New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-10-24
Court Items.

Plaintiffs counsel read the affidavit thew |
had been given twenty -four hours to pre-
pare, which contained merely the assertion
that the authors D'Ennery and German,
nor the translator jackson, nor the plaintiffs |
Shook and Palmer, had ever published or |
parted with it.
The defense refused to admit that the |
parties would disclose the facts alleged and |
filed an affidavit of w. J. Cogswell, show.
ing the company we're impoverished by the
effect of the injunction, and moved to bond
it. 1t was causing an irreparable injury to
them. In similar cases in this court bonds
had been given.
The court considered the damages to
plaintiffs could not be estimated. 1t was
like the cutting down of tree on which
the caprice Of the owner had set a fancy
value. If bond was given and the tree
cut down, and it was wrongfully done, no
number of experts could estimate the
amount Of damage. There was 10 need of
citation of cases. Each stood by itself.
Both parties in this case allege irreparable
injury. On the affidavit OF plaintiffs they
were entitled to continuance
Plaintiffs accepted the Interpretation that
it was caprice that their play should only
be performed by themselves, but it was
caprice they were entitled to, and on which
| no damages could be estimated. They pro-
posed to play it at the Varieties Theatre,
and every performance of it at the st.
| Charles Theatre was an inestimable
damage.
| The defense said that all damage was to
be estimated in dollars and cents. Nowhere
in the petition is any allegation of injury to
feelings, and the law, in these cases, does
not consider them. 1t is either a question
of copyright or of property; in this case
only the latter is claimed. The damage is
to be estimated. Bouvier, copyright; Bart
lett vs.. Crittenden, 4 Mclean, 300; Stowe
VS.. Thomas, relative to translations, 2
Blackstone, 405 The case is different from
that of the two. The plaintiffs can play
their play just as we'll, and if any damage
is accrued by loss of patronage, it is easily
estimated.
Judge Hawkins said it all came back to
the question, has the plaintiff any standing
in court He must prove his property. A
mere right can not be bonded. The ques,
ton is simply that of the defendant taking
the property of the plaintiff and using it.
The plaintiff must not merely show that it
is property, but the thing itself If under
any system of law the property OF another
could be taken and its use continued by
bond, all plaJs, copyrighted or not, could
be SO used. 1t is a question of fact whether
it is the same play. The defense may bond
if ownership is denied.
The defense said all the allegations of the
petition had been denied, and that should
be considered denial Of property. 1t was
in peculiar position. The court would
permit bond only if the defense denied
the plaintiffs proprietorship. Now here
were two plays. The plaintiffs swear they
are the same, the defense that they are en-
tirely different, and that the play exhibited
Sunday night was not the play owned by
plaintiffs. This can be proved by atfidavits
and testimony of parties who have
played in both, yet the court will not
allow this to be shown. If the rules Of
contempt had been tried it would have been
shown and the injunction would have fallen
because there was no violation. But The
court dismissed these rules. If the dis
tringas had been tried it would have been
set aside and the play could have gone or
because the injunction would not have af
fected it. But the court will only try the
Injunction The defense is ready on tina,
issue, but the court grants continuance
and refuses permission TO bond. All the de
tense asks is permission to do the same
thing as was done Sunday night, and thai
was not violation of the injunction. The
plaintiffs are responsible here only on g
bond of 5000, and the bond of $4,000 giver
to the sheriff has been Cancelled.
The court again said it was impossible tt
estimate the damage, but it would, on its
own motion, increase the bond to $1,000, and
plaintiffs asked until Monday to file it.
Counsel for defense then said he had don't
all that it was possible for counsel to do
and should make no further effort. Wha
he now proposed to file was a petition as &
matter Of right, and not OF direction. One
of the defendants was not a citizen of Louis
lana, and, therefore, ty section three O.
chapter 1877 of the Forty third Congress
session of lS74-5, approved March 3, 1875
he asked that the case be transferred to thu
United States Circuit Court. The statute
reads:
i, That whenever either party, or any one
or more of the plaintiffs or defendants. en-
titled to remove any suit, shall
! desire to remove lsuch suit from STATE
, court to the Circuit Court OF the United
States he or they may make and file peti
tion in such suit, and shal
make and file Herewith bond.
, 1t shall then be the duty of the STATE
court to accept said petition and bond, an(
proceed no farther in such suit, etc.
The bond was fixed at $1,000, and afte
hearing some ordinary rules the court ad
journed.
The bond given the sheriff is, in its pres
ent state, curiosity. 1t parports to be al
indemnity bond, given the sheriff by tn,
plaintiffs, Shook & Palmer, and is signed b.
Shook g. Palmer per Joseph P. HornOr, ant
=, by Charles T. Howard. SO far it is per
fectly regular, but it is transferred by in
, dorsement on the back to Messrs. Shook &
Palmer, which is as effeotual way of can
ceiling as could be devised.
In chambers, two hours after the order o
transfer to the United States Circuit Court
the plaintiffs counsel obtained suspensiv'
| appeal to the Supreme Court of Louisiana