Page:Federal Reporter, 1st Series, Volume 8.djvu/930

 916 PBDBEAL SBPOBTER. �disabled from business, and that up to his death, and since, he bas had the entire care of their business, and in great part of his estate, and it was impossible for him to give the time and pains necessary for proeeedings against the defendant. It is shown that the plain- tiffs retained counsel in the early part of 1880, and sued the defend- ant on the patent, in New York city, in July, 1880, and moved for an injonction against him in November, 1880, but the suit was with- drawn because of a technical defect. The l>ill in this suit was filed in September, 1880, and the subpœna was served December 6, 1880. This motion was notieed for March 16, 1881, having been delayed because of business engagements of the plaintiffs' counsel. The foregoing facts are not contested. �The defendant shows that he began making chairs, such as his pat- ent describes, in September, 1878, and applied for his patent June 21, 1879; that in September, 1879, he completed a building for the business, costing, with the land and the proper machinery, $12,000, and employs about 50 men at Cortland Village, New York, and that he is worth $25,000. What the defendant so did in respect to his new building was done after notice from the plaintiffs. Mere forbear- ance to sue, under the circumstances stated, after the notice given, cannot, in the absence of any affirmative encouragement to the de- fendant, be held to atfect the plaintiffs' right to a preliminary injunc- tion, in such a plain case as this is. �The plaintiffs show a case of aoquiescence by the public sufiScient to sustain a preliminary injunction. The defendant states generally that chairs claimed to infringe the plaintiffs' patent have been made, sold, and used in hostility to their right, "and, among others, by the Eureka Manufacturing Company, of Sterling, Illinois, who have made, Bold, and advertised the said chair extensively without let or hindrance from the complainants." No chair made or sold or advertised by the company named is produced; no advertisement is produced; what kind of chair is the one referred to, or what is meant by "the said chair," is not shown; there is no specifie affidavit from which the court can see that the conclusion drawn is correct ; and the statement is a statement of only a conclusion, and not of a fact which can be judicially considered. The other affidavits are even more general. �The case is a clear one, and one of irreparable damage to the plaintiffs, and not one where there would be as much probability of doing irreparable mischief as of preventing it by granting the injunc- tion. The motion is granted. ��� �