COBURN
V.
SCHROEDER.
521
hut that any box or case was made having more than two layers of cells, 80 that any of the cells had all their sides, irrespective of the walls of the box or case, or so that any of them were adapted to transporting eggs, as those patented are, before the invention, is not shown beyond fair doubt, as is required in order to defeat a patent. Those shown were adapted to small articles desired to be kept separate and disposed of singly, and not adapted to handling eggs into be disposed ofin dozens at a time. It is not claimed that any of them were actually used for the transportation of eggs, and that fact goes strongly to show that none were made which could be so used to advantage. The evidence upon which it is claimed that the invention was made by John L. Stevens alone consists wholly in parol proof of loose statements and admissions, which are 80 explained or denied that they fall far short of showing, by the measures of proof required'to defeat a patent, that the invention was known to and used by one before it was by both. There are some questions as to the relation between the defend· ants which may affect the accounting, but are not necessary to be decided now. Let there be a decree against the defendants Schroeder and Seavers that the patent is valid, and that they have infringed, and for an injunc. tion and an account against them, according to the prayer of the bill.
COBURN and others v. SCHROEDER and others. (Circuit Court, 8. D. New York. 1. August 3, 1881.) INTERLOCUTORY DECREE-"GAINS, !:;AVING8, AND ADvANTAGES"-C08T8.
An interlocutory decree directing an account of the gains, savings, and vantages due to the infringement of a patent, in addition to the projlts, and awarding costs, held, to be proper. 2. COSTS IN EQurry-How AWARDED. Costs generally, in equity, do not follow as a matter of right, as in proceed. ings at law, but are subject to the discretion of the court, and al'e awarded 8S part of the decree, or they caunot be recovered.
Andrew J. Todd, for orators. Samuel Greenbaum, for defendants. WHEELER, D. J. Objection is made to the proposed decree in this case because an account is directed of the gains, profits, savings, and advantages of the infringement, instead of profits merely, and because costs are awarded, to be taxed, with execution to issue, by
522
FEDERAL REPORTER.
it as drawn. Section 4921, Rev. St., is referred to as providing for the recovery of profits only. But the right of recovery for infringement of a patent does not rest upon that section wholly. Beforethe act of 1870, part of which was brought into that section, was passed, damages for infringements could not be recovered in equity. The right of recovery rested upon the general provi8ions of the statutes by virtue of which patents were granted, and the general principles of law upon which relief in equity is afforded. That statute enlarged the jurisdiction of courts of equity by providing that damages, in addition to profits to be accounted for, might be recovered. This did not restrict the right to recover for gains, savings, or advantages recQverable before, when they resulted to the infringer from. the infringement. All questions as to whether the gains, savings, or advantages are such as are due to the infringement, and as the de. fendants are legally accountable for, will arise upon the accounting. These words &eem to be proper, although perhaps they are not necessary in such a decree. Costs generally, in proceedings in equity, do not follow as matter of right, as in proceedings at law, but are subject to the discretion of the court, and are to be awarded as a part of the decree Of they cannot be recovered, although they may be, and generally are, taxed aftel' the decree. Sizer v. Many, 16 How. 98. The determination as to coats must ordimtrily be made upon the hearing in chief. It is then that the merits of the case are gone into. This hearing was in chief, and in its nature final, although the decree is interlocutory. The costs cannot be taxed fully, and no execution cau properly issue until the final deoree; but still now is the time to determine in regard to them and award or refu,se them. They are awarded as usual, unless to govern otherwise, to the prevailing there are special party. It is said that with this award and direction a bond and supersedeas will be too late to stay the execution on appeal. But this objection is not well founded. The whole matter must wa,it until after the final decree before any execution can issue, and then an appeal and .seasonably taken out will, under the statute and rules, stay the execution. The whole decree seems to be proper, and is signed as presented.
J::iIE A. 1'. CRANMJl)m
528
THE
CRANMER.
(Circuit Court. E. D. New York. August 12,1881.)
1.
COLLISION-STEA},{- VESSEL-SAIL-VESSEL-REV. ST. §
4233. In an action by the owner of a canal-boat, which was one of seventeen comprising the tow of two tugs, to recover damages for an injury to his· boat received in a collision with a schooner, whose apparent course, as seen by the tugs, was such, up to within so short a time of thecoIlision that it could not be prevented, as to cause them no reasonable apprehension of a collision, but whose apparent course was affected greatly by the leeway which she was making, of which her master was aware, but not those on the tugs, held, that the effect of the leeway on the legal relations of the tugs and tow to the schooner was the same, so far as the rights of one cognir.ant of the fact were concerned, as that of a direct change of course. Held, jurther, that when the apparent course of a Bail-vessel, as seen by a steam-vessel,is &uch as to cause the latter no reasonable apprehension of a collision, it is not incumbent on such steam-vessel, under section 4233 of the Revised to to keep out of the way
In Admiralty. H. T. Wing, for libellant. R. D. Benedict, for the schoonor. T. A. Wilcox, for the tugs. BLATCHFORD, C. J. In this case the district court found the facts to be as follows: On the twenty-fourth of July, 1877, the schooner A. P. Cranmer and the canal-boat John A. IIeister came in collision in the bay of New York, and the canal-boat was sunk. At the time of the collision the schooner was sailing down the bay npon the starboard tack, and was between Bedlow's island and the Can bnoy on Robbins' reef. The canal-boat was the outside boat on the port side of the head tier of a tow of 17 canal-boats then being towed from Amboy to New York by two steam-tugs, the W. C.Nichols and the Sammie. The tugs were towing one ahead of the other, the Nichols being the leading boat, and were pulling the tow at the speed of about two and a half miles an hour. It was a clear day. A working breeze was blowing and no other vessels were moving in the vicinity. The schooner passed the two tugs in safety, . to the ·Nestward. Just about as she passed the Sammie, in order to avoid running into the canal-boats, she hove her wheel down, but, as she swung, one of the towing hawsers caught under her tuck and threw her off from the wind again, so that she ran head on into the libellant's boat, causing her to sink instantly. These facts are shown by the evidence. The district court found the canal-boat and the tugs to be free from fault. and the schooner to be in fault. It held that if the canal-boats and the tugs together were to be deemed a single vessel, within the sailing rules, such combined vessel couldl1ot be deemed a steam-vessel under steam, within rule 20 of the steering and sailing rules in section 4233 of the Revised Statutes, alHI so required to keep out of the way of the that the provisions of