CONSOLIDATED ROLLER-MILL CO. 'V. COOMBS.
sive establishment, and a large capital invested in it for the manufacture of machines, and seemed to have conducted their business under the impression that it was no invasion of the rights of others. "A sudden stoppage of it would be disastrous to them, and would not benefit the plaintiff." In its facts the case is readily distinguishable from tht one under consideration. In the same circuit, in McCrary v. Canal Co., 5 Fed. Rep. 367, an injunction was denied without discussion, upon the ground that much greater injury to the respondent than benefit to the complainant would result from it. \Ve think these three cases may be regarded as establishing a rule in the third circuit somewhat at variance with those existing in most of the others. In Hoe v. Knap, 27 Fed. Rep. 204, Judge BLODGETT denied an llljunction, after entering an interlocutory decree. npon the ground that the owner of the patent had not, after a reasonable time, put it into use, holding as matter of law that a patentee is· bound either to use the patent himself, or allow others to use it on reasonable or equitable terms. I find myself unable to concur in this view. A man has right to deal as he chooses with his own. I know of no reason why a patentee is bound to make use of his own inventions, or to license others to use them, any more than the owner of a manufacturing establishment is bound to run it for the benefit of his neigh bars or employes. As observed in the earlier portion of this opinion, the question of licensing another to use an invention is one which the patentee alone has the right to answer; and courts cannot lawfully others to use it compel him to make use of his invention, or to against his will. We will now proceed to examine the authorities in the other circuits. In Howe v. Newton, 2 Fish. Pat. Cas. 531, Judge LOWELL, of the first circuit, held that the fact that plaintiff granted licenses, and that defendant was not a maker and vendor, but only a user, was, independently of the fact that the maker had not been sued, a circnmstance to be taken into account; "but it has not been considered sufficient reason in this circuit to refuse the writ, excepting in combination with other circurnst:mces, either of doubt as to title, or of hardship in the operation of the injunction." The defendant was restrained from using one boot-tree. It is but just to say that it appeared that no special damage would result to defendant by enjoining the machine. The case is not unlike the one under consideration. In Pouix v. Mack, 3 Fish. Pat. Cas. 428, Mr. Justice SWAYNE observed tbat when a patentee obtains a decree settling the right to an injunction, the practice in all the circuits, as he had understood, was to make the injunction a part of the decree. "That is the right of the party unquestionably, unless there be shown SOllle special grounds of peculiar hardshi p to the defendant. * * * There may be circumstances which woul(l render that action proper, but I should not be willing to establish such a rule as general." " Again, too, as within my own knowledge, the practice in all the other courts is adverse from that now sought to be established, and I should be reluctant to strike out a new course." The court found no special hardship in the ease, and ordered an injunction. See, also, Whitney v. Jllowry, Id. 175.
In Chemical WOl'ksv. Hecker, 11 O. G. 330, Judge NIXON, of New Jersey, refused to assent to the proposition that it had become the established practice in his circuit to stay injunctions until the coming in of the master's report. "No special practice," says he, "has ever prevailed in this circuit; although sporadic instances may be found where the court has very properly listened to and heeded such applications.. On the other hand, the qrc:linary practice is for an injunction, as a matte.r of course, to follow a decree in favor of the complainant on the merits, unless the defendant is able to show the court such facts and circn mstances existing in the case as make it manifest that the equities between the parties demand the withholding of the injunction until after an accounting has been had." In Brown v. Deere, 6 Fed. Rep. 487, the question has been discussed at length by Judge TREAT, and the motion to suspend the injunction was overruled, although, before the hearing, defendants had entered into a large number of contracts to furnish their machines to agriculturalists in several states, and there was no adequate time for them to reconstruct them so as to avoid the infringement without disappointing their customers, and fastening large damages upon themselves for non-fulfillment of their contracts. The opinion is a very valuable and instructive one, and the question appears to have been funy considered by the court. In Munsonv. Mayor, etc., 19 Fed. Rep. 313, Judge WHEELER held, on a motion to suspend an injunction during the pendency of an appeal from a final decree, that it should not be suspended unless some extraordinary cause were shown to exist outside the rights of the parties established by the decree. The defendant in this case was the city of New York, and the patented device was a register to preserve for safety and convenience of reference paid bonds and coupons. The learned judge held that the interests of the public were not such as required protection by staying the injunction. There is no case in the supreme court which throws much light upon this question, although in Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. Rep. 244, it is held that an infringer does not, by paying damages for making and using a machine in infringement of a patent, acquire any right himself to the future use of the machine. "On the contrary," says the court, "he may, in addition to the payment of damages for past infringement, be restrained by injunction from further use, and, when the whole machine is an infringement of the patent, be ordered to deliver it up to be destroyed." In Penn v. Bibby, L. R. 3 Eq. 308, the vice-chancellor observed: "The patent is a continuing patent, and I do not see why the article should not be followed in every man's hand until the infringement is got rid of. So long as the article is used, there is continuing damage." "As to the royalties, I cannot compel the plaintiff to accept the same royalty from these defendants as he received from others. I cannot, in the decree, do than ve the plaintiff his full right, and I cannot bargain for him what he may choose, or may not choose to do." The relied upon in this case in support of the motion are: That the plaintiff is not a manufacturer of these machines itself,
I'HE CIty OF CARLISLE.
but derives its sale profit from licensing others to use them. That the defendant is not a manufacturer, but uses one of these machines in a series of roller-mills; and that the issuing of this injunction would involve the stoppage of the entire series, and a large expense to him in purchasing a new mill, or in so reconstructing this one as to avoid the use of plaintiff's invention. The counter-affidavits, however, satisfy me that his estimate of damages is greatly exaggerated, and that the change could be made with but little expense or inconvenience, and without stopping his establishment. It is inczedible that an accident, which is liable to occur at any time, should involve the disastrous consequences set fort,.h in the defendant's affidavits. We are willing, however, that he should have 20 days to make the necessary changes. At the expiration of this time, the usual injunction will issue, to stand until the final decree, after which, if an appeal be taken, the propriety of continuing the injunction under the ninety-third rule will be considered by the court. We do not wish to be understood as denying the power of the court to stay an injunction, even after final decree, and, if this writ involved the stoppage of a manufactory, in the operation of which a large number of people were interested, the question might be determined by different considerations. The motion is denied.
THE CITY OF CARLISI,E.
THE CITY OF CARJ.JSLE.
August 20, 1889.)
The UniLed States courts, as courts of admiralty, have jurisdiction of all cases of admiralty cognizance when the thing or parties are within the reach of their process, without reference to the nationality of either.
It is the right of a seaman injured in the service of a vessel to be cared for at least to the end of the voyage, and nothing short of gross negligence or willful misconduct, causing or concurring to cause the injury, will forfeit such right.
A seaman injured in the service of a vessel has a lien on the same for the damag-es he may sustain by reason of the neglect or misconduct of the officers thereof, in caring for him while affected by such injury. 4. EVIDENCE-DocuJ\lENTAUy-LEX FORT. The admissibility or competency of evidence in a legal proceeding pertains to the remedy. and is governed by the lex fod, and therefore a clause in the British shipping act of 1854. making certain entries in the official log-book competent evidence in all courts, does not make them so in the courts of any other country. 5. ADMIRALTy-PLEADlNG-JOINDER OF CAUSES. The joinder of causes of suit not enumernted in admiralty rules 12 to 20. inclusive, are not governed therehy. but by rule 46; and, where the facts in a case estahlish a liability against the master and a lien on the ship for the same claim, such liability and lien may be enforced in one libel.
SAME-LIEN }'OR INJVRIES.