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Sloo v. Law.

Sloo does not ask, that for the employment of such ships his assent should be obtained.

By the indenture of the 21st of January, 1851, it was agreed that Howland & Aspinwall should sell, under the control and instructions of the United States Mail Steamship Company, all through passage tickets issued by that Company; that they should receive all passage money for through passages, and all freight money for through freight of every description, upon all voyages made by steamships belonging to the trustees, from New York to any port on the isthmus of Panama, from New Orleans to any port on said isthmus, and from any port on said isthmus to New York or to New Orleans; and that they should, without delay, deposit all movies received, to the credit of the trustees, in such bank as the trustees should designate, reserving out of such receipts a commission of two and one-half per cent. upon the gross amount so received. It appears that a portion of the money so received by Howland & Aspinwall has been, from time to time, paid by them to the Nicaragua Company, in pursuance of an agreement made between that Company, and the Pacific Mail Steamship Company, and the United States Mail Steamship Company. There is no good reason to doubt that such payments were made by Howland & Aspinwall honestly. But Sloo has a right to demand that the contract of the 21st of January, 1851, by which they were authorized to receive the money, shall be kept and performed. An order must, therefore, be passed, requiring Howland & Aspinwall to deposit the money which they may receive under and by virtue of the contract of the 21st of January, 1851, deducting two and a half per cent., to the credit of the trustees, in such bank as the trustees may designate.

After the plaintiff Fisher was appointed a trustee in the place of McIlvaine, he went to the office of the trustees and agents, to examine their books. The books were exhibited to him by Croswell, one of the agents, for examination. While he was examining the same, and while they were being explained by Croswell, Roberts entered the office and closed

McCormick v. Jerome.

the books, refusing to permit them to be examined by Fisher. One pretext for such refusal was, that they belonged to the United States Mail Steamship Company, of which Roberts was President. Fisher had a right to examine the books, and the refusal by Roberts to permit him so to do was a wrong. In this transaction, nothing exceptionable is found in the conduct of Croswell, and no order should be passed against him in regard thereto. But an order should pass enjoining Roberts and the United States Mail Steamship Company from withholding the books and papers of the trustees from the inspection and examination of Fisher, or of any trustee, at any reasonable time during the hours of business.

No further order is deemed necessary on this motion.

Cyrus H. McCORMICK

V8. EDWARD T. JEROME AND MOSES JEROME. IN EQUITY.

Where an order granting an injunction was made, and the writ of injunction is

sued thereon was not tested till more than six weeks afterwards, and was not served till within seven days of one year after the day of its teste: Held,

that a disobedience of the writ would not be punished by attachment. After such a lapse of time, the plaintiff should, before using the writ, apply to

the Court for authority to do so. (Before Berts, J., Southern District of New York, July 9th, 1856).

This was an order to show cause why a writ of attachment should not issue against the defendants for disobeying a writ of injunction issued and served in this cause.

Edward N. Dickerson, for the plaintiff.

William A. Hardenbrook, for the defendants.

BETTS, J.

The objections set up by the defendants go

McCormick v. Jerome.

rather to show, that the plaintiff has no right to the injunction, than to deny its violation or to excuse the disobedience. But there is a question touching the regularity of the plaintiff's proceedings, which the Court cannot overlook, and which will avoid his right to the attachment prayed for.

The order granting the injunction was made April 28th, 1855. The writ issued thereon was tested June 11th, 1855, but was not served on the defendants until June 4th, 1856 ; nor is it made to appear whether the writ was taken out at the time of its teste, or was obtained at the time of its service, and ante-tested, so as to appear to have been issued during the term at which it was awarded.

Either mode of practice would, in my judgment, be unwarrantable and irregular. The writ emanated as the mandate of the Court in relation to facts then in its view, staying them as unlawful, and interdicting their continuance or subsequent repetition. It was authorized on the assumption that its corrective power was then required, and would be immediately exercised, although, after it should once be served, it would undoubtedly continue its action until withdrawn by order of the Court. But it would be manifestly against the nature of the relief, for the Court to place a process of that high character in the hands of a party to be used at his discretion, whenever he may determine that a new act committed by the defendant violates the order of the Court.

If it be compatible with the nature of the remedy to issue the writ on any condition subsequently to occur, that condition should be incorporated in the order, or appear upon the face of the process, and could never be left at the option and control of the party obtaining the order.

The plaintiff, if he found no necessity for the aid of the Court when the writ was awarded, but supposed, a year subsequently, that one has arisen, should have applied to the Court on the new facts, and have procured an authorization to use the process under such change of circumstances. None such was given to him by the Court.

Day v. The Union India Rubber Co.

Nor does the process import such authority from the mere seal upon the writ. Although not technically made returnable in Court, yet the nature of all intermediary or final process of the Court requires that it shall be served or put in execution before a stated term of the Court intervenes after its award. The teste, which verifies its authority, ceases to give it the character of a mandate of the Court, for any primary action thereon, when the term during which the power was granted has terminated.

In my opinion, therefore, the plaintiff was bound to procure the direction of the Court, after such a lapse of time, before he could take out the writ of injunction, or use it if previously in his hands, and the neglect of the defendants to obey it, on the existing state of facts, cannot be punished by attachment.

The motion is accordingly denied.

HORACE H. DAY

V8.
THE UNION INDIA RUBBER COMPANY. IN EQUITY.

Chassee's patent of. August 31st, 1836, relative to india rubber, covers both the

process described in the specification, and the machinery described as that to

be used in carrying on the process. Where, at the expiration of the original term of that patent, A. bad a right to

use the patented invention for the manufacture of certain articles, and continued, during an extension of the patent granted under the 18th section of the Act of July 4th, 1836, (5 U. S. Stat. at Large, 124), to use the invention, in the manufacture of those articles, in the manner and to the extent he was entitled to use it at the time the original term expired : Held, that A. had the right to continue such use, as against B., the assignee of the patent for the extended

term. Held, also, that A. had such right, whether the patent were to be construed as

being for a process, and a machine to be used in such process or for a process alone-or for a machine alone and whether the machinery used by A. under the patent was or was not in existence prior to the commencement of the ex.

tended term. The case of Wilson v. Turner, (7 Law Reporter, 527), cited and approved.

Day v. The Union India Rubber Co.

The cases of Wilson v. Rousseau, (4 How., 646), Wilson v. Simpson, (9 How., 109),

and Bloomer v. McQuewan, (14 How., 539), commented on. Various special Acts of Congress extending patents, commented on, with refer

ence to their provisions in favor of assignees, grantees, and licensees under the

original terms of the patents. The language of the 18th section of said Act of July 4th, 1836, considered. The effect of that section is, to continue to those who were assignees or grantees

of the right to use a patented invention during the original term of the patent, the right to use it during an extension of the patent under that section, whether such right arose from the purchase of a machine, or from a direct assignment

or grant of a limited or unlimited right to use. But such right is limited to a right to use, although the person holding it may also

have held, during the original term, an exclusive right to use, to make and to

vend. And such right is secured only to the extent of the respective interests of the

assignees and grantees therein. If, before the extension, the right to use was limited to a single State, county,

town, or smaller district, it continues, during the extension, subject to the same limitations; and if the right was to use a specified number of machines, within a particular district, the limit in number and restriction of place con

tinues. If the only right to use was one which resulted from the purchase of a machine,

the right to use is co-extensive with the existence of the machine, and expires

with it. Under said 18th section, the assignees and grantees of the right to use a patent

ed process, are continued in the right to use it during an extension of the patent, equally with the assignees and grantees of the right to use a patented ma

chine. The case of McClurg v. Kingsland, (1 How., 202), commented on.

(Before Hall, J., Southern District of New York, August 18th, 1856).

The bill in this case was founded upon Letters Patent granted to Edwin M. Chaffee, August 31st, 1836, for “ a new and useful improvement in the application of undissolved caoutchouc to cloths, leather, and other articles, in coloring the same without the aid of a solvent, and in the machinery used in the process.” The patent was subsequently extended for seven years from the 31st of August, 1850, under the provisions of the 18th section of the Patent Act of July 4th, 1836, (5 U. S. Stat. at Large, 124). The rights held by the patentee under the extension were assigned to the plaintiff, by an assignment bearing date July 1st, 1853. It appeared,

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