of the injunction was not questioned; it issued in the first instance. The complainant recovered fifteen hundred dollars, and the injunction was made perpetual. So, in the late case of Whitney v. Fort, which arose in Georgia, upon a violation of the complainant's patent for a machine for cleaning cotton, an injunction was granted, in the first instance, and was afterwards made perpetual, at the Circuit Court, at which Judge Johnson presided. Injunctions are always granted to secure the enjoyment of statute privileges of which the party is in the actual possession, unless the right be doubtful. This is the uniform course of the precedents. I believe there is no case to the contrary; and the decisions in the English chancery, on this point, were the same before as since the American Revolution; and we are consequently bound by them as a branch of the common law.'

726

Accordingly an injunction was granted in the case then under the consideration of the court upon the grant of a monopoly by the legislature of New York, which was subsequently adjudged to be void by the Supreme Court of the United States, but still the grounds of proceeding in the Supreme Court of New York, as to granting an injunction, are not thereby rendered the less illustrative of the law and practice

26 Livingston v. Van. Ingen, 9 Johns. 585.

upon this subject. An act was passed by the legislature of New York, granting to the plaintiffs, Livingston and Fulton, who were "the possessors of a mode of applying the steam engine, to propel a boat on new and advantageous principles," the sole and exclusive right of constructing and navigating boats by steam, in the waters of that State, for a certain term of years; and by a subsequent grant, passed in 1808, it was provided that if any steam-boats should be used in contravention of the right of the grantees, they should be forfeited to them. These statutes having been adjudged to be constitutional and valid, it was held, by the Court of Errors, that the plaintiffs, who had been in the exclusive enjoyment of their statute privilege for three years, were entitled to an injunction to restrain the defendants from running steam boats on the Hudson, although the plaintiffs had brought an action of detinue against the defendants, by virtue of the statute, for the recovery of the boats which had been so used. Thompson J. said that "the claim of the plaintiffs was founded on acts of the legislature, and if those acts were considered valid, no doubt could exist as to the right. And if any doubt should be thought to exist on that point, yet, according to the established rule in England, this was not sufficient to warrant a denial of the injunction. If it should be necessary to send the cause to be tried at law, it ought to be sent with an injunction. But it is said, that the right claimed by

the plaintiffs being created by statute, they are entitled to no other remedy than that which the statute gives. Without examining whether the rule of law, upon which this objection is founded, is not confined to criminal cases altogether, it certainly cannot be applied to the present case; for the forfeiture is not given by the same statute which created and gave the right, nor until the right was actually vested in the plaintiffs, by a fulfilment of the terms and conditions upon which they were to be entitled to the exclusive privilege now claimed by them; and if the right was vested, all existing remedies to enforce it were also vested, and are not to be taken away by implication. The act of 1808, creating the forfeiture, purports to be an act for the further encouragement of the plaintiff's steam boats, which plainly shows that the remedies therein provided, were intended as cumulative, and in addition to those already existing. This would be the construction in criminal cases, even where the offence is created and the penalty given by the same statute, provided they are in separate clauses."27

Possession of an exclusive privilege of this description is indicated by the use. Accordingly where it did not appear what use the applicant for an injunction had made of the privilege for which he took his

27 Livingston v. Van Ingen, 9 Johns. 507.

patent, Mr. Justice Thompson considered that there was no support to the application on the ground of possession, and as the right seemed questionable at the same time, the injunction was refused.20

Applications for injunctions to protect manufactures not secured by patent, have been generally rejected in England.

"So

In case of an agreement not to disclose the secret of the composition of a medicine, Lord Eldon was averse to sustaining an injunction. A motion was made to dissolve an injunction restraining the defendant from divulging the secrets in the bill mentioned, and from preparing or selling the medicines therein mentioned. The alleged secrets in medicine were unprotected by a patent. Lord Eldon. far as the injunction goes to restrain the defendant from communicating the secret, upon general principles, I do not think that the court ought to struggle to protect this sort of secrets in medicine. The court is bound indeed to protect them in cases of patents, to the full extent of what was intended by the grant of the patent, because the patentee is a purchaser from the public and bound to communicate his secret to the public at the expiration of the patent. Then, whether the principle can be extended to such a case as this-whether a contracting party is entitled

28 Sullivan v. Redfield, 1 Paine R. 441.

to the protection of the court in the exercise of its jurisdiction, to decree the specific performance of agreements, by restraining a party to the contract from divulging the secret he has promised to keep, that is a question which would require very great consideration. But the present case is not one which calls for the determination of it. If the defendant has already disclosed the secret, the injunction can be of no use. If he only threatens to disclose, it then becomes necessary to look at his affidavit; and by that he insists that what he has to disclose is no secret at all. Then how is the court to try this question? Or what can the court do with the case altogether?" The injunction was dissolved.29

Lord Hardwicke refused to grant an injunction to protect a stamp for goods. A motion was made, on behalf of the plaintiff, for an injunction to restrain the defendant from making use of the Great Mogul as a stamp on his cards, to the prejudice of the plaintiff, upon a suggestion, that the plaintiff had the sole right to this stamp, having appropriated it to himself, conformably to the charter granted to the Card-makers' Company by Charles I. Lord Hardwicke. "There is no foundation for this court to grant such an injunction. Every particular trader has some particular mark or stamp; but I do not

29 Williams v. Williams, 3 Meriv. 157.