been omitted. If he was the inventor of both, he was entitled to patent both the sub-combination without the strip of india-rubber, as well as the entire combination of the lapping of the leather and the intervention of a piece of india-rubber to make the seam tighter, and better still in combination with the line of rivets and line of stitching on each side of it. He being the first person to invent both, I think it was patentable as to both. He, doubtless, did invent the sub-combination as well as the entire combination at the same time. He embraced the sub-combination in the last patent without the additional element intervening, and it does not appear that it was on sale for two years before the application for the last patent. I think the plea, then, should be overruled. And it is so ordered.

MARTIN V. BALDWIN ET AL.

Filed February 4, 1884.

PENDENCY OF A SUIT FOR PARTITION IN THE STATE COURTS, such suit being in the nature of a proceeding in rem, is a bar to a subsequent suit for partition of the same land in the United States courts, brought by a successor in interest, pendente lite, of some of the parties to such former suit against the successors in interest of the other parties.

SUIT for partition. The opinion states the facts.

W. S. Woods, for the complainant.

Latimer & Morrow, for the defendants.

SAWYER, Circuit Judge (delivering an oral decision). This is a suit for partition of a ranch, Camilo Martin bringing the suit against Baldwin and Garvey for partition, alleging that he owns a certain portion, and that Baldwin and Garvey own the remaining portions. The plea sets up that W. and F. W. Temple commenced suit in the district court for the district of Los Angeles county, against Baldwin, one of the defendants in this suit, and several other defendants named, being the other owners at the time, for a partition of this same ranch; that said suit is still pending in the superior court for the county of Los Angeles; that it embraces the identical object and subject-matter involved in this suit; that since the commencement of that suit, the plaintiff in this proceeding, Camilo Martin, has purchased the interest of the Temples, and now owns the same interest that the Temples did; that Garvey has purchased the interest of some of the other defendants in the suit, and that Camilo Martin, the complainant in this suit, and Baldwin have also purchased the remaining interest of the other defendants in the suit, so that now Martin, Garvey, and Baldwin are owners of the entire ranch; that though there are other parties to the former suit for partition, yet the parties to the present suit have succeeded to their interests pendente lite, and are now the only parties in interest; that the same interests are now involved, the parties to this suit having purchased in subsequently to the bringing of the former suit and the filing of notice of lis pendens, and are, therefore, in privity with those other parties; that this suit involves precisely the same questions that the former suit does, and that the judgment or the decree in the former suit would be binding upon all the world. Section 1908 of the code of civil procedure says: "The effect of a judgment or final order in an action or special proceeding before a court or judge of this state, or of the United States, having jurisdiction to pronounce the

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judgment or order, is as follows: * 2. In other cases, the judgment or order is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing, under the same title, and in the same capacity.'

Precisely the same relief is to be had in one suit as in the other, and the judgment in the first suit would be binding upon all the parties. It is true, that these are different jurisdictions, that is to say, one is the jurisdiction of the United States and the other of the state court, and in ordinary cases, the pending of the suit in one of these tribunals would not abate a suit pending in another. But these suits are for partition of the same land, and the two courts might reach a different result, and there be no error in either proceeding upon which the judgment could be reversed. The parties would find themselves in a very embarrassing position if the judgments should be different in the different courts and both of them be valid. The jurisdiction of the two courts is concurrent. The proceeding is in the nature of a proceeding in rem. When two courts have concurrent jurisdiction in a proceeding in rem, and one court obtains possession of the res, ordinarily it would be entitled to proceed to judgment without interference from the other court. Certainly one court would not be entitled to take the res out of the possession of another court of concurrent jurisdiction, which in the exercise of its lawful authority has obtained the actual physical possession of the thing in suit. It seems to me, that the same principle should apply to a suit for partition. The action is local, and the courts having concurrent jurisdiction must, necessarily, exercise the same territorial jurisdiction, although the courts may be courts of different sovereignties. The proceeding being in the nature of a proceeding in rem, the court first obtaining legal possession or control of the res ought, by comity at least, if not otherwise, to be permitted to proceed to an adjudication without interference by the other court. As a matter of sound legal discretion and comity, I think the court is authorized to abate the suit in this court on the ground of the pending of the other suit in the state court, even if the party pleading the matter of abatement is not entitled to have it abated as a matter of strict legal right. The complainant can not complain, for he purchased pending the former suit, and the notice of lis pendens filed in pursuance of the statute informed him of the condition of the lands. He purchased into a lawsuit in regard to lands already in the legal control of another court. This court at the commencement of that suit had no jurisdiction whatever of the case the parties being then all citizens of California— and complainant took his interest cum onere.

Let the plea be sustained.

DISTRICT COURT, DISTRICT OF OREGON.

THE ULLOCK, ALEXANDER SWIETOSLAWSKI, Claimant.

Filed February 7, 1884.

OFFER OF PILOT SERVICE BY SIGNAL.-The pilot commissioners of Oregon, under the pilot act of 1882, are authorized and required to declare by rule what shall constitute a valid offer of pilot service on the Columbia-river bar pilot grounds, by a signal addressed to the eye, and in so doing may prescribe the distance within which such signal must be made from the vessel signaled.

SIGNAL FOR AN OFFER OF PILOT SERVICE.-The statute of the United States does not prescribe any signal to be used on a pilot boat in making an offer of pilot service, and the light required by section 4233 of the revised statutes to be carried by a sailing pilot vessel at night is only used to prevent collision, and incidentally to give notice of the character of such craft; but the usual signal by which an offer of pilot service is made is the jack set at the main truck in the day-time, and "flare-ups " at night, and this jack is usually the ensign of the country in which the service is offered. In the United States it is a blue flag charged with a star for every state then in the Union, and called the union jack."

THE TERM "STATE" CONSTRUED TO INCLUDE A "TERRITORY."-The term "state," in the act of March 2, 1837, 5 Stat. 153, R. S., sec. 4236, regulating the taking of pilots on a water forming the boundary between two states, construed to include an organized "territory" of the United States.

IN admiralty. The opinion states the facts.

Frederick R. Strong, for the libelant.

Erasmus D. Shattuck and Robert L. McKee, for the claimant.

DEADY, J. The libelant, George W. Wood, of the pilot schooner J. C. Cozzens, brings this suit to enforce a claim for pilotage against the British bark Ullock, of seventy-six dollars, growing out of an offer to pilot said bark in and over the Columbia-river bar on March 24, 1883, and a refusal to receive the same by the master and claimant, Alexander Swietoslawski.

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It appears that the alleged offer was made between four and five o'clock in the afternoon, at a distance of some twenty-five miles from the bar, and consisted in the schooner setting her jack at the main truck until dark, when she set her mast headlight and burned "flare-ups over the side. The bark was approaching the bar from the south-west. The schooner, which was lying to, north-west of the bar, on observing her, ran down before the wind across the course of the bark. The bark paid no attention to the schooner, but kept on her course about eastnorth-east, until half-past seven o'clock, when she had the Cape Hancock light on her port bow and was hailed by the steam-tug Brenham and took therefrom a pilot. The schooner in her run down the coast passed astern of the bark, and then jibed sails and followed her. Between nine and ten o'clock the bark tacked and stood off shore, and soon after met the schooner with the libelant on board, who offered his services as pilot, which were declined by the pilot on board, the master being below.

In the testimony of the crews of the bark and schooner, there is the usual amount of flat contradiction concerning the disputed circumstances of the case. The libelant swears that when the fog lifted and he first sighted the bark she was in plain sight, and not more than two or three miles distant, when he put the schooner before the wind and made sail to cut her off, and that when he came within a mile of her he expected the bark to lie to until he could go aboard, but that she kept on her

course, and the schooner had to jibe her sails to follow, whereby the latter fell astern, and that thereafter he kept within from one to three quarters of a mile of the bark until they met.

The master of the bark swears that when he first sighted the schooner she was seven or eight miles away, and when night set in she was still four or five miles distant, and he did not see her afterward until they met as above stated. But the master admits that he saw the schooner, and that he knew she was a pilot boat from the flag at her mainmast, and that he did not lie to or signal for a pilot, because he did not know certainly how far he was from the bar, and he did not want to take a pilot so far out as to incur the payment of "distance" or "off-shore" pilotage.

It is admitted that the master of the Ullock had been in the river four times; that the Cozzens is the only pilot schooner that had been on the bar for about two years before this time, and that she put a pilot on the Ullock under the same master in 1882; that the libelant was a duly qualified bar pilot under the laws of Oregon, and that the pilot from the tug who brought in the bark was a duly qualified one under the laws of Washington territory.

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By section 30 of the Oregon pilot act of 1882, Sess. Laws, 20, it is provided, that "the pilot who first speaks a vessel, or duly offers his services thereto, as a pilot on or without the bar pilot ground, is entitled to pilot such vessel over the same," but the master may decline the offer, in which case he shall pay, if inward bound, full pilotage. And section 34 provides, that the pilot commissioners "must declare by rule what constitutes a speaking of a vessel or an offer of pilot service on the bar pilot grounds," within the meaning of the act.

By rule 9, adopted by the commissioners in pursuance of this authority, on November 17, 1882, it is provided, that "the term 'speaking a vessel for pilot service' shall be construed to mean either by the usual form of hailing, or, if out of hailing distance and within one half mile, then the usual code of signal shall be made use of."

This rule preserves the distinction that is made in the pilot act, between "speaking" or "hailing" a vessel, and a mere "offer" of pilot service. The former implies that the parties are within speaking distance, and can only be done by word of mouth, supplemented, it may be, by some such device for projecting the sound of the voice as a speaking-trumpet, or even personal gesticulation: Commonwealth v. Rickertson, 5 Met. 412; 2 Parsons on Ship. & Ad. 109. But an "offer" of pilot service may also be made by some arbitrary but established sign or demonstration, made from beyond ear-shot, and addressed exclusively to the eye. And this offer, according to the rule, must be made with "the usual code of signal," whatever that is.

It is unfortunate that the commissioners did not declare definitely what signal constitutes an offer of pilotage, as required by the act. Declaring that the offer should be made by "the usual code of signal has thrown no light on the subject, and maybe darkened it. The expert witnesses, including one of the commissioners, do not seem to be very clear as to what this "usual code of signal" is; though the apparent confusion of their testimony may arise from the want of knowledge on the part of counsel who examined them.

For instance, the commissioner having testified that an offer of service was customarily made by the pilot boat putting her "head down

towards the ship, and showing her blue flag," her number being on her mainsail, and at night by burning a flare," counsel for the libelant said, "Then I understand you to mean the use of the usual signals prescribed by the revised statutes of the United States, to be used on board pilot boats?" to which the witness answered "Yes."

Now there are no signals prescribed by the statutes of the United States for the use of pilot boats in making an offer of pilot services; nor had the witness in any way indicated that that was what he meant when he said that the pilot boat must "show her blue flag." The question was based upon an erroneous assumption, both as to the statute and the previous statement of the witness, while the answer was apparently made upon a total misapprehension of both.

The rule assumes that there is a usual and well-understood signal, by which a pilot boat can make an offer of pilot service to a vessel not within hailing distance, and be understood. But whether that signal is known throughout the civilized world, or whether its use is confined to this coast, or even this port, does not clearly appear from the evidence, or at all from the rule.

But this is a subject concerning which I think the court may supplement the evidence by its judicial knowledge. And first, the use of the word "code" in the rules is misleading. I think there is no "code" of pilot signals, although there may be and doubtless is a signal for "a pilot wanted," in the international code of signals, or that of any country. The usual signal by which an offer of pilot service is made in the day-time is a flag at the mast-head. This, of course, will be the flag of the country in which the offer is made, or that modification or portion of it called the "jack." In the United States it is a blue flag charged with a star for every state in the Union, and called the "union jack.'

By section 4233, subdivision 11, of the revised statutes, a sailing pilot vessel is required to carry a white light at her mast-head during the night, and "exhibit a flare-up light every fifteen minutes." But neither of these lights, thus required to be carried, are signals that indicate an offer of pilot service, for they must be carried although all the pilots on the boat have been distributed. Evidently, the statute requires these lights to be burned for the purpose of making known the whereabouts and character of the boat in order to prevent collision, and incidentally to advise any one in need of or desiring the service of a pilot where to apply.

But the burning of "flare-ups," or a flashing light over the side of the boat, at short intervals, is also the customary method of making an offer of pilot service at night. It follows that the libelant made a proper tender of his services as a pilot to the Ullock, both in the day-time and after night, provided he did so within the distance prescribed by the ninth pilot rule.

Without saying so directly, the necessary effect of this rule seems to be to require that an offer of pilot service made otherwise than by hailing-as by signal-shall be made within a half-mile of the vessel signaled. Counsel for the libelant contends, however, that the power of the commissioners does not extend to prescribing the distance within which such offer must be made. But in my judgment it does; and for manifest reasons. They are expressly authorized and required to declare what shall constitute a valid offer of pilot service; and when this may be done by a signal, as by setting a blue flag at the main-truck, the