The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-15

he entered into that obligation, and was part and
party up to his in this attempt to deaud
the public; nc always meant to have reserved his
right, which he claims always to have possessed, to
manufacture all kinds of India rubber goods, If
Goodyear failed to protect him in his monopoly Of
shirred goods. pass this.
There is an important head upon which have yet
something to say, and that is, the argument which
has boon addressed to the Court that there should
be trial ut law in this case and that this Court
cannot, according to the rules and principles Of
equity, issue perpetual injunction, to restrain
this defendant from a further violation Of these
patents, until the plaintiff has established his
title at law. Well, this struck me, / confess,
when it was announced, as being q very extraor-
law. This matter has been submitted to jury.
This defendant has had full right and OPP
portunity to discuss everything he chose to dis
cuss, respecting the validity Of this patent, before
jury Of his country. He was sued in the persons
of his agents at Boston The case was pressed on
for trial You perceive the anxiety Day manifested,
in the papers we have read to bring this settlement
to close; the eagerness to do so, founded upon the
fact that, that Boston trial was coming on. Day
says in one Of his notes, "this business must be
settled tomorrow, else it will not be in season to
stop the trial at Boston," Well, what happened
What happened? Instead of going to trial, and con-
tending for verdict to the end, he lot the verdict
and Judgment Of the court 60 against him by his
express consent. having entered into an engage
ment to work under the license. And now he wants
to try it Has he not had chance to avail himself
of that right Is not that enough! Is he to have
another trial! Suppose we institute another suit
against him, and press that suit, and get another
verdict and Judgment against him? What of that
That does not restrain him, and your HonOrs see by
his own declarations, how he intends to avoid the
decisions ofiuries and courts Suppose we sue him,
and he puts the off two years. and then consents
toanotherverdict This does nOtstop him. accordingto
his view. say it is unheard Of that party charged
with the infringement OF patent right having had
one fair chance to try that question before jury
having voluntarily struck his coors in the presence
go against him by consent, is entitled on the
face OF the earth to have another trial. There would
be no end to litigation if contrary rule prevailed
There is no justice in the defendants suggestion
this point. What appears on the records of Massa-
chusetts! Judgment for Goodyear against Seaver
& knowlton, Days agents, for $780, and the costs
entered by Days consent.
That is a part Of the agreement. But there stands
the judgment, and it shows he had an opportunity
Of testing this very matter. What more can be
done, or what more can be necessary! It is in vain
to say this was collision Suppose it was Ito 90
out OF the way, and make an admission
rantable,) the right has been established by law.
Can party who is pa,1iceps sriminis in a collusive
judgment, defeat it himself! Pray, tell me in what
book OF law any proposition so preposterous can be
seen?
Mr.. Cutting-He can, if you claim under the
judgment.
Mr.. Webster-We claim under our patent; and
don't, beseech you, charge us with claiming any
thing under Horace H. Day We claim under our
covenant which comes out first in his answer he adj
mts he party to it, and then expects to be re-
leased from its binding obligations, on account Of
collusion to which he was party. Never in any
primer OF the law, up to the most elaborate treatise
was proposition advanced abhorrent to the law
or to justice, or more deserving the contempt of
mankind.
Now, on the general question.
1t is perfectly well settled that when Court of
Equity directs issues, or n trial at law it vet has
the power to disregard the finding of the jury, and
case. Now, think that covers the whole ground.
If you are not obliged to regard the finding OF jury
when it comes before you then, of course, il must
be in your honors' discretion whether to award an
issue or not; and am quite willing to put it upon
the question of discretion-quite willing.
This judcature is composed of two judges. There
is a mass OF testimony respecting patent right,
and an alleged violation of that patent right. The
court have listened with great patience to the read
ing of that evidence and to the comments upon it,
for a week That comment is now approaching its
termination. Now, ! shall leave it with your
honors, being thus acquainted with the evidence,
seeing the entire case, to say whether you feel that
your onscience needs to be enlightened to the
merits of this controversy by trial at the bar Of
this court or elsewhere. Is there in this juncturea
memberwho feels reasonable conscientious doubt
on any vital question Of fact in this cause! Il is
proper to state it in that way because say it is
question Of discretion. 1t is not question of right
to be demanded on the one side the other It Is
question OF discretion arising after the collection of
a vast body Of evidence-after the PRONUNCIATION of
that evidence-aer final hearing Of that evidence,
and when the cause s ripe decision and perpetual
injunction, unless the court feels conscientiously
that there is something affecting the right of the
parties still untold, which they cannot with consc-
ent0us conviction settle themselves, and in regard
to which they have conscientious believe
Jury would enlighten them. What is there iury
can say that is not proved in this case The issue
OF the patent-the fact that the renewed patent is
no broader narrower than the invention; all these
facts, ! do not know one that be said to be
doubtful.
But hasten to conclude my remarks by reference
to the estoppel What right has Horace II. Day to
dispute these patents raise any question respect
ing them 2 What right has he : think he is
estopped to deny the plaintiffs title, byAevery form
OF estoppel which the law recognises accumulated
one upon another. / think he is stopped by mat
tiers in pas, in deed, and by matter of record.
by his own conduct and acts ndependent of obpa
tions under seal. Days offers Of reward to any
body who would give information by which infring-
of these patents could be brought justice are
dated January 9th, lS47, and is on the record.
(Reads)
From the FREEDMAN, January 6. 1877.
FIFTY DOLLARS REWARD.
The undersigned will pay the above reward to any
person who will give such information will lead to the
States who may be found after this date engaged in
the praca of any Of his patents or those granted
to Charles Goodyear used in the manufacture Of hrrcd
New Brunswick January g. 1872
Now comes another, January "a, 1917. (Reads)
From the FREEDMAN January a 1S47
The public is hereby informed that al the law suits
between the subscribers have been satisfactorily settled
between them and that by arrangement made the en-.
tire right omanufacture shrred goods under Mr. Good
years patents and to use Mr. Goodyears compound in
their manufacture, have vested in Mr. Day We further
give notice that all violations any said patents will
be immediately prosecuted. CHARLES GOODYEAR.
HORACE H. DAY
NEW YORK. January 10, 1847.
Reads from the testimony of Mr. Gilbert, defend
antswitness Defendants proofs, vol. l. page 49,
l. Do you recolcct of u meeting being called by the
parties interested in Goodyear's patents,
Answer do recollect meeting Of that character as
as can recollect Ii in the summer of lS47
). Will you please 20 such parties such persons
you now recoiect who attended that meeting at
that time!
Ans. William II. Elliot Hayward Dorr James Bishop
Ford Hutchinson Horace ii Day, William Judson and
many others that don't recollect. believe the whole
India rubber trade represented n ftul meeting