Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1869-12-23

selves against thc uSc Va s1o AoeAAS SsS~e~
eller by the B.tch-ller Manufacturing |
Company, u corporation organized IN New
York City, which has given Isaac IT, Batch |
eller of Walingford five thousand dollars |
worth of its stock in order 10 induce him |
to lend his countenance to the new enter |
prise, and thus obtain for them claim OF
right t., use the name. I,aac G. Batchel-
Ter is brother of the present members OF
the firm of .tcheller & Sons.
In thi. action, which was commenced
last August, preliminary injunction
was obt .in-.i aud served, which restrained
the defend .nt- from using the name 10
manufacturing and selling forks. The
new company Is even now far from being
in a;,a-ition tn commence manufacturing,
but the plaintiff, brought their action
eprly in order to have the questions in.
volved settled, if possible, while the liti-
CATION could do the defendant no injury.
In October the Company applied t.
Judge Barnard to vacate the injunction.
and he granted their application, render
ing decision which was published in the
HERALD at the time. Meanwhile the
case itself, in which final judgment is
sought, went upon the calendar OF the
Court for trial when it should be reached.
1t cannot be brought on during the pres
ent year.
The plaintiffs, however, well knowing
that preliminary injunction 10 not
granted except in cases where the right to
the relief is perfectly clear, and where
there is no dispute whatever about the
facts, appealed to tie General Term OF
the Court from the order vacating the in
junction, hoping to get an adjudication
upon the case which would enable them
to claim the las as settled, in the event
of sufficient proof either way at the trial
yet to be had, upon the matter OF fact ID
controversy The appeal was argued al
the November term, and an opinion has
/ ;.s& L.o.. given W Jues'o~ o---A~-- oA'-
tanning the order appealed from, AZ was
! expected, the affidavits used being ca
parte on both sides and moi, leaving certain
questions Of fact entirely free from doubt
but the opinion at the same time carefully
refrains from saying what the effect
would be in case the proofs Of either party
should preponderate. 1t is as follows:
| do not think it necessary on this ap
peal 10 examine the main question, but
may remark that the true rule upon ths
sublect Is lucidly and admirably expressed
in Burgess Burgess, II Eng. l.. 4 +
page PSI.
But | think it enough on this appeal Il
say that the Justice or Special Term
without troubling himself further, nigh
very we'll have found on the conflicting
affidavits before him. that the plaintiff
had assented to this brother putting hi
name into the defendants company, ant
therefore cannot be heard to question thei
right to use it
1t may be that they wanted thei
brother to get better terms for himself
but that does not effect the point that the.
were willing that upon some terms II
which they had no interest. and iron
which they were TO derive no benefit; hi
name should be used by the corporation
. defendant here.
This fact and the circumstance that to
case can be speedily tried on its points
lead me to conclude that the order shout
unhesitatingly be affirmed.
ANY one can easily see that the Judg
entirely fails to apply any rule which vi
!, assist in reaching q decision when tn
! trialsshall be had. The case Of Burgess
! Burgess, which he refers to. merely EMU
. ciates the principle familiar to every Law
! yer. that man has right to use his ow
name in any legitimate business, unle
4 he uses it in such way a. to deceive Il
J public, and lead unsulpecting purchaser
9 to believe that the goods sold by him al
J. made by some other person OF establlshe
reputation.
/ As the result of these preliminary pr
l. ceedinxs, the questions ut issue, and TO
= decided by evidence at the trial, seems
J. be narrowed to two: Did the plant
. consent that this brother should embal
It in tn. new enterprise in the way he b
it done, aud did the promoters Of the Batc
e eller Manufacturing Company inten
a. when they purchased Isaac 9. Batchslle
J. name, to use it in such u way as to o0ta
d the benefit of the extraordinary reput
v ton Of Batcheller s. Sons in the man
n factnre Of forks
ii The plaintiffs are confident that tn
g never gave any -uch consent, and that
" intention Of the defendants to pirate q
lie reput .tion, Is not only evident from
p Acknowledged f,css hut has been 9
IL mitt-d over an.i over again ~ the 0mct
a Of the defendant themselves. They .
" therefore s~peci.liy confident Ut succ'
ut the trial.
RAlI.ROADs-A meeting Was held u