22 F. Cas. 71 | U.S. Circuit Court for the District of Southern New York | 1857
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 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
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.
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 T 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 throttle-valve, 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 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 him, as the agent and acting officer of a foreign corporation, he
