McGuire v. Eames.

by him, but is similar to a machine in use at No. 13 Adams street, for some seven years before the plaintiff's machine was constructed, and one of these affidavits is that of the workman who constructed the plaintiff's machine, and who states that it is, in all essential particulars, like the machine in use at No. 13 Adams street, and was intended to be exactly similar, save only in regard to the position of the weights upon the piston, and that the difference in this respect is not only unimportant, but was suggested by the deponent, and was not the invention of the plaintiff. To this affidavit is opposed the affidavit of the plaintiff, who contradicts the statements of the workman, whom he shows to have been discharged from his employment, and to be hostile and biased. It is conceded that the defendant is able to respond to any claim of damages that is made by the plaintiff. Upon such affidavits as these, it is impossible to grant the plaintiff's application for a preliminary injunction. The patent is recent, its validity is disputed, and the facts upon which the plaintiff's right to an injunction depend are not so clearly made out as to warrant the interposition of the Court in this stage of the proceeding. The motion is denied.

James Ridgway, for the plaintiff.

William H. McDougall, for the defendant.

Pott v. Arthur.

JAMES POTT AND OTHERS 28. CHESTER A. Arthur.

Under section 3,012 of the Revised Statutes of the United States, construed in connection with section 954, this Court has power, in a suit for the recovery of duties alleged to have been erroneously or illegally exacted by a collector of customs, to allow a bill of particulars to be served after the expiration of thirty days after notice of the appearance of the defendant, and to allow a defective bill of particulars to be amended.

(Before BLATCHFORD, J., Southern District of New York, October 24th, 1878.)

BLATCHFORD, J. I think that section 3,012 of the Revised Statutes must be construed in connection with section 954, and that it is directory merely. Where jurisdiction of a cause is acquired by a Court, whether one of general jurisdiction or one proceeding under a special statute, the well settled rule is, that the time fixed by statute for the performance of intermediate steps is to be regarded as directory merely, and that an omission to perform one or more of them in time will not render the whole proceeding abortive. (In re Empire City Bank, 18 N. Y., 199, 220; The People v. Cook, 8 N. Y., 67, 92; Dwarris on Statutes, Am. ed. of 1871, p. 222, note 29, and cases there collected.) The Court has the same power, notwithstanding the provisions of section. 3,012, in a suit for the recovery of duties alleged to have been erroneously or illegally exacted by a collector of customs, that it has in any other suit, to allow a bill of particulars of the plaintiff's demand to be served after the expiration of thirty days after notice of the appearance of the defendant, and to allow a defective bill of particulars to be amended. The question in each case presented is, whether proper ground is shown for the exercise of the discretion of the Court.

In the present case, the bill of particulars of June 3d, 1875, seems to contain all the particulars required by section 3,012, except the dates of the invoices. It was received and retained by the defendant's attorney, without any notice that

The American Middlings Purifier Company v. Vail.

it would not be accepted as sufficient, or because served too late, and the defendant's attorney subsequently treated the action as one to be tried, and one in which the proper bill of particulars had been served in time, by serving a notice of trial. The defendant's motion to enter judgment of non pros. against the plaintiffs is denied, with leave to the plaintiffs to serve an amended bill of particulars, containing the dates of the invoices, if desired.

Hartley & Coleman, for the plaintiffs.

J. Dana Jones, (Assistant District Attorney,) for the defendant.

THE AMERICAN MIDDLINGS PURIFIER COMPANY

8..

DANIEL S. VAIL AND OTHERS. IN EQUITY.

After a motion for a preliminary injunction in a suit in equity for the infringement of letters patent had been heard, and before it was decided, the defendants filed a paper withdrawing their opposition to the motion. Thereupon the Court granted the injunction and refused to make any other decision on the motion, although the plaintiff insisted that the motion should be decided on the merits, with a view to other cases.

(Before BLATCHFORD, J., Southern District of New York, October 28th, 1878.)

BLATCHFORD, J. The motion for a preliminary injunction in this case was made in the regular way between the contesting parties, and was resisted with all the ability, research, and investigation that could well be brought to the defense action or proceeding. The matter ran along for a

of

any

The American Middlings Purifier Company v. Vail.

considerable number of days, broken by other engagements of the Judge, and finally, I think, it was finished when I was sitting here on the 23d day of July last, either that day or the next. The papers, however, were not in readiness for the Court to take up the case for decision until a subsequent day, because my recollection is, that, after I left the city, I received a printed paper containing points or suggestions on the part of Mr. Harding; and I think I also received a similar paper from the other side. At all events, it was some time in the month of August before the papers were in a condition in which a Judge could take them up for decision, in justice or good faith to the counsel who submitted them. The decision in the case was not delayed for any reason connected with anything in the case itself, but it was delayed because earlier cases had precedence. Up to this time, this case has not been reached by me in the regular order of decision.

This case is now in this position. The counsel for the defendants comes into Court and files a paper, in which he sets forth that the defendants have become bankrupt, that they have ceased running their mill, and that, through their counsel, they withdraw their opposition to the motion. That paper was handed to me, and I put it upon the files of the Court, with a memorandum on the back of it, that the plaintiffs might have an order reciting the contents of this paper, and stating that the motion, for that reason, is granted; that is, the plaintiffs could have such an order, if they pleased. If they do not wish to take such an order, they need not do so. There is no actual contest between the parties to the motion; and, according to well settled principles, laid down by the Supreme Court of the United States in many cases, this Court cannot proceed to a decision of a motion on the merits. As has been said by Judges of the Supreme Court in similar cases, the Court must have a real contest before it. It cannot be employed as a moot Court. The principles that underlie that doctrine are, in the first place, that it is manifestly not proper for Courts to be employed for that purpose; and, in

The American Middlings Purifier Company v. Vail.

the second place, that the judicial mind cannot be in a proper state for deciding a case in which there is no real contest between the parties to it. These principles are well settled, and are applicable to a case of this kind. The very fact alleged on the part of the plaintiffs, that this decision is sought in order to affect other cases, is the very reason laid down by the Supreme Court why no such decision should be made. It is definitely laid down by that Court, that, when there is no real contest between the parties to a suit, and a decision will affect third parties, the case will not be decided by the Court. I will refer to a case in which that question is discussed by the Supreme Court. It is the case of Lord v. Veazie, (8 How., 251.) That case had elements in it which are not in this case, but the same fact existed, that there was no real dispute between the parties. Chief Justice Taney, in delivering the opinion of the Court in that case, says, that the Court is satisfied that there is no real dispute between the plaintiff and defendant, that it is a case where their interests are not adverse, but that they have arrived at a point in the controversy where there is no real dispute between them. The Court says: "In these proceedings the plaintiff and defendant are attempting to procure the opinion of this Court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to this suit." It was an important case, and there was a large amount of property involved. The Court goes on to say, that "an amicable action, in the sense in which these words are used in Courts of justice, presupposes that there is a real dispute between the parties concerning some matter of right; and, in a case of that kind, it sometimes happens, that, for the purpose of obtaining a decision of the controversy without incurring needless expense and trouble, they agree to conduct the suit in an amicable manner; that is to say, that they will not embarrass each other" unnecessarily. "But there must be an actual controversy and adverse interests." And then the Court says: "A judgment entered under such circumstances, and for such purposes, is a mere form."