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PER CURIAM. We are unable to concur in the opinion of the District Judge that the scow was in extreme danger at the time when the services in question were rendered. She had been drifting about in the Lower Bay on a winter morning, when there was only a moderate wind and the tide was the beginning of flood or slack water at the last of the ebb. The claimant knew that the scow had gone adrift, and a tug sent by it to pick her up met her in the Narrows in tow of libelants' tug. The evidence fails to show the draught of the scow, or that she would have been likely to suffer injury, if she had continued to drift about until her tug arrived. It is not satisfactorily shown that the scow would probably have been damaged if she had grounded on Dry Romer with the weather conditions prevailing on that morning. She was inside the harbor, and she was not derelict. Her night watchman testifies that in response to the offer of the tug to take him in tow he only asked to be towed inside the lighthouse.

This, then, was not a case of "rescue of property at sea in imminent peril of loss or deterioration." Cohen's Admiralty Law, 37. It was, however, an arduous service, because of the very exceptional amount of ice in the bay and the bitter cold weather. Two hawsers were broken on the tug, and the mate, Sullivan, had his hands frozen and one of them sprained, and was confined in consequence to the hospital for five days. We think the towage, if it can be considered a salvage service at all, was of a very low order, that the salvors are only entitled to a low grade of salvage allowance, and that $150 an hour for the time occupied would give them ample compensation. It appears that the libelants' tug encountered the scow at between 4 and 5 o'clock in the morning, and reached Long Dock, Staten Island, with her at about 11:30 o'clock, for which $1,000 may be allowed, $100 of which should be paid to the injured mate.

The decree of the District Court is modified, with costs, and the cause is remanded to that court, with instructions to enter a decree in conformity with this opinion.

THE GANOGA.

(Circuit Court of Appeals, Second Circuit. January 12, 1905.)

Nos. 108, 109.

TOWAGE-LIABILITY OF TUG FOR Loss of Tow.

A decree adjudging a tug liable for the loss of a tow affirmed, although the evidence was inconclusive, on the ground that the trial court heard and saw the witnesses, and that there was evidence to support its finding that the tug was imprudent in starting out in the condition of the weather, with a tow made up of such vessels as the one in question. Appeal from the District Court of the United States for the Southern District of New York.

These are appeals from decrees of the District Court, Southern District of New York, holding the steam tug Ganoga in fault for the loss of the canal boat J. T. Hawkes, which she had in tow. The

Hawkes filled and sank while rounding the Battery, the tow being bound from Jersey City to places in the East river. The opinion of the District Court is reported in 130 Fed. 399.

Henry G. Ward, for appellant.

Herbert Green, for appellees.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. We find it very difficult to dispose of these appeals. Negligence is charged (1) In making up said tow improperly; (2) in starting out in the face of weather conditions apparently endangering the safety of the tow; (3) in keeping on when it was apparent that safety was endangered; (4) in not landing the canal boat as the master requested and prudence required. The District Judge found against the tug on every one of these charges. The evidence, however, is more than usually inconsequential and unpersuasive, and upon the question whether the libelant has sustained the burden of proof the case is so close that different tribunals might well reach different conclusions. As to one-per

haps two of the charges the proof is so unsatisfactory that we should be inclined to reverse, but as to the others there is evidence to support the charges. The District Judge heard the witnesses, and observed how their testimony was given-an important advantage in this case, where seemingly some of them gave somewhat different accounts at different times. Upon the whole, we do not see how we can reverse on the main charge of fault. We are not satisfied that any of the other methods of making up the tow which have been suggested would have been any safer for the tow as a whole. They would have made it less risky for the Hawes, but more risky for some other boat. But if the boats were such an incongruous assortment that they couldn't be put together more satisfactorily than they were, it might fairly be held imprudent to take them out in weather which, though rough, would not be dangerous for a more homogeneous tow.

Upon the whole, in view of the fact that there is some evidence to support a finding of fault, and that the District Judge saw and heard all the witnesses, we have concluded to affirm, with interest and costs.

ROBERTS v. BENNETT.

(Circuit Court of Appeals, Second Circuit. November 16, 1904.)

No. 95.

BILLS OF EXCEPTIONS-SETTLEMENT-TIME-ILLNESS Of Judge.

It is an "extraordinary circumstance," excusing failure to have a bill of exceptions allowed and signed during the term at which judgment was rendered, though no extension of time was granted, where the trial judge was unable, because of illness, to settle the bill.

[Ed. Note.-For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, §§ 49, 722.1

In Error to the Circuit Court of the United States for the Northern District of New York.

Motion to Dismiss or Affirm Writ of Error.

E. H. Risley, for the motion.

Louis Marshall, opposed.

Before WALLACE and TOWNSEND, Circuit Judges.

PER CURIAM. Although the bill of exceptions was not allowed and signed during the term in which the judgment was rendered, and no extension of time beyond the term had been given by the court or the consent of the parties, we think the delay was excused by the illness of the judge before whom the action was tried, and his consequent inability to settle the bill, and that the "extraordinary circumstances" withdraw the case from the operation of the general rule. Koewing v. Wilder, 126 Fed. 472, 61 C. Č. A. 312.

The motion to set aside the bill of exceptions is denied.

CLEMENT v. WILSON.

(Circuit Court of Appeals, Second Circuit. January 18, 1905.)

No. 94.

ERLOR-REVIEWABLE Orders-Granting NEW TRIAL.

It is the settled law in the federal courts that an order setting aside a verdict and granting a new trial cannot be reviewed on a writ of error, (1) because the granting or refusal of a new trial rests in the sound discretion of the trial court; and (2) because such an order is not a final judgment or order, and cannot be reviewed.

[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 378, 477, 741; vol. 3, Cent. Dig. Appeal and Error, §§ 3860-3876.

Finality of judgments and decrees for purpose of review, see notes to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379; Central Trust Co. v. Madden, 17 C. C. A. 238; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co., 28 C. C. A. 482.]

In Error to the Circuit Court of the United States for the District of Vermont.

For opinion below, see 126 Fed. 808.

M. H. Cardozo, for plaintiff in error.
Max L. Powell, for defendant in error.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below brought to review an order setting aside a verdict in favor of the defendant and directing a new trial. The verdict was set aside because the court was of the opinion that it had not been rendered by an impartial jury. There are two reasons why this writ of error cannot be entertained: (1) It has long been the established law in the courts of the United States that to grant or refuse a new trial rests in the sound discretion of the court to

which the motion is addressed, and the result cannot be made the subject of a review upon a writ of error. Newcomb v. Wood, 97 U. S. 581, 24 L. Ed. 1085; Nudd v. Burrows, 91 U. S. 426, 23 L. Ed. 286; Railroad Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898. (2) This court can only review final decisions, and the order of the court below in granting a new trial has no element of finality. No judgment is final which does not terminate the litigation between parties. Upon this ground a judgment of reversal, granting a new trial, cannot be reviewed. Baker v. White, 92 U. S. 176, 23 L. Ed. 480; Tracy v. Holcombe, 24 How. 426, 16 L. Ed. 742; St. Clair County v. Lovingston, 18 Wall. 628, 21 L. Ed. 813.

The writ of error is dismissed.

STANDARD SANITARY MFG. CO. v. ARROTT (two cases).

(Circuit Court of Appeals, Third Circuit.

Nos. 60, 61.

February 28, 1905.)

1. ESTOPPEL-NECESSITY OF PLEADING-WAIVER OF OBJECTION.

Where, in a suit in equity, testimony of facts which it is claimed raise an estoppel against one party is introduced without objection, and contentious testimony disputing such facts is produced on the other side, the contention for an estoppel may be made at the hearing without having been pleaded.

[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Estoppel, §§ 299303.]

2. SAME-MATTERS IN PAIS-PROOF.

Where an equitable estoppel is relied upon, the facts upon which it is based must be proved with particularity and precision, and nothing can be supplied by inference or intendment.

[Ed. Note. For cases in point, see vol. 19, Cent. Dig. Estoppel, § 308.]

8. SAME-ACTS CREATING.

In the absence of expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with honest purpose and with absence of negligence as with their opposites.

4. PATENTS-EQUITABLE TITLE EVIDENCE TO SUPPORT.

Evidence considered, and held insufficient to sustain a claim to the equitable ownership of a patent as against the patentee, either on the ground of contract or estoppel.

5. SAME-LICENSE-IMPLIED CONTRACT.

No implied contract of license to use a patented device, arising from the circumstances under which the patent was taken out and the relations of the parties, can be set up in the face of a proved express contract of license.

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

For opinion below, see 131 Fed. 457.

Walter Lyon and John R. Bennett, for appellant.

M. A. Christy, for appellee.

Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

GRAY, Circuit Judge. These are appeals from the decrees of the Circuit Court for the Western District of Pennsylvania, in cross-suits in equity. The first was by a bill filed by the appellee, James W. Arrott, Jr., complainant below, against the appellant, Standard Sanitary Manufacturing Company, defendant below, for the infringement of letters patent No. 633,941, entitled "An improvement in dredgers for pulverulent material," an appliance for sifting powdered substances. To this suit, the company made answer, setting up two defenses, to wit: (1) Alleged prior knowledge and use of the invention by a person other than the patentee; (2) an alleged contract by Arrott to convey the patent to the company, and consequently an equitable title in the company thereto. Shortly after filing its answer in the original suit, the appellant company filed a cross-bill, setting up its alleged equitable title to the patent and praying a decree for the specific performance by Arrott of his contract to make conveyance thereof. The appellee, Arrott, in his answer to the cross-bill, denied the material allegations, and specifically the existence of any title in complainant, and the making of the contract alleged. The cases were heard together in the Circuit Court, upon the pleadings and proofs. The court below decided that the alleged prior knowledge and use had not been sufficiently proved, and upon the question of equitable title found against the company appellant and in favor of Arrott, the appellee. In consequence of these findings, a decree was entered in the cross-suit for specific performance, dismissing the bill therein, and in the original suit by the appellee, for infringement, a decree was entered granting the injunction prayed for, and referring the case to a master for an accounting. The invalidity of the patent, on the ground of the alleged anticipation, has not been urged before us, so that the only assignments of error with which we are concerned, are those which relate to the equitable title alleged by the appellant in its answer to the infringement suit, and in its bill of complaint praying for a specific performance of an alleged contract to convey the patent.

The appellant, the Standard Sanitary Manufacturing Company, was a corporation created for the purpose of taking over the plant, good will, fixtures and property (including the patents) of several companies, among them the Standard Manufacturing Company (sometimes called the old company), all engaged in the same or similar business. This it did December 31, 1899. The stock of the old or Standard Manufacturing Company, was nearly all owned by James W. Arrott, Sr., father of the appellee, and Francis J. Torrance. James W. Arrott, Jr., the appellee, owned 200 shares, or one-eightieth of the capital stock, and his brother, C. F. Arrott, was also a small stockholder.

We think the learned judge of the court below, in the following extract from his opinion, has fairly summarized the pleadings in both suits, so far as they relate to the alleged equitable title:

"2. In respect to the alleged equitable title of the Standard Sanitary Manufacturing Company to the said patent, the averments of that company contained in its answer to the original bill, and in its cross-bill against James W. Arrott, Jr., are in substance these, namely: That Arrott was a stockholder and director of the old Standard Manufacturing Company, and that while thus interested in that company and employed as its superintendent at its Allegheny City factory, and under his contract was to use his best

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