because the seizure was not made in the state and therefore not the District of New Jersey.

The surrender by New Jersey of its boundary as claimed from the Revolution is alleged by the claimants of the Rosemary to have been made in 1834, by an act of that state entitled "An act to ratify and confirm an agreement made between the commissioners appointed by the Governor of the state of New York, and the commissioners appointed by the Governor of the state of New Jersey, respecting the territorial limits and jurisdiction between the said states." Laws 1833-34, p. 118. It will be noted that not only does the act state, and thus differentiate, two distinct, separate subjects of settlement, viz. "the territorial limits" and "jurisdiction between the said states," but the courts of New Jersey have so construed the statute and treaty, and the Supreme Court of the United States has thereto agreed also, in Cook v. Weigley, 72 N. J. Eq. 221, 65 A. 196, where

it is said:

"Article 1, in clear and explicit language, fixed the boundary line between the states as the middle of the Hudson river and the bay of New York. This disposed of the question of territorial limits, and had this been the only matter submitted to the commissioners would have exhausted their authority in the premises. They were, however, empowered to deal also with jurisdiction. By article 2 of the treaty the lands in question are declared to be within the boundary of the state of New Jersey, and subject to the sovereignty of that state, encumbered, however, with the right of New York to exercise jurisdiction over it. This, in my opinion, does not change the territorial location of the land, for the reservation of jurisdiction thereover did not have the effect of retaining the land as a part of the territory of the state of New York, and the jurisdiction which the state of New York retained, and may exercise, is no greater than the 'exclusive jurisdiction' granted to New York over all the waters of the bay of New York, and does not have the effect, here contended for, of depriving this court of the jurisdiction necessary to determine the legal status of these islands to the same extent that it may do with regard to all other lands within its boundaries."

To the same effect is Central R. R. v. Jersey City, 70 N. J. Law, 92, 56 A. 243, where it is said:

"In the enactments themselves the same duality of objects to be settled is at all times observed in the statutes in each state.

the conclusions reached are that the agreement of 1834 between the commissioners representing the states of New Jersey and New York, having been confirmed by their respective Legislatures and approved by the Congress of the United States, established the boundary line between this state and the state of New York in the middle of the Hudson river and of the bay of New York, and that the sovereignty of the state of New Jersey is coextensive with the territorial limits thus established, subject only to such extraterritorial jurisdiction of a juridical character as was by the said compact conceded to the state of New York, from which it results that the sovereign power of taxation over all the territory thus defined resides in the state of New Jersey."

The case was affirmed in 72 N. J. Law, 311, 61 A. 1118, and on review by the Supreme Court of the United States it was said in 209 U. S. 473, 28 S. Ct. 592, 52 L. Ed. 896:

"It is said that a different meaning does appear in the article (3) that gives New York exclusive jurisdiction over this land as well as the water above it. But we agree with the state courts that have been called on to construe that part of the agreement that the purpose was to promote the interests of commerce and navigation, not to take back the sovereignty that otherwise was the consequence of article I. This is the view of the New York as well as of the New Jersey Court of Errors and Appeals, and it would be a strange result if this court should be driven to a different conclusion from that reached by both the parties concerned. Ferguson v. Ross, 126 N. Y. 459, 463 [27 N. E. 954]; People v. Central R. R. Co., 42 N. Y. 283. This opinion is confirmed by the judgment delivered by one of the commissioners in State v. Babcock, 1 Vroom [30 N. J. Law] 29. Again, as was pointed out by the state court, the often expressed purpose of the appointment of the commissioner and of the agreement to settle the territorial limits and jurisdiction must mean by territorial limits sovereignty, and by jurisdiction something less."

Now as by the Constitution Congress was given power to "make rules concerning captures on land and water" (Const. art. 1, §

8, cl. 11) and as "the judicial power shall extend to all cases of admiralty and maritime jurisdiction" (Const. art. 3, § 2), it will be seen that forfeitures of vessels are within the exclusive jurisdiction of the federal courts. It follows, therefore, when the states of New Jersey and New York provided for the apportionment of their several jurisdictions, that this referred to state jurisdiction which they could affect and not matters of federal jurisdiction, of which they had no control. And that this was all the treaty did, and that there was no purpose to affect or surrender existing federal jurisdiction, is conclusively shown by the fact that the ratifying act of Congress of June 28, 1834 (4 Stat. 708), provided that nothing contained in the states' agreement "shall be construed to impair or in any manner affect, any right of jurisdiction of the United States in and over the islands or waters which form the subject of the said agreement." It is contended, however, that while the boundary of New Jersey extended over submerged land to the center of the Hudson and to all exercise of sovereignty in relation to such submerged land, that vessels on the water covering such lands were not within the state of New Jersey. The contrary of this was decided in Tennant v. State Board of Taxes and Assessments, 95 N. J. Law, 469, 113 A. 254, where it was said:

"But this jurisdiction has been held by the courts of both New York and New Jersey to be a jurisdiction simply for the exercise of the police power. People v. Central Railroad of New Jersey, 42 N. Y. 283; Central Railroad Co. v. Jersey City, 70 N. J. Law, 81 [56 A. 239]; S. C., 209 U. S. 473 [28 S. Ct. 592, 52 L. Ed. 896]. In the opinion of Mr. Justice Garrison, in 70 N. J. Law, at page 97 [56 A. 245], it is declared that 'the sovereign power of taxation over all the territory thus defined (i. e., to the middle of the Hudson river) resides in the State of New Jersey.' See Cook v. Weigley, 72 N. J. Eq. 221 [65 A. 196]. A vessel more or less permanently moored within the territory is, in our opinion, personal property 'found' within the taxing district, in the same manner as, e. g., coal on storage pending a sale and removal. Lehigh & Wilkes-Barre Coal Co. v. Junction, 75 N. J. Law, 922 [68

A. 806, 15 L. R. A. (N. S.) 514]. It is pertinent to note, while on this subject, that the libels against this tug were filed in the United States District Court for the District of New Jersey, and the seizure was made by the marshal of that court, in conformity, as it seems to us, with the statutory provision that 'the state of New Jersey shall constitute one judicial district' (Rev. Stat. U. S. § 531; Comp. Stat. U. S. 1913, § 1082 [28 USCA § 176]), treated as meaning that the district extends to the middle of the river, for all purposes of executing civil process out of that court."

We are not unmindful that there is a conflict of decision on this subject in the earlier decisions of the District Courts of New York and those of New Jersey, but we feel the weight of reasoning, the acquiescence of the two states, and the trend of later judicial decision unite in vindicating the assertion of jurisdiction exercised by Judge Nixon of the District Court over the water in question forty years ago in The Kennedy, 25 F. 571. There a schooner was seized under process of that court when afloat and at anchor on the westerly side of the center line of the Hudson river, and Judge Nixon rightfully upheld the jurisdiction of the District Court in these words:

"No authority is found in any act of Congress for the courts of the district in one state to exercise jurisdiction over the territory of another. Whatever may be

the arrangements between the states as to police regulations and quarantine laws, they cannot be construed into a surrender of the admiralty jurisdiction of the courts of the United States throughout the state. It was probably, in part at least, to prevent any such construction of the compact, that the Congress, in its act assenting to the same, added another section to said act of ratification, providing that nothing therein contained should be construed to impair, or in any manner affect, any right of jurisdiction of the United States in and over the islands or waters which formed the subject of the agreement."

The decree below is therefore reversed, and the record remanded, with instructions to reinstate the case and proceed in due course.

VAN VALKENBURGH, Circuit Judge.

issued to one Louie Klima. The specification, with its claim, reads as follows:

"Be it known that I, Louie Klima, a citizen of the United States, residing at Owatonna, in the county of Steele and state of Minnesota, have invented a new, original, and ornamental design for ventilators, of which the following is a specification, reference being had to the accompanying drawing, forming a part thereof.

"The figure is a perspective view of a ventilator, showing my new design. "I claim:

"The ornamental design for a ventilator as shown."

Appellant, a Minnesota corporation, is the owner of this patent. Appellee St. James Ventilating Company, of which appellee Jolly is president and manager, is also a Minnesota corporation. Both companies are engaged in the manufacture and sale of barn and stable ventilators. Appellant brought suit in the District Court for the District of Minnesota, charging appellees with infringement of its said design patent, and praying for injunctive and other appropriate relief. The court adjudged and decreed that said letters patent are void, because anticipated in the prior art more than two years before the filing of Klima's application, and because lacking in novelty and invention. The bill of complaint accordingly was dismissed.

The applicable law is thus stated:

Section 4929, R. S. (35 USCA § 73; Comp. St. § 9475): "Any person who has invented any new, original, and ornamental design for an article of manufacture, not known or used by others in this country before his invention thereof, and not patented or described in any printed publication in this or any foreign country before his invention thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law and other due proceedings had, the same as in cases of inventions or discoveries covered by sec

tion forty-eight hundred and eighty-six, obtain a patent therefor."

Section 4886 (35 USCA § 31; Comp. St. 9430), to which reference is made, provides: "Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may upon payment of the fees required by law, and other due proceeding had, obtain a patent therefor."

It will be observed that the rule respecting prior publication and prior public use is the same under both these sections. The essential facts were stipulated. From this stipulation it appears that during the years 1913 to 1918, inclusive, the appellant made and sold large numbers of ventilators of the following design:

And such ventilators made and sold by appellant have been in public use since the year 1913. These ventilators are like the design shown in appellant's patent in every respect except that the base is not flared. It is further conceded that in said year 1913 Louie Klima, the patentee, was general manager of the appellant company. It is also stipulated that one J. J. Sobolik, of Cresco, Iowa, doing business under the firm name of Queen Cupola Manufacturing Company, has continually, since a time prior to 1910, manufactured and sold cupolas of the following design:

That prior to 1910 the said Louie Klima, patentee of the patent in suit, was associated with said Sobolik in the business of manufacturing and selling cupolas of said design.

The drawing accompanying and forming a part of the specification in Klima's application for patent No. 50,624, and the exhibits tendered by appellant in the District Court, present the following design: