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

10 the later practice under the circumstance to
dismiss the bill at and altogether Wo shall of
course maintain many grounds OF defence against
the bill, bet Of this first, AMI, for my parp,ses,
chiefly ! confess, that until that little CONVEX
sation (Which may perhaps he within tho recollection
ofthe Court between the COUNSEL at the bar when tae
/ original proposition announced-ii il had not
beeD for that, Confess | should have understood
that the general rule for which oonteut was on
tirely beyond contention anywhere; and that gsne-
raj rule We have always understood TO be- thtt
Court VI Chancery. tho hual bcaTiug, which Is tho
stage at which this debate now comes, on a cause
4 when the answer denies tho equity. A Court Of
! Chanceiy will never perpetually efjoin on saeh
bill 80 framed and met, until tie plaintiff shall
lapo established his tile at law, unless Il shall DO
! made clear and evident to the Chancellor. that
there il question of fact in controversy between
N, parties. The evidence Of which, from is essen
tiat nature. may be submitted % trial by Jury.
say again il your honors will permit. | should have
supposed that that proposition would haye net With
tire universal assent OF all learned persons do not
stop here 20 move any question in regard to tho
trancendenta powers Of thu Count Of Chaucery That
il not tho proposition 20 which | mean to address
myself. But had supposed that whatever may be
the powers Of that tribunal, (and they ample in
Englsnd,) had supposed il had come To BIZ settled
universally general rule, That the final hear
ing, when the plaintiff has not lifted iuger in any
stage OF the cause to obtain an INJUNCTION the an
swor denying the equity-the bill being nothing IN
the world but mere ordinary Injunction upon pa
tent right have supposed it 30 BIO matter of
course that no injunction will be had, nness the
Court, on looking into the facts clearly and
doubtedly that there is matter Of flct in the evil
dencs That proposition, however, it seems is likely
10 undergo dissent from the other side feel bound
therefore, may it please Your honors, before ai-
dress myself TO these speci Il circumstances which
are TO be relied on in the nature OF an estcppal,
extracting the from the general rule. feel
extreme desire to have the ground firm under my
feet at the outset As to the extent and limits of
the general rule. that general rule being under
stand it. exactly this, with these conditions, that the
errly for inf uf he Iha
answer denying the equity at the final hearing,
and the plaintiff having taken no measures at
all to obtain an injunction at an earlier stage,
it is matter Of course that the nunc-
ton is refused until the title shall have been
established at law. Now, may it please your hon
ors, shall Of course indulge myself in only brief
resume of all the parties. They are, indeed, all
upon the brief; and acting on the suggestion from
the bench, instead Of pausing to read them refer
the Court to the brief. and content myself with
stating what understand to be their undoubted re-
suits. Now, your honors, win undoubtedly have
remarked in the text books, and sometimes even in
the prepared proofs Of learned counsel at the bar,
that very great confusion has arisen from not suc
fciently attending to the particular stage of the
cause IL which the motion comes 20 be made, aud
the determination Of the Court of Chancery comes
to he invoked; and it seems to me entirely indis-
pcnsabe in order to prepare for COMPROMISING the
decisions which appear on the face OF them. to be
by scores and hundreds Il reproach to the law,
stumbling block to justice. In order to approach
that riew-which, l arprehend will reconcile every
interest in the law and extract a beautiful con-
s'stent and rational system-l ask your honors, in
order to prepare for such survey of the cases. to
allow to submit that there are three stages or
epochs Of cause in which this motion for an nunc-
ton comes on by right; and that the application is
DISPOSED Of by the Court in every one Of these sue
cessve stages, under rules and considerations appl-
cable to the particular stage We are here to-day
in the third stage; but, in order to approach the
rules and considerations which. az we suppose will
be new applicable to this particular epoch Of the
case, allow one to glance at the rule Of each in its
order The first stage where this motion comes
to be made, is upon the BILL and before the
or evidence, even in the form Of an affidavit, be
given by the defendant in the cause. do not mean
to say that it is necessarily before and prior --,
but il is distinguished being upon the bill before
an answer unencountered and unembarrassed by
pythpg like opposing proof on the part of the do
fendant. In this stage-and it is to this stage
deem that nine out Of ten Of every authority
that will be referred 70 in the course Of
my argument. will turn ont to be referable
in this stageit is granted with less difficulty, and
under fewer conditions than ever after in the pro-
gress Of the cause. Even in tLis one it is by no
meansa matter of course Even in this one, more
than patent must be shown Even here some
length of time of exclusive possession or il that
possession has been interrupted, the parties right,
by suit or otherwise must be shown. in order TO
tanit bat IN this stage, and underthesc conditions,
it is ccmraratycly easy. 1t is provisional only. 1t
is granted only until the hearing Of further order
from the Court. The plaintiff has shown eytraordi-
nary diligence which is always agreeable to
Court OF Chancery: and, therefore, as have said,
lnasmuch as tits temporary Only: lnusmuch as ii is
only for the purpose Of taking iu;o custody and
taking care Of a subject matter which has n ltiga-
ton in prospect. and which might be wasted before
that litigation terminated; inasmuch the Court
holds it in his hands ready at any moment to be
brought forward. in this stage it would DC COM
paratiVely easy and. if We do not take great care
we are in danger Of transferring books and cases.
applicable to this stage alone to n later stage, in
which il viii be found that other considerations
arise from the different circumstances Of the
The next stage in which this motion for an injunc
ton il brought Is before the hearing. but after the
irterposition If an answer by the defendant, and
after the exhibition Of much opposing proof az he
chooses to introduce. The rules Of the injunction
applicable to this stage differ someH hat from the
last, and they arc found regularly and gradually
increasing the difficulties in the way of combining
.tbem. Still the court will observe that even bcre
inasmuch the Injunction will always be tempo
raIy one, inasmuch as the plaintiff distinguishes
himself by extraordinary degree Of diligence, in
asmucb rs the suit may be dissolved at any moment,
the Court grants it. even in this stage, with compa-
ra i've facility Here, however, unlike the rules
and circumstances which apply to the earlier stage,
o long and exclusive possession must be shown US a
denial against the defendants answer: or. if long
and exclusive possession cannot be shown, then it
must bc shown that on that possession being dis
tmbed the plaintiff promptly proceeded to establish
Lis right by trial at law. Tho injunction in this
stage also Is conditional and temporal; still. as |
have gaid, il is more difficult than in the earlier
stage; but yet comparatively easy to re obtained.
Now youaTil ina tnat some o. tue authorities m0ss
confidently relied on by the counsel tle other
side for doctrines that VIII guide them il this case,
will not be applicable TO this stage Of the inquiry.
To this stage is to be referred the authority 50 &C.
LIBERATED IN law, q H.l and Thompsop, 900 Merri-
vile, C22. That your horors viii remember was re.
lied on by the otEcr side, but il belongs TO the pre-
yious STAGE where it is comparatively easy to OBJ
tain IN injunction; bat as there lad been ex-
elusive aud uninterrupted possession Of two years
bis ioidship, without advancing t. even ioubt
about the tide, en- that stage. refused the in
JUNCTION. The third stage. in which injunction
may lie granted, is a. the fEal hearing Of the
We are IN that stage, and here underst md that
totally different class Of conscientious rpening into
fixed code Of chancery, rules have one to rcgu-
late, universally, the practice Of this court. our
honors viii observe how stupendously changed is
everything here. The situation Of the parties in
this case has changed entirely from their situation
in the former stages. The effect and purpose Of the
Injunction nov, are different from the purpose and
elect of The Injunction in any former perod Of the