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.

know any instance of granting an injunction here to restrain one trader from using the same mark with another; and I think it would be of mischievous consequence to do it. There is a clause in the charter, that in order that every card-maker may know his cards from another card-maker, each trader shall lodge his mark or stamp with the receiver, to prevent any fraud upon our loving subjects. This is a colorable end; but if any weight was to be laid upon these colorable recitals, it would be establishing every other monopoly. An objection has been made, that the defendant, in using this mark, prejudices the plaintiff, by taking away his customers. But there is no more weight in this, than there would be in an objection to one innkeeper setting up the same sign with another." The injunction was accordingly refused till the hearing of the cause.30

If on a trial at law the plaintiff establishes his right, the injunction on the defendant is, on his motion, made perpetual; if he fails, the injunction will, on motion of the defendant, be dissolved. But where a verdict having been given for the plaintiff, the court of law were equally divided, a writ of error lying to another court, the chancellor refused to dissolve the injunction, until a decision could be had in the court of errors, or in another

30 Blanchard v. Hill, 2 Atkyns, 484.

action, the plaintiff having been in possession of his

31

privilege seven years. And so if a new trial is proposed to be moved for, this is a ground, on the part of the defendant, for opposing a motion by the plaintiff to make the injunction perpetual, and on the part of the plaintiff, for opposing a motion of the defendant to dissolve it.$2

If the injunction be granted improvidently, it will be dissolved on motion. But until it is dissolved, a violation of it will be a contempt of court.33

CHAPTER XXV.

Proceedings for the Repeal of Patents.

THE act of Congress of 1793, s. 10, provided a process for the repeal of a patent in the nature of scire facias. The same act, s. 6, provided that in case of notice of certain grounds of defence, in an action for an infringement, and of any of these grounds being made good, the court might declare the patent void. That act has been repealed by the act of 1836, in

31 Boulton v. Bull, 3 Ves. 140.

32 Gods. on Pat. 631. Gibbs v. Cole, 3 P. W. 256.

33 Walker v. Congreve, Rep. of Arts, Second Series, v. 24, p. 311.

which no provision has been made for the repeal of patents.

The proceeding for the repeal of patents in England is by scire facias.1

The provisions of the act of 1793, for proceedings in the nature of scire fàcias, have been subjects of various decisions, which need not be particularly stated, since that act has been repealed.2

1 Hunt v. Coffin, Dyer, 197, b; 4 Inst. 88; The King v. Butler, 2 Vent. 344; S. C. 3 Vent. 223; S. C. 3 Lev. 220; The King v. Arkwright, Godson on Pat. 192; Com. Dig. Patent, F. 2, 3. 7; 2 Saund. 72, n; Rex v. Dawes, 4 Burr. 2022, 2120; Rex v. Peacock, 4 T. R. 634; Lilly's Ent. 411.

2 See Stearns v. Barrett, 1 Mass. R. 167; Ex parte Wood v. Brundage, 9 Wheat. 702.

APPENDIX.

PATENT ACTS OF THE UNITED STATES.

Act of Congress of April 10, 1790, c. 34, Story's Laws of U. S. vol. 1, p. 80. Repealed by act of 21st February, 1793, c. 55.

An Act to promote the progress of useful arts.

Sec. 1. Petition. Attestation. Cer- | Sec. 5. Repeal of patents.

tificate of attorney gen

eral. Seal. Recording.

2. Specification. Models.

3. Copies.

4. Penalty for an infringement.

6. Patent is prima facie evidence. Plea. Notice. Verdict in case of false specification.

7. Fees.

1. Be it enacted, &c. That upon the petition of any person or persons, to the secretary of state, the secretary for the department of war, and the attorney general of the United States, setting forth, that he, she, or they, hath, or have invented or discovered, any useful art, manufacture, engine, machine, or device, or any improvement therein, not before known or used, and praying that a patent may be granted therefor, it shall and may be lawful to and for the said secretary of state, the secretary for the department of war, and the attorney general, or any two of them, if they.shall deem the invention or discovery sufficiently useful and important, to cause letters patent to be made out in the name of the United States, to bear teste by the president of the United States, reciting the allegations and suggestions of the said petition, and describing the said invention or discovery, clearly, truly, and fully, and thereupon granting to such petitioner or petitioners,