HILL V. BIDDLE.
In Equity. Morgan wLewis, for complainant. D. Connolly, for defendants.
BUTLER, J. The suit is for infringing the second claim of plaintiff's patent, No. 130,853, which reads as follows: "The triangular shaped ring, D, with the catch, d, or with points, 'H, or levels, sub· stantially as shown and described, and for the purpose set forth." The alleged infringement is fully proved. There is no difference between the ring manufactured and sold by the defendant and that described by the patent. The defense set up is twofold: First, that the patent is invalid, for the reasons that the ring was anticipated, that it involved no covery or invention, and that it is not useful; second, that the first claim of the patent is void, and the plaintiff has known it for years, and has, nevertheless, omitted to file a disclaimer as provided for by section 4922 of the Revised Statutes, and therefore cannot recover in equity. These defenses were urged with much earnestness and ability. We are not convinced, however, of the soundness of either of them. 'l'he plaintiff's conception was that a ring so constructed as to fit or conform to the hog's snout, or rooter, would be more comfortable to the hog, and more serviceable in restraining his disposition to root, than the ordinary rings employed at the time. The invention consisted in the construction of a ring embodying this conception,-a triangular ring that fits the shape of the snout, and keeps its place. While it may be said that this required but little change in the old ring, and was easily accomplished, Jet nobody had before accomplished it, or concei ved the idea and advantage, of making a ring of this form for such a purpose. That this conception, and the embodiment of it, was of great value cannot be doubted. 'fhe public at once recognized its advantages, and demanded it of the trade to such extent as shows a preference for it over all other rings in use. According to the evidence, about one-third of the rings sold by the trade are those of the plaintiff. The defendant, in effect, acknowledges that he manufactures this form of ring because of the great public demand for it. While it is true that the utility of a machine, instrument, or contrivance, as shown by the general public demand for it when made known, is not conclusive evidence of novelty and invention, it is nev. ertheless highly persuasive in that direction, and, in the absence of pretty conclusive evidence to the contrary, will generally exercise controlling influence. Smith v. Goodyear, 93 U. S. 486; Jii/mdact. uring Co. v. Haish, 4 Fed. Rep. 907; Eppinger v. Richey, 14 Blatchf. 307. I do not find such contrary evidence in this case. While there is here, as in most cases, room for debate, a careful examination has satisfied me fully that the court would not be justified by anything v.27F.no.7-36
shown, in decreeing the claim invalid on either of the groundlJ8uggested. Nor am I satisfied that the court would be justified in concluding that the plaintiff knew or believed the first claim of his patent to be invalid, and that he has therefore been guilty of bad faith in omitting to disclaim, as urged by defendant. That the validity of this claim has been called into question and doubted is shown; but that it has ever belm adjudged invalid by a competent tribunal, or that plaintiff has ever acknowledged or believed it to be so, is not shown. As the burden of proof respecting this, as well as the other branch ot the defense before considered, was on the defendant, it follows that my judgment is against him. A. deoree will be entered aooordingly.
THE STRATHAy.1 THE YOUNG AMERICA.
and another v.
THE YOUNG AMERIOA..
(Di8frict Oourt, 8. D. NeUJ York.
May 1, 1886.)
TOWAGlll-GROUNDING-PILOT IN CHARGE OF NAVIGATION-A88Ul1PTfON O. AUTHORITY BY TUG-SUBSEQUENT ACCIDENT-LIABILITY.
The tug A. was towing the bark S. upon a hawser eastward through Hell Gate on the flood-tide. The bark had a Hell Gate pilot on board, who was In control of the navigation. It was the tug's duty to govern herself by the bark, and to keep ahead of her as nearly as possible. The tug was following another tow from 500 to 600'yards distant, consisting of a ship towed between two tugs. Both tows were mtending to go through the channel east of Flood rock. As the tow ahead neared Flood wck it sheered to the starboard somewhat across the east channel. The captain of the tug A. observing this, and thinking it would be unsafe to follow through the east channel, when about 500 yards from Flood rock, and in mid-river. starboarded his helm to go through the north channel, wi.n.out con&u)ting the pilot. The pilot on the bark at once objected to this cha.nge; but the other persisting, he quickly acquiesced. and starboarded the helm of the bark. In swinging, the keel ot the bark struck the rocks of the middle reef, and injured the schooner, so that she afterwards sank. Held, that the captain of the bark was in fault in taking into his hands the control of the navigation of the tug, by changing his course without notice to the pilot, and in insisting upon that change without the pilot's consent. The change of course was therefore at his risk,and the grounding was the fault of the tug. Had the pilot on the bark immediately acquiesced in the tug's maneuver, the schooner would probably have escaped; but that was found on the facts tc have been more dangerous than to have kept on. Held, no defense to ,the tug, as the latter, in adopting. without authority. a dangerous maneuver, thllreby put the pilot in a sitiIation in extremis, in which even an error of judgment, 011 his part, had there been any such error, was not a leltal fault.
SAME-SITUATION IN EXTREMIS-ERROR OF JUDGMENT BY PILOT.
Ja8. K. Hill, Wing It Shoudy, (H. Putnam,) for libelants.
IReported by Edward G, Benedict, Esq., of the New York bar.