Walker v. Hawxhurst.

ascertained from the value of the goods at the port of shipment, including all expenses of transportation to the place of collision, and of the lading of the cargo on board, &c., together with interest, at the rate of six per cent. per annum, from the time of the collision. This is the rule, substantially, as settled in the case of The Anna Maria, (2 Wheaton, 327, and in Smith v. Coudry, (1 Howard, 28, 35,) as governing in all cases of marine torts. (See, also, The Schooner Lively, 1 Gallison, 315.)

The decree below is affirmed.

SYLVANUS WALKER 28. JOTHAM W. HAWXHURST.

Under the 5th section of the Act of August 29th, 1842, (5 U. S. Stat. at Large, 544,) a person who marks as patented an unpatented article, is not liable to the penalty therein prescribed, unless he does so knowing that he has no right to do so, and with the intention of deceiving the public.

In an action for the penalty, the question as to such intention is one for the jury. The question of fraud or deceit, on a trial, as a matter of fact, involves an inquiry of much latitude, and an appellate Court will allow considerable indulgence in revising questions as to the admission or rejection of evidence; and the error must not only be striking, but must necessarily have been calculated to mislead the jury, before the verdict will be interfered with.

(Before NELSON, J., Southern District of New York, September 18th, 1867.)

THIS was an action, founded on the 5th section of the Act of August 29th, 1842, (5 U. S. Stat. at Large, 544,) to recover a penalty for marking an unpatented article with a mark indicating that it was patented, for the purpose of deceiving the public. The defendant had a verdict, and the plaintiff now moved for a new trial.

Charles W. Prentiss, for the plaintiff.

George W. Lord, for the defendant.

Walker v. Hawxhurst.

NELSON, J. A new trial is urged principally on the ground of an objection to the charge of the Court. The counsel for the plaintiff requested the Court to charge, that if the jury believed that the defendant intended the public to understand, by the words and figures he caused to be put on the article, that he had got a patent for it, he was liable for the penalty. The Court refused so to charge, but charged, that if the defendant used the marks, knowing he had no right to, and with the intention of deceiving the public, then he was liable, but, if he used them, supposing he had a right to, and with no intention to deceive the public, then he was not liable. I am of opinion that the Court did nor err in refusing to charge as requested by the counsel. The request leaves out altogether the element of fraud and deceit, which is clearly, and even in terms, made essential to bring a party within the penalties of the statute. According to the interpretation of the counsel, the simple act of marking the article, indicating that it was patented when it was not, would be sufficient, because, of necessity, the party must mean and intend that the public should understand what he has thus explicitly expressed. But this is not the statute. The marking must not only give the public to understand the fact of a patent, but the act must be done malo animo, with an intent to deceive; and this ingredient of the offence, which is essential to make it complete, must be left to, and be found by, the jury. The Court, therefore, was right in submitting it to them.

case arise out of the adThe question of fraud or

The remaining questions in the mission and rejection of evidence. deceit, as a matter of fact presented in a case, involves an inquiry of much latitude and scope on the trial, and must generally be directed by the good sense of the Judge, in respect to the bearing of the facts and circumstances relied on, and concerning which it is oftentimes difficult to apply any fixed rules. Very considerable indulgence is, therefore, allowed by the appellate Court, in revising these questions. The error must not only be striking, but must necessarily have been calculated to mislead the minds of the jury, before the verdict will be

The James Guy.

interfered with. I have looked carefully into these questions of evidence, and am of opinion that no one of them, within the above observations, would justify me in granting this motion.

The motion for a new trial is denied.

THE JAMES GUY.

To sustain a libel in rem against a vessel owned in New York, for repairs put upon her at Baltimore, the necessity for the repairs and for a lien upon the vessel to enable the master to procure them, must be shown. The case of Pratt v. Reed, (19 Howard, 359,) explained.

(Before NELSON, J., Eastern District of New York, September 24th, 1867.)

THIS was a libel in rem, filed in the District Court, by Young Tall, against the steamboat James Guy, to recover for materials furnished to that vessel in Baltimore, she being owned at the time in New York. Her owner claimed that the articles were not furnished on the credit of the vessel, and that there was no necessity for giving credit to her, because her owner was in good credit at the time. The District Court decreed for the libellant, and the claimant appealed to this Court.

Emerson, Goodrich & Wheeler, for the libellant.

Beebe, Dean & Donohue, for the claimant.

NELSON, J. The main question in this case is, whether the steamboat is subject to a lien for the bill of repairs put upon her by the libellant; and that turns upon the point whether the credit was given to the vessel or to Olney, the owner. After a very full examination of the evidence, I am satisfied that it was the intention of both parties that the payment was

Beardsley v. Tappan.

to be made when the repairs were finished, and that, in the meantime, the mechanic or workman should look to the vessel as his security. It is needless to go over the proofs in support of this conclusion. All the facts and circumstances attending and surrounding the case tend in this direction.

It is supposed by the counsel for the claimant, that the case of Pratt v. Reed, (19 Howard, 359,) has an important bearing in this case adversely to the lien. I do not so understand it. The necessity for the repairs and for the lien upon the vessel to enable the master to procure them, are insisted on, in that case, as essential elements to support the lien, and, in respect to the soundness of that view, there can be no controversy; but the necessity for the repairs and for the lien must depend upon the facts and circumstances of the case. In Pratt v. Reed they repelled the necessity for the lien. In the present case they support it. I am not aware that any other rule has ever been established.

I also concur with the Court below, that the claimant, who sets up the purchase of the vessel as a matter of defence, is chargeable, on the proofs, with notice of the charges against the vessel for the repairs.

The decree below is affirmed.

JOHN BEARDSLEY AND HORACE BEARDSLEY

vs.

LEWIS TAPPAN.

The defendant conducted a mercantile agency in the city of New York, the object of which was to procure information of the pecuniary ability and standing of merchants in the country for merchants in the city, to be communicated to the latter in a confidential manner. He had some twenty clerks to whom the information obtained, and which was recorded in a book, was communicated, and who participated in communicating it to the customers of the agency or to their clerks. The defendant communicated, through his clerks, to several VOL. V.-32

Beardsley v. Tappan.

customers and to their clerks, facts seriously affecting the credit of the plaintiff, as a merchant: Held, that the communication was not of a privileged character.

The principle upon which privileged communications rest, which, of themselves, would otherwise be libellous, imports confidence and secrecy between individuals, and is inconsistent with the idea of a communication made by a society or congregation of persons, or by a private company or a corporate body.

(Before NELSON, J., Southern District of New York, October 10th, 1867.)

THIS was a suit to recover damages from the defendant for having libelled and slandered the plaintiffs in respect of their credit as a mercantile firm, carrying on business at Norwalk, Ohio. The jury found a verdict for the plaintiffs for $10,000, and the plaintiff's now moved for a new trial.

Daniel D. Lord, for the plaintiffs.

Charles O'Conor, for the defendant.

NELSON, J. The defendant resided in New York, and had established in that city a mercantile agency, the object of which was to procure information of the pecuniary ability and standing of merchants in the country for merchants in the city, to be communicated to the latter in a confidential manner. The defendant had some twenty clerks who participated in the business of the establishment, and were, of course, privy to the information obtained, whether favorable or unfavorable to the character and credit of the country merchant, and who participated in the communication of the information to their customers or customers' clerks. The defendant communicated, through his clerks, to several customers and to their clerks facts seriously affecting the credit of the plaintiffs' house; and the main question in the case, on the merits, is, whether or not he is exempt from the consequences of the publication, on the ground of its privileged character. The Court charged the jury, that, if the defendant himself had communicated the information to a person applying to him for the purpose, in good faith, the communication might have