the water off; but we do not entertain any doubt that it supplied an efficient and practical instrumentality for heating the boilers at a cost not greatly, if any, more than by the patented apparatus.

Among the exceptions by the defendants to the master's findings which were overruled by the court below upon entering the final decree there were several which sufficiently raised the question. whether the correct standards of comparison were adopted by the master in ascertaining the profits for which the defendants were responsible. Because of error in overruling these exceptions the decree should be reversed, with instructions to the court below to order a new accounting, and such further proceedings as may be consistent with this opinion and conformable to equity, and it is accordingly so ordered.

THE LAURA MADSEN.

(District Court, D. Washington, W. D. November 27, 1901.)

MARITIME LIENS-MEDICAL TREATMENT OF STOWAWAY-AUTHORITY OF MASTER. A stowaway, discovered after a vessel had left port, was required by the master to sign shipping articles for the voyage. He was not a seaman, and while engaged in voluntarily assisting the crew he fell on the deck, and was severely injured. On reaching a port he was placed by the master in a hospital, where he was treated by libelants as physicians. Held, that the act of the master in requiring him to sign the articles under the circumstances did not attach him to the vessel, nor create any obligation different from that which necessarily arose from his being voluntarily and wrongfully on board, and that the master was without authority to pledge the credit of the vessel for his treatment.

In Admiralty. Libel in rem against the schooner Laura Madsen, by J. William Scammel, M. D., and G. W. Overmeyer, M. D., to recover for professional services in treating one Fred Moore for injuries received at sea on board said schooner. Heard on the merits. Decree of dismissal.

John C. Hogan, for libelants.

Sidney Moor Heath and Hudson & Holt, for claimant.

HANFORD, District Judge. The schooner Laura Madsen, employed in the lumber trade between Gray's Harbor, in this state, and San Diego, Cal., when one day at sea, on a return voyage from San Diego, was found to have an extra man on board; that is to say, a stowaway was discovered. The man was not a sailor, but, being destitute, and wishing to make the trip from San Diego to this state, had clandestinely intruded and secreted himself upon the vessel, and remained secreted until he was discovered. The captain required him to sign the shipping articles to serve as a member of the crew to the end of the voyage, and he was marked on the articles as a stowaway. He was not required to do a seaman's work, but was willing to lend a hand whenever he found an opportunity, and while he was voluntarily hauling on the braces when the vessel was being maneuvered he fell on the deck, and was severely injured. On arrival at Aberdeen the libelants removed. him to the hospital, and treated his injuries until he was practically cured. There is a dispute as to whether the captain induced the tibelants to undertake the cure of the stowaway by promising that the ship would be responsible for their bill, but, according to my opinion it is immaterial whether there was such a promise by the captain or not. It is a principle of maritime law that a ship is liable for the necessary medical treatment and expenses incident to the cure of seamen who become ill or suffer injuries in its service, but in this case the man who was injured had imposed himself on the vessel, and neither the vessel, her owners, nor master owed him any duty, except to give him humane treatment while he necessarily remained on board. He came to Aberdeen as a waif from the sea, helpless and destitute, and having no claim upon any particu

lar individual, and was necessarily a public charge, or an object of private charity. The captain of the ship, however, was not authorized to pledge the ship for the expense of his cure or maintenance as an act of charity. The authority of the captain of a ship. to pledge the credit of the ship is limited by necessity. In procuring things that are necessary to preserve the ship and enable her to proceed upon her voyage his authority is ample, but he has no authority to enter into any contract which can be enforced by a suit in rem, not required to make his ship seaworthy, or to meet her obligations as a carrier or to her crew. The act of signing the shipping articles at sea under compulsion did not attach the stowaway to the vessel, nor create any obligation different from what necessarily arose from the fact of his being on board by his own voluntary and wrongful act.

Śuit dismissed, at libelants' costs.

JACOBSEN et al. v. LEWIS KLONDIKE EXPEDITION CO.

(Circuit Court of Appeals, Ninth Circuit. October 7, 1901.)

No. 670.

1. ADMIRALTY-APPEAL-Review of FINDINGS OF FACT.

It is a well-established rule in admiralty that where the objection on appeal to a decision is that it is based on a fact found by the lower court on conflicting testimony, or on the testimony of witnesses whose credibility is questioned, such decision will not be reversed unless it clearly appears to be against the evidence.

2. TOWAGE-BREACH OF CONTRACT BY TOWING VESSEL-NEGLIGENT NAVIGATION. A steamship engaged in transporting passengers and freight from Seattle to Alaskan ports also contracted to tow two steamers designed for navigating the Yukon river to St. Michaels. She attempted to take the outside course, but was compelled to return because of injury to the tows, and then proceeded on the inside passage for 700 miles, when she again took the outside course, against the protest of the tows, and continued until obliged by a distress signal from one of the tows to take her into a port for repairs. The passengers objected to the delay occasioned by the tows, and she then left the disabled tow and proceeded by the open sea with the other, which was lost two days later. The one which was left subsequently made St. Michaels, taking the inside passage, under her own steam. It was shown that the only safe course with such tows, and the one usually taken, was by way of the inside passage. Held, that the fact that the towing steamer was also engaged in other business did not relieve her from the obligation under her contract to exercise the same degree of care and skill with regard to her tows as would have been required under the circumstances if the towage had been the only purpose of her voyage, and that a finding that she was negligent, and failed to exercise such care and skill, in leaving the inside passage and in abandoning her tow, and was liable to such tow for a breach of contract, was supported by the facts shown.

8. ADMIRALTY-COSTS-EXPENSE OF PROCURING Bond.

The claimant of a libeled vessel secured an order, under admiralty rule 53, requiring the libelant to give security to respond in damages as claimed in respondent's cross libel. In compliance with such order, libel

ant procured a bond to be executed by a surety company. Held that, on dismissal of the cross libel on final hearing, respondent was properly taxed with the amount paid by libelant for such bond, as a part of the costs.

Appeal from the District Court of the United States for the Northern Division of the Northern District of Washington.

This is an action brought by the Lewis Klondike Expedition Company against the steamship Noyo, her tackle, apparel, and furniture, to recover damages for breach of contract in failing to tow the steamer W. H. Evans, a light-draught Yukon river boat, from Seattle, Wash., to St. Michaels, Alaska. The lower court rendered a decree in favor of the appellee for $4,250 and costs, and the appellant now seeks a reversal of this decree.

The contract involved in this action provided for the towing by the steamer Noyo of the river steamboat W. H. Evans from Seattle to St. Michaels, for the sum of $4,500, of which $2,000 was to be paid in cash upon the signing of the contract, and the remaining $2,500 in transportation of freight and passengers at certain specified rates from St. Michaels to Dawson City, or any other point on the Yukon river. It was also agreed that the steamer W. H. Evans should carry to St. Michaels 50 tons of coal or freight, at the option of the appellant, free of charge for freight and carriage. It was further provided that the steamer W. H. Evans should furnish her own towline or hawser, and all other things necessary and proper in the towage of said steamer, of sufficient strength and durability, at the absolute risk of the owners of the steamer Evans, and that the steamer Noyo should not be liable for any damage or loss to the steamer Evans by virtue of the parting of the towlines or hawsers used for towing the steamer from Seattle to St. Michaels, or any other unavoidable cause, "provided, always, that said steamer Noyo shall use reasonable care, skill, and diligence in towing said steamer W. H. Evans between the port of Seattle and the port of St. Michaels, as aforesaid." In this connection it was further provided that the steamer Noyo should not be liable for any damage or loss resulting to the steamer Evans from any delay occasioned by stress of weather, accident, perils of the sea, or misadventure, during said voyage. It was also agreed that the steamer Noyo should have the right to take in tow another river steamer for the same voyage. As security and indemnity to the owners of the Noyo for the unpaid balance of towage charge, it was agreed that the steamer Evans should be insured in the sum of $2,500 in favor of the appellant Jacobsen, agent of said steamer Noyo. It appears that the payment of $2,000 in cash was made, and the steamer Evans duly prepared for the voyage; having on board the 50 tons of coal mentioned in the contract, other freight, and a number of passengers. On June 21, 1898, the steamer Noyo left Seattle, having in tow the Evans and another river steamboat,-the Alfred J. Beach. On the following day an attempt was made to tow the vessels out by Cape Flattery to the open sea, but, owing to difficulty with the towing apparatus, a return to Port Angeles was made, in order that the necessary repairs might be made. A change of masters of the steamer Noyo was here made, and on June 25, 1898, the new master proceeded to tow the vessels by the so-called "inside route" until they reached Dixon's Entrance on July 1, 1898, when another attempt was made to go out into the open sea; that being the more direct route to St. Michaels. Very shortly thereafter, and on the same day, the steamer Evans, having parted one of her hog chains, signaled her desire to be towed into harbor. It is alleged that after communication between the vessels the Noyo continued to tow the river boats out to sea for nearly four hours, disregarding the request of the master of the Evans until the national signals of distress were displayed by the Evans, when the Noyo returned to anchorage with the river boats in American Bay, at Howcan Island; that, after the Noyo had turned back with her tow in response to the signals from the Evans, 29 passengers on board the Noyo signed a formal written document prepared by one of their number and addressed to the master, in which they protested against the delay in the voyage caused by the towing