The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-06-26


Ior,ant co.sicoiston no longer now navel. and
that H. that onr own Legislation makes no distinction
in ;beir behalf and let ado. that that learned
Judge ~ speaking Ia an applications IN earlier md
easier stage Of a motion for Injunction. Now viii
tutn your attention, a que ton has erisen upon
the accuracy Of The citation, FOR one moment ony
10 Book Third page ~, ~ Statutes ut Largo. the
ist SECTION is section declaring all monopolies To-
le void. The dith section speaks. neyerh eess, of
the rights Of patents, Then argueth that the second
section means 20 say that the common law of tho
nalm shall declare, in any given and coctroyerted
ease, Nhehe, il u patent for novoity or monopoly
abolished by the fret section 81 the act, for the Ian
il substantially this h,v construction is this
the first section abo fishes inonopoies the fifth
section oecores that patent fora new invention is
a legal right; ard that leaves il subject of great
deboto whether the giant Of u patent is valid, or
whether the second section ereo.s n iad.clture by
which the commons of England viii that that ques
iion shall be determined However this may DO,
comfy follows the law. Now, what is the meaning
Of The maxim, that equity follows the law? In this
approheDt it mears that it ST refer TO tue
consmon law of the realm to detormino in its oya
tribunals the existence Of the legal right, and, that
done. then, by its peculiar and characteristic
powers cbopcery lends is aid to protect the alleged
lht until it be determined whethcrit is ri ht
ornot to protect IL after il has been acertaincd to
bea gbt-pro;ocio not aseertairrent protection.
ard not n mere enterprise TO resolve riddle of
rieat, "a mu1ra canada, H. submit to this Bench
that those limits and marks tho demar alton
between those two great auxiliary institutions,
clCsriy and admirably defined, aud are nc
codiug to all ideas Of right and justice. What
could VIC desire better, if were dreaming OF
other Utopia! What botter institution could we
desire for tho determination of right-a right de-
pending upon the crcdibiity OF that man, or on
the memory or source OF fancy Of ths-a right
depending upon the judgment OF experts, or on the
Interpretation Of graz ts-what 80 appropriate as a
jury Of twelve honest men, presided over by
leaned judgo! When the case has passed from the
G,at ha hill 10 GIad md spswprai
what SO admirable AMI SO perfect as The transcen-
dent power of chancery, which secures the right
forercr to him to whom the Law has already asocr-
tained it to belong! Finally, the language in every
cas IN the law, is concurrent demonstration and
illustration of this very doctrine. Every adjudged
cast, and the learning of one of my associates has
enabled mo TO place, chronologicay upon the brief
bet're your honors, q series OF Judgments for one
huId,ed years. beginning in l7S6' and coming down
to !Si9-every adjudged case, from the beginning,
this very doctrine of adjudication There
is tao case of Hardwicko There ia the greater case,
because living at a later period OF the Lord Chan
celbr Livingston, in the third Of Merrivale. There
is Cottingham, whose learned decisions on the Eng
Isl bench bias sufcea for all later cases. there-
for respectfully submit, may please your honors,
that the general rule s placed beyond particle of
controversy, and it will not be III this court that
that general rule will be brought into question.
sbtu!d learn this doctrine very incomplete. If did
no remind your boncrs of one exenpdcation and
application of it. apparently newer. but yet perfect
certain ard that is, if it turns out that the p4n.
f asks for injunction till the final trial. if. at the
ral trial il appears TO the court that he has been
guilty, ia their Judgment, Of laches in not claiming it
in his bill, before the final hearing of the bill, will
nd be retained to allow him an opportunity then to
gc hack to law, but will be dismissed as matter OF
curse; and that has been settled, If your honors
phase, by IN adjudication in the first Of Benou.
upon the brief (Spottiswood s Bacon, and brought
from MIN by appeal to Lord Chancellor Cottingham.
who deliberately confirmed that practice: AS !
shall not return to that topic. may not. before l
dismiss the subject ask your honors if TINT case is
not this case. Sir, to this day, we never had any
mtice that the plaintiff moved an injunction on the
general ground that he was entitled to it., on this
hill. At the discussions of last November or Octo-
ler, notice was indeed given for the first time that
IN iIunction would be moved for on the special
brm Of the bill, ! mean to say 1t was bill for
pecifc performance; but ii was not until our friend
Jegan his opening argument that the plaintiff moved
or an Injunction the general rule OF the right of
1 party on the general form OF this bill; aud your
will consider whether or not, under the cir
cumstances of the case, lnasmuch as he might nave
done it the coming in Of the bill, or on the filing
Of cur answer; and YOU will entertain, and you will
consider whe. her there was anything wanting to
our eyertions to bring the cause whether or not
May it please your honsrs teur | am attempting
something too much upon the general rule; but
must ask il this case wthiA it! II is said that it
is not, for souo one, two or three Perhaps
imre.fectly accompanied them i'll the argument of
the learned counsel. May / before enter upon it,
offer one word of authority!-( 39 1T Is
SAID, then il the G-st place. that this Il not within
The ordinary rule because II IS said that II Is not
bill for az nfring Of the patent for pcrpotu-
al ipiuL ction, for ordinary FORM but Is really and
merely bill Tor The specific performance 81 covenant
covenants. il il suggested secondly but not press
"a by my discreet and technical brother, that there
arc some reasons sby Jersey jury should not be
entrusted with Mr. Day; aud thirdly, II i sad, anc
ILi. i q matter which ! have committed W tue
learning Il ny frenc and associate, that there is no
Involved these yglumps iii proper Tor
the examination ola jury under the direction otthe
court These are the three general grounds on
which understand they claim that this case Is ex-
tTacted FROM the general rule Now, in the first
Place IL i suggested chat il is bill for the specific
performance Of o settlement, which settlement
.stopa the defenoapt from deriving the validity
DC the paept. IT is not really bill for the specific
erformance Of one the ether Of the CONTRACTS To
his answer, may it Please your honors, fit is es-
taLlshed ia poIt o. fact, this ia o perfect
answer 70 the general rule. and that #
his b taken ss bill for the specific per-
ornauce aid if the covenants dc on ground OF fact
,stop U.s. aud are TO be enforced, there is end Of
he matter. Is ii then u be taken 70 be bill for
he specific performance OF the contracts, but not .
till fur Infringement! Can an injunction upon IN
ingetn, nj be moved FOR in the ofdsary form! And,
H. sIca bill can il stand for lncD,ent upoa the
andlsputed facts now before this cour.l Now, am
disposed 10 admit that although perhaps il is not
il. xn in tic most artistic manner ana IRON some
olc the part Of the peader, vet We do suppose,
AID we alWJyS nave tupNoscu, lnat ~ "RS " W
pressed simply us tue specific performance Of CO.
,ennut aud assure cur Eoncrs, upon ny personal
ppracy anG character, we came T. this trial to-day
We came 70 TIL. tiial On Inc opening oil tic C0uf5
ana We have made every particle OF cur preparation
Iroua last October, upon the superstition that we
we're 20 deal with nothing under rccven but bill
Cor a specific performance Of Il contract, 70 which
lin We were heTpg, here ard everywhere where tue
iscts were at hand, 70 hold ourselves reauY TO
an wcr. Your hcnoIs may be aware thai Dir. LAY,
under the aavice ol bis counsel or the greater mum
Ter OF them has actually neglected 10 come hero IT.
Jed with evidence TO prove his abilitY 70 say,
also an an inventor, ard to prove the long series
Of his Young attempts to sgns!igc himself in the
line of discovery the calling be bad chosen. "
10 under that advice founded upon what we have OIL
vays Understood 70 be the prayer Of The BIZ, that
/ comss here 70. day unpfepared % meet the case
which PORTION &C my learned brothers e-eument
presents for us 20 meet. We tbougnt il BIZ for q
fpeciic peyformauce and We heard it reported
rom every source, and refer for confirmation on
bis iont to the distinct subject Of this prayer, add
hat our admirable brother Curtis, row Justice on
the bench with your honor, made IN application 10
the Court to be heard upon that bill upon the ground
tIat IL ,vnt,Ia rive thp Court no trouble to