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maxim, “Nullum tempus occurrit regi,” apply in the case at bar? The general proposition is well stated, in 19 Am. & Eng. Encyc. of Law (2d Ed.) p. 188, to be as follows: “The prerogative of royalty in regard to the limitations of actions extends to republican governments, and the maxim, ‘Nullum tempus occurrit regi,” applies in the United States, both as to the federal government and as to the
Several states, except where express statutory provisions to the contrary exist.”
This general principle is amply sustained by the multitude of authorities, both state and federal, cited in the note to the text. It is true that in cases where the government or the state is the nominal party, and not in fact the real party in interest, this maxim and rule of the law does not apply. But such is not the case here. The effort is here made to prevent the United States from enforcing a judgment, secured in its own courts, for the sole benefit of the government. Every penny of the judgment, when collected, will become eo instanti the property of the United States. The negligence of the agencies of the government in failing to enforce the judgment and execution cannot be of avail to this movant here. The government is seeking the enforcement of its own rights, and is not, therefore, bound by any statute of limitations, nor barred by any laches of its officers, however gross. United States v. Southern Pac. R. R. Co. et al. (C. C.) 39 Fed. 132. “The United States is not subject to any act of limitation.” United States v. Johnson, 124 U. S. 236, 8 Sup. Ct. 446, 31 L. Ed. 389.
The purport of this motion is nothing more nor less than an effort on the part of this movant to stay the hand of the sovereign in its effort to enforce a public right and to assert a public interest. The general rule that laches is not imputable to the government is essential to the preservation of the interests and prosperity of the public. This rule is founded upon the highest grounds of public policy, and any other doctrine would be ruinous in the extreme. All the property of the United States is held in trust for the people, and it is now well settled, upon grounds of public policy, that the public interests shall not be prejudiced by the neglect of the officers or agents to whose care they are confided. The government can only transact its business by and through its officers and agents, and its fiscal operations are so various, and its agencies and officers so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches could be applied to its transactions. The Supreme Court of the United States has uniformly and repeatedly declared that in such cases as this laches cannot be set up against the government. United States v. Kirpatrick, 9 Wheat. 735, 6 L. Ed. 199; United States v. Van Zandt, 11 Wheat. 190, 6 L. Ed. 448; United States v. Nicholl, 12 Wheat. 509, 6 L. Ed. 709; Dox v. Postmaster General, 1 Pet. 318, 7 L. Ed. 160; Gibson v. Chouteau, 13 Wall. 99, 20 L. Ed. 534; Gaussen v. United States, 97 U. S. 584, 24 L. Ed. 1009; United States v. Thompson, 98 U. S. 489, 25 L. Ed. 194; Steele v. United States, 113 U. S. 129, 5 Sup. Ct. 396, 28 L. Ed. 952; United States v. Nashville, C. & St. L. Ry. Co., 118 U. S. 125, 6 Sup. Ct. 1006, 30 L. Ed. 81; United States v. Insley, 130 U. S. 263, 9 Sup. Ct. 485, 32 L. Ed. 968.
It is contended by counsel for movant with much earnestness that by act of Congress the United States has adopted in its own courts the same rule to enforce judgments in favor of the United States as used in civil cases between its citizens. The statute cited to sustain this contention is section 916, Revised Statutes of the United States [U. S. Comp. St. 1901, p. 684]. Under and by virtue of that statute it is claimed that, when the United States voluntarily appears in a court of justice, it at the same time voluntarily submits to the law and places itself upon an equality with other litigants. This, indeed, may be true; but the courts have universally held that such condition is always qualified by the rule that neither the statute of limitations nor laches will bar the government of the United States as to any claim for relief in a purely governmental matter. United States v. Adams (C. C.) 54 Fed. 114; United States v. Southern Colorado Coal & Town Co. (C. C.) 18 Fed. 273. In the case of Pond v. United States, 111 Fed. 989, 49 C. C. A. 582, it was held, with citation of numerous authorities, that, since laches are not imputable to the government, its right in a governmental matter, prescribed by its own statutes, cannot be affected by state enactments. Such, indeed, is the status of the case at bar.
It is therefore ordered, adjudged, and decreed that the petition of J. T. Noojin be, and the same is, hereby dismissed out of this court. It is further ordered, adjudged, and decreed that said J. T. Noojin pay the costs of this proceeding, for which let execution issue. It is further ordered that said Noojin have 20 days from the filing of this decree to perfect an appeal, if he so desires, by entering into bond, with good and sufficient surety, in the sum of $1,500, to be approved by the clerk of this court, conditioned to pay such judgment as the appellate court may direct, and also to pay the judgment, costs, and interest on the judgment rendered March 10, 1892, should the appellate court decide this motion adversely to him, the said Noojin. It is further ordered that, upon the execution and approval of said bond, the execution on said judgment of March 10, 1892, be stayed until the further orders of this court.
THE H. B. MOORE, JR.
TOWAGE—INJURY TO TOW–FAULT OF TOW IN FAILING TO MAKE HAWSER FAST. A steamer taken in tow by a tug, to be moved out from her loading berth, is responsible for the proper fastening of the lines to her own bitts, and where, in Such case, the tow was injured by coming in contact With a pier by reason of the insecure fastening of one of the lines which slipped On the bitt, the tug is not in fault for her injury. [Ed. Note.—For cases in point, see Cent. Dig. Vol. 45, Towage, § 25.]
Butler, Notman & Mynderse, for libellants.
ADAMS, District Judge. On the 22nd day of September, 1906, the steamship Freke, a vessel of 190 feet in length and 30 feet beam, was lying on the south-west side of pier 36 of the Atlantic Basin, Brooklyn, and being loaded and desirous of going to sea, employed the tug H. B. Moore, Jr., to tow her through the gap, which was formed by piers 33 and 38. There was an intervening pier, 37, between the pier where the steamship was lying (36) and two piers, 34 and 35, on the other side of the basin inside of 33. All the inside piers were somewhat shorter than the exterior ones, which were 300 feet apart. The tug started about 10:20 a. m. to tow the steamer stern first with two hawsers, made fast respectively from her own stern side bitts to the steamer's side bitts at her stern. The tug attempted to proceed through the gap but in doing so the steamer was brought in contact with the east side of pier 33 and somewhat damaged, at first claiming about $3,000, but subsequently increased it by amendment to the extent of $6,500. An action was brought by the libellants to recover these damages, charging the tug with fault in several respects but principally for not keeping the steamer clear of the pier, and improperly directing the casting off of the hawser which was made fast to the steamer's starboard quarter, and that if two hawsers were necessary in taking the steamer out, the tug was in fault for failing to supply the second hawser. The tug's answer denied any negligence on her part and alleged that the accident was solely due to the negligence of those in charge of the steamship in not making the towing line properly fast and in not going ahead with her engines before she did. From the testimony, it appears that the steamer had her full power of steam available for use but did not resort to it until it appeared that she was in close proximity to pier 33 and likely to collide with the east side thereof, when the pilot, seeing that a collision was eminent between that pier and the stern of the steamer, ordered her engine slow ahead but the master, who was also on the bridge and passing the orders from the pilot, directed it to be put half speed ahead and almost immediately full speed but these orders were too late and did not prevent the collision. The tug ran her own line from her port side to the steamer's starboard side; it had an eye on the steamer's end which was placed on the steamer's starboard quarter bitts. The other line ran from the tug's starboard side to the steamer's port side. This was the steamer's line and had no eye. The distance between the sterns of the vessels was about 30 feet. The lines were fastened on double bitts or bollards on the steamer and used exclusively in pulling her out. After the vessels had turned somewhat and proceeded a short distance, the tug's hawser became slackened from the turning of the vessels to the port of the tug and useless for that reason and to avoid the danger of getting it in the propeller of one of the vessels, the tug's master ordered it to be taken in and thereafter the pulling was done with the line running from the starboard side of the tug to the port side of the steamer. When approaching pier 33 this line slipped, or “rendered” as it was called, on the steamer's bitts to an extent variously estimated at from 10 to 30 feet. The latter was the judgment of the master and deck hand of the tug and confirmed by the pilot of the steamer to a certain extent. The latter said at first.it was 10 or 12 feet but on cross examination stated he would not swear “that it did not render thirty feet.” I judge that 30 is a measurably correct estimate. The tug's witnesses were watching the hawser closely and were more likely in view of their interest to have reached a correct judgment in the matter than were the others on the bridge of the steamer.
There is no doubt that the hawser slipped and that the fault of the collision was in the slipping of that line. It does not seem that the casting off of the other line had any effect whatever on the accident nor do I see any fault on the part of the tug in using the steamer's hawser. There was no trouble with the hawser for the purpose to which it was adapted excepting that it slipped and that was due to insufficient fastening on the part of those attending to it on the steamer. It was said that they made a sufficient number of turns but that is disproved by the fact that it slipped. It is evident that it was in their power to make it secure as is shown by the fact that when those on the stern of the steamer noticed the slipping, they almost immediately made it fast. It is urged that the slipping was the result of an extraordinary strain put upon the hawser by the tug but if there was such a strain, which I doubt, it was the effect of the steamer's failing to use her engine to assist in an obviously necessary manoeuvre. It is said on the part of the steamer that it was the duty of the tug to give orders concerning the use of the steamer's steam but if that were the case, and the evidence does not make it clear, the question only arises was it a fault in extremis. Here the slipping of the hawser was the proximate cause of the accident. Any question of negligence in extremis with respect to the use of the steamer's engines is subordinate to that of the slipping of the hawser and it has so recently been decided by the circuit court of appeals that the towed vessel is responsible for the lines on her being properly made fast that it does not seem necessary to discuss the question further. I refer to the case of The Lyndhurst (D.C.) 129 Fed. 843, where I held that the tug was liable for the results of a collision between the tow and a wharf through the sliping of a hawser on the tow. There was but one man on the tow and I followed the principle that the tug is responsible for the make up of a tow of that character, including the fastening of the towing hawser, but the circuit court of appeals took a different view and held that the tug was free from blame, “because the hawser was not carefully adjusted by her master over the designated cleat, and that for his carelessness in that respect the tug is not liable.” Id., 147 Fed. 110, 113, 77 C. C. A. 336.
The libel is dismissed.
DEITSCH et al. W. GEORGE R. GIBSON CO.
TRADE-MARKS AND TRADE-NAMES-SUIT FOR INFRINGEMENT - PRIORITY OF
A firm commenced the use of a name as a trade-mark for tooth brushes in 1883, and continued such use until its failure about 1890, and during the same time defendant used a similar name for brushes Sold by him. On being sued for infringement, he promised to quit, but, the firm soon failing, he did not. After the failure complainant's assignor, who had become a partner shortly before, appropriated the trade-mark as his own, and had the same registered. Held, that he was not the legal successor of the firm, and obtained no right from defendant's promise, but his right dated only from the time of his own use, which, being later than defendant's, afforded no ground upon which complainant was entitled to enjoin defendant as an infringer.
[Ed. Note.—For cases in point, see Cent. Dig. Vol. 46, Trade-Marks and Trade-Names, §§ 36, 41, 42.]
In Equity. On motion for a preliminary injunction.
Joseph L. Levy, for the motion.
HOUGH, District Judge. Undoubtedly the grant of a registered trade-mark to the complainants makes them prima facie owners thereof, which is but one way of saying that the burden is on any one, asserting the right to use the same collocation of words and figures, to prove that right. The greatest right possessed by complainants must be measured by the affidavit of their assignor, Martin, to the effect that the trade-mark had been “continuously used in (my) his business since about the 1st day of April, 1883.” In other words, it is of the essence of complainant's contention that they are at least the prima facie owners of a trade-mark appropriated as long ago as 1883 by Martin, and continuously used by him in his business since that date.
In 1883 Martin was 16 years old, and a boy in the employ of the Wallach firm. Whatever his rights, when shortly before its failure he became a partner in the firm, the trade-mark statement signed by him is difficult to reconcile with the now admitted facts. The best way of putting it for complainants is to say that the firm of Wallach devised the trade-mark in 1883; Martin became a partner in that firm in 1889; and by virtue of some assignments or transfers from the other partners came out of the wreck of the Wallach business the owner of the firm’s trade-marks. If he did that, he could perhaps use his own trade-mark on the goods of houses he was subsequently connected with, and leave them and their business taking his trade-mark with him. This seems to me the line of reasoning based on cases like Thomson v. Batcheller, 93 Fed. 660, 35 C. C. A. 532. As applied to this case, I do not think title to the trade-mark is successfully gotten out of the Wallach firm and into Martin, or, in other words, the trade-mark as Martin's property (not “Willy Wallach’s”) is no older than 1890, or some date subsequent to the Wallach failure, and it became Martin’s property by the simple process of his continuing to use it after the