of law, is largely a matter of fact and discretion, which cannot be reduced to precise rules, but depends upon a consideration of all the circumstances of each case."

We are of opinion that no ground is shown, on the facts found, for awarding a larger sum to the appellants than the circuit court allowed them. The contract, as found, was a contract made by the master and the agent of the ship with the association to which the three tugs belonged, "to pump out" the ship, for a compensation of $50 per hour for each boat, "to be continued until the boats were discharged." This does not give a very clear idea as to what the contract was. If the pumping out should be completed there could be no continuance of the service of pumping out the ship, or of the contract, as a contract to pump out the ship. If the contract was that the compensation named should continue, in any event, and whether the ship was pumped out or not, until the boats should be discharged, the attendance of the boats along-side of the ship after she was pumped out and raised and placed in a position of safety, the boats being ready to render assistance, in case it was needed, for a period of about 12 days, is found to have been unnecessary, and not required by any peril of the Tornado and cargo. It is not found, as a fact, that the boats were formally discharged by the master or agent of the ship. But it is found that after the contract was made, and while the ship still lay at the bottom of the river, and when the boats were about to begin to pump her out, the marshal seized the ship and cargo under a warrant on a libel for salvage filed against the ship and cargo, and took possession of the ship, and displaced the authority of the master, but permitted the boats to proceed and pump out the ship; and that they, with other assistance, pumped out the ship, and raised her and placed her in a position of safety by a pumping service of about 18 hours. It is not found that the marshal requested or sanctioned in any way the continued presence of the tugs after the ship was raised and made safe. The authority of the master was displaced by the marshal. On these facts we are of opinion that to enforce the contract as one continuing during the time claimed by the libelants would be highly inequitable; and that, as against the insurers of the cargo, the right of the boats to compensation must be regarded as having terminated when the ship and cargo were raised, and the boats must be regarded as having been then discharged, within any fair interpretation which can be given to the contract. A compensation of $50 per hour for the 18 hours of actual pumping would amount to $900. Every agreement for salvage compensation is subject, as to amount, to the judgment of the court as to its being equitable and conformable to the merits of the case. Pars. Shipp. 306; The Helen and George, Swab. 368; Jones, Salv. 94 et seq.

The final decree of the circuit court was entered on the twentyfourth of May, 1880. On the twenty-sixth of June following, the

underwriters on the cargo filed a petition in the circuit court, praying a cross-appeal to this court from the decree, and it was allowed, returnable at the October term, 1880. On the fifth of July following, the bond on the cross-appeal was filed in the circuit court. But the appellants, in the cross-appeal, did not docket it, or enter their appearance on it, in this court, until September 27, 1883; and the appellees in it are entitled to have it dismissed. Grigsby v. Purcell, 99 U. S. 505; The S. S. Osborne, 105 U. S. 447. The cross-appeal is dismissed, and, on the appeal of the libelants, the decree of the circuit court is affirmed.

WRIT OF ERRor-Failure TO NAME RETurn-Day-DeFECT, HOW CURED—
JUDGMENT AFFIRMED Under Rule 6-APPEAL FOR PUR-
POSES OF DELAY.

In Error to the Circuit Court of the United States for the District of Nevada. On motion to dismiss, with which is united, under rule 6, a motion to affirm.

Wm. Woodburn, for plaintiff in error.

W. E. F. Deal and C. J. Hillyer, for defendant in error.

WAITE, C. J. The writ of error in this case was not made returnable on any particular day. This, if the defect is not cured by amendment, entitles the defendant in error to a dismissal; but the plaintiff in error asks leave, under the authority of section 1005, Rev. St., to amend the writ by inserting the proper return-day. That leave we grant, and therefore overrule the motion to dismiss; but, on looking into the record, we find the case was manifestly brought here. for delay only. All the questions presented are so frivolous as not to need further argument. The motion to affirm is granted. Judgment affirmed.

1 See 17 Fed. Rep. 912.

(109 U. S. 174)

Ex parte STATE OF PENNSYLVANIA.1

(November 5, 1883.)

ADMIRALTY JURISDICTION-SUIT FOR PILOTAGE FEES-ERROR IN JUDGMENT, HOW CORRECTED-APPEAL, HOW PROVIDED FOR.

The ruling in Ex parte Hagar, 104 U. S. 520, followed.

An error in a judgment of an admiralty court, having competent jurisdiction, cannot be corrected by a writ of prohibition; the remedy, if any, is by appeal. Congress alone has the power to determine whether the judgment of a court of the United States, of competent jurisdiction, shall be reviewed or not. If it fail to provide for such a review the judgment stands as the judgment of the court of last resort, and settles finally the rights of the parties involved.

Application for a Writ of Prohibition.

H. G. Ward and M. P. Henry, for petitioner.

Henry Flanders and Thos. F. Bayard, for respondent.

WAITE, C. J. We are unable to distinguish this case in principle from Ex parte Hagar, 104 U. S. 520, where it was held, on the authority of Ex parte Gordon, Id. 515, that as the admiralty court had jurisdiction of the vessel sued, and the subject-matter of the suit, it could not be restrained by a writ of prohibition from deciding all questions properly arising in that suit. This, like that, is a suit for pilotage fees, and the question is whether a statute of Delaware, under which the fees are claimed, is valid. If valid in Delaware it is in Pennsylvania, and the court sitting in Pennsylvania is as competent to decide that question in a suit of which it has jurisdiction as a court in Delaware. The jurisdiction of the court in Pennsylvania is no more dependent on the validity of the law than was that of the court in Delaware. The subject-matter of the suit is a claim of a Delaware pilot for his pilotage fees under a Delaware statute, and the sole question in the case is whether the fees are recoverable. The vessel when seized was confessedly within the jurisdiction of the court in Pennsylvania, and she was properly brought into court to answer the claim which was made upon her. About that there is no dispute, as there was at the last term in Re Devoe Manuf'g Co. 108 U. S.—, [S. C. 2 SUP. CT. REP. 894,] where the question was as to the right of the court in New Jersey to send its process to the place where the seizure was made. There, the question was as to the jurisdiction of the court over a particular place; here, as to the liability of a vessel confessedly seized within the territorial jurisdiction of the court upon a claim subject to judicial determination in an admiralty proceeding. The evident purpose of this application is to correct a supposed error in a judgment of an admiralty court on the merits of an action. That cannot be done by prohibition. The remedy, if any, is by appeal. If an appeal will not lie, then the parties are concluded

1S. C. sub nom. The Charles A. Sparks and The Agnes R. Bacon, 16 Fed. Rep. 480.

by what has been done.

Congress alone has the power to determine whether the judgment of a court of the United States, of competent jurisdiction, shall be reviewed or not. If it fails to provide for such

a review the judgment stands as the judgment of the court of last resort, and settles finally the rights of the parties which are involved. The petition is dismissed.

(109 U. S. 99)

KING v. GALLUN and another.

(October 29, 1883.)

PATENTS FOR INVENTIONS-LACK OF NOVELTY.

Letters patent No. 152,500, dated June 30, 1874, granted to the appellant for certain improvements in baled plastering hair, declared void for want of novelty.

In deciding whether a patent covers an article or process, the making of which requires invention, the court is not required to shut its eyes to matters of common knowledge, or things in common use.

Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.

This was a bill in equity brought by Wendell R. King, the appellant, against August Gallun and Albert Trostel, to restrain them from infringing letters patent No. 152,500, dated June 30, 1874, granted to the appellant for certain improvements in baled plastering hair. The invention and its advantages are thus set forth in the specification:

"It is found that the wants of the trade in plastering hair require it to be compressed for transportation in packages of from three to five bushels; this amount of hair forms a package of a good size to conveniently handle, weighing from twenty to forty pounds. The trade unit for the article of plastering hair is always the bushel; it is sold by the bushel or by the multiple thereof.

"Heretofore this hair has been packed in a mass of a certain number of bushels baled together, varying in amount as the order required, so that when received the retail dealer was compelled to parcel out the same and weigh it to suit his customers. This is a disagreeable and difficult thing to do, as the hair is dirty and matted together, and after it is once removed from the case into which it has been compressed by a baling press, is bulky and not easy to reduce again to a convenient package. For this convenience of the trade I propose to form the hair in small bundles of one bushel each, and unite several bundles into a bale of a convenient size for transportation.

"I first place a bushel of hair into a paper sack loosely, or only so far packed as may be readily done by hand; several of these one-bushel packages are then placed side by side in a baling press. I use for this purpose the baling press heretofore patented to me; they are thus compressed forcibly together, so that the bale produced will be a compact, firm bale, occupying only about one-fifth of the original bulk; the paper bags which still envelop the individual bushels of the bale keep said bushels separate, and serve at the same time to protect the hair.

"The bale, after being compressed, is tied in the usual way, and is then in shape for transporation without further covering, although it may be desirable, if the bale is to be sent a long distance, to envelop it in a stout sacking cover. Hair baled thus may be separated by the retail dealer into bushel packages, each of which remains compressed into a small size, and is in convenient condition to handle."

The claim was as follows:

"Having thus described my invention, I claim as an article of manufacture the bale B, of plasterers' hair, consisting of several bundles, A, containing a bushel each by weight, inclosed or incased in paper bags or similar material, and united, compressed, and secured to form a package, substantially as specified."

The defense was want of novelty in the alleged invention, and that the same was not patentable.

The circuit court dismissed the bill, and from its decree the complainant has appealed.

L. L. Coburn, for appellant.

Joshua Stark, for appellees.

WOODS, J. We are of opinion that the patent of complainant does not describe a patentable invention. The claim is for an article of manufacture, to-wit, a bale of plasterers' hair consisting of several bundles inclosed in bags, and compressed and secured to form a package. It is evident that the patent does not cover any improvement in the quality of the hair. Its qualities are unchanged. It does not cover the packing of the hair into parcels, or the size, shape, or weight of the parcels, nor the compression of the parcels separately. Nor does it cover the material of the bags which constitute the outer covering of the parcels. Complainant claims none of these things as secured by his patent. The packing of hair and other articles in parcels of the same shape, size, and weight, and the compression of the several parcels, has from time immemorial been in common use. Neither does complainant contend that his patent covers a single parcel or package of hair. All, therefore, that the patent can cover is simply an article of manufacture resulting from the compression and tying together in one bale of several similar parcels or packages of plasterers' hair. The object of this invention is thus set out in the specification: "For the convenience of the trade"that is to say, to enable the retail dealer more easily to parcel out the hair in quantities to suit his customers,-"I propose to form the hair in small bundles of one bushel each, and with several bundles into a bale of convenient size for transportation." The invention and the object to be accomplished by it are thus seen to be contained within narrow limits.

In deciding whether the patent covers an article, the making of which requires invention, we are not required to shut our eyes to matters of common knowledge, or things in common use. Brown v. Piper, 91 U. S. 43; Terhune v. Phillips, 99 U. S. 592; Ah Kow v. Nunan, 5 Sawy. 552.