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"The shipping act required shipments and discharges of seamen for long foreign voyages to be conducted under the supervision of shipping commissioners; as to the contracts of coasting and West Indian voyages, it left the act of 1790 to deal with them."

The ruling was made upon the provisions of the act of 1872, as found incorporated into the Revised Statutes, the attention of the court at the trial not having been called to the act of June 9, 1874. This act, however, was then in force, and we are of the opinion that it is unnecessary for us to determine the true construction of so much of LIII. as is found in the Revised Statutes relating to coasting voyages, and which were included in the act of 1872; as, by the act of 1874, vessels upon such voyages are entirely excluded from the operation of all provisions of this title heretofore contained in the shipping act.

By act of Congress approved June 22, 1874, the Revised Statutes took effect as of December 1, 1873, but by section 5601 it was declared that acts passed since that date are to have full effect as if passed after the enactment of the Revision, and, "so far as such acts vary from or conflict with any provision contained in said Revision, they are to have effect as subsequent statutes, and as repealing any portion of the Revision inconsistent therewith." The act of June 9, 1874, c. 260, enacted "that none of the provisions of the act of June 7, 1872, (Shipping Commissioners' Act,) should apply to sail or steam vessels engaged in the coastwise trade, except the coastwise trade between the Atlantic and Pacific coasts," etc.

This language is so broad and comprehensive that, in our opinion, its effect must be to strike from the Revised Statutes every provision therein which was taken from the act of 1872 relative to such coastwise vessels; and their operation must be restricted to vessels sailing on long foreign voyages, or from the Atlantic to the Pacific coasts. All the regulations found in the act of 1872, and transferred to the Revised Statutes, relative to the shipment of crews, which might otherwise, perhaps, be applicable to coastwise voyages, are no

longer in force, and the jury were correctly instructed that the shipment of the defendant on this voyage was valid and binding, although not made in the presence of a commissioner, master, consignee, or owner. All that is now required for such contracts is that they shall conform to so much of the act of 1790 as is re-enacted in this title of the Revised Statutes, and the crew are bound by such engagements.

There is no limitation to the operation of the act of 1874; by it, every provision found in the Revised Statutes respecting coasting vessels, which were first enacted in the act of 1872, are repealed, and the result therefore must be that all such provisions, some of which are of a most just and salutary character, as, for instance, the allowance of wages to the crew to the time of loss in case of shipwreck, are no longer in force. Among others thus repealed are those found in chapter 7 of this title, concerning "offences and punishment." By these provisions, which were a re-enactment of section 51 of the act of 1872, the crew were rendered liable to an indictment in case of desertion. We are not aware of any other act of congress which punishes desertion criminally, but under our construction of the act of 1874 we are compelled to hold that chapter 7, of title 53, is no longer applicable to the crews of coasting vessels. The result, therefore, is that this defendant, although legally shipped and bound by the articles to complete the voyage, was not liable to an indictment for desertion.

The verdict must therefore be set aside and a new trial granted.

GIANT POWDER Co. v. CALIFORNIA VIGORIT POWDER Co. and

others.*

(Circuit Court, D. California. November 26, 1880.)

1. EQUITY PRACTICE-REHEARING.-An application for a rehearing in court of original jurisdiction, after entry of a final decree, is not an ex parte proceeding.

2. SAME-SAME.—If the petition for such rehearing be filed during the term, the court will retain jurisdiction over the case, and may subsequently decide upon the application

3. SAME-SAME.-A case was heard by a justice of the supreme court, whilst holding the circuit court for the district of California, in the city of San Francisco, and a decree was entered dismissing the complainant's bill. Held, that complainant's petition for a rehearing could not thereafter be heard ex parte before the justice at Washington.

4. SAME-SAME.—Held, further, that the proper course of procedure for the complainant, in such case, was to file its petition with the clerk of the circuit court at San Francisco, and obtain from the court or circuit judge an order upon the defendants to show.cause on the following rule day, or some other day mentioned, why its prayer should not be granted; whereupon the defendants could answer the petition, and upon such petition and answer the application for the rehearing could be heard.

5. SAME-SAME.-Held, further, that as the circuit court in San Francisco would be held by the circuit judge, in the absence of the justice who heard the cause, that the latter would direct the clerk of the court to forward the petition and answer to him at Washington, accompanied with such briefs as counsel might file within a reasonable time to be allowed by the court; and that the application would then be taken up and disposed of, and the judgment of the justice sent to the circuit court and there entered.-[ED.

In Equity. Petition for rehearing.

FIELD, C. J. This case was heard by me whilst holding the circuit court in San Francisco, in the month of September last, and was decided on the twelfth of October following. The decision was against the complainant, and a decree was entered dismissing the bill. The complainant's counsel now present to me at Washington a petition for a rehearing.

*See Giant Powder Co. v. California Vigorit Powder Co. 4 FED. REP. 720.

The case was elaborately argued at the circuit, counsel occupying several days in the presentation of their views. Their arguments were taken down by a short-hand writer, and printed, thus enabling me to read what I had patiently listened to in the oral discussion.

The question before the court was the validity of the reissued patent to the complainant. The main objection urged to its validity was that it was for a different invention from that described in the original patent. And upon that point the argument was full, elaborate, and able. It is difficult to see how the position of the complainant in support of the patent could have been more cogently presented.

The original patent was for a compound of nitro-glycerine, with an inexplosive porous absorbent, which would take up the nitro-glycerine, and render it safe for transportation, storage, and use, without loss of its explosive power. The re-issued patent is for a compound of nitro-glycerine with any porous absorbent, explosive or inexplosive, which will be equally safe for transportation, storage, and use, without loss of explosive power. In other words, the re-issued patent drops the limitation of the original, and seeks to cover all compounds in which nitro-glycerine is used, in connection with a porous absorbent, in the production of blasting powder, thus practically securing to the patentee a monopoly of nitro-glycerine in the manufacture of that powder. The court held that the re-issued patent was, therefore, more extensive in its scope than the original patent, and on that ground was invalid. It covered a different invention.

The court also held that the original patent was neither invalid nor inoperative from any defective specification, but was valid and operative for the invention described; and that this appeared upon a comparison of the two patents, the re-issued patent differing from the original only in the extent of its claim; and that, therefore, the commissioner exceeded his jurisdiction in granting a re-issue at all, as well as on the ground that the re-issued patent was for a different invention. This latter position was not, it is true, discussed in the oral argument, but. it is raised by the pleadings, and

the attention of complainant's counsel at San Francisco was called to it, and a note of authorities on the point was received from him, embracing the greater part of those mentioned in the petition for rehearing. Whether the position be well. taken or not cannot affect the decision of the case, if the re-issued patent cover a different invention from that described in the original patent.

But the petition cannot now be considered by me at Washington. It is not an ex parte proceeding; it can only be presented on notice, and can only be considered after the other side has had an opportunity to answer it. The ex parte presentation by counsel has evidently been made from a failure to distinguish between an application for rehearing after the decision of an appellate tribunal, and an application for a rehearing in a court of original jurisdiction after entry of a final decree. The distinction between applications for rehearing in the two cases is pointed out by Chief Justice Taney, in Brown v. Aspden, 14 Howard, 26: "By the established rules of chancery practice," said the chief justice, “a rehearing, in the same sense in which that term is used in proceedings in equity, cannot be allowed after the decree is enrolled. If the party desires it, it must be applied for before the enrollment. But no appeal will lie to the proper appellate tribunal until after it is enrolled, either actually or by construction of law; and, consequently, the time for a rehearing must have gone by before an appeal could be taken. In the house of lords in England, to which the appeal lies from the court of chancery, a rehearing is altogether unknown. A reargument, indeed, may be ordered, if the house desires it for its own satisfaction. But the chancery rules in relation to rehearings, in the technical sense of the word, are altogether inapplicable to the proceedings on the appeal.

"Undoubtedly, this court may and would call for a reargu ment where doubts are entertained, which it is supposed may be removed by further discussion at the bar. And this may be done after judgment is entered, provided the order for reargument is entered at the same term. But the rule of the court is this that no reargument will be heard in any case

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