Thorp v. Steamboat Defender.

choice of sides. It is a paramount rule of navigation that, if possible, collisions must be avoided, and an error by one boat will not justify another in running into her, unless it was unavoidable.

That the Defender was in the right place for a descending boat, at the time of the collision, near the middle of the river, her head pointed toward the Mississippi shore, and that the Baird was running nearly at a right angle with the Louisiana shore, is not only proved by the witnesses who testify as to the course and position of the two boats, but is conclusively established by a controlling fact in the case, which does not admit of doubt or controversy. The fact referred to is, that the blow received by the Baird was upon her starboard quarter, opposite the boilers, and raked aft for the distance of about twenty feet. Now, the theory of the libellants is-and such are the averments in the libelthat the Defender, after the signals, was steered correctly, until near the Baird, when she changed to the starboard, and came "head on" against the starboard side of the latter boat. Upon this theory, the Defender would have struck the Baird either at a right angle, or quartering in the direction of her bow. But, as before stated, the Defender came obliquely against the Baird, inflicting a glancing blow, raking toward the stern. The evidence most satisfactorily proves that this was the character of the blow. The carpenters on both boats so describe it in their depositions, and in the diagrams which they annex. And this fixes the position of the boats, at the time of the collision, with all the certainty of mathematical proof.

Upon the whole, the following conclusions are satisfactorily attained in regard to this collision: 1. That the Baird did not, in accordance with her signal, attempt an immediate crossing to the Louisiana shore, but kept up some distance near the Mississippi side, and was then turned nearly square across the river, and was in that position when the boats came together; 2. That the pilot of the Baird was greatly in fault in thus attempting to cross the bow of the descend

Thorp v. Steamboat Defender.

ing boat; 3. That this error was the direct cause of the collision.

It remains only to inquire whether there was any fault on the part of the Defender, justifying a decree for a division of damage resulting from the collision. It is well settled, that if there was mutual fault, the damages for the injury must be divided between the boats; but if the fault was wholly on one side, the culpable boat must bear the entire loss.

In my judgment there is no ground for such a division in the present case. The weight of the evidence shows clearly there was no fault in the management of the Defender. As to her course, the following propositions are sustained with reasonable certainty: 1. That the Defender, when the signal of the Baird for the larboard side was given and accepted, was descending nearest the Louisiana side, and that in accordance with the signal her course was immediately changed toward the Mississippi shore; 2. That being thus steered, without any material variation in her course, she had reached the middle of the river, and was probably nearer the Mississippi than the Louisiana side when the collision happened, thus leaving ample room for the Baird to pass to larboard, according to her signal; 3. That when the Baird turned suddenly to the larboard, attempting to cross in front of the Defender, the latter boat seeing the danger of a collision, did all she could to avoid it, in stopping and backing as soon as possible.

In their answers, the respondents have set up a claim for compensation for a salvage service in the aid rendered in saving the Baird and her cargo. There can be no doubt that the conduct of those in charge of the Defender after the collision was highly praiseworthy. They rendered prompt and efficient service to the injured boat, but they did no more than they were required to do by the obvious dictates of duty. And neither the boat nor cargo, or the persons on board the Defender, were in peril as the result of their interposition. Nor is it certain that the Baird or her cargo would have

Hussey. Whitely.

been lost, if no aid had been afforded by the Defender. But, without going further into the consideration of the salvage claim, I am quite clear in the conclusion that it ought not to be allowed.

The respondents also claim a decree for the injury sustained by the Defender from the collision. It appears from the evidence that she was slightly injured, and that the expense of repairing her was from fifty to one hundred dollars. Probably, under all the circumstances of the case, the lowest sum named would be an adequate compensation for the injury, and a decree for fifty dollars may be entered in favor of the respondents.

(CIRCUIT COURT.)

EUNICE B. HUSSEY, ADM'X OF OBED HUSSEY, DEC'D, v. Wм. N. WHITELY, JEROME FASSLER, AND OLIVER S. KELLY. IN EQUITY.

H. assigned to M. A. & Co. all his right and interest under his patent in twenty-three counties in Ohio, including that in which the defendants' manufactory was carried on. M., A. & Co. were to pay ten dollars for each machine made and sold by them, while H. reserved the right of sending machines of his own manufacture into the territory named in the contract. Held, that this paper was not an assignment of the interest of H. in the patent within that territory named, but a mere license.

H., by virtue of the rights reserved to him, must be viewed as a "party aggrieved" in the words of section 17 of the act of July 4, 1836, and he had an undoubted right to proceed in equity, for the protection of his rights, without joining M., A. & Co. as parties complainant.

By law, a district judge is associated with a justice of the Supreme Court of the United States in holding a Circuit Court, and may hold that court alone, in the absence of the superior judge; but it would be clearly wrong in a district judge, as a judge of the Circuit Court, in any case, to review or set aside the action of the superior judge.

But, if the aspect of the case, as presented to the district judge, is substantially changed by new evidence, which, it may be fairly presumed, if brought to the notice of the presiding judge, would have led to differ

Hussey v. Whitely.

ent action, it would be the duty of the former to consider such proof and act in accordance with it.

Presumptions of the novelty of a patented invention may arise from some or all of the following grounds: 1. The oath of the patentee that he was the first and original inventor. 2. The action of the Patent Office in granting the patent after full examination. 3. Undisturbed enjoyment of all the benefits of the exclusive rights granted by the patent. 4. Direct adjudications, either at law or in equity, establishing the validity of the patent. 5. Injunctions granted to restrain infringement of the patent.

The authorities are numerous to support the position, that when such grounds of presumption exist in favor of the novelty of a patented invention, courts will not refuse an injunction, or, if granted, will not dissolve it unless the patent is impeached by the most conclusive evidence.

If the defendant, upon a motion to dissolve an injunction, so clearly and conclusively impeaches the novelty of the invention of complainant as to leave no doubt on that point, it might be the duty of the court, against all the presumptions in the patentee's favor, to release the defendant from the operation of the injunction.

The fact that a defendant is suffering serious injury from the stoppage of his manufactory, by an injunction, furnishes no reason for a departure from the well-setted rules of chancery practice in patent cases; especially if there be no pretense that he has proceeded in ignorance of the patentee's invention.

THIS was a motion to dissolve a provisional injunction, granted by Mr. Justice McLean, while sitting at chambers in Cleveland, to restrain defendants from infringing letters patent for an "improvement in reaping machines," issued to Obed Hussey, August 7, 1847, and reissued April 14, 1857, in three divisions. The claims of the original and reissued patents, with a sketch of the invention, will be found in the report of Hussey v. Bradley, 2 Fisher, 362.

The motion to dissolve was predicated mainly upon a license from the complainant to Minturn, Allen & Co. to use the invention within twenty-three counties of Ohio, including that in which the manufactory of the defendants was located. It was insisted that this paper constituted an exclusive grant, and that suit must be brought in the name of the grantees, or that in any event, they must be joined as parties complainant.

Hussey v. Whitely.

N. C. McLean, P. H. Watson, and E. M. Stanton, for complainant.

G. M. Lee and S. S. Fisher, for defendants.

OPINION OF THE COURT:

A motion has been made and fully argued by counsel on both sides, for the dissolution of the injunction granted by Judge McLean, in July last. The grounds stated in the written motion on file, are in substance, that the order for the injunction was improvidently made, contrary to the evidence in the case, and that the improvements patented to Hussey were known and in public use prior to the date of his invention.

Before referring to the grounds upon which the present motion is urged, it will be necessary to notice another, set forth in the answer, and insisted on in the argument by the counsel for the defendants, but not included in the written reasons on file. In their answer they aver that Hussey, on February 5, 1852, by a written instrument, assigned to Minturn, Allen & Co. all his right and interest, under his original patent of 1847, in twenty-three counties in the State of Ohio, including the county of Clark, and that if said patent and the reissued patents are valid, and have been infringed by the defendants, a suit for such infringement can only be maintained by Minturn, Allen & Co., and that Hussey, therefore, in his lifetime had, and his representatives since his death have, no right of action for such infringement.

If the legal effect of the contract referred to is as claimed by the defendants' counsel, it is clear that the motion to dissolve the injunction must prevail. It is, therefore, necessary to look into the contract, to determine the question. The written instrument referred to in the answer is made an exhibit by the defendants, but was not before Judge McLean when the application for injunction was made, and the question now presented was not brought to his notice.