[Shaw v. Cooper.] the transaction. The doctrine of presumed acquiescence, where the public use is known, or might be known to the inventor, is the only safe rule which can be adopted on this subject. In the case under consideration it appears the plaintiff came to this country, from England, in the year 1817, and being an alien, he could not apply for a patent until he had remained in the country two years. There was no legal obstruction to his obtaining a patent in the year 1819; but it seems that he failed to apply for one, until three years after he might have done so. Had he used proper diligence in this respect his right might have been secured; as his invention was not sold in England until the year 1819. But, in the two following years, it is proved to have been in public use there, and in the latter year, also in France. Under such circumstances, can the plaintiff's right be sustained? His counsel assigns as a reason for not making an earlier application, that he was endeavouring to make his invention more perfect; but it seems by this delay, he was not enabled, essentially, to vary or improve it. The plan is substantially the same as was carried into public use through the brother of the plaintiff, in England. Such an excuse, therefore, cannot avail the plaintiff. For three years, before the emanation of his patent, his invention was in public use, and he appears to have taken no step to assert his right. Indeed he sets up, as a part of his case, the patent of Forsythe, as a reason why he did not apply for a patent in England. The Forsythe patent was dated six years before. Some of the decisions of the circuit courts, which are referred to, were overruled in the case of Pennock and Sellers v. Dialogue. They made the question of abandonment to turn upon the intention of the inventor. But such is not considered to be the true ground. [*323 Whatever may be the intention of the inventor, if he suffers his invention to go into public use, through any means whatsoever, without an immediate assertion of his right, he is not entitled to a patent; nor will a patent, obtained under such circumstances, protect his right. The judgment of the circuit court must be affirmed with costs. This cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and was argued by counsel: on consideration whereof, it is adjudged and ordered by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs. 239 7p 324 43 926 SYLVAN PEYROUX AND OTHERS, 7p 324 461 799 7p 324 521 389 7p 324 69f1013 7p 324 167 7p 324 611 CLAIMANTS OF STEAMBOAT PLANTER, APPELLANTS, V. WILLIAM L. HOWARD AND FRANCOIS 7p 324 A libel was filed in the district court of the United States for the eastern district 174 697 7p 321 89f 373 941 551 7p 324 100f 106 100f 113 7p 324 1077 981 7 p 324 8 L-ed 700 112 f 7 p 8 L-ed e119 f 119 f 119 f 324 700 744 745 753 this case. By the civil code of Louisiana, workmen employed in the construction or repairs of ships or boats enjoy the privilege of a lien on such ships or boats, without being bound to reduce their contracts to writing, whatever may be their amount; but this privilege ceases if they have allowed the ship or boat to depart without exercising their rights. The state law, therefore, gives a lien in 750 In the case of the General Smith, 4 Wheat. 438, S. C. 4 Peters' Condensed Reports, it is decided that the jurisdiction of the admiralty in cases where the repairs are upon a domestic vessel, depend upon the local law of the state. Where the repairs have been made or necessaries furnished to a foreign ship, or to a ship in the ports of a state to which she does not belong, the general maritime law gives a lien on ships as security; and the party may maintain a suit in the admiralty to enforce his right. But, as to repairs or necessaries in the port or state to which the ships belong, the case is governed altogether by the local law of the state; as no lien is implied unless it is recognized by that law. But if the local law gives the lien, it may be enforced in the admirality. The services in this case were performed in the port of New Orleans, and whether this was done within the jurisdiction of the admiralty or not, depends on the fact whether the tide in the Mississippi ebbs and flows as high up the river as the port of New Orleans. The court considered themselves authorized judicially to notice the situation of New Orleans, for the purpose of determining whether the tide ebbs and flows as high up the river as that place; and being satisfied that although the current of the Mississippi at New Orleans may be so strong as not to be turned backwards by the tide, yet the effect of the tide upon the current is so great as occasions a regular rise and fall of the water; New *325] Orleans may be *properly said to be within the ebb and flow of the tide, and the jurisdiction of the admiralty prevails there. In order to the decision whether the admiralty jurisdiction attaches to such services as those performed by the libellants, the material consideration is, whether the service was essentially a maritime service, and to be performed substantially on the sea or tide water. It is no objection to the jurisdiction of the admiralty in the case, that the steamboat Planter was to be employed in navigating waters beyond the ebb and flow of the tide. In the case of the steamboat Jefferson, it was said by this court that there is no doubt the jurisdiction exists, although the commencement or termination of the voyage may happen to be at some place beyond the reach of the tide. Some of the older authorities seem to give countenance to the doctrine that an express contract operates as a waiver of the lien: but it is settled at the present day, that an express contract for a stipulated sum is not of itself a waiver of a lien; but that, to produce that effect, the contract must contain some stipulations inconsistent with the continuance of such lien or from which a waiver may fairly be inferred. APPEAL from the district court of the United States for the eastern district of Louisiana. [Peyroux and others v. Howard and Varion.] In the district court a libel was filed on the 10th December, 1830, by Howard and Varion, shipwrights, residing in New Orleans, against the steamboat Planter, claiming the sum of two thousand one hundred and ninety-three dollars and thirty-five cents, being the balance asserted to be due to them for the price of work, labour, materials furnished, and repairs made, on the said boat, under contracts of 13th September and 19th October, 1830; and alleging that, by the admiralty law and the law of the state of Louisiana, they had a lien on the said boat for the payment of the same; and that she was about leaving the port of New Orleans, and praying process, &c. The account for the work, materials, &c. was annexed to the libel. The owners of the steamboat Planter filed a claim and plea setting forth that they were all citizens of Louisiana, all resided in the city of New Orleans, and that the libellants were also citizens of that state; and that therefore the district court of the United States had not jurisdiction of the case. By a supplemental answer the respondents denied all the facts set forth in the libel. *The plea to the jurisdiction of the court was overruled [*326 and dismissed; and the parties proceeded to take the testimony of witnesses by depositions, which were filed as part of the proceedings in the case. By the first contract, the shipwrights stipulated to do certain specified work, and furnish certain materials, the same to be approved by experts," for which they were to be paid the sum of one thousand one hundred and fifty dollars. By the contract of the 19th of October the Planter was to be hauled on shore, and in consideration of four hundred and seventyfive dollars, of which two hundred was to be paid in cash, and two hundred and seventy-five in one month after the boat should be launched and set afloat, certain other repairs were to be done to her, and she should be delivered and ready to receive a cargo by the 20th of November, under a penalty of twenty-five dollars per day for each day her delivery should afterwards be retarded by the shipwrights. The evidence in the case is fully stated in the opinion of the court. The district court made the following decree. "The libellants claim a balance due them of two thousand one hundred and ninety-three dollars. and thirty-five cents for work and materials furnished in the repairs of the steamboat Planter at the request of the claimants, and for which they have a lien by the local law. The claimants, in their first answer, deny the jurisdiction of the court, on the ground that all the parties were citizens of the same state, to wit, of Louisiana; that objection, however, was not insisted upon at the trial, and is not sustainable on the admiralty side of this court. In their supplemental answer, they deny generally the allegations of the libellants, and pray for the dismissal of the libel and damages. The whole account of the libellants against the owners amounts to three thousand six hundred and ninety-three dollars and thirty-five cents, including the amount of the written contracts en [Peyroux and others v. Howard and Varion.] tered into between the parties; of this sum they acknowledge the payment of one thousand five hundred dollars, leaving, as they allege, a balance of two thousand one hundred and ninety-three dollars and thirty-five cents due them. By the first contract, *327] made on the 11th September, 1830 (the boat being then in the water), the libellants agreed, for the sum of one thousand one hundred and fifty dollars, to make certain repairs on that part of the boat which was above water, from the wheelhouse to the bow; and it was further stipulated, that if they made any other repairs, by replacing unsound timbers in any other part of the boat above water, not then discovered, they were to be paid separately for so much. After commencing the work, it was perceived that the boat required repairs under the water as well as above, and in consequence of that discovery, the claimants, through captain Jarreau, master of the boat and one of the owners, agreed to pay the libellants four hundred and seventy-five dollars for hauling out the boat, and for launching her when she should be repaired; and as the quantity of work to be done was uncertain, it was stipulated that an account of it should be kept, and if approved by captain Jarreau, under whose inspection the work was to be done, the claimants bound themselves to pay the amount thus to be ascertained: this latter contract was made on the 19th October last. After the boat was hauled out, it appears the work under both contracts was carried on simultaneously. On a first view of the account current exhibited in this case, it would seem, from the dates, that at least a part of the work to be done under the first contract was again charged, but the subsequent testimony taken in this case shows that these charges were made on account of the extra repairs provided for under the first contract; and it further appears that all the charges made after the 19th of October, have no relation to the first agreement, but all relate to the work contemplated by the second contract. From the complexion of the testimony taken by the complainants, their real defence seems to be that the prices of the work charged are greater than they should be, that it was not executed in a proper manner, and that the libellants have forfeited a considerable sum of money in consequence of not delivering the boat within the time stipulated in the contract. As to the two first objections, the evidence is conclusive in favour of the libellants; captain Jarreau, himself, upon being shown the account, did not object to it; on the contrary, expressed himself satisfied with the $328] work, and said he was "not surprised at it, because there was a great deal more work done than he had any idea of;" with respect to the nondelivery of the boat at the time agreed upon, the fault chiefly attaches to captain Jarreau, who, in several.instances, retarded the work by opposing repairs which were proposed by the libellants, but which turned out to be indispensable, and were afterwards ordered by him to be made; besides, he promised them indemnity against their obligation to pay twenty-five dollars a day for every day they were in default in delivering the boat, and gave as the reason, that they had to do more work than was at first an [Peyroux and others v. Howard and Varion.] ticipated. The charge of four hundred and seventy-five dollars, is for the specific service of hauling out and launching the boat, and must be allowed as such. On the whole, the evidence and exhibits in the case fully sustain the demand of the libellants; it is therefore ordered, adjudged, and decreed, that the claimants pay to them the said sum of one thousand one hundred and ninety-three dollars and thirty-five cents, and costs of suit." From this decree the owners of the Planter appealed to this court. The case was argued for the appellants by Mr. Morton. Mr. Livingston submitted a printed argument. For the appellants it was contended: 1. It does not appear, upon the proceedings, that the court below had jurisdiction. 2. That the libellants had waived any privilege or lien upon the said steamboat, under the laws of Louisiana, and therefore proceedings in rem were improper. 3. Though the court had jurisdiction, yet the decree rendered is erroneous. On the first point, "that it does not appear, upon the proceedings, that the court below had jurisdiction;" Mr. Morton contended, that jurisdiction should appear affirmatively, for the district courts of the United States are of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them. Kemp's Lessees v. Kennedy, 5 Cranch, 184; Walker v. Turner, 9 Wheat. 341. And this rule is applicable to all courts of inferior jurisdiction (Stanyon v. Davis, 6 Mod. 224; the Lord Co- [*329 ningsby's case, 9 Mod. 95); and has been adopted by the appellate court, from the earliest periods of judicial history, for the purpose of restraining inferior tribunals within their appropriate spheres of action, and preventing the possibility of their passing those bounds, even by the assent of parties below, to the erroneous exercise of power. To sustain the jurisdiction of the court below, it must appear affirmatively, either that the Planter was a "foreign vessel," or being a domestic vessel, that the lien or privilege created by the laws of Louisiana, constituted her a proper subject for the action of a court of admiralty. The first is not contended for on the part of the libellants; and to maintain the second, it must be shown affirmatively, that the Planter" was engaged in a maritime employment," being a navigation "super altum mare," or "substantially upon waters within ebb and flow of the tide ;" constituting a case of admiralty jurisdiction, as recognized "by the law, admiralty and maritime, as it has existed for ages," which alone, the admiralty courts of the United States act under, and have authority to administer to the cases as they arise. The steamboat Thomas Jefferson, Johnson claimant, 10 Wheat. 428; American Insurance Company v. Canter, 1 Peters' Rep. 545; The St. Jago de Cuba, 9 Wheat. 409, 416; The General Smith, 4 Wheat. 438; Ramsey v. Allegree, 12 Wheat. 611; ship Robert Fulton, 1 |