DIAMOND BOOK BORING CO. V. SHELDON.
The brief has heen carefully examined, and it presents anything not before presented by counsel, and fully considered. The validity of the reissued patent was estab· lished by Judge Shipman, upon substantially the same record in the southern district of New York. Am. Diam. Rock Bor· ing Co. v. Sullivan Machine Co. 14 Blatchf. 119. That decis. ion was followed and concurred in in this case, and the decision in that respect could not be changed in this case without overruling that as well as the one in this case. The only other questions are those relating to infringement and to the effect of the New Hampshire decree. The question of infringement by the means held to be an infringement in this case was not determined by Judge Shipman in either case before him. It was merely postponed to final hearing; so that question was fully open. It was very carefully consid. ered, and nothing new is presented in regard to it. It seems to be understood or assumed that the patent has been held to cover a conical boring head, but that is not cor. recto It has been merely held that filling into the center to make a conical head to bore by the same means as the annular head infringes the patent for the annular head, although it may be, and probably is, an improvement upon the annular head. And likewise in regard to filling out the stock even with the laterally projecting diamonds. And there is nothing new about the New Hampshire decree. The fact remains that the causes of action there were different from those here, so they had not passed under judgment. And the issue here is not shown to have been actually decided by the court there, for nothing was decided there relating to the merits of either case. It is urged that the plaintiff does not proceed to an accounting under the decree, so that the defendants can appeal. This motion, however, was filed before there was any time for such accounting, and its pendency may have thus far prevented. Whether it has or not, that is no ground for a. rehearing, although it might become a ground for dismissing the bill for want of prosecution. On the whole, it is quite apparent that a rehearing, under the rules, would not, with
any reasonable degree of probability, change the result, but would only delay this and other causes, and add to the expense of .the parties. The patent was granted under the acts of congress of 1836 and 1861, and carried the full and exclusive right and liberty of making, using, and vending to others to be used, the patented invention, during the term of the patent. Act of 1836, § 5. The defendants have machines made during the term of the patent, and which were infringements when made. If they could be made then and u13ed now, in defiance of the owner of the patent, the exclusive right granted would not be fully enjoyed. The grant of the exclusive right is substantially the same in this country as it is in England. The question raised here arose there in Orossley v. Derby Gas. Light Co. Webst. Pat. Cas. 119. The case is more fully reported in 4 Law Jour. N. S. Chan. 25. There the patent would expire on the ninth of December, 1829; and on the twenty-eighth of November, before a bill was filed praying for an injunction against using infringing machines and for an account, the vice chancellor granted the injunction, and directed the account, and the defendants appealed. After argument, the lord chancellor, Lyndhurst, said: "This is an appeal from his honor, the vice chancellor, and is a case for an injunction against the invasion of a patentright by preventing the use of certain gas-meters. This case is very peculiar, and is distinguishable from all other cases in the books. It appears that the plaintiff obtained his patent on the ninth of December, 1815, and that on the twentyeighth of November, 1820, only a few days before the patent expired, he filed a bill. It was objected that the court would not interfere, just on the eve of the expiration of the patent, and grant an injunction which would only last a week. The point has never yet been decided; but I am of opinion that the court would interfere, after a patent had expired, to restrain the sale of articles manufactured previous to its expiration in infringement of a patent-right, and that a party would not be allowed to prepare for the expiration of a pat.
.A.M. DIAMOND ROOK' BORING 00. V. SHELDON.
ent by illegally manufacturing articles, and immediately after its expiration to deluge the markets with the products of his piracy, and thus reaping the reward of his improbous labor in making it. The court would, I say, in such case restratn him from selling them, even after the expiration of the patent." This doctrine does not appear to have been denied or questioned afterwards, and was frequently carried out, in effect, by decr,eeing the destruction of infringing machines. Betts v. De Vitre, 34 Law Jour. Ch. 289; Needham v. Oxley, 11 Weekly Rep. 852. In Curtis on Pat. § 436, it is laid down as clear law that, "if the patent has expired, the account and the injunction will extend to all the articles piratically made during tl;1e existence of the patent, though some of them may remain unsold." The illegality attaches to the things themselves. The person making thom has no right to make them-no right to them when made; he can import none, and none will accrue by their passing into time when they might be made. The ordinary injunction in such cases, in effect, restrains all infringement of the patent, and is, in form, perpetual. It would, cover an illegal sale or use after the expiration of the patent. In this case the ordinary injunction has been suspended in the course of proceedings to limit the term of the patent, and there is, therefore, no injunction now in force. The motion for rehearing is denied, and the injunction restored as to machines made in infringement of the patent.
MAINWARING tJ. BARK CARRIE DELAP,
(District (Jourt, 8. D. New York. March 6, 1880.)
GENERAL OARGO-STOWAGE-DANGEROUS ARTICLE-LrABIJ,ITY Oll'
Smp. -" The ship is not responsible for injury necessarily resulting to the goods of one shipper, by a general ship, from their being carried in thir same vessel with the goods of other shippers, which, by usage, are a proper part of the same general cargo; but if such injury, nevertheless, could have been avoided by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods, then it is not deemed to be, in the sense of the law, such a loss as will exempt the carrier from liability, but rather a loss occasioned by his negligence and inattention to his duty." Oertain bales of empty bags were shipped on an open-beam vessel, put up as a general ship, under a bill of lading stipulating for their delivery in good order, the" perils of the sea" excepted. The bags were placed on a temporltry deck of planks, covered with mats, directly over certain tierces of bleaching powder stowed in the lower hold. Held, that the ship was liable for the destruction of such bags caused by the fumes of the bleaching powder, set free by the pressure and workingof the cargo during heavy weather, without any negligence upon the part of those in charge of the vessel, in the absence of direct proof that such stowage was necessary to the trim of the vessel.
In Admiralty. E. G. Bell, for libellant. A. J. Heath, for claimants. CHOATE, J. This is a suit to recover damages for injury done to bales of empty grain bags, shipped by the libellant at Liverpool for New York, under a bill of lading which stipulated in the usual form for their delivery in good order, "the perils of the sea" excepted. The bark was put up as a general ship. Her cargo consisted of 323 tierces and 40 casks of soda ash, 300 drums of caustic soda, 265 tierces of bleaching powder, 1,850 sacks of salt, 10,000 fire-brick, 1,703 empty petroleum barrels, 840 boxes of cutch, and 110 bales of bags, of which 67 were shipped by the libellant. There was some other miscellaneous cargo, of no great amount, which it is unnecessary to mention in detail. The bark is what is called an open-beam vessel, having two decks, the lower deck being laid only for a space about 25 feet long in the bow and about 30 feet long in the after-part of the vessel. Upon the beams
MAINWARING V. BARK OARRIE DELAP.
between these two permanellt deckd were laid planks, and over the planks were laid mats. The planks were laid edge to edge, but rather loosely, together. The soda ash ,and the bleaching powders were stowed in the lower hold, two and three tiers high. Between two of the beams, amidships, the bricks were stowed, on top of the casks. This cargo filled the the lower hold up to within a foot or a foot and a half of the beams. The empty barrels were stowed between decks, mostly in the fore peak. The salt was stowed between decks, partly aft and partly amidships. The cutch was stowed on the salt. The bags were stowed in two places between decks, part of them on this temporary deck of planks covered with mats, directly over the bleaching powders, and part of them aft on the permanent deck. The vessel left Liverpool on the third day of November, 1877, and did not arrive at New York until the eighteenth day of January, 1878. She had a very tempestuous voyage, was obliged to put into Holyhead and remain there about three weeks, and on the tenth of January she encountered a gale of great violence, which lasted three days, during which she was, for a short time, on her beam ends, and took in some water, which the pumps could not reach. After this gale the vessel was somewhat listed to port. Some of the casks of bleaching powder and soda ash were broken. Upon arrival the bales of bags were delivered in good order except Bome 32, which were corroded and eaten on the outside so that the fabric crumbled and became dust. This is the effect upon such fabrics of the fumes of bleaching powders, which consist largely of the chloride of lime. The evidence shows clearly that the bales of bags did not come in direct contact with the bleaching powders, but that the injury was done by the fumes arising from them. It is proved, also, that such fumes, dangerous to such fabrics as bags, arise from the bleaching powders wherever the powders are free-that is, not enclosed in casks-even without the powders being wet. It further appears that these bleaching powders have a destructive effect upon the hoops of the casks in which they are enclosed, having a tendency to cause the casks to .fall apart.