Sickels v. Borden.

that he was the chief engineer of the Metropolis; that he had not, since the service of the injunction, run the engine with the adjustable feature, but that the engine was altered before the injunction was served; and that he had, ever since such alteration, been, and was now, compelled to use the throttlevalve to regulate the running of the engine. The affidavit of Borden showed, that he was not the owner or charterer of the Metropolis; that he was not in possession of the boat, and was not the manager of it, except under instructions from the corporation owning it; that he did not now run the said boat or control her management; that he did not now use, and never had used, the plaintiff's invention on the Metropolis, or on any other boat; that he had not, since the order for the injunction was made, or before, run or used, or caused to be run or used, the engine of the Metropolis; and that he had no control over the use of the engine. The affidavit of Fuerst showed the alteration of the engine. No affidavit of Brown was produced. He was mentioned by the counsel on both sides, during the argument, as the master of the Metropolis; but this was not shown by the affidavits produced, nor did it appear that Brown was on the Metropolis, or had anything to do with her running, at the time of the alleged violation of the injunction.

Edward N. Dickerson, for the plaintiff.

Francis B. Cutting, for the defendants.

HALL, J. The injunction issued and served in this cause is directed to the defendants alone, and, by its terms, restrains them, and them alone, from using " a certain improvement in the cut-off, patented by Frederick E. Sickels, by letters patent dated September 19th, 1845," "on the steamer Metropolis, running on the Sound, between New York and Fall River." There is nothing upon the face of the injunction, by which its operation or restraint can be extended beyond the precise limits indicated, and it is, therefore, the "use" only that is restrained, and that use on the steamer Metropolis.

If the injunction had been properly served on Allen, and

VOL. IV.-2

Sickels v. Borden,

had been directed to the servants, agents, workmen, and employees of the defendants, and had, in terms, restrained such servants, agents, workmen and employees, the very serious question would have been presented, whether persons not parties to the bill could be restrained, under such a general designation, by an injunction issued upon notice only to the parties to the suit. The Act of Congress requires notice of an application for an injunction; and I am very strongly inclined to the opinion, that, in order to attach for the breach of an injunction, the party to be proceeded against must be a party to the suit, and have had notice of the application for the injunction. But it is unnecessary to determine this question upon the present motion. There is not the slightest proof that Allen has ever used upon the Metropolis the invention referred to in the injunction; but it is sought to attach him because, prior to the use complained of, he made an alteration in the engine of the steamer. That alteration did not make the engine any more an infringement of the patent. On the contrary, it took away the adjustable feature, by which "the extent of the cutoff can be regulated at pleasure, during the action of the engine, from the full to the least portion of the stroke," which was specifically claimed as a part of Sickels' invention. It was, therefore, a less extensive and less injurious infringement, to use the engine after the change, than before; and certainly the change can afford no ground for an attachment against Allen. It is not shown that he has used the engine before or since the change; and, therefore, even if he had been named as a defendant, and been served with the injunction, no attachment could be issued against him, upon the proof now before the Court. The motion, as against Allen, is, therefore, denied.

There is no proof that the defendant Borden has violated the injunction. It is not shown that he has used the invention, or in any way run, used, managed or controlled the engine of the Metropolis, either personally, or by the agency or intervention of others. Indeed, such use, control and management are expressly and implicitly denied. The motion, as against Borden, is, therefore, denied.

Sickels v. Borden.

There is no proof of the violation of the injunction by the defendant Brown. On the argument, the counsel on both sides spoke of him as the master of the Metropolis; but there is no proof that he was such master, or was on board of the Metropolis at the time of the alleged violation of the injunction, or that he has in any way used, or procured or directed the use of the invention of Sickels in or upon that steamer. It seems to have been assumed that I would take judicial notice that he was the master of the boat, and that I was to take it for granted that he was on board and acting as her master, and responsible for the use of her engine, on the 29th of November. This I cannot do. The motion, as against Brown, is, therefore, denied. I can, however, readily perceive that proof of the violation of the injunction may, perhaps, be made against Brown, and possibly against Borden; and I shall, therefore, give the plaintiff leave to renew the motion as against them, if he shall be so advised.

The evidence of violation against the defendant Sturgis is of a different character, though it must be admitted to be very slight. Mason swears to the use of the engine of the Metropolis on the night of the 29th of November, and describes the change which had been made, and which he says Sturgis, the engineer of the boat, informed him had been made by Allen. This conversation, it is fair to infer, was during this trip of the Metropolis, and, coupled with the statements made by Sturgis himself, in his own affidavit, in which he states that he was chief engineer on board of the Metropolis, which runs between New York and Fall River, and had been such since the boat was put upon the line, and that he had been and was compelled, since the alteration of the engine, to use the throttlevalve, to regulate the running of the engine, shows, I think, that he was running the engine on the Metropolis on the 29th of November, and that he has run it at other times, and has, therefore, used the valve-gear in its modified form, since the service of the injunction. It, therefore, becomes necessary to consider whether such use was a violation of the injunction.

The injunction restrains the use of the improvement patented

Sickels v. Borden.

to Sickels September 19th, 1845. It is possible that the injunction is broader, in this respect, than Mr. Justice Nelson intended it should be, but this does not appear conclusively, upon a comparison of the order with the injunction. The patent embraces two claims or inventions-the first and most important being that by which the drop-valve of the cut-off is tripped by a motion independent of the lifters; and the second being the adjustable feature, by means of which the extent of the cut-off can be regulated at pleasure, during the action of the engine. It is claimed that Mr. Justice Nelson intended that the use of this adjustable feature alone should be restrained by the injunction to be issued in pursuance of such order. There is certainly some force in the suggestion, looking to the terms of the order and the language of the patent. But, if the injunction was too broad, the defendants should, when served with it, on the 29th of November last, have taken measures immediately to set it aside for that reason. They did not do so, and they had not done so when this motion was argued; and I am, therefore, inclined to hold, that the injunction covers both of the devices patented, and must be held valid and effectual to the extent of the language employed to indicate the restraints imposed. The use of the engine after the alteration was, therefore, a violation of the injunction.

But it is claimed that the defendant Sturgis was a mere engineer, having no interest in or control over the vessel, and that he cannot be punished for a violation of the injunction. It was said, arguendo, that it would not do to punish by attachment the hands and firemen, the mere servants of the owners of the boat, who were subject to the orders of the master, and to punishment for disobedience if they refused to aid in the navigation and use of the vessel. I see no weight in these objections, as applied to this particular case. Both the master and the engineer, as the agents and servants of the foreign corporation defendant, are parties to this suit; and Sturgis is admitted to be the chief engineer, and the officer having the principal charge, management and control of the engine whose use constitutes the infringement. For the purpose of enjoining

The Isaac Newton.

him, as the agent and acting officer of a foreign corporation, he was properly made a party to the suit; and neither his agency, nor his relationship to the master or to the vessel, affords, in my judgment, any excuse for a violation of the injunction. A bailable attachment must, therefore, issue against him, to bring him before the Court, to answer for the alleged breach of the injunction.

THE ISAAC NEWTON.

Where, in a collision case, a Commissioner allowed, as damages, $800, for the dif ference between the value of the libellant's vessel after she was repaired and her value before the injury, this Court, on all the facts, disallowed the item, holding that she was, after being repaired, in as good a condition as before the injury.

Where an item of $465, and interest on it, was allowed by the Commissioner, for loss of the earnings of the vessel during her detention for repairs, upon the mere opinion of her master and mate, the claimant introducing no testimony on the point: Held, that such opinion was incompetent evidence. But, as the expense of sending the report back would probably equal, if not exceed, any abatement in the amount, the Court allowed the item to stand, deducting the interest on it.

(Before NELSON, J., Southern District of New York, April 15th, 1857.)

This case came up on exceptions to the report of a Com missioner as to the damages in a case of collision brought into this Court by appeal from the District Court.

NELSON, J. One of the exceptions is to the allowance of an item of $800, for the difference between the value of the libellants' vessel after she was repaired and her value before the injury. This item is founded on the evidence of the master and the mate, and is a matter of opinion, resting upon no fact stated, except that the vessel leaked more after the repairs than before the damage occurred. The shipmaster who repaired her, states that she was thoroughly repaired, and was put in as good a condition as before the injury. The work was