now.' " 12 Formerly, an injunction was rarely issued to restrain a nuisance until the plaintiff's right of action had been established at law; "but now a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case, in England and most of the States, is just as fixed and certain as the right to any other provisional remedy." 18 Formerly, it was a fundamental objection to an order for an injunction to restrain a nuisance to land when the legal title was disputed, that the order contained no provision for putting the question in a course of legal investigation.14 § 215. Injunctions to restrain Trespass. - Injunctions to restrain trespass are of quite recent origin. The first that is to be found in the books was granted by Lord Thurlow. They are only granted when the trespass is destructive or continuous. The rule upon the subject has been thus stated by Vice-Chancellor Kindersley: "Where, therefore, the plaintiff is in possession and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his remedy at law; though, where the acts tend to the destruction of the estate, the court will grant it. But where the party in possession seeks to restrain one who claims by adverse title, then the tendency will be to grant the injunction, at least where the acts done either did or might tend to the destruction of the estate." The destruction of credit by an illegal seizure of one's stock in trade, and the injury to a farm done by the illegal taking of all the stock and tools upon it, have been held instances of such irreparable injury.5 An attempt by a railroad company to build its road upon private property without payment of compensation, may be thus pre 12 Byles, J., in Hole v. Barlow, 4 C. B. N. s. 334. See St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642; Campbell v. Seaman, 63 N. Y. 568. 18 Judge Earl in Campbell v. Seaman, 63 N. Y. 568, 582. See, however, Irwin v. Dixion, 9 How. 10; Murtagh v. Philadelphia, 1 Weekly Notes of Cases, 37. But see McBride v. Board of Commissioners of Pierce County, 44 Fed. R. 17. 14 Harman v. Jones, Cr. & Ph. 299; Sanxter v. Foster, Cr. & Ph. 302. § 215. 1 Flamang's case, cited by Lord Eldon in Hanson v. Gardiner, 7 Ves. 305. For injunctions against the collection of an illegal tax, see supra, § 12. 2 See Jerome v. Ross, 7 J. Ch. (N. Y.) 315; Troy & B. R. R. Co. v. Boston, H. T. & W. Ry. Co. 86 N. Y. 107; Van Norden v. Morton, 99 U. S. 378. 8 Lowndes v. Bettle, 33 L. J. Ch. 461. 4 Watson v. Sutherland, 5 Wall. 74; Cropper v. Coburn, 2 Curt. 465; North v. Peters, 138 U. S. 271. 5 Breeden v. Lee, 2 Hughes, 484. vented. It is not certain, whether the fact that a person who threatens to commit a wrong is insolvent and unable to pay any damages which could be recovered at law, is in itself a sufficient ground for the interference of equity by injunction; but the weight of authority seems to hold that it is. It was held, where there was a dispute as to the possession and as to right to the possession of a railroad track, that the court would not interfere by injunction to assist in "a scramble for possession." 8 A number of cases decided in the courts of different States hold that an injunction cannot be obtained to restrain an illegal arrest; since it is said that the writ of habeas corpus followed by an action for damages always affords an adequate remedy for any injury resulting therefrom;9 but if the result of the arrests would be an irreparable injury to the business of the complainant, an injunction might perhaps be issued.10 § 216. Injunctions to restrain the Infringement of Patents. Injunctions to restrain the infringement of patents and copyrights are of ancient use in equity. They are founded upon both the irreparable injury that would otherwise be caused to the complainant, and the desire of the court to prevent a multiplicity of suits. This inherent power of the courts is confirmed in the United States by statute. The provision of the Revised Statutes authorizing injunctions to restrain the infringement of patents is 6 Northern Pacific R. R. Co. v. Burlington & M. R. R. Co., 2 McCrary, 203; s. c. 4 Fed. R. 298. See also Missouri, K. & T. Ry. Co. v. Texas & St. Louis Ry. Co., 10 Fed. R. 497. 7 Connolly v. Belt, 5 Cranch C. C. 405; M'Elroy v. Kansas City, 21 Fed. R. 257, 262; Agar v. Regent's Canal Co., cited in 1 Swanst. 250; Musselman v. Marquis, 1 Bush (Ky.), 463; Hicks v. Compton, 18 Cal. 206; Britton v. Hill, 12 C. E. Green (N. J.), 389; Lloyd v. Heath, Busbee's Eq. (N. C.) 39; Gause v. Perkins, 3 Jones Eq. (N. C.) 177; Chesapeake & Ohio R. R. Co. v. Patton, 5 W. Va. 234; Bispham's Eq. § 436; Caro v. Met. El. Ry. Co., 46 N. Y. Super. Ct. 138. Contra, Heilman v. The Union Canal Co., 37 Pa. St. 100; Thompson v. Williams, 1 Jones Eq. (N. C.) 176; Nessle v. Reese, 19 Abb. Pr. (N. Y.) 240; High on Injunctions, 8 St. Louis, K. C. & C. Ry. Co. v. Dewees, 23 Fed. R. 691. See Latham v. Northern Pac. R. Co., 45 Fed. R. 721. 9 Cohen v. Commissioners of Goldsboro, 77 N. C. 2; Burnett v. Craig, 30 Ala. 135; Burch v. Cavanaugh, 12 Abb. Pr. N. s. (N. Y.) 410; Davis v. American Society for Prevention of Cruelty to Animals, 6 Daly (N. Y.), 81; s. c. on appeal, 75 N. Y. 362. See also Yick Wo v. Crowley, 26 Fed. R. 207; and supra, § 211. 10 Louisiana State Lottery Co v. Fitzpatrick, 3 Woods, 222; Dinsmore v. New York Board of Police, 12 Abb. N. Cas. (N. Y.) 436; Manhattan Iron Works Co. v. French, 12 Abb. N. Cas. (N. Y.) 446. § 216. 1 Eden on Injunctions, chs. xii. and xiii.; Daniell's Ch. Pr. (5th Am. ed.) 1642-1648; Hogg v. Kirby, 8 Ves. 215; Wilkins v. Aikin, 17 Ves. 422. as follows: "The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by a patent, upon such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and the court shall assess the same or cause the same to be assessed under its direction. And the court shall have the same power to increase such damages, in its discretion, as is given to increase damages found by verdicts in actions in the nature of actions of trespass upon the case."2 It seems to have been formerly the opinion that courts of equity would not interfere to protect a patent right by injunction, until the right had been established at law; but since Lord Eldon's time their jurisdiction to thus interfere, when the title of a complainant is established by the preponderance of evidence, has been undisputed. In a recent case Judge Lowell said: "The principles which govern courts in granting or refusing preliminary injunctions in patent cases are well established. As a general rule, if the plaintiff had made out a clear title, and the question of infringement presents no difficulty, an injunction will be granted. The hearing is had upon ex parte affidavits, and if the questions to be decided are difficult and complicated, especially if they involve disputed facts which have never been passed upon by a court or jury, then, although the court may be inclined to think the complainant is right, yet it will not interfere at this stage of the cause, whether the questions relate to title or to infringement. And even where the title is clear, yet if there are peculiar circumstances which show that the defendant's interests would be injuriously affected by an injunction, while those of the plaintiff would not be so affected by refusing it, it may be refused. Such were the cases of Howe v. Morton, Fisher's Pat. Cases, vol. i. 586, decided by Judge Sprague, and the Burring-machine case, Morris v. Lowell M'f'g 144. 2 U.S. R. S. § 4921. See supra, §§ 77, Thompson, 8 Meriv. 622; Pierpont v. 3 Universities of Oxford and Cambridge v. Richardson, 6 Ves. 689; Hill v. Fowle, 2 W. & M. 23; Motte v. Bennett, 2 Fisher, 642; Kerr on Injunctions, 272. Co., Fisher's Pat. Cases, vol. iii. 67, which came before me; in both of which the patent was about to expire, and the defendant's business would be very seriously interfered with for the few weeks that the exclusive right would remain in force, only to be resumed again immediately afterward at great expense and loss. There is, therefore, always an element of discretion entering into the consideration of this question, and all that a complainant is entitled to is the best judgment of the court upon a question of judicial discretion, and not absolutely to an injunction on any given state of facts. . . . These cases being tried, as I have said, on ex parte evidence, must be decided on broad views of the rights of the parties. It is usual to present proof, either of long and general acquiescence in the plaintiff's exclusive rights, or of their having been sustained by the courts. The ground on which acquiescence is important is that it shows. exclusive possession, which, if it has been of long standing, open and notorious, is a clear foundation of a presumption of title. It is not always, however, so satisfactory as positive adjudications, because it may have arisen from the comparatively small commercial value of the invention, and in that case shows only that no one has thought it worth infringing." If serious public inconvenience would result from a preliminary injunction, the application may be denied. If previous adjudications in the same or other Circuit Courts have established the validity of the plaintiff's patent, a preliminary injunction will be granted him almost as of course in a subsequent suit, to prevent the infringement of the same by a person not a party to those suits,6 unless the latter can produce new evidence, or show that such judgments were obtained by consent, collusion, or fraud.8 In 4 Potter v. Whitney, 1 Lowell, 87, 88, 89 See also Hill v. Thompson, 3 Meriv. 622; Washburn & Moen Manuf. Co. v. Haish, 4 Fed. R. 900; Foster v. Moore, 1 Curt. 279; McKay v. Dibert, 5 Fed. R. 587. 5 Southwestern Brush E. L. & P. Co. v Louisiana El. L. Co., 45 Fed. R. 893; Bliss v. City of Brooklyn, 4 Fisher's Pat. Cas. 596; Robinson on Patents, § 1200 and cases cited. 6 Newall v. Wilson, 2 DeG., M. & G. 280; Orr v. Littlefield, 1 W. & M. 13; Thayer. Wales, 9 Blatchf. 170; s. c. 5 Fisher, 130; Kirby Bung Manuf. Co. v. White, 1 Fed. R. 604; High on Injunctions, §§ 953-959; Kerr on Injunctions, 273. But see Many v. Sizer, 1 Fisher Pat. Cas. 31. 7 Page v. Holmes Burglar Alarm Tel. Co., 2 Fed. R. 300; s. c. 18 Blatchf. 118. 8 American Nicolson Pavement Co. v. City of Elizabeth, 4 Fisher, 189; Page v. H. B. A. Tel. Co., 2 Fed. R. 330; American Middlings Purifier Co. v. Vail, 15 Blatchf. 315. But see Orr v. Littlefield, 1 W. & M. 13. such cases the courts will usually examine only the question of the infringement.9 But it may, and before granting a perpetual injunction often does, reconsider the whole question.10 Otherwise, however, when the patent is of recent issue, and its validity is denied by sufficient evidence to raise a reasonable doubt in the mind of the judge as to a question either of fact or of law; a preliminary injunction will usually be refused; 11 although now that, in the Federal courts, the same judges sit both at law and in equity, and when sitting in equity have the power to submit a disputed question of fact to a jury, such a court usually determines the whole question upon its final decree, without adopting the circuitous method of first directing a trial at law.12 Formerly the custom was, when any doubt remained in the mind of the court after the final hearing, to deny the complainant a perpetual injunction at that time; but to direct that the cause "stand over a reasonable time for the bringing of a suit at law against the defendants for an infringement; and, if such a suit is brought, until a sufficient time for the trial thereof has elapsed. And if, in such suit, there shall be final judgment for the plaintiffs, they will be entitled to a decree for injunction and account, as prayed for in the bill; and if, in such suit, there shall be final judgment for the defendants, the bill will be dismissed with costs; and so, also, it will be dismissed with costs on an application of the defendants, if such suit is not brought within a reasonable time, and prosecuted with reasonable diligence." 13 An ex parte application for an injunction to restrain the infringement of a patent should, it seems, be supported by an affidavit, or an allegation in a bill verified by affidavit of the plaintiff, stating that he believes that the person to whom the patent was issued was the original inventor thereof, or that the invention was new, or had not been 9 Robertson v. Hill, 6 Fisher, 465; Odorless Excavating Co. v. Lauman, 12 Fed. R. 788. 10 Many v. Sizer, 1 Fisher Pat. Cas. 31; Day v. Hartshorn, 3 Fisher, 32; Parker v. Sears, 1 Fisher Pat. Cas. 93; Poppenhusen v. Faulke, 4 Blatchf. 493; Sargent Manuf. Co. v. Woodruff, 5 Biss. 444. 11 Parker v. Sears, 1 Fisher Pat. Cas. 93; American Nicolson Pavement Co. v. City of Elizabeth, 4 Fisher, 189; Dodge v. Card, 2 Fisher, 116; Sullivan v. Redfield, 1 Paine, 441; Winans v. Eaton, 1 Fisher Pat. Cas. 181; Mowry v. Grand 12 See Pierpont v. Fowle, 2 W. & M. 23, 36. 18 Judge Hall in Muscan Hair Manufacturing Co. v. American Hair Manufacturing Co., 1 Fisher Pat. Cas. 320, 325. |