Owyhee bullion. [volume] (Silver City, I.T. [Idaho]) 1866-1867, 1866-12-06

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before you, with all the ardor of yoan.
your undertaking with an answering fideli
ty, that must have won for you the gratitud,
of your clients for zeal, il not their appaus,
for ability. 1t must he gratifying to you tt
have presented to you an impartial review
OF the causes, accompanied by the above con
cessions to your merits "by one who had the
honor in part to oppose YOU" You may
remember in this connection, the case O
McCarrrol, VS.. The N. Y. & 0wyhee G. &
S. M. Co. ct ais That the Plaintiff took
the trouble and incurred the expense at the
commencement of the action through his
counsel of going to Boise City, and present
ing the complaint to your Honor, asking q
temporary restraining order until an appli-
cation foran injunction could be heard against
Defendants, restraining them from removing
beyond the jurisdiction ofthe Court, 81 10000
worth Of ore,which they threatened to do, and
to one sixth of which Plaintiff was lawfully
entitled. remember your decision upon
thatapplication. 1t was reported to me in sub
stance, as follows :-"1hat the complaint was
sufficient to grant the restraining order; that
| can see no objection to it; and the law, l
confess is plain; but | have determined that
in no case will issue an injunction without
notice. In this case the responsibility is SO
great dare not do it." The idea f"be lust
and fear not, etc." did not seem to occur to
you. You may also remember q recent
cause Of Orc Elmo and Morning Star NJ. Co.
vs.. Patrick j. Cullen ct al, on which you
issued and Injunction upon the Complaint
alone, (uot temporary injunction, as you
have been pleased to call it in your order
Sustaining it, enjoining the enforcement of
your own decree rendered more than three
weeks before This too, without notice, aud
the day before you were to close the term,
and leave for Boise City, when you knew the
parties complaining had had ample opportu-
nifty to intervene in the original cause, and
had more than three weeks in which to COM
mence their action after Judgement COM
planned of, but here you parted, your iaparid-
Die Leland granted the Injunction itseyf",cih
out notice" To plain man this would seem
as somewhat inconsistent, and as not dealing
out justice with an entirely impartial hand.
But nature seems to have gifted your Honor
with q peculiarly feicitous understanding,
by the exercise of which have often been
wrought into admiration at the easy manner
in which you reconciled apparent antipodes,
and | doubt not, that'same happy faculty will
enable you to render this apparent paradox as
clear as--your other judicial opinions. But,
however, you may fall beneath my expecta-
tions in this respect, it must be conceded
that having once granted the injunction, you
sustained it with all your usual ability
The old, aud supposed to be unerring rule of
equity that "when all the equities OF the com
plant are denied by the answer, the injuntc.
ton must be dissolved" you avoided with
delicate subtlety of reasoning never before
occurring to any judge, or rather l should
say by feat of mental Zdmpileorost'ation
which, if you should parallel in physics, you
would be without rival as gymnast. 1t
was brought 10 your attention that demr-
err had been filed at the same time with
answer. This the Practice act. az sec.)
expressly allows. But you discovered in the
rule that "a demurrer admits all the allega-
tons of the complaint" the sequence that
therefore they could not at the same time
be denied. In other words, you discovered
the The statute lcds mistaken and that the
defendants must be held to have admitted
the charge aginst them, Notwithstanding they
deny them all under oath.
To man whose natural moral faculties
had not been refined by the study of equity,
this might.appear snare--cyen unjust. But
when logically stated, how clearI This is
equity, equity is right; thereforeta is right
1t is not my desire as afaithful historian, to
suppress a true account of the achievements
of any one. To the counsel for Plaintiff in
that cause must therefore accord the mer-
it of presenting this idea, but wherein he
signaily failed-in equaling you, was that with
elaborate research, he was unable to find
single decision sustaining this position.-
Whereas you did, And thot decision you
hare the Miripdled merit Of haoing made
yourself, and that too, after not quite four
days reflection, when it has required centu-
ries to build up our jurisprudence as you
found it. To the former am willing to
concede "the crown OF Justice the Peace"
To you, you fear, must look for your re-
waId in the applause of profession you
have enlightened, and, to the approval of
your own concience, kno,o Of no other re-
ward.
As hope to become an interesting cor
to you, do not wish to weary
you by making my first epistle too lengthy. |
will onlv add that I inland addressing vnu |