delivered up to the Patentee. Judging from the analogy of copyright, it seems doubtful if the Court would order the counterfeits to be delivered up in a suit to which the person at whose expense and on whose account they were manufactured was not a party." vice of bill. On an affidavit that the Defendant is out of the juris- Substituted serdiction, the Court will, without any affidavit of merits, allow substituted service of the Bill on his attorney.* An injunction may be applied for at any stage of the When to be approceedings in vacation or term time. In urgent cases, If urgent, er plied for. where irreparable injury is likely to be the result of delay, parte. a written copy of the Bill may be filed, on the personal undertaking of the Plaintiff or his solicitor to file a printed copy of such Bill within fourteen days." Motion for the injunction may immediately thereupon be made, upon a certificate of the Bill having been filed and affidavits verifying the statements it contains, and without serving the Defendant with process or notice of motion. If the injunction be obtained, the Plaintiff should serve the Defendant, or some person substituted for him by the Court, with a notice in writing, stating that an injunction has been granted, and that it will be sealed and served as soon as it can be passed; or a copy of the minutes of the order, signed by the registrar, may be served personally, at the same time showing the original, either of which will be sufficient to stop the defendant's proceedings, provided the Plaintiff loses no time in serving the injunction. In Vansandau v. Rose the Defendant was committed for a breach of an injunction after a notice of it had been obtained, although the order for the injunc ■ Colburn v. Simms (1843), V. C. W., 2 Hare, 543; 12 L. J. (N. S.) Ch. 388; 7 Jur. 1104. By the French law, the party infringing forfeits the articles made in violation of the Patent right. Renouard (Ed. 1825), 361. A similar provision exists in Spain, Art. 27, Law of 27th March, 1826. * Sergison v. Beavan (1852), V. C. S., 16 Jur. 111. y Temple v. Bank of England (1802), L. C., 6 Ves. 70. z Stat. 15 & 16 Vict. c. 86, s. 6. See Drewry, Inj., Sup. 45. • Vansandau v. Rose (1820), L. C., 2 J. & W. 261. tion had not been served. Applications ex parte are at all times closely scrutinized by the Court, and are in no case granted after appearance of the Defendant." In some cases the Court will give leave to serve notice of motion before the Bill is filed. The Plaintiff must not rely on the answer of the Defendant for continuance of the injunction. Its refusal at this stage does not prevent its being obtained on the answer coming in. e The motion for an injunction may be treated by consent of both parties as the hearing of the cause, and the decision in that case has the effect of a decree on the hearing. The modern practice of the Court is very materially different from that formerly obtaining. In Millar v. Taylors Lord Mansfield said, that whoever attended the Court of Chancery must know that if an injunction in the nature of an injunction to stay waste is granted upon motion or continued after answer, it is vain to go to hearing; for such injunction is never granted upon motion unless the legal property of the Plaintiff is made out, nor continued after answer unless it still remains clear, allowing all the Defendant has said. In such a case the Defendant is always advised to acquiesce or ap b Langham v. Great Northern Railway Company (1847), 1 De G. & Sm. 486. c Fosbrook v. Woodcock (1849), 12 Jur. 956. d Curtis v. Cutts (1839), L. C., wool cards, 8 L. J. 184. e Isaac v. Humpage (1792), 1 Ves. jun. 430. ↑ Dickinson v. Grand Junction Railway Company (1852), 15 Beav. 260. (1769) 4 Burr. 2400. See cases cited in note to Electric Telegraph v. Company v. Nott (1847), L. C., 2 Moo. 41. "If one who has Letters-patent for an invention files a bill for an injunction to restrain another from pirating his invention, he must state by his bill that he has brought his action at law, and so established his right by a good verdict, or a demurrer to his bill, for want of equity, shall be sustained." Old MSS. cited 2 Coop. C. C. 61, n.; and see the remarks there made on the case of Hicks v. Raincock (1783), L. C., looped stockings, 2 Dickens, 647, and 1 Cox, 40. peal, for he can never make a better defence than is stated in his answer. The judgment of Lord Cottenham in Bacon v. Jones Bacon v. contains a summary of the grounds on which the Court Jones. at that time exercised its jurisdicion. "When the ap- When to be application is for an interlocutory injunction, several courses plied for. are open. The Court may at once grant the injunction simpliciter, without more, a course which, though perfectly competent to the Court, is not very likely to be taken where the Defendant raises a question as to the validity of the Plaintiff's title; or it may follow the more usual, and, as I apprehend, the more wholesome practice in such a case of either granting an injunction, and, at the same time, directing the Plaintiff to proceed to establish his legal title, or of requiring him first to establish his title at Law and suspending the grant of the injunction until the result of the legal investigation has been ascertained, the Defendant in the mean time keeping an account. Which of these several courses ought to be taken must depend entirely upon the discretion of the Court according to the case made. When the cause comes to a hearing, the Court has also a large latitude left to it; and I am far from saying that a case may not arise in which, even at that stage, the Court will be of opinion that the injunction may properly be granted without having recourse to a trial at Law. The conduct and dealings of the parties, the frame of the pleadings, the nature of the Patent right and of the evidence by which it is established,-these and other circumstances may combine to produce such a result, although this is certainly not very likely to happen, and I am not aware of any case in which it has happened. Nevertheless, it is a course unquestionably competent to the Court, provided a case be presented which satisfies the mind of the judge that such a course, if adopted, will do justice be(1839) gas-burner, 4 My. & Cr. 436; S. C. (1839), M. R., 1 Beav. 382. Injunction on notice. Delay, Affidavits. tween the parties. Again, the Court may, at the hearing, do that which is the more ordinary course,-it may retain the Bill, giving the Plaintiff the opportunity of first establishing his right at Law. There still remains a third course, the propriety of which must also depend upon the circumstances of the case, that of at once dismissing the Bill." On motion for injunction on notice, the Plaintiff is also required to act promptly, although somewhat less so than in applying for an injunction ex parte. "I think," said the Master of the Rolls in Bridson v. Benecke,j “that a party coming for the assistance of this Court to protect a legal right not absolutely established against the party who is alleged to have infringed it, ought to come at an early period. I do not say at the earliest possible period, because that would be putting an application for an injunction on notice, where all parties have an opportunity of being heard, in the same position as an injunction ex parte, which it would not be expedient to do." A special injunction was consequently refused on the ground of delay, notwithstanding the Court had a strong impression in favour of the plaintiff's right. Leave was reserved to revive the motion. An action (Mangnall v. Benecke) was accordingly brought. The Plaintiff succeeded. Defendants tendered a Bill of Exceptions. An injunction was granted under the circumstances before the Bill of exceptions was disposed of. The affidavits in support of the application must swear that, to the best of the applicant's belief, the Patent is valid,' and has been infringed by the Defendant." They must not be sworn until after the filing of the Bill. The Defendant, previous to filing his own affidavits, may crossexamine the parties making them under Stat. 15 & 16 J (1849) machine for stretching wove fabrics, 12 Beav. 3. Vict. c. 86, s. 4." An alteration of some importance in the practice is effected by the provisions of Stat. 15 & 16 Vict. c. 86, s. 59, enacting, that upon any application by motion or petition to the Court in any suit depending therein for an injunction, or to dissolve an injunction, the answer of the defendant shall, for the purpose of evidence on such motion or petition, be regarded merely as an affidavit of the defendant, and affidavits may be received and read in opposition thereto. Where the legal title is denied by the answer, the Plaintiff may move for leave to try the legal right, without asking for an injunction in the mean time.° In cases of an injunction granted ex parte, the party obtaining it must, immediately upon the receipt of a written request and undertaking, or within such time as may be specified in such request or may have been directed by the Court, deliver copies of the affidavits upon which it is granted upon payment of the proper charges.P com over. The terms on which a motion for injunction stands Motion for inover are generally that the plaintiff shall forthwith junction stands mence an action to try the right at Law, and that the defendant in the mean time shall keep an account. The Court will not in such a case exact any admissions from the defendant as to the matters in dispute. Retaining a Bill is not in itself a determination that relief in Equity must ultimately be given." In cases in which the Plaintiff requires an answer to Interrogatories the Bill, interrogatories for his examination are to be for examination n Besemeres v. Besemeres (1853), V. C. W., 2 Eq. 668; 2 Week. Rep. 124. Rodgers v. Nowill (1846), V. C. W., trademark, 6 Hare, 333. a Normanville v. Williams (1854), V. C. W., railway wheel, Aug. 1. Pidding v. Franks (1849), 1 M'N. & G. 56. But see Hilton v. Granville (1841), L. C., Cr. & Ph. 293. • Curtis. Cutts, cited 2 Coop. C. C. 62, (n.); Harwood v. Oglander (1801), L. C., 6 Ves. 225. of defendant. |