New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1852-07-03

- -. of tho contracts. To this answer, may ~
nis,e your Honor fit is establlshed 10 pJn LIZ
act this is perfect answer 10 une .Le sn.c;6c
,ha, n ,h,, be taken rs II bill tor fhe TPrI'nC
ana tha. II ~ Ia u the covenants do on ground OF
x, .g,,, us and are 10 be enforced, thefe - "'
- IA - ,ie mattel Is il then to be TAKEN I'd oe
b,II for the specifc performance Oi Ine oon'
h,,, ,., hi for infringement Can an mum
t;,r mon infringement be moved Tor III Ihe Drum
orv fn,m1 and az ,uch b'll, can u stHhu 'pi
nncment upon the undi-Puted iasts 10" o.,"'o
,h;. Can't Now, am disposed to admit that,
.i,b,ueb nerhaps it is not drawn IN the most
s,t stic manner and from some policy on the part
M the plender vet We DO suppose, ami we always
I.ve .ipp.,e. thnt il was to be pressed SIMPLY
as the specific performance OF covenant, ana
assure YOUR HOnOIs, upon my personal Veraci'y
and character came to TINS trihI to-hay we
cane to this iral on the opening OF the court,
and We have made every paIcle OF our prepare
ton. from lat October, upon the supposiuon that
We we're to deal with nothing under heaven Out a
bill Tor a specific performance OF contract 10
which bill we were happy, here and everywhere
wheI. the facts were at hand, to hold ourselves
ready 10 answer. Your tlonOrs may be aware
that Mr. Day. under the advice OF his counsel Or
the greater number vi them has Actually neg
lecttd to come here attended with evidence 10
proye his ability to say, 81 alsO am an lnyen-
tor" and To prove the long series OF ms young
attempts te sienalIZe himself IN the line vi dis
cover, III the calling he had chosen. IL IL under
that ADVICE founded upon what we have always
understood to DE the prayer OF the OIL, thas
he comes here to- day uHprepared To meet the
cnse winch portion of my learned brothers ar
pun,ebt prt sents for US to meet. We Thought IL
q L,,l far n surCifc performance, and we so heard
il tepoited fiUm every source, and frItr Tor con-
6imatlop On this point to the distinct SUBJECT OF
this p,aytr and that our admirable brother Cur
tis now a Justice on the bench with your Honor,
m ftrA nj
upon that bin upon the ground that It would give
the Court 10 trouble to investigate the facts, but
that il prcsen ed matters OF estoppel on when
the controversy would be sure 10 tcrnIn ate, ana
which would save them and III any further MT
q on 10 q court Of law. Well, We have al"a's
so uhde stood it, md If It turns out that We nave
misunderstood II. then we are III danger oil 1eing
ntalty su,pr -ed | 90 not ray that this Is Nh
a. tistically drawn bIli for specific performance
| know the leaning OF the man VINO dad II would
enable him t. draw better bill for specific per
foInalee IL seems 10 be a bill binding the de-
(, ndant not to dispute the validity OF tue patent
Ii states Il settlement OF a controversy between
parties bv covenants, but 1t does not prove them'
The Court will turn 10 the fifth page OF the de-
fendani's record, continuing their answer, your
Lonors III ind that 1t sets out IN detail, the idct
of the settlement then and there entered INTO,
and great ybIItty of covenants that he prom
lsed 10 stump the shirred goods of his m1nudc-
tine; that lie promised not to manufacture out
side Of the license winch ne took, to pay u tlrb,
and to keep Nh nc cunt upon the amount manu-
tactured. Ii states the settlement, and II states
the covenants and therefore, as | understood
from that part Of this fOlm, It Is bdI tor Il
,ueci6c performance. 30 it may be taken, may
II tIt art YOUR Honors; but, then, specific per
foimance OF what | have the honor respect
fully to submit, the FIRST place, that it cannot he
maintained Tor al instant, rs such bill and IN
The next place thar 1t presents no matter, accord
ue 10 the rules OF Chtncery pleading 10 the notice
of tins Court, under which the defendant Is to he
ertOpped under any construction OF The OIL, from
the ight OF hugatng this cause III any court. lt
IL ii bill Tor the Specific performance OF what
Why, simply for the specific Performance of SIN
gie one OF all the covenants contained OH Day i
side Of The settlement. Ii praNs on account not
OF whut DAY has done under his license-not IN at
he Goes not pay the tariff IT complains OF MA
not that he does not keep an account under ms
lcenst-bOt that he does not stamp his goods
according to the lCense-but II specially and eX-
presrIy excerpts iiom the prayer OF the bill, and the
complaint OF the party every thing III the world but
" hnt he has done OUTSIDE ms license and there
fore II p, at that II Is, beyond any controversy
whatever, then, AS a bill Tor the specific perform
| auCe of the covenant contained on page - OF the
| det udant's record, and OF nothing tlsc in the
! world. Now, then, tuning back from that cove
lant o pule OF the painths bill, your Honor will
/ fnG tha, they arb thot the defendant may render
! his account Of the articles made, &c; except
! where such INDIA rubber made under the IL
cense-thut Is 10 say, het Is II ;. ttlemeni with a
| hall dozen covtn MS 10y Day one that he will
/ keep account books another, hat he would dc
nothing OUTSIDE hls license another that he wall
/ STAMP biz goods with toOdN ears name, &c, &c,
/ And. then, they sue him not for nythlng about
the tar fl-not iur failing to stamp the goods NOT
/ iOT he, ping 10 account boOks-they ask him not
for an account any thing he does under the license
I a filx bt.f Flay all fh
and go straight and square to an inquiry into an
account Of what he does outside the license, pro-
cetdLg MANIFEST, and fully upon the covenant,
ana there We are. MAY it please your llunOrs
ii tli- is now 10 be turned INTO ana treated rs
u bali for specific performance, is there any
longer any hXlty of M anIng to language =
IltIe We are upon bill tor the specific perform
anCe Of that enc single covenant. Now. ask your
IlunOrs II II chD he pretended f'T All instant, upon
the iucts, that bIli lor specific pc rOruance like
that, can be maintained ON the evidence before
tins Court. ReSOding, then, to the terms OF the
covenant Oh which they proceed to try this case,
the Court will Discern that it is covenant while
GOucy ear protects Day iii the exclusive right to
Manufacture and yend shlrred goods, net To man
uracIuIe anything tut ehIrTed goods except what
ht is licensed by Goodyear To DO. Ii covenants
that while Goodyear protects hun III the exclu-
sNe ngh to manufacture shuTed goods, he will
Lot mHnuiacture any Other articles than he is IL
ctiSu 10y bOUul ear 10 uOi ana now the question:
IT, Win ther upon that covenant the plantIti can
maintain bis claim. | need not say IL Is incumbent
on he plaintiff to show THAT he mas so protected
Day exactly and substantially. While he protects
Day, Day shul not 90 anything he Is not licensed
to %. They complain bat he has doue something
thut he ~as not licensed 10 do. of course, then,
II II incumbent IN them to aver and prove that he
has, durIng rome period while Day hd$ invaded his
branch OF manufacture, he ms protected Day IN
the manufacture aud sei of shlrred 20 IDS. Now
does the pialntiH hts bnl any such thing as
that Not word Of II. OF course, he Cannot Of
itI any proof thar he has done IL for he cannot
Offer lIooi OF ouy hing he has not aveHed. Oa tse
coniIhry, the defendant denIt 1t exp lctly; while
Il plaibIif meets the DENIAL without murmur
al without proof. II su6 tOu" says hr, ION
covenant 10y which you agreed TO manufacture
nothing but Shirred goods, II would protect you
II II e Manufacture by all my power. Bat for
get to aver, ami | totally tall 10 prove that |
IaNe Tin : protected Won. 4 chaTgr yol nth