10 F.(2d) 30 Of these, Fig. 2 represents probably the preferred and certainly the commoner form; the essential elements of success being the open ends 3, 3, which give a resilient buffer in front of each fore wheel of the motor vehicle; and the meeting and overlapping spring ends (1,1), which in the position shown give both strength and resilience against a head-on blow. The parties to this suit, as against each other, can no longer anywhere assert that Lyon invented the subject-matter of his patent before Hoover invented that of his; but all controversy about that point is now beside the mark, for the same parties can never anywhere, as against each other, assert that Lyon's invention infringes claim 1 of Hoover. It follows that Hoover, in claim The Pancoast, etc., patent was embodied 1, sets forth something that did not and as below: could not anticipate Lyon, something so re This (the Biflex buffer) has the same open loop ends as Lyon, but instead of obtaining central strength by using two springs with ends overlapping in the middle, it is a continuous strip of metal, of which the portion 9 is deflected from the plane 3, 3, and then reinforced by the bolted-on part 8, with the result that the central portion of the buffer, instead of being doubled (as in Lyon at 1, 1), is of but a single thickness, but wider (as indicated by 8, 9). This device is adjustable by movable brackets on the rear portion of the continuous band 3, 9, 3, instead of gaining adjustability as does Lyon by moving 1,1 upon each other. This case was tried below in January, 1924. Final decree was entered June 25, 1924, before the result of the Ninth Circuit litigation was known. The court below dismissed the bill on the ground of noninfringe ment; it passed upon no other question. Plaintiff appealed. Drury W. Cooper and H. Frank Wiegand, both of New York City, for appellants. Frederick S. Duncan and John H. Hilliard, both of New York City, for appellees. Before ROGERS, HOUGH and MANTON, Circuit Judges. HOUGH, Circuit Judge (after stating the facts as above). [2, 3] By taking notice of the decision in the Ninth Circuit in Weaver v. American Chain Co., and, remembering that equity acts in præsenti, we find ourselves in a legal atmosphere quite different from that prevailing in the court below, when its decision herein was rendered. 10 F. (2d)-3 Ꮽ mote from Lyon that the later invention is under no obligation to pay the slightest tribute to the earlier. The ruling below in this case substantially restricted Lyon to a device by which both the strength of the front center of the buffer and the adjustability of the rear was derived from the two overlapping springs, so plainly shown in one of the diagrams above taken from Lyon's patent. This holding may be summed up in one sentence from the opinion below: "Lyon supposed that he had an invention made up of two connected springs." The court then in substance directed that Lyon should have no more than what in its opinion Lyon had thought out. A second basic ruling below arose from a proceeding revealed by Lyon's file wrapper. Lyon and Hoover were copending applicants in the Patent Office, and the Examiner apparently drew a form of words which is now Hoover's claim 1, supra. He then invited Lyon's solicitor to enter upon an interference over this claim, although the Lyon application at the time embodied no such or similar claim. Lyon declined entering into the interference, and the finding below is in substance that, because he declined to assert a right to something which is now conclusively held to be for a subject-matter wholly different from his own, he restricted himself to a device conposed of overlapping separate springs, and debarred himself from claiming infringement by something made of a hoop of steel. Defendant's present position may, we think, be thus stated: Hoover's concept was of continuity; of making a buffer out of a hoop, although his form shown above does not express that thought. Lyon had no such concept, he refused even to ask for claim 1 of Hoover; therefore he can never say that any of the claims he did obtain can cover a device embodying continuity of periphery; and the Biflex buffer patent dwells on that thought, and the buffer itself is licensed by Hoover, ergo there can be no infringement. [4-6] We cannot so think of the patent at bar, especially after our decision in the Hartford Case, supra. We there found infringement in a device which had no overlapping springs, and substantially denied to that peculiarity of structure the controlling force given it below. We then recognized, and now recognize, the rule that a patentee is entitled to all the advantages inherent in his disclosed invention and duly claimed, whether he understood these advantages or not. In point of fact we do not think it true that Lyon (as stated below) "submitted to the rejection of claims which covered a onepiece spring," in the sense of abandoning all claims that would read upon such a structure; for we deem it too plain to require exposition that the claims now in suit do so read. In point of law, also, we cannot agree that, when Lyon refused to claim what the Examiner suggested, and let Hoover have it, he thereby abandoned all right to deny (as he now does) that any one-piece spring was outside of his patented invention. vention is that he first thought out what may be called an all-spring buffer, something that would resiliently resist severe strains, and on release regain approximately its original form, although the strain were applied in center, or either end, or anywhere between. The means for utilizing this mental conception is essentially the open-ended loops extending over and in front of the wheels. By this means the buffer is all-spring, and is exactly what Hoover, with his carriage spring ends collapsible by hand pressure, is not. [7] Hoover's idea may be and was sometimes reduced to practice by a continuous steel strip; defendant's Biflex device has such a strip; it is, indeed, made (save for the reinforce 8), of such a strip. But, if Hoover's ends, the only ends or extremities he shows and describes, be used, the Lyon idea is gone. A patent for a form is avoided by a change of form, but a patent for substance cannot be so avoided; the substance attacked must be different, to escape infringement. [8] Thus we feel sure, as we did when hearing the Hartford Case, that what gives merit to, and forms the central idea of, Lyon's buffer, is not continuity or solution thereof in the form of the metal whereof it is formed, but the arrangement of one, two, or (as in Hartford or Biflex) three pieces of metal to form a defense against collision, which shall be both strong and resilient wherever the contact shock occurs, by means of open-ended loops. It may be agreed that Lyon improved upon Hoover, whose device, as found in the California case, was made rather to sell than to use; but it was an improvement of the kind (a long way behind to be sure) that was instanced by putting the needle's eye in the sharp rather than the blunt end of that instrument. It was assuredly a great deal more than fitting two overlapping springs together to secure adjustment to varying makes of motors. Lyon was undoubtedly bound by such estoppels as arose from his conduct in accept ing Office rulings, but we are of opinion that he estopped himself only from asserting that a one-piece hoop device was his invention. He could never say that the hoop concept was his, but he could say, and now says, that his inventive concept, duly claimed, may be found appropriated in a one-piece hoop spring fender buffer or bumper. Thus, as usual in causes of this kind, we are required to state what is to be found disclosed as the Our estimate of the nature of the invenessence or kernel of Lyon's thought. tion disclosed by the patent requires that the We think that the great merit of his in- decree below be reversed, with costs. THE BLAIRMORE 1. 10 F.(2d) 35 PORTLAND SHIPPING CO., Limited, v. 1152 CASES OF WINE. (Circuit Court of Appeals, Second Circuit. December 7, 1925.) 1. Admiralty No. 211. 60-Libel must state allegations of fact relied on in support of suit. Under general admiralty rule 22, a libel I must state the various allegations of fact on which libelant relies in support of his suit. 2. Pleading ~8 (6)—Allegation that ship was unlawfully withheld from possession held mere conclusion. Allegation in libel for possession of steamship that it was "unlawfully withheld from the possession of libelant” held a mere conclusion. 3. Admiralty 117-Circuit Court of Appeals will grant motion for amendment to answer, and consider same, when that is only way it can ascertain nature of case. Circuit Court of Appeals will grant motion for amendment to answer, overruled by lower court, and consider the amendment as embodied in answer, where that is only means whereby it can have before it nature of case, notwithstanding that libelant may be prepared to prove falsity of answer. 4. Admiralty 28-Owner, whose possession of movable property has been changed by maritime tort, or breach of maritime contract, may vindicate title by proceeding in rem. Where possession of movable property has been changed against the right of a true owner by maritime tort, or breach of maritime contract, owner may vindicate his title in a court of admiralty by a proceeding in rem. 5. Admiralty 60-Libel for possession of ship and cargo, without allegation of maritime tort, or breach of maritime contract, is de fective. Libel by owner of ship for possession of cargo of wine, against collector, with no allegation of any maritime tort, or breach of maritime contract, is on its face fatally defective. 6. Intoxicating liquors 251-Statute providing that property taken under revenue law shall be irrepleviable, and deemed to be in "custody of the law," does not apply to seizure under National Prohibition Act. Rev. St. § 934 (Comp. St. § 1560), providing that property taken under, any revenue law shall be irrepleviable, and deemed to be in the "custody of the law," does not apply to ship and cargo seized under National Prohibition Act, tit. 2, 26 (Comp. St. Ann. Supp. 1923, § 101382mm), citing Words and Phrases, First and Second Series, Custody of the Law. 7. Intoxicating liquors 251-Remedy of owner of ship and cargo seized under National Prohibition Act is by suit for condemnation. Remedy of owner of ship and cargo seized under National Prohibition Act, tit. 2, § 26 (Comp. St. Ann. Supp. 1923, § 10138mm), is contest of validity thereof in a suit for con demnation, and he cannot maintain possessory suit. 8. Intoxicating liquors 251-Ship captured in violation of National Prohibition Act not entitled to safe conduct, beause it was taken into port in wrong district. That Coast Guard officials, seizing ship and cargo under National Prohibition Act, tit. 2, § 26 (Comp. St. Ann. Supp. 1923, § 101382mm), made mistake in taking it into Connecticut port, instead of New York Harbor, would be no reason for decree granting a safe conduct to 12mile limit, in order to prevent any new seizure or capture. Appeals from the District Court of the United States for the District of Connecticut. Libels by the Portland Shipping Company, Limited, against the steamship Blairmore I, her tackle, etc., and Harvey P. Bissell, Collector, and against 1,152 cases of wine, etc., in which the United States filed an answer. From a decree for libelant, defendants appeal. Reversed and remanded, with directions. Before HOUGH, HAND, and MACK, Circuit Judges. On the same date the Portland Company, a corporation of Nova Scotia and owner of the Blairmore I, filed in the court below two libels of possession, one to repossess itself of the steamer and the other to similarly reobtain the cargo thereof, which consisted wholly of intoxicating liquor. The allegations of the libel were that libelant owned the Blairmore I, that Bissell, as collector of customs for the district of Connecticut, was in possession thereof and of her documents also, that such possession was wrongful, that possession had been demanded of Bissell and by him refused, that the steamer, etc., was within the jurisdiction of the lower court and within the civil and maritime jurisdiction of the United States. Similar allegations were made in the second suit in respect of said cargo of liquor, and it being represented to the District Court that exactly the same question was presented in each of these cases the causes were consolidated. The answer in the suit against the steamer and Bissell consisted of an admission of each and every one of the above-enumerated allegations, but concluded, after such admission with a prayer that the libel be dismissed. It does not appear that any one ever claimed the steamer, and the answer, instead of being by Bissell, collector, was tendered by the United States of America as "respond ent," by an Assistant United States Attorney for the district of Connecticut. Thereupon the court below on motion granted the prayer of the libel and directed that "the collector of customs for the district of Connecticut and/or the United States marshal for the district of Connecticut, their respective agents and servants, and any and all persons in whose possession the abovenamed vessel Blairmore I may be, and they and each of them hereby are, directed and ordered to release and deliver unto the possession of the said Portland Shipping Company, Limited, or to its proctor and attorney in fact, Louis Halle, without any maintenance, custody or other charges, the said vessel Blairmore I, her engines, tackle, apparel, etc." And it was further decreed that, "when the said vessel Blairmore I shall proceed to sea, that the collector of customs for the district of Connecticut shall have the right to place a guard aboard said vessel until the said vessel shall have reached a point 12 miles distant from the coast of the United States of America." Thereupon the United States moved for a reargument and for leave to amend its answer, so as to set up in substance that, although Bissell, collector, was in possession of the Blairmore I and her cargo, she had been seized by a vessel of the Coast Guard at a point within seven-eighths of a mile from Fisher's Island, and within the territorial waters of the United States, and the jurisdiction of the District Courts of the Southern and Eastern Districts of New York; the Blairmore I being at the time laden with the cargo of liquor above referred to, which she was transporting illegally under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.), and was illegally importing into the United States without permit, and that at the time of such seizure the Blairmore I was not in distress. This amendment the court below refused, and explained the meaning of the last paragraph of its decree by stating that the libelant was entitled to an order that would permit it to obey the law if it chose; that the act of the Coast Guard vessel in seizing the Blairmore I was an unlawful one, and that it "ought not to be supported by an order of court which will result in a reseizure of ship and cargo and afford them no opportunity to pursue a lawful purpose." Thereupon the United States took this appeal, assigning for error substantially the action of the court in refusing to direct the redelivery of the vessel to the libelant at the point of her seizure by the Coast Guard vessel. John G. Sargent, of Ludlow, Vt., Mabel Walker Willebrandt, of Washington, D. C., A. W. Henderson, of Pittsburgh, Pa., and John Buckley and John A. Danaher, Asst. U. S. Attys., both of Hartford, Conn., for the United States. Louis Halle, of New York City, for respondent. HOUGH, Circuit Judge (after stating the facts as above). It is a lengthy job to ascertain the legal propositions hidden in the mistakes and misunderstandings that constitute the apostles herein. Decree was givadmitting everything alleged in the libel, en on the pleadings; yet the answer, after prayed for dismissal. This was in effect a peremptory exception or general demurrer, though we are not aware that such procedure has ever before been attempted. If, however, the libel be examined, it is seen to be a violation of every principle of pleading as laid down in general admiralty rule No. 22. [1,2] The case is on the instance side, and the rule requires that a libel shall state the various allegations of fact upon which the libelant relies in support of his suit. The single attempted statement of fact in the libel is that the Blairmore I was "unlawfully withheld from the possession of the libelant." This is a mere conclusion, and may be compared with a libel for collision that confined its fact allegations to a complaint that respondent's vessel unlawfully collided with that of libelant. Nothing in the record shows that any claim was ever made to the ship, and Mr. Bissel, who was sued in personam (cf. rule 19), never appeared. But the United States answered, for what reason or by what right the pleadings wholly fail to show. On the pleadings alone, no cause of action was well pleaded, for no one could even guess why suit was brought. An attempt was made to better this situation by the amendment above set forth, and the proceedings upon that motion to amend have been brought before us by the apostles. [3] This being a new trial, we shall grant the motion and consider the amendment as embodied in the answer, because it is only by that means we can have before us the nature of the case, or any statement of how or why ship and cargo were or were thought to be in the custody or within the control of the collector. The necessity for this rectifica 10 F.(2d) 35 tion of the record appears from both briefs filed, which assume that the court is aware of the nature of the litigation. It is of no moment that libelant may be prepared to prove the falsity of the answer in regard to the place of capture, the illegality of cargo, or the purposes of the voyage. Answer as amended reveals the position assumed by the United States, the reasons for seizure, and the existing governmental intent with regard to that which was seized. Thus the question arises whether these two possessory suits (now consolidated) are maintainable. The jurisdiction of the American admiralty in possessory suits may be said to rest upon the reasoning of Story, J., in The Tilton, 5 Mason, 465, Fed. Cas. No. 14,054; for the authoritative assertion of such jurisdiction in Ward v. Peck, 18 How. 267, 15 L. Ed. 383, is no more than an assent to Justice Story's doctrine. [4] The Supreme Court has never defined the jurisdiction of admiralty in possessory suits respecting chattels other than vessels; but the reasoning of Lowell, J., in Five Hundred and Twenty-Eight Pieces of Mahogany, 2 Low. 323, Fed. Cas. No. 4,845, has received professional acquiescence (cf. Benedict [5th Ed.] p. 102), and the result thereof is that, "where the possession of movable property has been changed against the right of the true owner by a maritime tort or by the breach of a maritime contract, the owner may vindicate his title in a court of admiralty by a proceeding in rem." [5] In the present suit regarding the cargo of whisky, there was no allegation by libelant of any maritime tort or any breach of a maritime contract; wherefore such libel on its face was fatally defective, because it is a prerequisite to the exercise of jurisdiction that the court should be advised of the facts by which the libelant thinks himself within the very limited powers of admiralty over the subject-matter. Whether, if proper allegations had been made, a capture by the Coast Guard within the territorial waters of the United States should be regarded as a maritime tort is a matter concerning which we express no opinion; for we shall consider the larger question whether the collector's admitted possession or custody did not, under the circumstances, prevent the use of a possessory suit to recover both ship and cargo. It has been universally agreed that in our admiralty a suit for possession is the substantial equivalent of proceedings in replevin. Benedict, ubi supra. We know that this seizure was made by the Coast Guard under the authority of title 2, § 26, of the National Prohibition Act (Comp. Stat. Ann. Supp. 1923, § 10138/2mm), by which the Coast Guard official (inter alios), having discovered a "person in the act of transporting in violation of the law intoxicating liquors in water craft, any it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law, [and he] shall take possession of water craft." The question under consideration would be answered by Rev. St. § 934 (Comp. St. § 1560), if the arrest of vessel and cargo had been "under authority of any revenue law," for by the statute what is so seized "shall be irrepleviable, and shall be deemed to be in the custody of the law," and that chattels in such custody are always irrepleviable was settled in Covell v. Heyman, 111 U. S. 176, 4 S. Ct. 355, 28 L. Ed. 390. But it cannot be said that the Prohibition Act is one of revenue, or that, in the absence of statute extending the definition to seizure not under judicial process, the general rule applies. Cf. Words and Phrases, First and Second Series, sub nom. "Custody of the Law." [6] The question then becomes this: In the absence of a statutory prohibition upon suits for possession or actions in replevin, can this ship and cargo be rescued by legal proceedings, such as these were intended to be, from a governmental seizure made as alleged by answer? That a possessory suit would lie for a vessel detained by the collector, not for condemnation or penalty, but to enforce the payment of a tax, was held in Re Fassett, 142 U. S. 479, 12 S. Ct. 295, 35 L. Ed. 1087, and the reason for such holding was that the shipowner sought to be taxed had no remedy under the law other than a possessory suit. This is not true of seizures for condemnation, for in order to enforce the governmental claim it is necessary for the proper officials to bring libels of condemnation, to allege and prove that the seizure was lawful, and owners are entitled to appear, claim, and contest the governmental accusations. Let it be admitted that, until process is issued and the marshal seizes the res proceeded against (in this case ship and/or liquor), the chattels are not in custodia legis, but are held for the purpose solely of instituting such legal proceedings-a thing impossible in the Fassett Case, supra. The legal analogy here is that which the government unsuccessfully used in Re Fassett, viz. the Embargo Act of 1808, 2 Stat. 499. By that |