Blagg v. Steamboat Bicknell.

the river at Ravenswood, and returning it again to the Bicknell. While this labor required a good measure of muscular effort, it certainly involved no extraordinary hardship or suffering. It was performed mostly by daylight, and the time occupied did not exceed fourteen hours.

But, as before stated, the service rendered by the libellants was a salvage service, and was important and valuable to the owners of the Bicknell and its cargo. Both the boat and cargo were in imminent danger. The evidence well justifies the conclusion, that but for the interposition of the libellants they would have been wholly destroyed or rendered nearly valueless. It is also clear of doubt that in the performance of this service the Ohio and its cargo were to some extent put in peril. The exact degree of this peril can not be readily determined from the evidence. But the position of the Ohio while taking on board a part of the Bicknell's cargo, and the force with which the ice was brought against it by the rapid current, leaves no room to question the fact that there was a hazard much greater in degree than that to which the Ohio would otherwise have been exposed. It is also in proof, that by reason of the intervention of the libellants, the Ohio was thrown out of place in the line of packets of which it was one, and thus subjected to expense and loss of time.

The considerations to which I have referred are entitled to weight in deciding upon the amount of compensation to be awarded. And I am not disposed to measure the sum to be allowed with great strictness. Although there is some evidence to show that one thousand dollars would amply remunerate the libellants for their services, the facts justify a more liberal allowance. I think that fifteen per cent. on $19,500, the estimated value of the boat and cargo, will be a fair compensation to the libellants. I am the more inclined to adopt this rate from the fact that the owners of the cargo have paid the libellants, and they have accepted this percentage on the cargo. This, it is true, was in the nature of a compromise, and not conclusive on either

Blagg v. Steamboat Bicknell.

party as fixing the rate of compensation. But it is an admission by the owners of the cargo that they deemed the libellants entitled to the percentage paid for the service rendered. Fifteen per cent. on the valuation of the boat and cargo amounts to $2,925. This sum is, however, subject to a deduction of $1,421, the amount paid and accepted as above stated, which leaves about $1,500 to be paid by the owners of the boat. For this sum a decree will be entered.

In thus fixing the rate of compensation to these salvors, I have not overlooked the reason urged as a ground for a largely increased allowance, namely, that the service rendered involved the hazard of a forfeiture of the insurance effected on the steamboat Ohio, and its cargo. It is insisted that this was such a deviation from the ordinary course of navigation, as that the insurers were thereby released from all liability on their policies. And the principle seems well settled by the cases referred to, in regard at least to the navigation of the ocean, that a deviation for the mere purpose of saving property where human life is not involved, will forfeit the policy of insurance. To what extent this doctrine is applicable to insurances of boats on western rivers, it is not necessary in this case to inquire or decide. Here was no actual loss or injury to the libellants, from their intervention in behalf of the respondents, except the loss of time, and the expense incident to the detention of the Ohio. And I can see no principle on which the possible forfeiture of the insurance can form a distinct element in determining the value of the salvage service. If a forfeiture had resulted from the deviation, it might be legitimately considered in fixing the amount of allowance to the salvors; but where no such consequence has followed, the mere possibility that it might have happened, is a contingency too remote and speculative to enter into the computation.

Gregory v. Hewson & Holmes.

(CIRCUIT COURT.)

JAMES B. GREGORY V. HEWSON & HOLMES ET AL.

The Circuit Court of the United States, within the Southern District of Ohio, has adopted, as a rule of practice, the proceeding in aid of execution provided for by the code of Ohio.

Where an order was issued by the court, requiring a defendant to appear for an examination touching his property, and after the issuing of the the same, but prior to his appearance, he executes a chattel mortgage to certain creditors upon a large amount of stocks and bonds, such order of examination was not so far lis pendens as to render the mortgage a nullity.

The principle that where, at the instance of a judgment creditor, a third person has been cited to answer as to property and effects held by him belonging to the judgment debtor, such notice operates as lis pendens, and that the party, from the time of the service of the notice, can make no disposition of the property or effects in his hands, does not apply to the case of a judgment debtor, as to whom there has been a mere order for his examination, without an order restraining him from disposing of his property.

Thompson & Nesmith, for plaintiffs.

OPINION OF THE COURT:

This is a proceeding under the code of Ohio in aid of execution, which has been adopted by this court as a rule of practice. The facts necessary to notice are, that on the 20th of September last, the plaintiff obtained a judgment in this court against the defendants for $9,258.84, on which execution has issued, and which has been returned, no property to be found on which to levy. On the 27th of September, the plaintiff, on application to a judge of this court, procured an order for the examination of the defendants, touching his property, as authorized by the code. In this order there was a clause restraining the defendants from transferring or disposing of their property until the further order of the court. On the 28th of September, the defendants, by their counsel, made a motion for the rescission of the restraining clause in said order, on the ground

Gregory v. Hewson & Holmes.

that the plaintiff had made no showing authorizing such order. The judge thereupon suspended the operation of the restrictive clause till further cause was shown. On the 4th of October, a further affidavit having been filed, an order was made restraining the defendants from disposing of their property. On the same day, an examination of one of the defendants was had before a referee, which disclosed the fact that, on the 28th of September, defendants had executed a chattel mortgage to certain creditors, excluding the plaintiff Gregory, of a large amount of stocks, bonds, etc., being all in their possession or under their control at that time. The receiver appointed to take charge of the property and effects of defendants has reported that defendants were the owners of certain stocks, bonds, etc., amounting nominally to a large sum, of which he had demanded possession of defendants, but which they had refused to deliver, alleging that they had before mortgaged them to their creditors. The present motion is for an order on the mortgagee to deliver this property to the receiver. This motion involves the question of the validity of the chattel mortgage. The plaintiff insists that it is void, having been made after the institution of these proceedings, and therefore within the principle of a transfer lis pendens. From the foregoing statement of the facts, it appears that the chattel mortgage was executed on the 28th of September, the day after the order was made, suspending the operation of the restraining clause of the original order. There was, therefore, at the date of the mortgage, no operative order except that for the examination of the defendants by the referee. Was this order so far lis pendens as to render the mortgage a nullity? I am of the opinion that it can not be so regarded. There is no decision of the Ohio courts which gives this effect to a mere order for the examination of the judgment debtor. The Supreme Court of Ohio, in the case of the Union Bank of Rochester v. Union Bank of Sandusky, 6 Ohio St. 256, hold that where, at the instance of a judgment creditor, a third person had

Hays v. Sulsor.

been cited to answer as to property and effects held by him belonging to the judgment debtor, the notice operated as lis pendens, and that the party, from the time of the service of the notice, could make no disposition of the property or effects in his hands. But clearly this principle does not apply to the case of a judgment debtor, as to whom there has been a mere order for his examination, without an order restraining him from disposing of his property. The rights of creditors, claiming under the mortgage, are directly involved in this question, and it would be clearly improper to make the order now requested, which would be decisive of the title of the mortgagees to the property embraced in the mortgage. It is too grave a question to be disposed of, in this summary way, without notice to the mortgagee, or giving him an opportunity to be heard in support of his title. There is obviously no necessity that the question should be thus disposed of. The plaintiff Gregory has a full opportunity, by a bill in chancery, in which all the persons interested must be made parties defendants, to assert his title to the property in question, while the creditors claiming under the mortgage will have their day in court, and the opportunity of sustaining the validity of the mortgage under which they claim.

The motion is therefore overruled.

(CIRCUIT COURT.)

COLEMAN HAYS AND WILLIAM HAYS v. FREDERICK SULSOR, WILLIAM TWAY ET AL.

It is a principle well settled and often recognized that, if the jury find that the defendant has used the invention itself or something substantially like it, he is estopped from denying its utility, for use implies utility.

To defeat a patent by showing a prior use of the invention, the statute has expressly provided that notice must be given of the place where and the parties by whom the thing relied on as a defense has been used. The provision is designed to give the patentee the benefit of an examination into the facts of the supposed prior use.