but it seems to this court that Albany Steam Trap Company v. Worthington, 79 Fed. 966, 25 C. C. A. 258, controls this case. There, of a disclaimer which read: "Your petitioner therefore hereby disclaims any apparatus, as included in the claims of said patent, which is not directly connected with the return pipe, H, under the pressure of the return from the heating system without escape to the atmosphere." -the court said: "The difficulty with this contention is that it substitutes a different invention from that described and claimed in the patent. It is not a narrower claim, but a different one. It is, as defendants suggest, 'an attempt to incorporate into a claim for a combination a feature which had not been claimed in connection with that combination before, and thereby make a new combination.' We do not understand that the statutory provisions allowing a disclaimer to be filed can be thus availed of to change the invention claimed in a patent, and we are referred to no authorities which sustain complainant's contention. The object of a disclaimer is well expressed in Chemical Works v. Lauer, 5 Fish Pat. Cas. 615, Fed. Cas. No. 12,135: 'It is designed to allow a patentee to recover on one claim of his patent, notwithstanding other claims in it are void for want of novelty. But it requires that the parts claimed without right, and the parts rightfully claimed shall be definitely distinguishable, as matter of fact, on the face of the claims; that is, be definitely distinguished from each other in the claims.'" In Thompson v. Bushnell, 96 Fed. 238, 37 C. C. A. 456 (Second Circuit), the claims (1 and 2) were for "a saw." The specifications referred distinctly to four different kinds of saws-a circular saw, a back saw, a hack saw, and a band saw. The complainants disclaimed so much of said claims as cover "circular saws" and "back saws," leaving said claims to include only "hack saws" and "band saws." True, the claims did not read "a circular saw, a back saw, a hack saw, and a band saw," but, read with the specifications, they included all these saws. The disclaimer specifically states what it excludes-disclaims-viz., "circular saws" and "back saws," and what it retains and claims, viz., “hack saws" and "band saws." This seems to have been a strict compliance with the statute. In the case now under consideration the disclaimer neither states what it excludes nor what it includes. Generally, and in general language, all of a general description having certain characteristics are included; all others are excluded. Here, in claim 7, we find no reference whatever to engineers' brake valves provided with a movable abutment working in a chamber in the valve casing and controlling a discharge valve from the brake pipe to atmosphere, or to one provided with any kind of an abutment. The claim is for a combination that does not include such or any movable abutment or piston. But, should this court give recognition to the disclaimer, it holds that defendant does not infringe. The Circuit Court of Appeals, in passing on certain claims of this patent, has held that its claims must be strictly, not broadly, construed. Complainant is confined to what is specifically described. Defendant must use every element of complainant's device, operating in substantially the same way, to produce substantially the same result. This it does not do. In view of the thorough discussion of the claims of this patent by Judge Coxe at circuit and by the Circuit Court of Appeals on review by that court, it seems to this court unnecessary to more than refer thereto on this branch of the case. It seems to this court that the decision of the Circuit Court of Appeals in the case between these same parties, already cited, covers this proposition. The defendant is entitled to a decree dismissing the complaint, with costs. STONEGA COAL & COKE CO. v. LOUISVILLE & N. R. CO. (Circuit Court, W. D. Virginia. June 1, 1905.) FEDERAL COURTS JURISDICTION-RIGHTS OF PARTIES-WAIVER. Where a federal court in which suit was brought was without jurisdiction, because neither plaintiff nor defendant resided in the state or district, and such want of jurisdiction was raised by demurrer, defendant did not waive the objection either by appearing at the taking of depositions and cross-examining witness without declaring its intent to insist on its objection to the jurisdiction, or by stipulating during the taking of such depositions that copies of letters and telegrams might be used by either party in lieu of the originals. [Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 147.] J. F. Bullett, for plaintiff. Helm, Bruce & Helm and C. T. Duncan, for defendant. MCDOWELL, District Judge. This was an action at law commenced in this court, at Abingdon, by a summons returnable to the first rules in January, 1905. The declaration was filed on the return day of the writ, and at the next rules (January 16, 1905) the defendant, making then its first appearance, filed the following demurrer: "Defendant, the Louisville & Nashville Railroad Company, a corporation, specially appearing for the purpose, and only for the purpose, of objecting to the jurisdiction of the court over defendant in this action, demurs to the declaration herein because it shows that neither the plaintiff nor the defendant is a citizen or resident of Virginia, or of the Western District thereof, and that this court has no jurisdiction over defendant in this action. And this," etc. On January 13, 1905, the plaintiff gave the defendant notice to attend the taking of depositions on January 27th. The defendant attended, did not make protest or otherwise then assert its intention to rely upon its objection to the jurisdiction of this court, and crossexamined the witnesses. During the taking of the deposition counsel made an agreement, the nature of which will be stated later. At the first term of this court held at Abingdon after the institution of this action, counsel for the parties appeared and argued the question of jurisdiction, and the matter was taken under advisement. As the plaintiff is a citizen of New Jersey, and the defendant a citizen of Kentucky, it is conceded by the learned counsel for plaintiff that this court has no jurisdiction (Railroad v. James, 161 U. S. 545, 16 Sup. Ct. 621, 40 L. Ed. 802; Railway v. Allison, 190 U. S. 326, 23 Sup. Ct. 713, 47 L. Ed. 1078), unless the want of jurisdiction has been waived (Central Trust Co. v. McGeorge, 151 U. S. 129, 14 Sup. Ct. 286). The argument that there has been a waiver is based on the fact that the defendant, pursuant to notice given in pais by plaintiff, attended the taking of depositions and cross-examined the witnesses without then expressly declaring its intent to insist on its previously made objection to the jurisdiction, and also on the fact that during the taking of the deposition the defendant stipulated with plaintiff that copies of letters and telegrams might be used by either side in lieu of the originals. The first proposition has been expressly decided by the Circuit Court of Appeals of this circuit against the contention of the plaintiff. Pacific Ins. Co. v. Tompkins, 101 Fed. 539, 541, 41 C. C. A. 488. In this court this question is, of course, not open to discussion. Whether or not the stipulation entered into between counsel during the taking of the depositions can be considered as waiving the objection has, so far as I am aware, never been decided. If the act of the defendant in attending the taking of depositions without protest, in cross-examining the witnesses, and in thus learning all that could be learned from the plaintiff's witnesses concerning the merits of the controversy, is not a waiver, it would seem to follow that the mere making of the stipulation in question could not be a waiver. The actual decisions of the Supreme Court, so far as I have found, go no further than to hold that pleading to the merits will waive objections to the jurisdiction such as we have here. But if an implied waiver can be otherwise made (Wabash W. Ry. v. Brow, 164 U. S. 271, 278, 17 Sup. Ct. 126, 41 L. Ed. 431), it seems to me that it must be made by such an act as either shows necessarily an intent to abandon the objection to the jurisdiction, or such as results in giving the defendant an inequitable advantage over his opponent. I cannot perceive that entering into the stipulation here in question did or could prejudice the plaintiff or give the defendant any unfair advantage. Nor did making this stipulation necessarily show an intent to waive the objection to jurisdiction. Making the agreement was consistent with the fullest intent to insist upon the objection, which had been previously filed, and which was urged at the first opportunity. It seems to me to be carrying the doctrine of waiver beyond reason to hold that mere preparation in pais for trial in the event that the trial court rules against one objecting to the jurisdiction shall constitute a waiver of his objection. Such acts show a doubt as to how the court will decide the question, but not necessarily the slightest intent to abandon the objection. It is settled that, if a defendant makes and unsuccessfully urges his objection to the jurisdiction, he can thereafter plead to the merits and enter into a trial of the cause without thereby waiving his right to insist on the objection to the jurisdiction in the appellate court. Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237, 9 Rose's Notes, 661; Southern Pac. Co. v. Denton, 146 U. S. 202, 206, 13 Sup. Ct. 44, 36 L. Ed. 942. This being true, it follows that a defendant does not necessarily waive his right to object to the jurisdiction in the trial court by mere preparation for trial, in order to be ready for an adverse decision of the question. It is a familiar illustration of the often perverted doctrine that ignorance of law excuses no one that the utmost confidence of defendant's counsel in the soundness of a preliminary objection to a plaintiff's pleading does not, in the event of an adverse ruling, excuse want of preparation for trial. When a demurrer to a declaration is overruled, a continuance is not ordinarily granted the defendant, no matter how confident his counsel had been that his demurrer was well taken. It would therefore be unreasonable to hold that mere preparation for trial, to be had in the event of an adverse ruling, is a waiver of the objection. From what has been said, it follows that the admittedly valid objection to the jurisdiction of this court has not been waived. The declaration must be dismissed. THE SOUTH BAY. (District Court, W. D. Washington, W. D. June 27, 1905.) No. 462. SALVAGE AMOUNT OF COMPENSATION-TOWING OF DISABLED SCHOONER TO PORT. An award of $2,000 made to the owners and crew of a tug for salvage services performed in towing to a port a steam schooner, worth, with cargo, $50,000, which had been injured when passing out of Gray's Harbor, Wash., by striking the submerged stonework of a government jetty at the entrance of the harbor, and which was disabled and leaking and in actual peril, but not in imminent danger, the service in towing requiring some four or five hours, but without extraordinary peril or hardship. [Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Salvage, §§ 81, 82. Salvage awards in federal courts, see The Lamington, 30 C. C. A. 280.] In Admiralty. Suit by the owner, master and crew of the steam tug Daring to enforce a claim for salvage for the rescue from peril of the steam schooner South Bay. Decree for libelants for the aggregate amount of $2,000. John C. Hogan, for libelants. Kerr & McCord, for respondent. HANFORD, District Judge. The material facts in this case are as follows: At noon on the 24th day of November, 1904, the sailing and auxiliary steam schooner South Bay, of 480 tons burden, with a full cargo of lumber, in going to sea from one of the mills on Gray's Harbor, in this state, struck near the outer end of a jetty constructed by the United States government as a harbor improvement on the south side of the entrance to Gray's Harbor. The draught of the vessel, laden, was 17 feet, and the depth of water at the time and place of the occurrence was proximately 4 fathoms. There was a strong wind at the time, blowing off shore, and the tide had commenced to ebb, or was about on the turn. vessel struck hard on the submerged stonework composing the jetty, and for a time seemed to be hung fast, but with the assistance of her sails and the swell of the sea she was lifted over the jetty, and was free in sufficient depth of water to float several minutes before the libelants came to her rescue. By her contact with 139 F.-18 The the jetty portions of her keel were torn off, and her rudder and the supports thereof were broken, and her propeller was disabled, and her hull was damaged so that she was leaking. Without assistance, the schooner would have soon drifted or have been carried by wind and the set of the tide into deeper water, where she could have anchored, and where she would have been in comparative safety so long as moderate weather prevailed, unless, owing to her leaking and helpless condition, she became water-logged. The Daring was returning to Gray's Harbor after having towed two vessels out to the open sea, and was about three miles distant when the accident occurred. She promptly responded to the signals of distress that were given, and towed the disabled vessel five or six miles around the jetty to a safe position inside the harbor, where she was left that night, resting upon a sand bottom, and the following day, with assistance of two small tugs, towed her to Aberdeen, where she remained until repairs were made. The time consumed in getting the towline from the Daring to the South Bay and towing from the place where the accident occurred to the beach where the schooner was left overnight was four or five hours, and she was docked at Aberdeen at about 3 o'clock p. m. on the next day after the accident. The value of the Daring is about $65,000. She is a new and powerful tugboat, and completely equipped for service as a towing vessel. The rescue of the South Bay was accomplished with commendable promptness and skill, but without exposure to extraordinary peril or the endurance of special hardships. The value of the South Bay in her damaged condition and her cargo was proximately $50,000. She was in a situation of actual peril, but not in imminent danger of destruction, as she probably would have remained afloat until relieved by another steamer if the Daring had not come to her relief immediately. In consideration of the facts above stated, it is the opinion of the court that a meritorious salvage service was rendered, for which the libelants are entitled to a reasonable reward. The value of the property salved is to be considered in judging the merits of the service to be rewarded, but maritime law does not arbitrarily require that one-third of the value must be given to the salvors, nor fix any maximum or minimum percentage which they may claim. The policy of the law is to encourage valor in the rescuing of vessels and property imperiled by awarding to salvors a fair share of the value of what they save, and each case must be judged with reference to its peculiar facts. I consider that in this case 4 per cent. will be a reasonably liberal reward, and I therefore direct that a decree be entered in favor of the libelants for the following sums: To the Gray's Harbor Tugboat Company, owner of the Daring............. To A. T. Stream, her master.. $1,200 To George Benkinshaw, engineer, and T. W. Stream, mate, each $100.. To John Ady, Wm. Boyce, Lock Sing, Fred Scott, Paul Webke, and Peter Gomis, members of the crew, each $50.... 300 200 300 Amounting, in the aggregate to...... $2,000 -and costs, and interest at the rate of 6 per cent, per annum from the date of the decree. |