Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1877-09-06
EulnOrf3nf Opinion.

| Hughes, IF the II. :. Circuit Court, Tor the
Eastern District o! Virginia. upon the appllcl-
ton of the Plaintiff itr preliminary Injunction
and rcstrsioing order in The case # 1uansllng
rs. Johnson, which case involves The isht Of
the State to the use OF the qlor register, Was
fled 10 the Circu; Court 90 September 81.
The opinion very ably djs,u>sss Qaesiion OF
practice Interesting and important 10 the legal
profession as il dstingu she's between The rules
governing irjancions 10 patent and either
caus=s
ION The S:h of Aug ust, ullimo, the complain
ant filed bill of Injunction in this Court il
term at Norfolk, and moved fjr temporary
| INJUNCTION 10 accordance with the prayer Of the
bill, and for 40 immediate restraining order.
He also filed suoiry documents aud atfiiaSiis.
making out prt0ld jucie case for an INJUNCTION.
The otj:c: was to prevent one fuuoana d.
Johnson, manufacturer 1T certain mechanical
register called the Motfeit Register, from
s.Iling and delivering these Instruments; it
appearing that he was ah0u, 10 deliver large
number Of them to the Auditor Of Pubc Ac
counts ii Virginia, 10 be distribute by him 10
retail! Iul0r dealers thr3uthou! the State for
use.
skilled officers of the Pateu, Bureau of the l.
s. had officially decided this Motiett Register 10
be an infringement OF patent, the exclusive
right 10 use which was owned by the complain
ant for the State Of Virginia; and il was pl.io,
if this should prove true, that the State vas
about 10 embark, 10 a futile manner, with al
improper instrument, upon new plan Of taxa
ten devised Icy her legislature, 10 The injury Of
the rights Of the com p!alaant, and that this Vas
likely to be doot in = lew days.
ut being apparent to the Court lhat 10 CAS-,
} the pretcusioGs OF the claimant were true, The
injury and confusion rcsuitng would be irrepar-
able, and that the complainant might have 90
recourse except 10 The ilberallIy Of the lI:g:sla
ture OF the State, an order vas eutered by which :
list. The defendant in The bill was rtIllred t.
show cause at Alexandra % The 4th lbs .ant,
why the motion for a temporary Injunction
should not be granted.
2l Restraining the defendant aud al others
meantime from maklcg, using or Vcndlog the
; said Moffe.t Register; and,
81. Rcquiring tn: complainant to lIe 4 bond
ia the peEalty of ten thousand doiiar5 to answer
any orders Of this Court against him 10 this
cause.
The cxpcdcncy Of this order seemed obvious
! to the Court; bu, it ict .. first some doubt of
lis power to grant the temporary restraining
order, except after reasonable previous notice
served. Upon q critical examination OF the
condition Of thc law Oh the subj however,
this doubt WAS removed; rs sill appear from
the following review Of the legislation Of Con,
press; and the order Was given.
Section fire Of the judiciary acl Of Congress-
of March -, 1893, (cb. % Of acts Of 1913,
U. S. S. at Large, vol. / page 33l-5) con.
cIudes with the words Nor shall witt of
injunction BE- granted in any case without rca.
souab!e previous notice to tn; adverse party, or
bis attorney, Of thu tim, AID p!lc; OF moving
the same.
"rhe greater portion Of The pyoVisloas Of this
act Of lI9J were Incorporated into the Re:scd
Statutes Of June %, 1874, CD. j.. bu: the
foregoing clause requiring reasonable pr,r,oris
notice TO be given in all cases Of Injunction vas
left out, and therefore stands repealed b. see.
5 $40 Of the Revised Statutes
"lnstead Of this provision the sctenM seclitu
of the judiciary act of June lst, 1872 (chap.
255, vol. II, page l9l, u. 5. Statntes at
Large,) was asserted, which is 10 these words
whenever notice is given OF motion for
an Injunction out OF circuit or district court,
the court or Judge thereof may, it there ap-
pears to be DAGGER OF lfrcparabe lrlury ltom
delay, grant 40 order restraining The &C: sought
to be eujoned until the decision upon the mo-
lion, and such order may be grated with or
3 without security, in The discretion of The court
or Judge" This act had already been 10 force
for two years before the euactment of the Re
yiscd Statutes, and had virtually not Only re-
pealed the clause quoted from the Judiciary
act of 1893, but also rendered subordinate 10
its own provisions that part of Rule 81 in Eqliiy
recurring previous reasonable notice to be gwen
OF motions for Injunction.
| "Whilc the clause Of the act 0f 1913 10 :, u:3.
lion was in force there were many decisions
OF the Supreme and Circuit Courts Of the
United States enforcing it, and these rulings
Of the courts have gone into the dIzests and
text books 10 use BIZ lha blr. ia: When the law
itself fell, CT course these ruliogs OF The c0u!s
and teachings Of The text books ceased 10 be OF
authority, 10 cootrav1nton 81 the later Law.
But even before the passage Of the judiciary
act Of June lst, 1872. an act Ct Congress re-
vsing, digcsing and consolidating all the laws
relating to patent rights Was passed july Sth,
1870, (see IS d. S. Statutes at Large. Wi. Is.
page 2O6,) and a section enacted in it aubori2
ing the courts Of the q. S. to deal with aajunc.
tons IN r1atent cases IN u special manner. This
section placed injuDctions in patent cases Oh
different footing from ether ibjuuctious. 10
this particular class OF cases the courts were
released from the requirement to adhere strictly
to the rules of practice prescribed by law or
rule Of court 10 general tor the Federal Courts
sitting in equity; and the Circuit Courts we're
vested with power upon bill in equity, filed
by any party aggricycd, to grant lpjunctlons
according 10 the course and principles Of courts
of equity, to prevent the violation of anyngM
secured by patent, on such terms as the court may
deem, reasonable" Thus was authority given
to grant injunctioDs 10 patent cases, not upon
such limited terms as were at the time required
by law or rules in equity to be observed 10 other
cases BY the Cacuit Courts o! the Uoted States
sitting 10 equity, either as to notice, security,
or other requirement; but authority was given
to grant them in patent cases Oh such terms as
accorded with the course and principles Of
courts Of equity 10 general, and as the particu
lar court 10 which the motion was u ade "mtyha
deem, reasonable" This law made iDjunctions
in patent cases exceptional, and conferred on
u. 8. Circuit Courts an unrestricted discretion
as to the terms of granting injunctious in them.
This provision OF the law of 1870 has been