July 25, 1883.)
(Circuit Court, 8. D. New York.
PATENTS FOR INVENTIONS-A)IEND)[ENTS.
,Motion for an amendment to answer, and commission to take testimony in a foreign country to prove who is the original inventor of a patent, will not be allowed when the aflidavits filed by plaintiff show that tl,ere is no cvidence to sustain the amendment.
Von Briesen J: Steele, for defendants. Frost d: Cae, for orator.
WHEELER, J. The motion of defendants, now heard, for an amendment of the ans\vor, and a commission to take the testimony of Denton, in London, to show that he, and not Peroni, is the original inventor of improvements in thermometers, patented to the orator as assignce of Peroni, must be denied. While such motions are granted with liberality, some prospect is required that there is evidence to support the amendment which can be had. Here, the affidavit of Denton, filed by the orator in opposition to the motion, stating that hedoe3 not claim to be and is not, and that Peroni is, the original inventor, and his refusal to make an nffidavit for the defendants to the contrary, on their application, show that there is no such prospect. ,Motion denied.
UUNER V. K.\YTO,,"
August 2, 1883.)
(Circuit Court, 8. D.
'Where defendatlts h,n'e i,een adjudged to he infringers, antI decreed to account for tbe gains a!ld profits and damages of their infringement, they must go fonv,u,l in the accounting and hear the necessary expenses of so doing, includ, ing the fee. '
In Equity. JOhH A. Shields, mastel', pro se. Andrew Comstock, for orator. n'ctmore ,(; J CHncr, for defendants. \YHEELEI:, J. This cause has now been heard on motion of the mastcr for payment of his fees on the accounting. It is agreed that ItisJecs amount to $150; Each party insists that the other should pay them. The question now is, not 110,', the costs shall finally be al10'so,1 and taxed in fa,or of either party againf;t the other, which can b2 l12termined properly only at the making of the final decree, but is, :",;iiclJ party shall pay these fees in the first instance? As the defeml-
ants have been adjudged to be infringers, and decreed to account for the gains, profits, and damages of their infringement, they are to go forward in the accounting and bear the necessary expenses of doing so, among which are the master's fees. This was so held in Bridges v. Sheldon, Dist. Vt. Oct. Term, 1879. Let an order be entered that the defendants pay these fees within 15 days from the entry of the order.
J. C. STEVENSON, now the Stanmore.
(District Court, D. Maryland.
SITIPPING-Loss OF nATIGO OF CA:£TLE-STORM AT SEA-BURDEN OF PnOOFSUITAllLEXESS OF VESSEL.
'Where respondcnts prove that a steam-ship, on which a lot of cattlc were shipped by the libelant, encountered a storm of unusual scvcrity, and show the charactcr of the damage sustained by their vesscl and by other steam-ships carrying cattle which cncoun' cred the same hurricane, the burden is put upon the libelant of proving that thc losses sued for were occasIOned by the want of due care in provid,ng a proper ship, and suitable stalls and other fittings, for carrying the cattle.
Upon the whole tcstimony, considering the contnvances then in use fOr carrying cattlc, and the known risks and uncertainties of the business, and the character of ves,els customarily used, it does not appeal' that the steam· ship in this case would have been considered unsuitable for the business at the time she was so uscd, or that the fittings were improperly constructed, and no damage Clln be recovercd on that account.
DELAY IN CO)[[NG TO PORT FOR CATIGo-DA)UGES.
Where a vesscl is to arrive at a port and rcceive a cargo of cattle hy a certain day spccified, and she does not arrive for several weeks after the appomted time, thc only damages that can be recovered on account of the delay, when the vessci is accepted and the cattle shipped. is such expense as may hav.. been incurred for keeping the cattle during the period of delay, and the additional insurance the shipper may have had to pay by reason of the increased risk caused thereby.
S.\.)fE-D.uUGES A LIEN
'Yhere the cattle were actnally laden on hoard under the contract, and reference being specially made tn it in the lihel, and the ship has obtained the benefit of the contract, it seems that the shipper would have a lien on the vessel for such damages.
Marshall t.f; Hall, for libelants. Brozcn t.f; Brane, for respondent.
MORRIS, J. This libel is filed to recover damages for the loss of a large number of cattle shipped by libelant on the steam-Ship J. C. Stevenson, on November 13, 1879, to be curried to London, which were lost on the voyage, and for damages resulting from the delay of the steam-ship in arriving at the port of Baltimore to enter upon the voyage. The contract for the shipment of the cattle was as follows: