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


words AGirns tia, az pa,ou, Is valid; TIM. in an
action directly on tho transaction containing tina.
Acknowledgements In form, n binds. Nov, yoar
honors. ia the second Ai5lphas aud Els, ou The
brief and Hiidmarch 2i5. aud Rorman 4 ravi,r
even that, however, concludes only a. IN Tho pre-
ceding ease, and Is cr dirccfo on the 4etteme,; H.
which no address himself % that the .l,.cniaot
may know what he Il doing; but he defendant can
come in, responsive bis oath 60 the matter that
il charged. The case II Nccson 4 Welshy, 9r,. Il
conclusive that il AFTER all to be only evidence
10 the jury just exactly whore it all ought 20 g..
On recital in terms, Lund On Patents. 2i2. y h,gh
authority. Now, however, .supposing TIA, y the
doctrine ard direct aduissioni Il made that food
years patent is yalid-supposng IL 10 b. law that
that admission binds In the direct proceeding, there
is not the least trace Oi tuch recital from the be-
ginning TO the cad tho contrary, 4 n perfectly
clear that the parties meant u bolt their tongues
There il not word about is being valid.
On the contrary, far FROM that, may Il please the
Court there Is direct provision IN the settlement,
that Mr. Day is TO be discharged altogether, when
ever by any proceeding commenced aud prosecuted
in any judcaturc II shall bo decided that Gocdyears
patents not valid in law. But soc my learned
friends do not quite agree That there u not recital
that this patent Is valid II roads !" whereas he
what. made an inyentionl Not a bit of Il; bat
:" whereas he sc. The parties entirely sileat
on the question whether these patents valid
not. They themselves admit, aud il Is made per-
tectly clear in the of Hayward, that some Of
these patents were certainly invented by him, aud,
therefore, though there is recital that Goodyear
had them, there Is no recital that Goodyear made
them IL Is, therefore, alto tafuifu. Hut, Und0nbt-
edy the question of whether the titles 10 the pl-
tents are good or not, may be dismissed There Is
an expression little below that | sorry,
found its way there but, your honors will
| member, il rs an encounter Of tcchnicnlity, by
which they press against breaches .. eqata-
bic conduct scarcely crcditabic in out Of court
Of law | want to find the passage in which dis
! tnctlon between having and owning istaken by the
very nSus foqnfnot. IL IL where we find them talk
ing in their own way Of the difference between the
inventor oi matter and the possesso, aud the very
of speech by the parties themselves explains the
language here employed (pags I'll of the blll) dis
| tpguishinS entirely between his holding or owning
sna being the inventor thereof. hope that argu-
ment is entirely decisive tho very marrow cchni
caity to whchit app d, to wit. what their own uso
OF speech shows clearly, that holding ana owning
not invcnting, and therefore, tho recital that wher
ever the covenant comes il controls all these ghts,
isdtrGSo intisuu, but is totally silent whether ornot
he tho true and first inventor. Now let adj, if
your honor pleases, that these eases, to which
ference has been given. are all cases which would
do good to the heart OF old Shepperd my Lord
Coke ii they could come out Of their graves ~ they
went into them. They direct "a terminus
| that the patent was valid. leaving it certain
| that there was no manner OF question that tho
/ parties were directed to that very idea, anu
10 that alone. ] submit, then, that there Is
nothing the papers here in the least degree
resembling the cases they have referred 10. IL -
equally well settled, ii the Court please, N the next
place, that the mere acceptance Of Q license, aud
the promise to pay tariff, does not conclude the
party 10 dispute the validity ofhe patcnt-thc very
! question which is supposed to be before the
Coult Whether the covenant contract to pay
| ioi u license can be enforced on q proper bill, and
what dcfcnces might be set up, and what pleas to
II. need not stopto consider, because there - no
| acccpt,hteD3ing, What do say is, that q mere
the bargain do not conclude party TO a.. pay into
validity mean in another proccediDg-and II tbs
! been so adjudged by every case in law, aud tho
4 Court viii now allow me to remind them by what
sort OF lawyers that rule has been uniformly en-
| Iurcod--not by common law lawyers alone, such ~
Lord Ihurlow and others, but, rs late rs $50. by
such men Lord Edon, in the cited in Web
sters Patent Cases, PSI, and by judgment in lSl9,
/ in the first Of McNaghtcn and Gordon, given by my
! Lord Chancellor Cottcnlam, and universally 80.
! The more acceptance of a license then, does not
concludes and IN the next place, the addition OF a
! promise to pay "A tarii-that i3 to say, both
| the acceptance and promise to ray-are
! not conclusive admissions Of validity, and
leave the party, like any other, at liberty to take
evidence and 70 before tribunal whore the owl
dcnce of validity will be .hed for what worth
That this is SO, is very clear and this, If your
hcno1s please, VIII reconcile with every case IN
tho law that has been produced, or can be produced
aud unless he covenants, III 50 many words moi 70
| contest the validity, tho covenant 10 pay tar'h
,ray always be resisted, the ground Of n'alidy
IL ! simply and enly license aud covenant - pay,
wihout eIercnce 10 the inject Of validity Gnd u-
less i = covenant n 80 many words, Or an oc-
acknowledgement on co;cuaat. not TO contc5t, u is
always open to the party 10 dispute II. viii reler
your honcrs SCI to the OPINIONS given by the
Judge ana Tie first case is : iIayne vs. Mnltby,
| H. f. ;}s,'' in which the whole Kings Bench con
med in such a construction IL such grant; but
the which is given for il is very plain. 10 Is,
that such contract, and license, and covenant to
paw rroce eds always the hypothesis and basis Of
right in the pllintii. Everything assumes, for the
nonce, tie truth Of that which he has e,laeraily
. asserted. and which the defendant has been drawn
in to give credit to- When that fills, he his
simply made II INSTRUMENTATION, aud then he
has 10 remedy whatsoever. The plaintiff knows
whether he is, or is not, the original and first
| inventor: and il he tells plausible story,
surrounds himself by afidayts and by wit
resses, and drives his victim into covenant, and
the defendant buys his article, then if he after
wards show that though he is yioator OF patent,
he himself deceived; why earth should he
not do lit How can he have intended to conclude
| but by covenant, that he would not contest; for
there is exactly way that a defendant may con-
cudc himself, aud that is by covenant that nc will
not contest. II your honors will give me leave
viii turn to the decisions that strike me rs coDcl,-
syc in Plat Oh Covenants, 574, SIS, aud J16: and
Addison on Contracts II and Isl. That decision
has been cited and referred to ia Westminster Hall,
and followed ever snce in the It'll of Mceson and
| Welsby, a95 and IN Webster Patent Cases, IL. SO
that il hus really become ! am very happy to say.
entirely clear, that the acceptance OF license and
covenant TO pay tariff leaves the party wholly ut
liberty to contest it. Yet, should be ashamed Of
my client II he would stand here to contest these
! covenants on the ground that it is not an es-
/ topoi at law, if ne could not ut the same
time lay Lis hand On his heart AMI say that ne
fond othcr reasons in his own COLLEEN rule OF dong
Ms nc W0uii DC zone oy. IAat prescribed anu war
iantcd his taking Up this line Of dolcnce-that
makes il a beautiful end biblical defence, which
was before nearly absolutely perfect in point Of law
Then We are, think, so iarat she conmon case OF
a bill in Chanccry for an Infringement. with moth
ing to estop Us or deprive US Of al our ordinary
! rights. ! wish row to suggest to the Court IN
quiet manner, why this esopel should be set at
large, and then snail be ready and most happy to
give way 10 that exposition Of the merits Of the
ease, ny which am sure my client will be aided,
and on which he may cammit himself unto the
cour) by the leaned counsel WHO il to follow me.
Now, if the court will indulge me, the document
making the Transfers by ule plaintiff to thc defend
ant, MIR Day, begins By recital That there are
only three persons VINO have any interest in this
matter, with one OF whom Mr. Day had tho misior-
tame TO have had standing quarrel, and ne would
sooner have met his dcaGlicst toe coiains upon him
lko a ih.f 10 Ito ncnL as 10 ln W uollnitiad MIN