GREEN, District Judge. On Thursday, October 31, 1895, in the forenoon, the steamship Pennland, bound on a voyage from Liverpool to Philadelphia, sighted a steamship to the northwest, apparently in distress. This vessel proved to be the Obdam, from Rotterdam, bound to New York. It appeared that her shaft was broken; that she had but an insignificant sail area, and was drifting as the wind and tide might take her. At her request, the Pennland took her in tow, and though, from stress of weather, she was compelled to abandon her for a time, the towing hawser breaking, she afterwards went to her assistance again, and brought her safely into the harbor at Halifax. This action is to recover for these services. It is stipulated that the Pennland, which is a mail, passenger, and freight steamer, is worth $90,000, and that the Obdam and her cargo were worth $384,000. It is not denied that the service rendered was a salvage service. The only question in dispute concerns the amount to be awarded. It is alleged by the libelant that when taken in tow by the Pennland the Obdam was in very dangerous proximity to Sable Island, notorious for disastrous shipwrecks. It is quite true that shortly before she was . taken in tow the Obdam had drifted to within 30 miles of this "Graveyard of the Atlantic." But the wind had veered to the northwest, and just previous to commencement of these salvage services she had drifted away from this locality, and seemed to be in no immediate danger, at least from this source. It is also claimed that the breaking of the propeller shaft made it possible for the propeller itself, during a long drift, to batter the rudder post, and so seriously damage the ship. This was undoubtedly an element of danger, and deserves consideration. The distance towed was about 200 miles. The actual time consumed was about 21 days. The services rendered were every way meritorious, and deserve substantial reward. Perhaps more so on account of the position of the Obdam when help was given her, for it is not disputed that she was some distance north of the usual track of vessels crossing the Atlantic, and in fact, from the time of her accident until she was sighted by the Pennland, she had seen but one vessel, and that a fishing vessel, who had promised to report her at the first opportunity. Salvage awards must of necessity be to some extent arbitrary, and rest in the discretion of the court. Having in view the general principles which underlie such awards, and having respect to the special circumstances of this case, the sum of $18,000 is awarded as a fair salvage. BISSELL CARPET-SWEEPER CO. v. GOSHEN SWEEPER CO. No. 404. March 5, 1896.) 1. CIRCUIT COURT OF APPEALS-JurisdictiON-INTERLOCUTORY DECREE-DisSOLVING INJUNCTION. An order so modifying an interlocutory decree for a broad perpetual injunction against infringing a patent as to permit defendant to manufacture and sell for a limited time certain infringing machines is an order dissolving pro tanto the original injunction, and is, consequently, an appealable interlocutory order or decree, within the act of February 18, 1895, amending section 7 of the act of March 3, 1891. 2. APPEAL FROM INJUNCTIONAL DECREE-EFFECT OF SUPERSEdeas. An appeal with supersedeas from an interlocutory decree granting a perpetual injunction against infringement of a patent on a bond conditioned to prosecute the appeal, and, on failure to make the same good, to pay costs and damages, "as well as all damages and profits resulting from" defendant's manufacture and sale of the infringing articles "after the date of the said decree," only operates to suspend the injunction pending the appeal, and is not a license to defendant to continue the manufacture and sale of the infringing articles pending the appeal. 3. CIRCUIT COURT OF APPEALS-EFFECT OF DECISIONS. The decree and mandate of the circuit courts of appeal have precisely the same finality as the decrees and mandates of the supreme court. Whatever is before the court by virtue of the appeal, and is disposed of by it, is finally settled, and becomes the law of the case, so that the court below must carry it into execution according to the mandate, without power to modify, reverse, enlarge, or suspend it. 4. SAME-APPEAL FROM INTERLOCUTORY ORDERS AND DECREES. It is the practice of the court that, on an appeal from an order or decree granting a preliminary injunction merely, the court will not ordinarily consider or determine the merits of the cause, but will confine itself to a consideration of the question as to whether the court below has abused its discretion. Consequently, when such an order or decree is affirmed, the court below is still at liberty to enlarge, modify, or suspend the same, as the future circumstances of the case or the ends of justice may require. 5. SAME-APPEAL FROM INTERLOCUTORY DECREE FOR PERPETUAL INJUNCTION. Where, on appeal from interlocutory decree granting a perpetual injunction, the court necessarily examines and determines the entire merits of the cause, its power to decree is not limited to the matter of the injunction alone, but extends to the whole merits, and its decision is final and conclusive on every point actually decided. Consequently, the court below has no power to modify, in any respect, a decree which is thus affirmed, but must give it full effect in the very terms of the decree of the appellate court. Richmond v. Atwood, 2 C. C. A. 596, 52 Fed. 10, and Marden v. Manufacturing Co., 15 C. C. A. 26. 67 Fed. S09, followed. Watch Co. v. Robbins, 3 C. C. A. 103, 52 Fed. 337, overruled. Appeal from the Circuit Court of the United States for the Western District of Michigan. A. C. Denison and Geo. H. Lothrop, for appellant. Before TAFT and LURTON, Circuit Judges, and HAMMOND, J. LURTON, Circuit Judge. This is a second appeal in this case. The former appeal was by the Goshen Sweeper Company, and was from an interlocutory decree determining the validity of a certain patent owned by the Bissell Carpet-Sweeper Company, and finding v.72F.no.5-35 that the Goshen Sweeper Company had infringed. The decree awarded a perpetual injunction, and referred the cause to a master for an accounting. This court, upon a full hearing, in which it was obliged to fully consider and determine both the question of the validity and meaning of the second clause of the Plumb patent, as well as the question of infringement, affirmed the decree awarding the injunction, and remanded the case to the circuit court for further proceedings. 72 Fed. 67. After this affirmance, the circuit court, upon motion of the Goshen Sweeper Company, entered an order in these words: "The defendant in this cause having moved the court for leave to finish the manufacture of carpet sweepers now in the course of construction, and to sell the carpet sweepers already manufactured, as well as those now in process of manufacture, when completed, to others, to sell or use, after hearing counsel for the respective parties upon the motion, and having duly considered the same, it is hereby ordered: That the defendant have permission, and leave is hereby granted to defendant, to sell to others, to be sold or used, the following kinds of sweepers, embraced in the three first horizontal columus in the inventory attached to the affidavit of Thomas H. Bedell, filed in support of said motion, viz.: Now finished: 238 Rapid; 230 Select; 100 Star; 25 Reliable; 3 Banner; 78 Model; 20 Our Own; 25 Grand Republic; 9 Railroad; 22 Rapid. Also, to complete the manufacture of and to sell to others, to be sold or used, the following sweepers of the kinds here given, viz.: 1,465 Rapid; 1,252 Select; 543 Star; 363 Reliable; 210 Banner; 299 Model; 110 Our Own; 141 Grand Republic; 72 Mammoth; 21 Sovereign; 81 Michigan; 6 Railroad; 72 Our Leader; 111 Alliance. That said defendant may stencil the sweepers as demanded by the trade, all of which sweepers named contain the elements of the Plumb patent as construed by the circuit court of appeals, in an opinion handed down on December 9, 1895. That the injunction heretofore granted is hereby modified in accordance with this order. That the defendant account before the master for all sales made hereunder, in accordance with the interlocutory decree entered in this cause. That this leave shall expire six months from this date, and is granted on condition that defendant file with the clerk of this court a bond to complainant, with sureties satisfactory to this court, or to the clerk thereof, in the penal sum of five thousand dollars ($5,000), conditioned to pay the complainant all the profits and damages that may be decreed against the defendant upon final hearing in this cause for or on account of the sale or disposition of the sweepers as aforesaid." From this decree the Bissell Carpet-Sweeper Company has been allowed an appeal. A motion to dismiss the appeal has been entered by the appellee, which must be disallowed. The decree appealed from is one dissolving pro tanto the perpetual injunction theretofore in force, and is an appealable interlocutory order or decree, within the act of February 18, 1895, c. 96 (28 Stat. 666), which amends section 7 of the act of March 3, 1891, so as to allow appeals from interlocutory orders or decrees dissolving injunctions. The injunction in force prior to the decree in question was a broad injunction, absolutely restraining the appellee from making or selling the infringing structures. When an appeal was allowed from the decree granting the perpetual injunction, the circuit court, as it was authorized to do under section 7 of the courts of appeals act, granted an appeal with supersedeas, on a bond conditioned that the defendant should prosecute the said appeal to effect and pay all costs and damages if it failed to make said appeal good, "as well as all damages and profits resulting from its manufacture and sale of the infringing sweepers after the date of the said decree." This only operated to stay or suspend the injunction pending the appeal. It had no effect or operation as a license to defendant. The status of the defendant was simply that of persons engaged in infringing, and not restrained by operation of the injunction. But, however this may be, so soon as the appeal had been determined adversely to the appellant, the injunction was instantly reinstated, the supersedeas having expired by its own limitation. The clear effect of the de Before cree now complained of was to dissolve this injunction pro tanto. More than this, the decree seems to have gone so far as in terms to grant a license to the defendant to continue its infringement, by authorizing it to complete the manufacture of structures begun, and to sell to others, to be sold or used,-sweepers already complete, as well as those to be finished under the order. the provision for an appeal from an interlocutory order or decree granting an injunction, it was not unusual or improper to suspend the operation of an injunction awarded by a decree determining the merits, and referring the case to a master for accounting. The propriety of such a suspension was due to the fact that, while the injunction might be awarded upon a decree which was final as to the merits, yet it was not final under the rulings of the supreme court as to what constituted an appealable decree, within the terms of section 692, Rev. St. Very great hardships frequently resulted from the operation of such an injunction, due to the fact that very often a long and expensive accounting intervened between the allowance of the injunction and the rendition of the final decree from which an appeal would lie. To prevent as much as possible the severe consequences incident to the practical enforcement of interlocutory decrees affecting the merits of the controversy, though not appealable, the supreme court, at an early day, admonished trial judges as to their duty to alleviate as far as possible all such consequences, by saying: "It is exceedingly important, therefore, that the circuit courts of the United States, in framing their interlocutory orders, and in carrying them into execution, should keep in view the difference between the right of appeal as practiced in the English chancery jurisdiction and as restricted by the act of congress, and abstain from changing unnecessarily the possession of property, or compelling the payment of money by an interlocutory order." Forgay v. Conrad, 6 How. 205. An application to suspend the operation of such an injunction came on to be heard before Justice Swayne, when holding a circuit court, who took occasion, in granting the application, to say: "An application is made that this final decree shall be suspended, as it regards the injunction, until the account shall be determined upon, and the decree shall be finally made upon that account, and when the defendant, for the first time, will have the right to appeal. He cannot appeal from the decree as it at present stands, because, although the decision is final as to the merits of the case, it is in form an interlocutory decree only, and the rule established by the supreme court is that an appeal can be taken only from a final decree. It has been held, in this class of cases, that a decree is not to be considered final for the purposes of an appeal until after the coming in of the master's report. I have no doubt of the power of the court to sustain this motion. Such power is incidental, in my judgment, to equity proceedings. There is no question, in my judgment, of the power of the court to stay a judgment at law. And it is a constant practice of the state courts and the circuit courts of the United States, where the equities between the parties require it, to make such an order. If I had any doubt of it, the authority of Barnard v. Gibson, 7 How. 650, is conclusive." Potter v. Mack, Fed. Cas. No. 11,331. If an appeal be allowed from an interlocutory order or decree granting an injunction, the injunction will continue in force pending the appeal, unless stayed by order of the court granting the appeal. The granting of a supersedeas rests in the judicial discretion of the court, and its discretion to grant or refuse a supersedeas will not be controlled by mandamus. In re Haberman Manuf'g Co., 147 U. S. 525, 13 Sup. Ct. 527, overruling Societe Anonyme v. Blount, 51 Fed. 610. As we have seen, the circuit judge exercised his discretion, and stayed his final injunction pending appeal. But it is said that after the appeal had been determined, and the decree awarding the injunction had been affirmed, it was still within the discre tion of the circuit court to suspend or modify the injunction theretofore allowed, and that the exercise of such discretion is not the subject of review. The answer to this depends upon what this court did in the exercise of its jurisdiction upon the former ap peal. Whatever was before it by virtue of that appeal, and was disposed of, has been finally done, and must be regarded as settled. The circuit court is bound by such decree as the law of the case, and must carry it into execution according to the mandate. The decree of this court upon any matter within its jurisdiction can neither be modified, reversed, enlarged, nor suspended by the circuit court; nor can any other or less or greater relief be accorded than that prescribed by its decree and mandate. Any matter undecided and left open by the mandate the court below may hear and decide, and its decree in relation to such new matters can be examined here only upon a new appeal. That the decree and mandate of this court have precisely the same finality as was attached to the decrees and mandates of the supreme court, before the establishment of the circuit courts of appeals, is too obvious for elaboration. As to the finality of a decree and mandate of the supreme court, and the duty of the circuit court in respect thereof, there has never been any serious question. The very pertinent summary of the doctrine by Justice Gray, in the very late case of Sanford Fork & Tool Co., Petitioner (decided December 23, 1895) 16 Sup. Ct. 291, is quite in point, and is as applicable to the decree and mandates of this court as to those of the court of which he was speaking. The learned justice said: "When a case has once been decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution, or give any other or further relief, or review it, even for apparent error, upon any matter decided on appeal, or intermeddle with it. further than to settle so much as has been remanded. Sibbald v. U. S., 12 |
