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

y,
OF The at nll-f the plaintiff shall have an as
hero he has stock stiil without motion for an in
junction on the preliminary stages tho Court OF
Chancery has settled the doctrine tnat IL win note ven
retain Tho b to give him oter chance hat will dig
mis- H. ofoourso and leave tho Plaintiffs his remedy
! shhll speak to both branches of the rule. ! have
said that Injunction at tho final hearing is of
course perpetual " il perpetual, or il il no hing
Tn this point lot me turn to some Of the most APP
proved writer's upon this subject ! first resor to
my brother Curtis c2ocllene work upon patents.
But the slightest attention to the authorities upon
the bIief, still better TO tho memory 1T tho bench,
makes IL certain thst an injunction hore Is nothing
at all, or it is injunction for See. then, if
yeur honors please, how earnestly VIC feel ourselves
called upon TO take the be nett which is loft for of
the irle for which We contend wish to repeat
my proposition again, IN ordor 10 leave condition
OF it to which attention has not been paid In that
conversation which arose, at the commencement OF
ths trial, references were made by the most emf
nont counsel, TO the cases in which it was thought
the right to an INJUNCTION had not boon previously
established by a suit at law. Such was enc aspect
of tho telegraph ceso, with which one Of my learned
friends and myself were contested, IN Boston. Snch
was the ease in the same groas cause In another OF
is branches, tried by your Donors. BY the consent
Of parties any thing may be done to vary tho iireo
ton. These cases, your honors know involve
matters ofpure science, and 1T was thought better,
for many reasous, not to comm't the cause to
another tribunal for the hearing OF jury, or at
least inc xp, don't to Withdraw it FROM tho decision
Of the bench Those cases did not turn such
points as tlis-whether Earl had boon guilty of
larceny. They did not turn upon whether Collins
peiiured himself. or is en- honest man. IL did not
turn upon whether Pratt, in this case, is corrobo
rated by ten witnesses, or eleven witnesses, or
whether Hoyward was o dreamer lhey 90 not
turn upon such considerations, or upon such evil
dence: ard your honors will bear me cut in saying
that half an bonr's exhibition of the witnesses on
the stand, under the examination OF counsel,
md under the gaze OF twelve laymen, would reveal
the truth certainly than many lnbors OF days
nj ttynE hot
embodied in these records. They were a to-
tally different class Of considerations; and
therefore it was that they were drawn to-
gether to the Courts of Chancery, but subject
to that qualification, ] have the honor to repeat,
and we feel that we are here in some measure
certainly respecting this Court and our opponents
and ourselves too much to declaim about the jury
trial. but are hero upon what we deem aa I'M
portant, and perhaps. to the defendant. novel aud
mott important pout Of practice. Now. move no
question ut all with regard to an abstract power OF
a Court Of ChaLcery in this behalf On the contra
~, do not deny that power, as shall show by
the great Chancellor Lord Cottingham l shall
find him at the Same time that he Is administering
this rule, temporarily and exactly shall find hi u
asserting as your honors will assort the very high
est tone of doctrine with regard to the abstract
power Of a Court Of Chancery IN its theory; but
what will say is this: there are practical limits to
this great power-this power held and welded in
the actual administration, are perfectly defined.
These limits perfectly defined and exactly with
as long, and wide, and uniform q concurrence of
practice that while your honors power 10 grant the
Injunction is indisputsble, though the heavens
should pass that gigantic power, has been welded
with temperatures, and dignity, and security of
rights which should always accompany and regu-
late the administration Of power so large. Now,
in few words for the proof:-lst. stand here to
say that there has never been adludcated case
reported on the law under circumst like these
on which an injunction at he final hearing has
been ordered by the court not one adudicated case
not one And we live under the two hundred
and sixtieth year of the Chancery OF England, and
under the siXtieth or seventeen year OF cur own.
There have been innumerable objections 70 consider
ing these questions | have called to nv aid the
learning of the counsel for the piaint'n nave al
dressed my self the learning Of my associates, and
bestowed on the investigation as much time, and as
much capacity Of research as could employ, and
rereat- quite aware of the responsibility under
which say it-there was never sach case adJudi-
Gated against me in Court iof Chanccry.
The Court here suggested that the wheeling
Bridge quite such case. To which MIR. Choate
rephed;-
We stand in the specific case of patent ght, ard
in the discussion on this point shall found my re-
marks in part upon the circumstance that II is
patent right. 1t seems to me that i may stand to
some extent upon the distinction, u your hono!s
please, on which Livingston. and -, IN the
ninth Of johnson, was decided Il was held,
and it is exactly a principle which re-
cognse. and which ] contend for in this,
that inasmuch rs the controversy II that
fit and proper, and needful. TO be examined by
jury, but only upon the constitutional right ofa
legislative grant; and this case Of the Wheelrg
Bridge is q question Of constitutional grant a
State. We are contented, if the Court pleas, to
advert to this case to which they have maae re-
ference. FAR to say that it proceeded 'pon q
distinction between Legislative grants whTe the
matters Of TAT supposed to base first ben care
fully apI reciated by the Legislature, mat there
i nothing left for substance but the constitution
ali'y of grant. HAY be permitted. then # The
Court please, 70 return, and coniining ysei 70 the
hin before the Comt-a bill for the management OF
a Patent right-to submit that, il the history OF
the law, 40 such injunction has ev;r been auJuai-
Gated at final hearing In 1889, LORD Eottns'
ham, il the case Of Milman & oFag' wh.ie nc 70.
coQni7od the power of the Chincery, declared that
be knew no case in which il lad ever been exerted
take il that will do for Chaaoery on patents down
to 9, aud ask my learred friends on the ctner
side to produce case adverse 70 my proposition
rom IssS down TO This tino. Woll they will say
they have given us some, and this wiz admirably
illustrate, if nothing moe, the confusion INTO wnch
our text books sometimes Will leaa learned counsel
in the PREPARATION Of their arguments; soI refe
reference on the first page OF the Iiaintihs brief,
TO some ten or twelve authoritos, every one OF
which is 81 authority applicable only TO the second
stage Of motion for an injunction, ana no, one OF
tL,m referring in the least degree, 70 the new ana
great question on which We have 70 pray the jldg-
inent Of this Court. There is, for example, tho
Sd of Curtis 3ZS where hc spo ks OF motion ~ the
frs; stage. $50 is another upon the second stage
The third case which they cited Is altogether too
good not to be read aloud ia proof OF the general
TYoros;tion upon which ! now stand. (CutiS
pateutg) So much for the general doctrine Tor
which We contend, and every one q me piaintih
cases and other cases printed upon Tue same briei,
are al apsueiod il your honols please, by little
attention to the period ~ the case 10 woich they re-
f.r. Chronology. they say, + every lung IN tfstng
the dIosGl Of such c1scs, en-, ~ thia may W W.
oepte,j as a quite uldoubted settlement OF Chancery
decisions is not it almost conducive q ne case
1T far. when your honors consider fer about