APPENDIX. '

MAINE DISTRICT.

SEPTEMBER TERM, 1866.

WM. STERLING et als., Owners of the Brig William Nickels, Libellants, v. The Brig Jennie Cushman, WM. H. LEWIS, Claimant and Appellant.

The general rule is, that where a vessel is at anchor in a proper place, with no sails set, and another under sail collides with her and occasions injury to her, the vessel in motion is liable.

The harbor regulations of the harbor of Bangor require that no veessl shall come to anchor in the channel within certain limits; in this case it was found that the libellant's vessel was anchored in a proper place, had the proper light, and that her owners were entitled to recover of the respondents, in accordance with the decree of the District Court which was affirmed.

Inevitable accident in collision cases is never admitted as a defence, except when it is shown that neither vessel was in fault.

ADMIRALTY appeal in a cause of collision. The owners of the brig William Nickels exhibited their libel in the court below, against the brig Jennie Cushman, in a cause of collision, civil and maritime. The place of the collision was in the Penobscot River between Bangor Bridge and the north line of the town of Hampden. The libellants' brig arrived at Bangor during the night of September 7, 1865, with a load of white-oak timber, and anchored on the eastern side of the river, nearly opposite Tewksbury's shipyard. The next day, at the request

of the stevedore, she weighed anchor and dropped down the river about one hundred and fifty feet, where she again came to anchor for the purpose of discharging cargo. The stevedore stated that in changing her place of anchorage she was put in shore on the eastern side of the channel. The cargo was consigned to John T. Tewksbury, the owner of the wharf of that name on the Brewer side of the river; and he confirmed the statement of the stevedore that the vessel did not lie more than one third the way across the river from the Brewer shore. She drew, when loaded, twelve feet of water, and at low tide there was not more than seven feet of water where she lay. Unloading was continued through two days, during which the brig did not change her position.

The Jennie Cushman came up the river on the night of the second day during which the brig was unloading. When three miles below Bangor a steam-tug was employed to tow her into the harbor, and in coming in she struck the vessel of the libellants and caused the damage complained of.

None of the ship's company of the respondents' vessel were on board at the time of the collision except the master and two seamen, and they were below. At about nine o'clock in the evening, they set a light in the starboard rigging, ten or twelve feet above the deck, and the light burned brightly. The collision occurred between eleven and twelve o'clock at night; but it was a bright night, and the vessels had been in plain view of each other for a half-hour before it took place.

James S. Rowe for libellants.

Charles P. Stetson and Shepley & Strout for respondents.

CLIFFORD, J. Taken as a whole, the circumstances show to a demonstration that this was a case of fault and not of inevitable accident. Inevitable accident is never admitted as a good defence except when it appears that neither vessel was in fault, because if the vessel of the respondent was in fault, the libellant is entitled to recover, and if the vessel of the libellant is in fault then the libel should be dismissed; but if both were in fault, then the damages should be divided. The Pennsylvania, 24 How. 313; James Gray, 21 How. 194. The general rule is, that when a ship is at anchor in a proper place

or anchoring, and with no sails set, if another ship under sail collides with her and does her damage, the vessel in motion is liable. The Batavier, 2 W. Rob. 407; The Scioto, Daveis's 359; Strout v. Foster, 1 How. 89.

The appellants do not controvert that general rule, but insist that the evidence in the record shows that the case falls within the qualifications which are included in the rule. The harbor regulations of the port of Bangor provide that no vessel, steamboat, or raft shall be allowed to anchor or lie in the main channel of the river between the Bangor Bridge and the north line of Hampden, so as to obstruct the free passage of vessels, boats, or rafts up or down the river. The duty of the harbor-master is to board vessels as soon as practicable after their arrival, and to exhibit to the proper officer the regulations of the port, and, if necessary, to direct them where they shall lie. The argument of the appellant is that the vessel of the libellants was not anchored in a place allowed by the harbor regulations, but in a place where she obstructed the free passage of vessels up and down the river. But the harbor-master, and the owner of the wharf to whom the cargo was consigned, testified otherwise, and so do the master and all others on board the damaged vessel. They testify that she was on the Brewer side of the main channel, where at low tide the water was not more than seven feet deep. The witnesses examined by the appellants strongly support their theory, but after a careful examination of the whole evidence I concur with the District Judge that their testimony is not sufficient to overcome the facts and circumstances adduced by the libellants. Several other defences were set up by the respondents, but it is sufficient to say that no one of them is sustained by the evidence. Decree affirmed with costs.

CHARGE OF CLIFFORD, J., TO THE JURY,

IN THE UNION SUGAR REFINERY v. MATTHIESSON & Co., and final proceedings, November 13 and 14, 1865.

Inventions pertaining to machines may be divided into four classes.

1. Where the invention embraces the entire machine.

2. Where the invention embraces one or more of the elements of the machine but not the entire machine.

3. Where the invention embraces both a new element and a combination of elements previously known.

4. Where all the elements are old, and a new combination, producing a new result, is made out of them.

A person is an infringer of a patent of the first class who, without license, makes any portion of the machine; of the second, when the part new and patented is made or used; of the third class, when the new element or new combination is used; of the fourth, when the patented combination is pirated.

The property of the inventor is the exclusive right which the letters-patent secure to him to make, use, and vend the thing patented.

The reason that a patent, when introduced in evidence, is prima facie evidence that the patentee is the first and original inventor of what is claimed therein, is that it is issued upon the adjudication of a public officer charged by law with such duty. Where all the elements of a machine are old, the patentee cannot invoke the doctrine of equivalents to suppress all other improvements on the old machine.

But he is an infringer who makes or vends the patented improvement with no other change than the employment as a substitute for one of its elements, a device well known in the state of the art to be such at the date of the invention, and which any constructor acquainted with the art, would then know how to employ.

Such substitution of one well-known element for another is a mere colorable evasion of the patent.

Whether a witness has sworn falsely or not is a question for the jury, and if they find that he has wilfully sworn falsely as to a material fact, they may, if they deem it proper, disbelieve everything he has said.

The presumption that the patentee is the original and first inventor of what is claimed in the patent, when introduced in evidence, extends, in the absence of the original application no farther back than the date of the patent; and those alleging an earlier date must prove it by competent evidence.

Where there is no evidence to the contrary, the presumption is that the patentee at the time of making his application for a patent believed himself to be the original inventor or discoverer of the thing patented.

Crude and imperfect experiments equivocal in their results, and then abandoned and given up, shall not be permitted to prevail against an original inventor who has perfected his improvement and obtained his patent.

It is not enough to defeat a patent to show that another had first conceived the possibill y of effecting what the patentee accomplished, unless it appears that he, reduced what he conceived to practice.

If two machines, having the same mode of operation, do the same work in substantially

the same way and accomplish substantially the same result, they are the same, though differing in form, shape, or name.

If the defendant's means of causing pressure at the nozzle of his machine were, at the date of the patentee's invention, known as a substitute for the means of causing pressure at the nozzle described in the patent in this case, and if this mode performed the same function as the patented one, and could from a constructor's knowledge be substituted for it, then the two means are substantially the same.

The patent in this case is not limited to any arbitrary mathematical amount of pressure, but covers such degree as is capable of carrying out the described object of the patentee under the conditions described in the patent.

GENTLEMEN OF THE JURY:

Pursuant to the uniform practice

in this court, it now becomes my duty, as the organ of the court, to direct your attention to the nature of the controversy between these parties, as exhibited in the pleadings, and to give you such instructions in matter of law as seem to be applicable to the evidence in the case.

The action is an action on the case for an alleged infringement of certain letters-patent. The writ is dated the 16th of January, 1864; infringement is alleged on the 2d day of November, 1863, and from that time to the date of the writ. The plea is the general issue, with notices, under the statute, of certain special defences. The principal special defence relied on is that the assignor of the plaintiff is not the original and first inventor of the improvement described in the letters-patent on which the suit is founded. The claims of the plaintiffs, as laid in the declaration, rest upon two material allegations: First, that their assignor, Gustavus A. Jasper, is the original and first inventor of the improvement described in the patent on which the suit is founded; second, that the defendant, Francis O. Matthiesson, infringed the same as alleged in the declaration. Both of these allegations are denied by the defendant, and the issues presented in the affirmation and denial of these two allegations constitute the principal questions for your decision. They present mixed questions of law and fact, and consequently must be determined under the instructions of the court. Questions of law must be determined by the court, subject to revision by the Supreme Court on a writ of error; but questions of fact are for your determination, under the instructions of the court as to the rules of law properly applicable to the subject-matter involved in the inquiry.

Controversies like the present are exclusively cognizable in