The New York herald., 1845-11-11
Chancery.

iV-1Snfy
motion on part Of defendant to dissolve injunction
which had been issued by the complainant restrain the
defendants from the sale OF an article called Dalys
Magical ram Extractor An answer put in
part Of the defendants setting forth their right to
make and sell the above articles and also the wrap
pers thereon they having first made the thereon
His HONOR delivered elaborate opinion the case.
This motion is made to dissolve injunction issued to
restrain defendants from the sale of what called Dal
relation to the case voluminous and is not
sary in disposing Of to go over all There is al
SO an answer on the part Of the defendants
question has arisen to whether the afidavits
nexed to the answer should be taken into conside-
think in Of this kind, where the oath Of the
defendant is waived in the bill, that the and
notion and received rather afidavits than plea
responsive to the bll that the adavits accompany
ing it, have looked up to ascertain how far they bear
upon the case. The injunction seeks to restrain the
parties on three particulars First from advertising for
the sale the article called Dalys Magical Pain Ex-
tractor" II is alleged the bill that time la at
spring advertisement appeared in newspaper for the
sale of the article thus making article sold by de-
fendants This one of the complaints in the bill An
other object this injunction is to restrain the defend
ants from using certain recommendatory certificates OBJ
tanned from third persons recommending it as an article
in great use and of value the complainant
claiming by his bill to be the proprietor OF those
certificates and seeking to restrain those defendants
from using them And another object OF the bill is to
strain the defendants from using certain wrappers
which have been used and put round those articles in
mechanical and pictorial FORM setting forth the qualities
of the article These the objects the in
this cause, and the bill asks to make ii perpetual
hat the complainant have the exclusive right to
advertise this artcethe exclusive right to those cert
hcatesthe exclusive right to those wrappers or, in
other words to restrain the defendants from using them
before disposng OF this case on its merits will state
the principles that govern the Court of Chancery in such
cases 1t will be observed that Daily in his BILL has
not alleged that he is the original inventor manuac
turer Of that article He merely states that time
ago he was engaged in the business manufacturing the
claims no right patents so that ne can have no
exclusive right 1t is clear that unless man invent
rhe cannot claim exclusive right Any other person may
make and vend out the same article, and enter into com
such that claimed by Daily in this case but this
not case where Court of Chancery interferes. If
SALE and has adopted certain marks by which his article
is know in all such wherever his trademarks
taken from him. SO that the party SO taking them may
have the benefit OF his marksn such he has the
power to restrain by injunction As for instance if Daily
was entitled to have his article called Days Magical
ticle, and Comstock infringea by taking away that
mark the % Court may interfere in relation to = the
land, and in this State, in which Chancery
has acted upon this principle: After citing the case OF
ENG Rs
to sell The Medicated Mexican Balm, and other law
cases. to illustrate his views His Honor went on to say
now IN the present case appears that in January ls4
Daley being the compounder Of this article entered into
and became engaged in the manufacture having found
its efficacy in curing complaints brought on by the
posion of steam and burns and entered into contract
with Comftock to give him for twenty years. at dol
self the right Of se Of ao
Troy the other having the right OF sale to all the world
Deside-that alter some time they fell out which result
ed IN Comstock filing bill against Daily and after
litigation in courts OF law, arrangement entered
into, by which they agreed to drop all suits, execute
new arrangement that under contract this arrange
men was made, and that to be the end Daily has
since gone and manufactured the article under his
own name as that Of Dalys Magical Pain Extractor"
and Comsock has gone on also, having been aware Of
the properties Of the article and has sold an article
ldentcally the same, under the name of 9" "ConnelFs
Magical tPam Extractor" II appeared that the name
which Daily gave the article originally, changed
and the present article chrstened baptized by
the present defendant Comstock giving the name OF
Dallys, &C." The parties have gone making this
article Daily, in his way, selling his and Com
stock selling it as Connelps SC" In regard to the
right OF these parties to the certificates, appears by
he had entered into the agreement and the by Com
stock They were certificates which he had obtained
for his own benefit At the time he entered into this
agreement with Comstock he handed all those
tihcates IN order to this business, and Com
stock caims those certificates. The wrappers pro-
cured by Comstock at his expense and when en-
graved they had fac simiie of Dallys writing The
labels had the of "Connells Magical Pain Extrac
tor" Under the condition of the original agreement,
these parties show they had right to use them and as
to the certificates they belonged to Comstock much
as to Daily and with regard to the wrappers After
detailing at considerable length the further particulars
in relation to the his honor decided in favor Of de
PENDANTS and ordered the injunction to be dissolved.
.fndrep n. Gsrr ddar. E. b. ID. Ogden, agent for
the State Of IndianaThis motion for order to
compel the agent of the State of Indiana appear be-
fore the court in this State under writ OF subpoena
suit instituted against the State of Indiana. His honor
held that the court had jurisdiction eign
State, and denied the motion.