Page:Federal Reporter, 1st Series, Volume 8.djvu/345

THE FBANK G. FOWLER. 331 �■with this, may or may not have efifected a practical improvement, but he has done that which distinguishes his machine from the class to which the complainant's patents refer, and has not appropriated the invention conceived by Ingalls or Budding. The bill is dismissed, with costs. ���The Frank G. Fovstler, etc. (Two Cases.) �{District Court, S. D. New York. May 16, 1881.) �Pkiohitt— MABrriMB Liens— Matbrial Mbn— Thb Triumph— Thb Globe- Liens FOB 80CCEB8IVB Torts and the Obder of thbir Payment— Laches. �Where a judgment for damages to a tow was recovered against a tug for negligence occurring on the sixth of November, and another judgment for sim- ilar acts of negligence, which occurred on the twenty-fifth of November, was recovered by other libellants, but the libel and the process in the latter case were dated December 23d, and in the former case December 24th, and both processes were returned by the marshal as served by arrest of the vessel on the same day, and the damages awarded to the latter exceeded the appraised value of the tug paid into the registry, — �Ildd, that the nile in this district as to priority of payment of claims of ma- terial men, malting the time of the service of process the test, does not apply to the case of successive claims for torts. �The Triumph, 2 Blatchf. 433, note ; l'Tie Globe, Id., discussed. �Hdd, that if that rule were applicable to cases of successive torts, it would not give any priority to either party in this case, beoause upon the proofs the process inboth cases was served at the same time ; that there is no presumption from the prior date of flling the iilxil, or the prior date of the process, that the pro- cess in the iirst case was servcil before that in the second, the marshal' s returns merely showing service on the same day ; that there is no reason or autBority for distributing the f und between the two libellants ; that the party suffering damage from the first tort acquired a lien therefor on the vessel to the extent of his damage, which interest is quasi proprietary in its nature, but without the power orright, except by enforcing the lien through proceedings in rem, to prevent the vessel from being used in commerce, and subjected to the attend- ant perils of navigation ; that the interest in the vessel of this prior lienholder, lilie the interests of the owners, is subject to the rule of the maritime law, which makes the vessel in solido, and without regard to the particular nature of the proprietary interest therein, liable in rem for injuries done by the vessel through the torts of the master and marinera, and on this gi'ound the party suffering the second damage is entitled to priority of payment. �Also held, that while the failure of the libellants, who suflercd the flrst dam- age, to libel the tug before the voyage commenced, ont of which the second cause of damage arose, was not laches operating to forfeit their lien, yet they took the chance of the tug incurring new liabilities, according to the princi- ples of maritime law, and thus rendered the equityof the subsequent lienholder the stronger. �In Admiralty. ��� �