Byam v. Stevens

4 Edw. Ch. 119, 1842 N.Y. LEXIS 591, 1842 N.Y. Misc. LEXIS 13

• Court: New York Court of Chancery
• Decided: November 10, 1842
• Status: Published

Opinion

The Vice-Chancellor :

The injunction restrains the defendant threefold : 1. From using certain machinery specified in an agreement between the complainant and Stevens of the twelfth day of July one thousand eight hundred and forty-one and which is set forth in the bill for the manufacture of matches. 2. From using the process described in any of the letters patent also specified in the agreement. 3. From selling any matches already manufactured by the use of the machinery and process or either of them.

This does not restrain the defendants from making and selling matches generally. They are still at liberty to make and sell matches—only they must not make matches by means, of the machinery and process referred to or sell such as had thus been made.

The injunction is defective in not showing upon its face the particular machinery and processes which it is intended to restrain the defendant from using, instead of referring them to the bill and the agreement and letters patent therein mentioned : Sullivan v. Judah, 4 Paige’s C. R. 446. Still, if the defendants knew all these particulars dehors the face of the injunction, they are chargeable with the consequences of violating it: Ib. This defendant Lacour swears he did not know the contents of the agreement of the twelfth day of July one thousand eight hundred and forty-one, he not being a party thereto so far as to know what machinery was specified therein, and that he neither knows nor has he been informed what letters patent are specified in the agreement mentioned in the injunction, nor what process or varieties of process .are described in letters patent specified in the said agreement. He states, moreover, that the machinery used by him is very different from that used by Stevens, and is not the same machinery nor has he used or caused to be used the machinery used by Stevens since the injunction was served on him. In the face of these denials and considering also the other responsive matters contained in the affidavits and the fact likewise that the defendant is at liberty to manufacture matches by the use of other machinery and process than that enjoined, I consider that the most discreet course is, to refuse the attachment and to leave the complainants to pursue their remedy by a supplemental bill against Lacour for an account of these subsequent operations of his in manufacturing and selling matches, if the complainants can substantiate their claim to an exclusive right to the business carried on at this manufacturing place in Stanton street under the agreement with Stevens.

. If there has been a violation of the injunction by Lacour, it would seem to be rather a constructive violation than otherwise and instead of investigating the matter in a collateral proceeding by attachment when it will be very difficult to know in anticipation of a decree determining the rights of the parties, what compensation should be awarded A * • to the complainants, I am of opinion.it had better be left to the matter of accounting under a decretal order that may be made after a hearing on the merits.

The defendant John H. Stevens is entitled to have the case removed, at once, to the circuit court of the United States. And when it is in that court as to both defendants, the complainants can file a supplemental bill, showing this continuation of the business by Lacour, calling him to an account for it and praying a further and more particular or specific injunction out of that court.

Motion for attachment denied, and costs to abide the event of the suit.