MAGIN V. M'KAY.
ages, in a. case where no injunction of any kind could be obtained; for, by the rules of the court, a notice of eight days of a motion for an injunction is required. The coming into a court of equity under such circumstances will not be permitted. Betts v. Gallais, L. R. 10 Eq. 392. As the bill does not show that an action at law for damages would be an inadequate remedy for the wrongs complained of, and no bonafide ground for equitable relief is presented, the demurrer is allowed, with costs.
MAGIN v. McKAY.
(Oircuit Oourt, N D. New York. August 20, 1885.)
PATENTS FOR .lNvENTIONS-ANTICIPATION-INVENTION-MPARATUS FOR COOLING AND DRAWING BEEH.
Patent No. 248,646, granted to Charles Gordon, October 25. 1881, for an improvement in apparatus for cooling and drawing beer, held void as to claims 1, Sand 4.
In Equity. George B. Selden, for plaintiff. Josiah Sullivan, for defendants. BLATCHFORD, Justice. These suits are brought on letters patent 248,646, granted to Charles Gordon, October 25, 1881, for an "improvement in apparatus for cooling and drawing beer." The specification says: "My invention relates to an improved apparatus having for its object the keeping of beer, ale, or other liquid at a low temperature during the operation of drawing the same for consumption; and it consists in surrounding the supply-pipe through which the beer is delivered to the faucet with a cold-air passage, for the purpose of maintaining a low temperature in the liquid in the supply-pipe. My invention also consists in surrounding the cold-air passage and the faucet with a non-conducting jacket, and in the combination with the ice-box, and the lower chamber for storing the beer, of the supplypipe and the cold-air passage communicating between the ice-box and chamber, as hereinafter more fully set forth." A keg of the liquid is placed in a chamber in the cellar. A supply-pipe leads upward from it to a faucet from which the liquid is drawn for consumption. An outer pipe surrounds the supply-pipe, leaving an air space around it, its whole length, from the lower chamber to an upper ice-box, through which the supply-pipe passes, and with which the outer pipe is connected. As many supply-pipes as are used may pass through the air space. A non-conducting jacket surrounds the outer pipe. The air, cooled by the ice in the ice-box, and the water produced by the
melting of ice, flow down through the air space and reduce the temperature oUhe liquid in the supply-pipe. An air-forcing apparatus connected with the keg forces up the liquid. A pipe packed with a non-conducting substance surrounds the faucet. There are four claims: (1) The combinlttion of the ice-box, supply-pipe, faucet, and cold-ail; passage surrounding the supply-pipe; (2) the combination with the ice,box of the supply-pipe and faucet, the latter having its jacket; (3) the combination with the ice-box, supply-pipe, and faucet, of the cold-air passage and the non-conducting jacket of the latter; (4) the combination of the ice-box, supply-pipe, faucet, lower chamber, and cold-air passage communicating between the ice-box and the lowel' chamber. In the McKay suit infringement is alleged of claims 1 p,nd 4; in the Welker suit, of claims 1, 3, and 4. Gordon made his invention in June, 1879. So far as claims 1 and 4 are concerned, the invention was anticipated by an apparatus invented and put in use by one Meinhard, in Rochester, New York, in the summer of 1877, and which was continued in use about four years. That apparatus had the upper ice-box, the supply-pipe, the faucet, the lower chamber, and the cold air-passage surrounding the supply-pipe, and communicating between the ice-box and the lower chamber. It had three faucets, each with a supply-pipe. Each supply-pipe led separately to a ba1Tei in the lower chamber,. and eacb was surrounded by a cold-air passage, created, as to its upper part, by a surrounding tin pipe, and as to its lower part by a rubber hose, which embraced closely the lower end of the tin pipe. The water of the melted ice, and the cold air, flowed down around the sl1pply-pipe into the lower chamber. The lower ends of the three pieces of rubber hose went into the lower chamber through a common opening, and it was not tightly closed around them. But the apparatus was a practical and successful one, and embodied the same principle as that of Gordon. It may have been inferior in degree in utility and perfection, but the invention was there, and the apparatus continued in use for nearly two years after Gordon obtained his patent. It did not conta,in the non-conducting jacket surrounding the outer wall of the cold-air passage, which is a feature in claim 3 of the patent, but there was no patentable invention in adding a non-conducting jacket to the elements found in claim 1, or to those found in claim 4. The jacket is merely a space filled with non-conducting material, to prevent the absorption of heat by the air in the cold-air passage. It was common knowledge, and not invention, to add this to what Meinhard had. The bills are dismissed, with costs.
THE ALLIE & EVIE. PHILADELPHIA & R. R. CO. v. THE ALLIE & EVIE and others.
(District Oourt, S. D. New York.
August 2, 1885.)
TUG AND TOW-SUDDEN SQUALLS-CUT'l'ING ADRIFT-DROPPING ASTERN.
The tug A. & E., at South Amboy, .New Jersey, took in tow two along-side, to go some 18 miles across the lower bay of New York harhor, and, thence about six miles up the shallow Shrewsbury river to Hed Bank, on an estahlished line for towage. When about two-thirds of the dl'stanee to the Shrewsbury river, a sudden and violent squall raised a high sea that caused tho( boats to pound so much that they were cut adrift, aft,er the captain's refusal to remain aboard of them to steer if dropped astern on a hawser, for fear of being washed overboard. The evidence was that, without a helmsman al.lOard to stee,ri.' the barges could not have been sflved in such a wind and sea even if droppea\ astern; that the A. & E. was built to run upon this service; that. was petent to handle such baIges in auy weather ordinarily to be expected on such' trips; and tbat the usual cOlJrse, and u,ual precautions, were observed. ;Held j : that the tug was reasonably sufficient for the work undertaken, and not HabIt!; for the loss of the barges because she did not drop them astern when the,squl!olL was approaching. '
!3AME-WEATHEH ON STARTING-BAROMETEH-CAU'l'IONARY SWNALB.
A low but rising barometer, and cautionary Signals displayed, are not alono, sufficit'nt to make starting on such a trip negligence, in the absence of allotheJ;' indications of bad weather. ' '
SAME-REASONABLE SUl<'FICIENCY FOR THE TRIP-CUSTOM.
Tugs, not being insurers., are liable only for lack of reasona;ble prudence, jUdgment, and skill; and as regards the adequacy of the tug, the fHness of the, weather on starting, as well as regards seaworthiness in general, thequestioiJ.' is a practical one of reasonable sUlficiency for the particular trip in tbe judg" ment of skillful and prudent navigators, and on this question the customs of, the time and place are competent evidence. Wbere a tow is sent to be towed upon an established line whose methods of' towage are known, and these methods Rre not in themselves unjustiflabl,e, the contract implied by law is for th,' use of all "easonahle judgment and skill in the use of these methods; and if there is no fault in this rtJspect,. the tug is not liable.
'" SAME-RI£ASONABLE SKILL IN USE OF UUSTmlARY METHODS.
MitcheLL J: Mitchell, for libelants. Wilcox, Adams J: lvIa(:klin, for claimnnts.
BROWN, J. This libel was filed to recover about fortbe loss of two coal-barges, with their cargoes, on the night of December14, 1883, which were cut adrift during a squall in the lower bay while the boats were in tow of the tug Allie & Evie, on a trip from South Am-, boy to Red Bank, on the Shrewsbury river. The barges belonged to· the libelants, and had taken on board cargoes of coal at Schuylkill Haven, Pennsylvania, consigned to Miles Ross, Red Bank, New Jersey, for which bills of lading were given "excepting the dangers ofnavigation." Arriving at South Amboy, the boats were taken.in charge by the Pennsylvania Railroad Company, which had a towing line making regular trips to Red Bank, which is some five or six miles up the Shrewsbury river. This river is narrow and shallow, and can Quly