The New York Herald Newspaper, February 19, 1859, Page 4

4 ment, it seems, we i suggestion was, that in these additional ulubttanes provision in regard to stopping manutacturers after a certain day inJanuary, It arc remaining questions, such as the period when present manulactarers shall stop making and gelling shirred goods and the like, shall be sub- mitted to the arbitration of three disinterested per sons, provided the parties hereto cannot agree.” The argument in reference to the provision is, that the words “ shirred goods” therein contained must have been limited to shirred goods made ac- core to Goodyear’s patents, because he could not stop others. But he could stop others. He could stop any manufacturer of suspenders or anything else, who should use the vulcanized rubber, and the use of the vulcanized rubber is one of the privi- Jeges which is conferred upon Mr. Day, and for which, and during the whole term of the existence of which patent, even after the expiration of the shirred goods patent, Mr. Day is to pay tariffs. T now ask your Honor’s attention for a few minutes to the extraneous evidence which the gen- tlemen on the other side have offered here, to see how far it is competent, and what are the just con- clusions in regard to it. The panning position taken by the Jearned counsel, founded upon this evidence is, that at the time when the grant of the 29th October was made, the articles made under the patent for shirred goods alone known in the trade by the name of shirred or corrugated goods. ‘The gentlemen have laid great stress and attached great importance to what the trade knew. ‘One of the learned counsel, Mr. Dickerson, likened this case to tariff laws. Said he, in effect, “What merchants who deal in the article which is the subject matter of the duty understand by a par- ticular denomination in the statute, the court and the laws intend.” That is undoubtedly the rule; and the reason of the rule is, that those laws are addressed to merchants, as has been very often decided. But this deed of the 29th October is no more addressed to India rubber manufacturers or dealers than the deed of a horse is addressed to a jockey, or of a farm to farmers, “Know all men ‘by these presents” is the language of a deed, and it is for the Court to construe and say what all men do or should understand by it; and so the analogy which has been put forward here between this deed and the tariff laws seems to me to have no existence. But there is something, I admit, in the argument, that inasmuch as here isa particular name employ- ed, to wit, shirred or corrugated goods, and inas- much as that is the manner of desigrating the sub- ject matter of the grant, it is proper to inquire and ascertain what was known as shirred and corru- gated goods at the time when the grant was made. I agree that that may be a proper Angus In a case fike this, for reasons which I have alrea iy suggested, and to which I will immediately call your Honer’s attention, it is comparatively of ‘rifling importance. If this were a grant of an existing thing, as of a piece of land, or a house, or a borse, and that thing was described by a name, as Blackacre, or my horse mon undoubtedly it would be a proper subject of in Blackacre, and is this the horse known by that name? But,asI have already submitted to your Honor, the purpose of these parties was not to make a tof an existing thing merely, but, taking up an art which was known by both of them to be in a transition state, it was their purpose to make a grant of a license to use that art in making not only articles then existing and known, but any which should come into existence afterwards, be created even afterwards by new inventions, by whatever denominations they might be called, pro- vided they were Minpee gs shirred or corrugated goods of ‘eo f kind. I say by whatever denomina- tions they mi ent be called, because how perfectly absurd it would be to say, that if the inventor of a new species of shirred goods, of which he trans- ferred the right to Goodyear, or if Goodyear him- self, being the inventor of a new species of shirred or ae ee goods, chose to baptize them origi- a nally with a name different from shirred or cortugated goods, then they would not pass under this grant; but if he baptized them with that name they would. Therefore I say, what the par- ties looked at, and what the Court must look at, is the substance of the new thing which is to come into existeuce, and see whether that meets the conditions about which the parties were nego- tiating: and in that view of the case the name be- comes immaterial, and therefore it is that this in- quiry which is made respecting the existing sub- ject matter of a grant, which might be decisive and oust be important, in most cases, becomes of ex- tremely little ee omeger ina case like this; be- cause ye parties have not only referred to aoe known by a particular name at the date of the grant, but they have referred to things that were not in existence, and were known not to be in ex- istence at this time, and of course could not be called by any name. Further than this, may it pe your Honor, it ‘cans ie wage vine ate lmunaterial how the tion, or what the teade omaersteas Hue dnote was embraced within it, provided your Honor can see upon the face of the deed that these parties understood these terms to be comprehensive enough to embrace any kind of shirred goods. Because the only purpose and object of going out of the deed is to enable the Court to ascertain from the deed what the parties understood; and in aid of that purpose or object, the Court will resort to ex- traneous evidence to throw light upon that mean- ing. But, if from the deed they can ascertain what the meaning was, what the parties understood by it, they never go out of itatall, to make any in- quiry. I have already submitted to your Honor that these oot pee have shown by covenants, that the: considered any kind of shirred or corrugated goods as under this agreement, whether then existing or not; that they have expressly called goods made with strands of native or common gum, with which Mr. Day was to compete, because Goodyear could not put them down as infringing one of his pa- tents—shirred or corrugated goods; and, therefore, if we were to concede that they were the only two people on earth who so understood and so considered them, that is wholly immaterial, their intention —— the thing to be examined and to be governed ys I have only a word to say upon this part of the evidence, however voluminous it may be. We deny on our part that articles made under Goodyear’s patents were alone known in 1846 as shirred or corgugated goods; we say the fact was otherwise. They say the contrary. They produce a large num- ber of witnesses. But inthe first place I have to suggest that only those who can go back with per- sonal knowledge before this grant, and long enough before this grant to have had fan article like this acquire a fixed name, are available for this purpose; and, if your Honor ever finds it ne- | cessary to come to the consideration of this parole evidence and examine these affidavits, you will find that that strikes out of the case a very iT ange number of them, because they speak in gen- eral terms; they leave it doubtful how far back they mean to carry this knowledge of theirs concerning designations and names. the next place I have to suggest to your | Honor that nearly every one of these ‘wit nesses who has made an ex parte affida- vit, on the part of the defendants, has some interest in, or connection with, this controversy. Some of them have already been sued, being importers of | these goods; some of them are liable to be sued; some of them have been connected in former times with this controversy, in a way to place them in a hostile attitude to this complainant, Day; some of them, manjfestiy, now have a connection with this pS matter, which detracts from the weight of their evidence. Still, I agree that after making all deductions from the number and weight of these witnesses, there are those left who say, that there ‘was known to thei by the name of shirred or cor- rugated goods, no otlier species except those made under Goodyear’s patent—that others were known | a8 woven goods. It struck me at first, and does still, that it is a little remarkable that practical men, when in search of a designation of an article, should fix upon a circumstance which does not de- signate it from a million of others, to wit, that it is woven goods; and should reject one which does perfectly and precisely characterize it, to wit, shirred or corrugated goods. And it did strike meas | remarkable that practical men, from whom these names must spring, on account of their appropriate- should ai at any such result as to call one species of shirred or corrugated goods woven goods, and another species simply shirred or cor- | 4 iy rugated goods. I think it would have been some- what to have understood a customer who came into a shop and asked for some woven goods. But, passing over this, there are witnesses here who say that that was the fact. But, then, there ‘Gre numerous other witnesses produced on the part the complainants, who say that it was other- wise; not otherwise in respect to these persons, but in respect to themselves; that they knew these things, or similar things—suspenders, —— &.— by the name of shirred goods; knew them in the trade; knew them in their business; knew themas rs. What is the fair and legitimate infe from all this evidence ? Is it not that to some persons these kinds of Goods, made by weavin, strands of native India’ rubber, were no a8 shirred or corrugated goods? They & a had no fi than to call th lem ii a ‘way woven on which did not ve to them atall; but other people had ad- r, and they called them shirred goods them as Now upon the assump- all these persons mean to tell the truth nly, is a proper one to set out with), weight is to be allowed to their testi: ‘on les, is it nota fair inference from that these poamee by weaving of native rabl er, were not known to Were known to other persons, as ted goods? Dupont & Hyatt, in 0B the public records the Cy He ae quiry, what was | NEW YORK HERALD, SATURDAY, FEBRUARY 19, 1859—TRIPLE SHEET. is not entitled to much practical | shirred material, and, donbtless, their manufactures would have been known as shirred goods. Takin, into consideration what I have already addressed tothe Court, what these parties understood and intended and meant, is there the least difficulty in setting aside this whole mass of ex p: fida- vits,as not affording assistance in interpreting the deed? 3 y T shall now ask your Honor’s attention for o few moments to another branch of this oral evidence which relates to the conduct of the Bare, And here Ihave the honor to concur with the defend. ants’ counsel, that this is not a case where extrane- ‘ous evidence in respect to the conduct of the parties is admissible. They think these deeds so clear that the evidence is not admissible either to fortify or to impeach the construction which they seek to put upon the deeds. I entertain the same view, Never- theless this evidence has been exhibited to the Court, has been read and commented upon, and I should not do my entire duty, I fear, in this cause, if Twere to pass it over without remark. Butl intend to be extremely brief upon it. It is not my intention to take up these ex parte affidavits given by interested witnesses, behind -the back of Mr. Day, and drawn by skilful counsel after the precise points in which the case pressed were known; it is not my intention to take up these affidavits and ex- amine them in detail, and for the reason that I be- lieve it to be entirely unnecessary. F The ground of the rule for the admission of the acts of parties to aid in the interpretation of deeds is, that if a person has received a grant, his self interest will cause him to claim under that deed all that justly belongs to him; and when the Court finds itself unable, by examining the language of the deed, to determine what does justly belong to him, it will, in some instances, look outside of it and see what he has done when claiming under it. Butthis has no application to case where a party has not claimed: under a deed, but has been acting ad- yersely to it, and bas repudiated it. . Thon his conduct can throw no light whatever upon the deed. That is exactly this case, and it covers the entire body {of this parole evidence upon the sub- ject of the acts of Mr. Day, I pray your Honor to take two or three dates as to which there is no dispute whatever in this case. Mr. Day took his license on the 29th October, 1846, The title does not seem to have been com- pleted in him— rabaily nothing was done or un- lerstood to be Tone under it—nntil an early day in January, 1847, when it was agreed that the other manufacturers who had been engaged in makin, these goods should cease their operations, as Good- year had agreed they should. These manufac- turers, as appears in the New Jersey suit, which has heen referred to on the other side, instead of ceas- ing their operations, as Goudyean had agreed they should, went on and made a vast ‘amount of goods under the shirred goods patent of a somewhat inferior quality, put them into the market, and rendered it impossible for Day to enjoy the monopoly which lad been conferred upon him, and which Goodyear agreed that he should enjoy. He called on Good- year for protection. Goodyear, either through in- ability or reluctance, did not protect him. Under the clause in the contract of the 29th October upon | this subject, Day took the ground that he was no longer bound by his covenants in that Contract for the want of that protection; and unfortunately for himself he went further and insisted that he not only was not bound by those covenants to continue | to pay his tariffs because he had not got the protec- tion in accordance with the contract, but that the whole contract was void and inoperative, and that he (Day) was reinstated in the position which he occupied before the agreement of compromise of the 29th October. ge brought suits aes him; he sued him for the tariffs; the jury found that he had not been protected, and no were due. He sued him for an injunction in equity, and Day set up the defence which appears in this an- swer—passages of which have been read, to the effect that he was not bound by the ement of the 29th October, or anything done under it, but was reinstated in his former position. And, sir, that litigation which was thus begun immediately after Day began to act under this license in Janwary, 187, was continued down to the time when a de- cree was made by Mr. Justice Grier and Judge Dickerson in New Jersey, in September, 1852. ‘That was the position which Day during that time -oceupied in reference to this deed; not claimin; under it, not conducting in reference to it, not doing anything or omitting anything from which anybody has a right to draw an inference as to what his interpretation of it was, but acting in hos- tility to it, and in open opposition to Goodyear and his patents. "That decree was made in September, 1852, and on the 19th of October following he sold his entire ‘interest to the Congress Rabber Company, a cor- poration, the deed to whom is inthis case. It was stated the other day by Mr. Dickerson that Mr. Day owned the stock of the Congress Rubber Com- pany. There is nota particle of evideuce before the Court to substantiate that statement, and I am informed that, Jt 38, ob H'8ecdubr iss, and he not get back the title until Novem- ber 11, 1857; and since that time, I am not aware that the other side have brought forward any conduct or any declarations of Day, except that it is said my brother Seward has been coming into this court, and all other courts within reach, with arms full of bills, to obtain injunctions and put down these importers of foreign woven shirred goods. Well, then, what possible conse- quence is it upon this view of the facts, which are uncontroverted and incontrovertible, what has been the conduct of Mr. Day, so far as regards its bearing upon the interpretation of this instrument? There is an affidavit in this case, however, which lies a little aside from this course of remark, con- cerning which I must make a few observations, It is the affidavit of Goodyear, in which he beging by saying that when he obtained the patents for shirred goods and machinery issued to him in 1844, he intended to secure to him- self the right to snch goods as are in said pa- tents particularly described; a thing in which all mankind who understood ine subject will pro- bably agree, and I do not perceive the necessity of \ lestifying to it. Undoubtedly he meant by these patents to secure to himself the right to such goods as are in said patents particularly described. The ed to grant, nor did he grant,to Horace H. Day | under the agreements made in 1846, a right to any | other than such patented goods.” “ ‘Nor did he it” It! He swears to the legal effect of a deed; e takes it upon his conscience, under the solemnity of an oath, to declare that that deed did not pass that right to Mr. Day. He goes on to say: “There | then was, and there ever since has been, a clear and well understood distinction between such shirred goods and woven, braided, knitted or elastic ‘oods.” I have no doubt of that. I have no doubt there was a clear and well understood distinction between such shirred goods made under his patent, | and woven, braided, knitted or elastic goods; and the clear and well understood distinction was that | ove was made with vulcanized rubber, and could be | made that way, to wit: his shirred goods; | and the other ‘was not made with vulcanize tubber, and could not be so made, ac- cording to the knowledge of anybody in the trade at that time, by any known method, al- though Goodyear secretly knew of it. Does he | Pog out here what distinction there was between is and other shirred goods? Does he say these other species’ of goods, woven, braided, knitted, | and corrugated by strands of rabber and so made | elastic, were not shirred goods, nor known as as such to him or others? Not at all. On the other | hand, by implication he admits they were; because, he says, there was a clear and well understood dis- tinction between such shirred goods and woven, braided, knitted or elastic goods. “This,” he says, “was known to the manufacturers and the trade, | including said Horace H. Day.” I believe it was | known to Mr. Day, that there was a clear and well understood distinction between such different spe- cies of shirred goods, between such shirred goods and other shirred goods; and the distinction was what I have stated. A great deal was said yesterday, based upon the fact that Mr. ht has not made an affidavit to con- tradict the positions taken in this affidavit of Good- year, and other positions taken in other affida- vits in support of this same view. I do | not know, I have no means of knowing, what Mr. Day would have been willing to swear to, but I do know that] would not have been willing tovhave had him swear to the legal effect of a deed. Ido not know whether he would have said that he knew of this distinction between the different kinds ot | shirred goods or not. I think, however, that he would have admitted it, and your Honor may take it for J magna ‘upon my own responsibility as coun- | Sel, that he has not ‘denied it, becaate ke cannot | a It was well known that there was such a | distinction, and it appears in the very instrument pf the 29th October, in an express stipulation foun on the difference between such as fhould be made under Goodyear’s patent for shirred and other kinds of such goods made with common ge It would be a piece of insanity, therefore, for 4 be Re Bead hag bandit sons jstinction exist- ; ery different question what practic: effect isto be attached to it ta this case I believe, your Honor, it only remains on this pare of the case that I should make a few observa- ions upon the subject of the license grauted to Cutler & Jencks. I confess that 1 was originally, and still remain, somewhat at ‘a oma to know the precise use intended to be made of this license by the defendants. I view, which we ci them to entertain entertain, that tneeaioa as there is nothing in h them any privileges license which grants to their rights, whatev ; ad Drogo oe are all vi 5 expired. Inasmuch as the ‘chirred ans hae run out and has not been renew: < vee we , an valcan- izing patent haa also ron ont, the Tight of Cutler & Jencka has expired. suppose that view is entertained and maintained by how parties bere, and J perceive acthing ou the . affidavit then goes on to say that “‘he never intend- | face of the deed itself which conflicts with it. Even | Office, in order that third persons may know what ps if the broadest effect were allowed to that provi- sion of the act of Congress which has undergone $0 much discussion, that the right when extended eball inure to the benefit of assignees and grantees, that, according to the interpretation placed upon it by the Supreme Court of the United States, does not give an exclusive right; so that the interest that Cutler & Jencks e ey have, even if thia were a patent for machinery they stood in such a rela- tion to it that they could take aa assignees or grantees, under this decision of the Supreme Court, they would have only a concurrent license and it would not in the least degree interfere with Mr. Day’s title, except so far as that he would be un- able to stop them. Ihave understood, however, so far as I have comprehended the matter at all, that this license was put in, and the various interpreta- tions which have been placed upon it insisted upon in thia point of view; that inasmuch as it pre- ceded the grant to Mr. Day of the 29th October, and inasmuch as it conveyed to Cutler & Jencks, in the opinion of the learned counsel, the right to make every species of shirred goods under the pa- tent, it is improbable that Goodyear, having pre- viously granted this away to Cutler & Jencks, would also grant it to Mr. Ye Tt isan argument as to the probabilities of conduct, and that seems to me to exhaust the argument. I am not prepared to say that no court ever allowed any weight whatever to such a popecaretion, but J am prepared to aay that I never hear of, or saw @ case in which it was done. I am not aware of any case in which a court hag ever assisted itself’ in the interpretaion of doubtful words in a grant by the consideration that, if it de- cided them one way, it might conflict with a grant which had ‘previously been mai By the grantor. But still I am not prepared to maintain that it is not ‘a consideration which may not be adverted to; and, therefore, I proceed to see whether there is any such conflict here. The argument of improbability is derived en- tirely from the assumption that Goodyear has made a grant to Cutler & Jencks of a right to make shirred or corrugated goods of a kind, not embraced in his patent; and if that assumption is unfounded, the whole argument falls to the ground. Mr. Brady—We do not say so; we do not say they had any right to make any kind of shirred or cor- rugated goods. Mr. Curtis—That is rather a dispute about terms; you choose to use the term “ woven elastic goods.” “The thing is before your Honor; it is shirred or corrugated goods in point of fact. Whether I am accurate in conferring that name upon it, is one of the questions in debate. They maintain, on their part, that Cutler & Jencks have a right to make what they term woven elastic goods—what we term shirred or corrugated goods not made according to Goodyear’s patents, such a thing as is before your Honor upon the bench. Now, the right which is granted to them is de- scribed in this way:—‘The full and exclusive right and privilege of using all said Charles Goodyear’s improvements and inventions, whether secured to hjm by letters patent or not, for the purpose of making, using and vending gum elastic or India rubber composition thread or filaments, said thread or filaments, however, before being used or vended, to be wound, braided or covered with silk, or cot- ton, or other thread.” Your Honor must have perceived, from the na- ture of the different grants made by Goodyear, that it would be practicable to do what he in practice has done, viz. instead of assigning to different persons either his letters patent or undivided interests, or sectional interests in them, his course has been to grant licenses to make particular articles, such as boots, shoes, hats, naval equipments, &c., &c.—different mentioned in these different nts—also grant licenses to make different fabrics, such a8 smooth India rubber cloth, corrugated India rub- ber cloth, &. Such grants Goodyear has made, and here is one of them. It is a right to make thread or filaments. It seems to me that for learned counsel who stand here to maintain that, under a general grant of the right to make shirred or corrugated goods, we have no right to make any kind except that embraced in Goodyear’s patent— for earned counsel who maintain that, it is, to sa; the least, a great stretch of liberality to claim that, under a grant to make thread or filaments, shirred or corrugated goods of ay kind aes be made. I say shirred or corrugated goods of any kind, be- cause there can be no restriction found in the deed; if this grant authorizes these shirred or corrugated goods which are woven, it also authorizes them to make shirred or corrugated goods which are pasted or glued together; because what is granted here is an exclusive right and privilege of using any and all sai hing granted; just as much the right to use the shirred goods patent, as to use either of the other patents. If, therefore, under this grant to make thread or ents, there is conveyed a right to make woven shirred goods, there je also, manner described by the patent, and thereby the argument falls to the = ;, because the purpose of the argument is to lay the foundation for sayin, that Goodyear has not granted to Day the means of making these other kinds of shirred goods for the reason that he had granted it to Cutler & Jencks. Is that the true nature of the grant? Is it true that where he has authorized them to make thread or filaments, with the provision that before being used they are to be wound, braided, or covered with silk, cotton, or other thread, he intended to authorize them to make a totally distinct fabric, capable of being, likely to be, and actually becoming, the sub- ject of a distinct independent grant? It is said, upon the other side, that here isa clause peorey that Cutler & Jencks shall have the exclusive right to all improvements for the ma- nufacture of the aforesaid braided threads and arti- cles made therefrom. But what does this mean? Does it mean articles made therefrom and from | other things, compounded into a totally distinct | fabric from these threads or filaments, just as dis- tinct as the material to make hats or caps, or any- thing else which Goodyear distinctly granted ? This language as to articles made therefrom occurs, as hed Honor will perceive, not in the grant, not | in any covenant, not in any portion of the { instrument that was designed to explain the intent of the parties as to the thing granted, but it is a stipulation that all improvements that may be made at the works of Cutler & Jencks shall be exclusively their own for the manufacture of the aforesaid ‘braided thread and articles made there- from. That is, if they should make an invention by which they could make shoe lacings, or corset lacings, or umbrella ties, or wallet ties, or any kind of ties out of these covered filaments, they might turn these covered filaments into those articles; but that it was intended, under this designation of thread or filaments, to authorize them make goods, cloth, fabrics, composed not merely and exclu- sively of India rubber thread, in a wound state- but composed of that and a great variety of other things, 1am unable to perceive from the face of this instrument. Here also very much parole evidence which has been introduced into the case applies, if it applies atall. It is said on one side that the acts and con- duct of Goodyear have been inconsistent with his intent to grant any such license to make woven shirred goods, and thatthe acts and conduct of Cutler & Jencks have also been inconsistent with any understanding on their part that they obtained such license. On the other side, it is insisted that their acts and conduct were of a different charac- ter. The evidence is conflicting. It is evidenced by ex parte affidavits, the least satisfactory of all species of human testimony. Unless, therefore, our Honor should find that, on looking into this instrument, you are unable to relieve your mind from doubts as to its construction, you will not re- cur, as I suppose, to this extraneous evidence at all. But if the Court does find itself obliged to recur to it, I take it that neither the acts nor conduct of one or both parties will ever be taken into const- deration unless the Court can feel that it stands up- on firm and satisfactory ground as to what those acts and conduct were; otherwise, it would be plunging out of one difficulty, found in the deed, into another, found in this species of evidence, If, therefore, the evidence is conflicting, if there is matter of fact as to which the witnesses differ, and if the character, conduct and acts of the parties seem not to have been consistent throughout, then I conceive the Court must return agen oes deed itself, if it has travelled out of it, to see whether it is not possible, by its terms, to get a satisfactory bay, wre here is one consideration that perhaps might aid your Honor—how much weight iis enitied to your Honor will determine—and that is, that roughout all these grants which Goodyear has made to other persons, where any fabric of any kind was intended to be made, he has reserved & tariff of so much the square yard. In this grant to Cutler & Jencks, they are to pay ten cents & pound on the rubber consumed. t would seem to me to be extremely improbable, if he intended to authorize these persons to make out of these filaments anything else they chose to employ them in, in aid of the manufacture of any fabric to which they are adapted, that he should have departed from his universal and a propriate usage, and re- served to himself a tariff by the pound instead of by the square yard. It seems to have no just applica- ion to the use to be made of his invention. If, however, the grant is to be limited to thread or flaments to be covered with thread, cotton or ailk, before it can be sold, and articles made therefrom, then ae enough that they should pay by ie G -- ere is one other suggestion which appears upon the parole evidence, which I had intended to have made earlier. So far as Mr. Day is concerned in this part of the transaction, Iam really unable to perceive how his rights are tote ai b; the conduct of the grantor aud grantees to this deed, who are mere strangers. It is provided by act of Congress that grants of a character similar to thie are t¢ be plaged upon secord in the Patent arties to make | ear's patents for the purpose of makin; the | their contents are, and regulate their rights and conduct accordingly. Mr. Day, as a third person, has notice constructively, by force of the law, and no doubt actually also, of the existence of this deed to Cutler & Jencks. He sees and knows its contents, and is bound by them, but certainly he is not bound to take notice of the acts of the parties under it. They are not on the record; they are not brought to hig’ knowledge; why should he or any third person be affected by them? Between the parties, under certain circumstances, it may be safe for the Court to resort to that species of evidence to ob- tain light froin that quarter when it cannot be ob- tained from the deed but as to third persons I am unable to perceive its propriety. An argument was addressed to the Court yester- day to show that if the license vested in Cutler & Jencks for the original term of the patent, there remained vested in the Nangatuck Company, who had assented to this license by Goodyear, and thereby waived their pre-emptive right, there re- mained in them a right to pre-empt the extension corresponding wit this license, In other words, that inasmuch as Goodyear con- veyed to Cutler & Jencks the right under the unexpired original term of his patent, and the eorresponding right under the extension, among other interests, was vested in the Naugatuck Com- pany, and, inasmuch as they have agreed that there should sy to Cutler & Jencks only the right during the original term, the residue remained in them and they a right to pre-empt it. That, may it please your Honop, raises a question of some interest in this case, and of some general lication, It has been insisted on the other side hat wes. have not merely the right to pre-empt under the original term of thé patent, but also under the extension of each of these patents, Ido not so read their license. Irefer to page 95 of the affidavit where the language occurs. Itis a grant of “a full and absolute license to use any all his reparations of India rubber and SEprOyS: marie! in its preparation, “for manufacturing cloths or any other article of merchandise, or any article to which the same may be applicable for and during the unexpired term of all patents issued to him, bearing any date whatsoever, and for and during the unexpired term or terms of any other patents or renewal of patents owned by him.” Lunderstand, may it please your Honor, that hare are two distinct subjects of grant: one is the patents which were issued to Goodyear, and the other is “ihe Raven te, which are owned by him, One was the sulphur patent, which was not issued to him, but which he had bought. He may have had others. Now, sir, as far as regards the patents issued to him the language is express; they are to hold the license during the unexpired term of all patents is- sued to him bearing any date whatsoever, and for and during the unexpired term or terms of any other patent or patents or renewal of patents owned by him. I understand that word “renewal” to mean reissue. That is the way it was under- stood by the Supreme Courtin the Pianiog machine case, and although they were aided in that case by some circumstances growing out of the state of the law at the time, yet I believe your Honor will find that they considered that to be the appropriate meaning of that word. That it is the appropriate meaning here, I think is shown by the fact that the grant isfor and during the unexpired term of all atents or renewals of patents. You cannot substi- fate the word “extensions” for “renewals,” without rendering the words “unexpired term” meaning- less. “The unexpired term of any patent or pene. which may hereafter be extended,” would be a strange expression. Turning, however, from this to the next page, we come to the covenant of Charles Goodyear. Your Honor will observe that it is not an exclusive right that is granied to the Naugatuck Company; itis made exclusive in them so far as it ever was made so, simply by force of the covenant to which I will now advert. “And the said Charles Goodyear does hereby for himself, his heirs, executors, administrators and assigns, covenant and agree to and with the said Naugatuck India Rubber Company, not to make, use or yend, or to grantto any other person or company whatever, any other license to make, use or vend said preparations or improvements in the preparation of India rubber, or to apply the same to any of the purposes to which the same can be use- fully agate’ during the continuance of the license hereinbefore speci led and granted to the Nauga- tuck Company.” That of course implies that that license may ex- pire, and then Goodyear may go on to make grants. And how can this be except under an extension of some patent? And how under the extended pa- tents, if the license of the Benestaok Company em- braces the extended as well as the unexpired terms? You perceive that he does not agree that he will not at all make grants under the license——I am now speaking in point of time—but he agrees thet ae long as, the license continues, he is not to } Make grants; ‘the ucense Le has previously said is | to continue, as to all patents issued to him during the unexpired term or terms of these patents. Then it goes on still further to provide, that al- though he may sell, he is first to give the Nauga- tuck Company the right themselves to buy on the same terms that other people are willing to give; and the period for which they thus have the right to buy is described in this way: “That if at any time after the 20th of july 1844, the said Goodyear, his heirs, executors, administrators or assigns, shall deem it for his or their interest to sell for a stipu- lated price or sum in gross, the exclusive right Tor the unexpired period or periods for which the same may be vested in him or them of making, using or vending said preparations,” then he is to offer sf to that company goa the license. _ If this be so, then it is manifest that neither the Naugatuck Company nor Union India Rubber Com- pany, who are said to have succeeded to their rights, ever could have had any right whatever in respect to this Cutler & Jencks’ license, after the expiration of the letters patent; because their en- | tire pre-emption right was limited to the expiration | of the then existing patent. And the same argu- | ment will peply, as I shall hereafter apply it, to the title which they claim was made recently to them | yy A Se age under their asserted pre-emption right. There is one other element which ought to be taken into consideration in this point of view, but it connects itself so much better with that part of the br pees which relates to the right to itr. Day in conflict with the pre-emption, that I will pass it over until I arrive at that. One argument which was used by the counsel who first addressed the Court in behalt of the defend- ‘ants, to show that Mr. Day did not himself un- derstand that he had acquired the right to make woven elastic goods, as they term them, by his previous deeds, was, that he had agreed to pay the sum of $30,000, and agreed to pay a tariff under his contract with Goodyear, of May last. that Iun- | derstand to be the argument—the improbability | that Mr. Day would have agreed to pay $30,000, and the increased tariffs, if he already had the title. | Well, may it please your Honor, if the learned | counsel on the other side are Vp to say that Mr. Day's title to all the kinds of goods mentioned in that grant of May last, was so plain and unques- tionable, that as a man of sense and jud ment, he might not be willing to pay for putt ing it beyond the reach of litigation, and to satisfy Goodyear of his just, and even liberal intentions towards him, why then there would be an argument derived from the improbability of it. But if, on the other hand, it is perfectly apparent to the Court that as | respects many species of goods which are embraced in the license, whatever may be the ultimate deci- sion upon the strict rights of the parties as they pre- viously existed, there is doubt, aud is certain to be lit- ang ratabee el that conclusion is arrived at, I be- ieve it must be held, as it has always been held, that aman may buy his peace without intending to make any admission that he had not ‘ood right pre- viously. It is indeed one of the ordinary incidents to a conveyance to take a covenant for further as- surance; not because the parties did not consider at the time that there had been a title made, but be- cause questions and doubts may arise. It is a mat- ter of ordinary practice, and well known to every- body who has had experience in the administration of the law, that men take releases to fortify their tities, but I certainly never understood that such a release was a confession that no title existed pre- viously, and I do not think it can have any such legal effect, or that it is necessary further to ob- serve upon it. It remains, then, so far as I have any further duty to discharge in this case, only to say a few words— and they will be very few—concerning Mr. Day's title under the contract of May last. And in Pig! to that, may it please your Honor, I think the counsel on the other side, who addressed the Court with so much ability le , Will be himself satisfied—he pro- seed himself so yesterday, and I do not doubt his sincerity—that we have not on our part intend- ed to keep back anything here, when he finds that I confine myself on this part of the case simply'to answering the objections which he bimself has made, which I take to be the legitimate and strict pro- vince of the counsel who occupies the positon which I do in this cause. Your Honor will remember that so far as regards the manufacture of shirred or corrugated goods under ste baw patent, the Naugatuck Company never acquired any right whatsoever, the patent having lainey 4 een assigned over to Suydam, it being expressly declared in the instrument itaelf wich unquestionably, tere fs meant sited good w! unquestionably, there is meant shirred under this £ of that instrument. pai had, however, been previously stated and fully shown, a right to use vulcanized India rubber in the manutacture of other species of shirred or corrugated goods. They made a release or conveyance to Good- ar which has been adverted to fally be- re, and be assigned the rights he acquired by to Ms, Doy. Well, thon, te prgument on ous as has is—and it is for the Court to whether it is sound ment—that by means of that instru- ment ie i ae Company, extinguished its -emption it odyear. my that je Sey bot only release all right they Kave, or may have, in and to the application of any preparations of India rubber to the manufacture of thirredvor corrugated goods, but they insert an ex- ress covenant, that after the first day of January, 847, “they will not manufacture, or cause to be manufactured, or be directly or indirectly concerned in the manufacture of shirred or corrugated goods. That being so, we sapere that their preemp- tion right, if it ever existed, was released aud con- veyed to Goodyear by force of that deed; and when Goodyear conveyed to Day those same rights under that deed, of course he conveyed them free from any pre-emptive right whatever in the Naugatuck Company. It would be unnecessary, as your Honor perceives, in that point of view, to advert at all, for the purposes of this case, to the agreement or grant made in May last from Good- year to Day; because, if the title was in the Naugatuck Company to apply vulcanized rub- ber to the manufacture “of other kinds of shirred or corrugated goods, they conveyed it to Goodyear, and Goodyear conveyed it to Day. For the purposes of this case, therefore, it would be unnecet to resort to that grant, and that is the reason why that grant from Goodyear to Day has not been put forward in this case-as the exclu- sive source of title and relied upon by the com- lainant as such. From the beginning of this case, Powever, to the present moment, both he and his counsel have been quite aware that there were species of goods embraced in that agreement which could not be considered as coming under the grant from Goodyear to Day, made in 1846; and there- fore, inasmuch as there might be doubt also, whe- ther this particular species, which is now before the Court, and complained of, did come under that prior title or not, it was deemed suitable and pro- per to make this additional and confirmatory title of May last a part of this bill, and to rely upon it in this case, so far as it might be necessary to @o so, and with no view or desire whatsoever to ask for a decision of this Court based upon one rather than the other of these agreements. Or rather per- haps, I ought to say, if Mr. Day has any desire or any interest in this matter, it would be that his title under the deed of May last from Goodyear might be declared to be a Hea title on which he could stand, leaving out of view entirely the preceding. If there be any separation between them—if there is to be a decision made upon one part and not upon the other part, it is both the wish and interest of Mr. Day that that decision should rest upon the g ant in May last rather than upon the earlier grant n 1846. Let us then for a moment look at this deed made in May last, and see whether the objections which have been made to it by the learned counsel are tenable. He first insists that it does not presently convey anything, but is a mere executory agree- ment. But, ifyour Honor is to decide what the ee ties mean from what they say in their writing, I do not know how there can be a doubt about this. “I hereby sell, license and convey, and do hereby agree to confirm;” one part of this as much as the other evidencing a prea conveyance, because you cannot confirm a thing that has not already been conveyed. You make a new title, and nota confirma- tory title, if there has been no previous Lape ance of any title. And this language, which thus clear and explicit, not admitt ing of two inter- pretations, is pestee consistent with everything contained in this deed. The learned counsel goes on co argue that here is a prormion by which the consideration is to be fixed, requiring the aid of Nathanial Hayward and my colleague, Mr. Jenckes, and non constat they will ever act in the matter. Well, suppose they ness do act in the matter; that does not prevent the conveyance from taking ef- fect. He says a court of equity would not compel the specific performance of an agreement of that sort, one of the terms of which was that there was to be an arbitration to fix a price, unless those per- sons bad acted or were willing to act. Mr. Brady—A_ little more than price—all the terms and conditions there was of the bargain. Mr. Curtis—I do notso understand the agreement. All the terms and conditions of the bargain, the counsel says, are to be fixed by others. Now, I do not find anything in this deed that calls for or admits any such interpretation as that. “The terms and conditions upon which this license shall be held and enjoyed, as to bonuses, not exceeding in the whole the sum of $30,000, and pais not exceeding five centsa pound, shall be fixed— Mr. Vii tg oi I read parenthetically. Mr. Curtis—Well, it must be read very parentheti- cally, lthink, to introduce any other terms and con- ditions of the bargain, when it says the terms and conditions upon which this license shall be held and enjoyed as to bonuses not exceeding so much, and as to tariffs not exceeding so much, shall be fixed. I do not see that there is any ambiguity in it. Mr. Drady—There is nothing said as to how they are to be paid, nor when. f Mr. Curtis—That is quite trae. The argument which I was proceeding to consider was that a Court of Equity would not enforce aspecific performance of this contract in a case where these two persons refused or failed to act. In the first place I doubt the law. Where the purpose of the parties was manifestly merely to fix the price, Courts of Equity have said that they will put that in the hands of a master; they have sufficient confidence in_ his discretion to let him fix it. Besides, could not Mr. Day tender the whole $30,000 and offer to pay the five cents per pound? Weare not asking here for any specific performance of the contract. Here isan executed conveyance make by Goodyear to Day, and perhaps one ‘of the very reasons that made it an executed conveyance in- stead of an executory one, was that they or their counsel had doubts whether, if it were left execu- tory, it could be enforced. At all events, whatever their reasons may have been, they have made an executed conveyance. Moreover, what are these terms and conditions? Are they conditions precdent, or conditions subse- quent? “Are they conditions upon the performance of which the right is to vest, or are they terms and conditions upon the performance of which the | right is to be enjoyed? ‘The terms and conditions upon which this license shall be held and enjoyed,” are the words; not acquired, but held and en- joyed; entirely consistent with the previous Jan- guage of the grant in which, by words as apt as any lawyer can select, a grant has been made. do not know, may it i lease your Honor, that it is my duty, and certainly it will not be my plea- sure, to occupy more of the time of the Court with any observations upon this case. I return your Honor my sincere thanks for the patience with which you have listened to me, and regret that it has oe necessary to make so large demands upon it. IMPORTANT FROM SOUTH AMERICA. THE PARAGUAY EXPEDITION Arrival of the Flag Ship Sabine and Commis- sioner Bowlin at Montevideo, Other Vessels of the Expedition at Monte- video and Buends Ayres, &., &., &. ‘The O. J. Hayee, Captain Shiverick, arrived at this port yesterday, from Bucnos Ayres, with advices dated on the 80th of December. By another arrival we have news from Brazil, contained in # letter of our correspondent at Pernambuco, dated on the 8th of January. It is reported that the United States steamers Atlanta and Westernport were at Pernambuco on the 13th ult., to sail for Rio Janciro next day, The reports are of a very late date and of much im- portance. ‘The United States frigate Sabine, flag ship of the Para. guay fleet, the steamers Harriet Lane, Water Witch, Fal- ton, and store ship Supply, arrived ia La Platte river on the 20th of December. OUR PERNAMBUCO CORRESPONDENCE. Prnxamnvco, Brazil, Jan. 8, 1859. News from Rosario and Buenos Ayret—Lopes Not Going to Fight—The Paraguay Fleet—Expensive Coal—Pernam- buco News—Health—The First Horse Race for Many Years, de, The fine American brig Volanto, Capt. Bottsford, arrived here on the evening of the 6th instant, from Rosario and Buenos Ayres, having loft the last named city on the 21st ult, Asehe brings fome items of news which may not reach you as #00n through any other vehicle, I avail myself of the sailing of the bark Reindeer to-morrow to drop you # line. The Volanto left Rosario on the llth of Decomber. The captain is quite intelligent an 1 much of a gentioman. Ho informs mo that the general impression in Rosario nt the timo of his sailing was docidedly that Lopez, wouldn’t fight; such in fact were the rumors prevailing there at that time. The Frederick Lenning arrived at Rosario on the 8th of December, with coals for the Paraguay expedition. As the Volante came down the river she met the B. Bradbury going up with coals for government use, This vessel left New York on patent—ss excepted out of the operation | tho e6th August last, and was supposed to have boon lost, The Volante also met anothor largo bark going up the river with coals. He docs not now romember her name. ‘The Fulton, Water Witch and Harriet Lane arrived at Buenos Ayres on the evening of the 20th ult., in the order in which I have named them. Theres was not thirty minutes difference im the time of their arrival. Allon dowd Were in good heaitn, Tpere were several over money—much more than chased for in thie market, chase a better article can be had for little more than half the government is now payirg. There are American coals here which are far sy to those sent out by the government. The Consul should at once be authori to purchase coal for the use of the expedi- tion on its return, Tam gratitied to be able to inform you that the health of Pernambuco continves good. There is less yellow fevor here How then there. Was. thrde, mathe sats. aa. they small pox is measureably on the deciine. With ordinary prudence there is comparativoly littie danger from either. ‘The 6th inst. was a great day for the people of this dull city. They went down en masse to the Capes, some twenty miles distant, to witness the frst horse race that has taken place in these latitudes for many years, The sport is said to have been good, but the ardor of the people was some- what allayed by a fearful storm of rain and wind, which came suddenly upon them in the afternoon. ‘To day is the anniversary of the battle of New Orleans, and Mr. Stapp’s consular flag, with its bright stars and ‘road stripes, is pow flapping the breeze in commemora- tion of the occasion. Mr. 8. is a young democrat of the Old Hickory school, etaunch and trie, NEWSPAPER. ACCOUNTS. ARRIVAL OF THE SABINE AND HARBIET LANE AT MONTEVIDEO—LOPEZ AND HIS TREATY AND WAR POLICY. [From the Buenos Ayres Times, Dec. 25.] On Sunday last the American frigate Sabine arrived from New York at Montevideo, where she was saluted ‘with soven guns as the bearer of the flag of Vice Admiral eae. Commissioner Judge Bowlin bas also arrived out by her. Shortly afler loaving New York the Sabine experienced a vory severe hurricane, and was in great danger, being on her beam ends from three to four hours; lost all her starboard boats, carried away tiller, split sails, &c., and ‘was obliged to put into Bermuda to refit, whence she made. the voyage down in the very short space ef thirty-eight days. the steamer Harriet Lane has also arrived at Monte- video, and the remainder of the squadron is daily expected; ‘the vessels which had come up here have also been orderea down to the rendezvous. Nothing will be done until the entire squadron is collected, when Judge Bowlin will pro- ceed in the Fulton to Asuncion, to endeavor to come te gome peaceable arrangement. There seems to be some doubt whether he will be permitted even to onter the Pears territory, in which case the only alternative war, ‘The papers of this city aking thelr cus from a para- graph in a leading Englisb journal, describe the Ameri- cans a8 coming out on their first attempt at arrangement with Paraguay with their ultimatum in one hand and means to enforce it in the other, This idea is founded a Lapayemny Sy of the true state of the case, A treaty of commerce for five years, apparently satisfactory to both nations, was concluded by Mr. Pendleton, United States Pleni; tiary, in the year 1852, the ratifications to be exchanged within eighteen months. Early in 1864 Mr. Buckaleu arrived at Asuncion with the ratification of the United States government, but in the meantime sant events bad transpired between the government Paraguay and the Americans settled at Asuncion, and Pre- sident Lopez taking as a pretext a change in the . substituting the ‘United States of America” for the United States of North America,” refused to append his signature. Now, as the United States are recognized by States fi D als civilized nations as the ‘United of America, this change in the text can be ni more than a pretext othing for drawing back from the fulfilment of a treaty, which Other reassos rendered obnoxious, te In the following year Colenol Fits was ed from Waggington on a like errand, and also “to some un! inate disputes which ‘had arisen;” but bis mission was attended with no better success than that of the former Commissioner. The term of the ig A expired last year, £0 that it is too late now to seek ratifications, and the secondary t of the former Commissioner become the principal object of the mission of Jt Bowlin. At same time, coming after such ly with a fleet at his back, it seems very much as if there was a wish to bully the Paraguuyans into com ; while the natura! effect of such a display of force ts to provoke resistance, which it seems likely todo in the pre- sent instance, as guns, powder,’shot, chain cables, , have been sent forward lately in large quantities to Para: guay. We can only hope for the sake of humanity that force will not be resorted to; if it be, the result from all present appearances is very doubiful; the rising commerce of Pa- raguay willbe annihilated, but whether the stars and stripes float over Asuncion, is as yet highly problamatical, POLITICAL AND COMMERCIAL ASPECT 0! 5 [From the Buenos Ayres Times, Deo, 25 AS The Paraguay question remains in statu quo ‘the Ame- rican squadron is rapidly assembling at where the Admiral and Commissioner have already ar’ rived. Preparations for an energetic resistarce are said to be making at the entrance of the Paragaay river, and everything betokens an approaching struggle. ‘The political events of the month have Seen of conside. rable importance. The authorities of San Juan, after en- trenching the city and bai every preparation for a determined resistance, yielded at the first summons of the federal commissioners, whose first proceeding was to order the arrest of the Governor and Minister of State, (dd are ped Te nena as the authors of the distur- ce, whicl us ly. terminated wit further bloodshed. xf ee Accounts from the other provinces have informed us that troops were raising in all directions, and rumor fur: ther added that the San Juan affair conctuded, their desti- nation was eager e bte Tt_was also that by a recent treaty concluded at tonanie in confederation in enforcing tne ro eutrase assi con! ion in the re-en! this State nto the Union, % os ge reports have had the effect of occasioning some uneasiness; and ounces, after falling to 842 ps., rose last week to 352 ps. and 355 ps., hut they have apparently tnd confidence in th staulity of out presaut goveramest and confidence in our it seems to be unshaken. mf ies The treaty concluded at Rio prob Don Luis de la Pena and Sr. Lamas, the representative of the confedera- tion and of the Oriental republic, has not been published, but it is very generally believed that the laws of differen- tial duties will be repealed, as regards the latter power, ‘on the convocation of the federal Congress in May next. The internal condition of this State continues highly satisfactory ; it is now long since we have bad to deplore an incursion of the savages of the Pampas. The frontior forts are in a state of organization and completeness much superior to what has been the case for roany years back; the troops, being more regularly paid and better looked after than be cg By much more steadily around their standards. The heavy and regular rains which have visited us during the last two months keep the pastures in a state of most extraordinary fertility. Cattle are evory- where rolling in fat. But the prospects of wheat growers are thereby somewhat darkened, yet prices keep down, offering little margin Jong foreign supplies. Rumor speaks of the a ing resignation of the ae of War, but the probability does not seem to bo great. For the first Sfteen days of the month considerable ani- mation existed st Barracas, and a large number of animals were slaughtered, but Sage continuing to decline, and es- tancerios refusing to submit to any reduction, alull has gince su ; the capataces, who ‘been sent out to make up troops, were recalied, but within the last few po i be genes tri mye some disposition to seeing the impossil ie saladeristas making Serene eeeke i. in the a8 the transactions have been almost - ned wo wools, which have come forward in very conalder. able quantities, and in consequence of the the wet season, very clean, and light in grease. In consequence 4 continue to rise, and our quotations are very idera- bly in advance of the rates which obtained this time last year. ‘The import market has been dull, and the collection of Ss is attended with even greater difficulties than before. Money is exceedingly scarce, and in constquence of the small supplies of produce going forward there is a great demand for exchange, which bas, in consequence, Hoey iti ears bg J Tate sorge amountwas ed previous e arrival of the packet, te 70s. a Tis, whlch are our quotatigns of today. dd HEAVY FORGERY ON AN ENGLISH IMPORTING HOUSE. (From the Buenos Ayres Times, Dec. 25.) An unpleagant affair has ocourred this week which has created some in our commorcial community, being the discovery of a forged bill or note, bearing the firm of one of our princi lish importing houses, and endorsed with two of the best names of our city. The bill was for the amount of ono hundred and fiiteen thousand and odd dollars, and was negotiated among bill discounters without the slightest suspicion of its igen ce being excited; it was finally lodged in the bank, and being due ina few days, the customary ad- vice note brought about the discovery of the fraud. Tho bill has been traced to aman who has left the country within the last six weeks, it is said for the Provinces, and the broker to whom he encharged it is about to follow in the hi of recovering atany rate a portion of the mo- ney. Happily such frauds are rare occurrences amongst us, and thos has excited considerab!e attention. DIFFICULTIES BETWEEN THE FRENCH AND BRAZILIAN GOVERNMENTS—THE EMPEROR'S BIRTHDAY—COR- FER MARKETS. [Rio Janiero (Jan. 9) = of Buenos Ayres The French government scems to be creating dally fr enemies. We anticipate a suspension of fhrendly ray tions with them here, as the Brazilian government will not pay the demands of a French subjoct who established here a hippodrome which was #0 obnoxious to the public that they get fire to it, and after the police anthorities or- dered it to bo taken down. Tho French ambassador do. mands an indemnification of eight thousand pounds, and Reb) expect inatractions from his governmont to per- n it. The Brazilian ministers aro now hewn. their revenge of the oppositionists in the Chambers, 10 Tnspector of Customs, who is a deputy, and acted as a determined positionist during the late sessions, has been this dismissed by the Minister of Finance. Tho second of December boing the anni of our Em, § birthday, was a general holiday, & most brilliant one it was. It being the custom honora- ble titles on this occasion, we had a rogulhr Sonne ot barons, counts and commendadores conferred on those who distinguished themselves during the cholera, Discounts are now freely done at 7 to 8 per cont, and the, ats of exchange by this packet is 26764, to 274, ab mye. ; The Favorable accounts received from the pnw bowed jow stoc) coffee there, hag caused some 6; bh purchases for the prescuty’ =