Year: 1877

count or the nOn-arrlHal or cOOnScl loT the
plaintiff, McSSrS. Hill and Ellsworth, OF
Washington, who came down on the ii
o'clock ferry-boat.


Judge Hughes inquired if counsel were
ready to proceed with the hearing.


Attorney General Field said he was in
structcd by his associates to respond 10 the
suggestion which fell from the Court yester'
dav as TO avoiding the necessity OF double
trial. Counsel had not responded yesterday
because thew desired to reflect upon the
suggestion OF the Court. for which he held
the most profound respect as well for the
Court as personally for his Honor. The
object is to adopt some plan by which the
case could be finally heard at some future
time without impairing the interest OF all
parties concerned. This proposition is made
in view OF the suggestions OF the Court yes
tcrday, in which the kindly aid OF counsel
was invited to assist the Court in the deter
mination Of the legal rights Of the case.
General Field then submitted the following
proposition:


" Tuengiins rs. Johnson.


"In response to the suggestion OF the
Court on Yesterday, and in order to avoid
a double tral-one on the application for
the temporary injunction and the other
upon the final hearing--the defendant pro-
poses as follows That said temporary in
function shall be denied upon the condition
that the said defendant shall execute before
the Court or clerk In his office in five days n
bond, with good security, in the penal SUM
of $, payable to the plaintiff. and con-
ditioncd for the payment to him OF the
amount OF any judgment that he may obtain
against the defendant in an action at law
for all infringement OF his patent-rlghts
and all costs; or to satisfy and discharge
any decree that may be rendered against
him by this Court; and the defendant fur-
ther agrees that there shall be an absolute
order for a new trial upon the merits at tine
regular term OF this court In October next"


General Field then spoke i'll advocacy OF
this proposition, and said none OF these ma
chimes were being manufactured to be used
elsewhere in the United States, and none
were put upon the market or would be;
and il bond with good security be exc
cuted the plaintiff could sustain no loss By
dissolying the restraining order. The bond
would cover all the profits, to be ascertain
ed before a master-commissioncr OF the
court. Yesterday the counsel were not
prepared to respond, and they were twli-
tcd-not in discourteouS manner-with
not having patent and not standing upon
the higher plain OF legal rights coequal With
the plaintiff. Now the defendants were
prepared to say that they had obtained n
patent and were cocqual with the plaintift,
and il there was any difference the defend.
ants had the advantage, because they had
put their machine into practical use, which
the plaintiff had never done.


Judge Hughes said it was not permlSsl-
bic to bring in the aid OF a jury upon a pre-
liminarv injunction. A jury would be
proper when the final merits and questions
of fact were considered.


Colonel Young, for the liquor-dealers, eS-
pressed his surprise at the nature OF the re-
spouse. Yesterday the Court had suggested
that a Jury might be empanelled to try the
final rights Of the parties. The suggestion
was not met by either side. His side was
willing il few days time was given to
have 4 final hearing Of the cause. The pa
per filed by the defendant was not q re-
Spouse to the suggestion Of the Court, but
was an independent motion, and il ac-
ceded to involved practical surrender on
the part OF the plaintiff Of the great princi-
ciples OF the case. Defendants motion
assumed the whole case, and was in effect
a practical denial OF the benefits to accrue
from the Injunction. The question in
yolved is whether or not there shall he an
injunction.


Judge Hughes inquired if counsel for
plaintiff declined to accede to the PROPOSE
ton.


Colonel Young: OF course, sir. TO ac-
cede would be to surrender the principle
for which we are cOntcndlng.


Judge Hughes said the case must 60 on.


General Field claimed that the defendants
having been summoned to show cause they
xbn, a,,fsf fa hn11 "a off r-o
tive, and to the opening and concluding ar
guments.


Colonel Young begged leave to differ, and
said a summons to show cause did not in
vert the standing of the case and shift the
burden OF proof or the afirmance OF the is
sue. TO change the order would be to put
the cart before the horse. To do this would
be to involve the proof OF a negative.


Judge Hughes decided that as it was the
plaintiffs motion they held the affirmative
OF the issue, and were entitled to the open
ing and conclusion.


Mr.. Ellsworth, for liquor-dealers, raised
question as to the order Of proof.


Judge Hughes said the burden was upon
the plaintiffs.


General Field said demurrer had been
interposed which could only be heard ut a
regular term.


Colonel Young said the proceeding was
anomalous, as an answer had been put in,
and it was strange practice to demur after
the answer. Whether the demurrer could
be heard or not, the question as to the suf-
ficiency OF the bill could be entertained by
the Court upon this motion.


Judge Hughes said he would consider the
suficiency of the bill in deciding the mo-
ton.


Mr.. Ellsworth read the papers filed in the
cause by the plaintiff, and Major GrimsIey
those filed by the defendants, consisting OF
the original bill, answers, the assignment
Of Vincent Fountain to Iuengling., the
affidavits OF experts, various patents, &c.


During the presentation OF the case Es the
plaintiff, Mr.. Ellsworth read extracts from
the proceedings Of the Patent Office, which
showed that an interference had been ae-
clared on the 2sth OF August, 1876, between
the claims OF Fountain and Gornall, they
both claiming priority Of invention OF the
"iare-register," and that the Commissioner
OF Patents had decided the question OF pri-
ority in favor Of Fountain, and had issued
patent to him for the invention. Counsel
for plaintiff had received letter from the
Patent Office stating that an "interscr.
encs" had been declared between the Moi