Summer Assizes.
The Times, 1824-08-10T00:00:00

nULLOK~aV1 trie allthe pris;oner- against whom theGraitlJosv hd rturic~ bils,prceedecd this niorning to try cass a:2V~i bi~S. r. ergantCuBs was algo employed in tak- )3efre r. ustce AYLEY. DrALD SYXPS V. SYKES AND ANOTRERE. Mr &LESON opened the pleadinvs. Thedeclaration stated,thal before the eOlnaiasion.(ir teh grievance irt que-stion, the plaintiff was In the hatbit of macnufactu.ring certain Powder-flasks, shot-belts, antl other articles, foir whiclh he had obtainedI a patent, and of makingp therr with the words " Sykes," and ccSykes's Patent," and that he blid obtained gret reputatior and profit by the sale ot the said mna- nufaictured articles; that thedefendantsknowingly wrongfully, and fraudulently;, and without obtaining licence from 'the plaintiffr; had made divers other powder-R8asks, ggotj-ts, &. mUed "Sks uold t" Sykes's Patent," and had sold tbeim for gain, as andI F)r the PlaintifF's manuifacture, that these articles were of' very inferios malxufactnre, and that they had greatly injured the plaintiff in his reguitation and business,fromn beingnmarked as and for hismnanutlicturc. T r defendants hadl pleaded the general issue ; andi this was the question the jury haco to try'. Mr. SCARLETT, in addiessing the jury, toldl them- that he wouild fill UP, as coDnCisely' as possible, the details of the case which his leane ficid adopgen to them. AiIr. Thomas Sykes, a mnanu- faCturerat Sheffield, had tacen out apatent for certain improvetnentu which he had discovered in the mnode of' manufacturing powder. flasks and shot-belts. That individuald, after carrying an this ma- nufacture with Frdat success, Assigned over the patetnt to trustees for the benefit oflhis -nn, the plaintiff in the present action. Thie pa- tenit was still In exist-ene; but it was not for any infractiOn Of' it bV th e dehandants, Atssrs. Sikes and Beatson, that thtis action was brought, but be~cause they had marked certain clumsy articles ol their mInuufacture with the mnarks of the plaintiff; and lhad thereby not only injured hWs character as a imanufacturer, but had also de-. Nrivedbhin of a great portion of his former emolumcentst. Thie pow- er-flasks and shot..belts of the plaintiff's manufacture Were so ex- celUentlv mnade, that they were used by alnmost aU sportsmen and it was a knowledge of that circumstance whichl had induced thle de feiidants, who wereboth brought upin the factory of old Alr.Syk-ea, tauttemapt that imitation of it which formed theground of the present action. TXhe defetidantSikes was the cousin of thepla-intiff Syke; buti till ve,ry latelybhad spelt his name withian iinstead ofa y- He had placed the namne "1Sikes" over hisdloor, signed it to promissory niotesI anid to -recitst, andI with his fatherhad been accustomned to think the plaintiffs family rather coxcombical in subs,tituting they for the an'clent i of thei f-amily namie. It occurred, however, to. his mind, that it 'would be very much to his interest to adopt this chang in the spelling of' his name, and to stamp the well-known mark of "Syker" on the articles of his own and partner's manufacture. In cothse- quence, the powvder-flasks and shot-belts which thley manufactured were in fuIture marked " Sykes." It was true that the words " and CO." wer added to it, but the characters were so malla that they could not be deciphered without a mnicroscope, and appeared only lik-e the two dots wliceh the plaintiff was accuistomed to piaies after his name. Thiedefendants, in pursuance of the plant which he had just described, offered to sell, andl actually sold1, these flasks to tile trade, 10 per cernt. chieaper thian thie plain tiff was in the habit of doing. Somef eyes, however, v7ere so acute as to discover that the). L dots contained tile wo-ds - anti Co, ' in miinute characters ; and the result was that to mislead the public still further, the word "1patent;' was adided to "1Sykes's-" These marks were first Placed on the articles of' the defendants in th-e year 1823, and shortly afterivards the p laintiff observed that his trade with the wholesale dealers in these flasks was diminished a foil fourth, whilst his retail trade in thlem remained unalteredi. This oDbservation led to an inquiry into th~e cause of the diminution of it, anti that inquiry led to a discovery not only of the p-ractice which be had just ieeciribed to them, but also of another practice -which was still more injurious to the plaintiff. It was thec practice of persons In the same trade with the plaintiff'to send to the differ- ent factors, books containing pictures and descriptions of the articles in which they dealt. Against these pictures and descriptions cer-- tain numbers were placedi, so that any person wanting an article had only to send an ordler for such a number, and the article in question was sent to them. The plaintiff had distributed a b'ook of this na- ture amiong liis citstomers in the trade. By saine acicitent it fell into the hands of the defendants, wnto imnmediately formed a book like it ; and not only dlid that, but also told their custonm- ers that if they ordered goodis fromn them by the plaintfiff's nunmbers, thle goods would be imm-ediately forwardedi to their order. Hlaving taken all these steps in furthieraince of their orginaul plani, Lthey thien proceeded to sell articles of' a very inferior manufatcture for the arti- dIes of the plaintiff., thereby not only depriving hint of his uisual Profits. whichi was one groundn of action, but also injuring hiis elia- racter ats a manuthacturer by thecir spurious article-s, which was also another. It was worthy of the no'tice oft the jury, that the whole of this transaction was bottot,sed in a foul f'raud, and that similar fraudsg had been already severely punished by thie verdlicts of former juries. A person of the name of Cost inventedi a fish sauce, so ex- quisite that it had been described as capable of' temrpting a inun to eat his own fath2r; samie vagabond dealer substitutetd a verv indliffer- ei,t sauce for it, and sold it ;is Cox'i sauce; an action was instituted for thie fraud ini the Court of Exchequer, and the fraudtulent dealer hiad been compelled to pay heavy damages. That SWuce afterwartig became the property of a Alrs.Lic7enby, Alr.Cox's daughter; and as its tsale continued to be as considerable as its flavour, ajgain became the subject of' imitation. Anothier action was brought in the Court of King's Bench ; and again the party was visited, by a jury with heavy darmages for selling bis "1 black dose" tunder the namec of this "1sauce divi,te." Day and Afartin, it was well known, were famouLs for the resplendent lustre of their blacking. A person of the name of Day, having first obtained a Partner of the name of Martin by public advertisemnent, sold, under the name of "1 Day and MNartin's blackingc," a composition whichi did not prodluce ajt half'so brilliant asi the genuine article. The contrivance, clever thloughi it was, was unavailfine; he, too, wae compelledc to Pay heavy' damages for the frautihfeltad attempted. There could be no douibt, theret ore, as to the competency of the plaintiff to sustain the present action. He wassor to find that tricks like these had travelled at last intoth stens and rug-ged north ; buthe was sure that they would by their Yerdict of that day, prevent them travelling furthier withi im- punity. He reposed with confidence on their senise of justice, and anticipated that thecy would make t1te defendanit fully responsible in damages for thec injury which lie had inflicted oni the fortune anti character of the plaintiff. The learned coutusel then put in the patent which lhad been grant- ed to Air. T. Sylkes, for the improved manufacture of powder-flasks, shot-bolts, and other articles. Ai. BetouGtTrASe objected that this patelti was not evidlence. If notice had been given to his client of the intention to produce it, he would htave been ready to prove that the patent was net even worth the parchment on wvhich it was written. AMr. Justice BAYLEY decided that the patent was admissible in evidence in ordertsosupport the averments in the declaration. It was evidenice to slhow the existence of the invention, antI nothing more for if the plaintiff had an article known by a particular name, th,, selling of that article by another manufacturer untder the same niame, was undloubtedly a fraud upon hiim. The learned icounsel then called several wi tnessesi who substati tiated the leauhinfgirparts of liis statement. In cross-examination it was extrected from thsni that the plaintiff had bTOUFbth an ac'tiOn siX years ago against a manufacturer of Sheffeld for invading thie pa- tent in question, sehich had ended in upse-tting it. It was also stated thart 'he defentlant's father, George Sike.i, had placed the name of "Genres Sykes," over his dloor in the coniuseticement of' the year 1621. Several powder-flasks and shot-belts imade by the p'laintiffgad also several others mnadle in imitation of themn by tdie defendants, were exhibited in Court. The latter were dleclared by several wittnesses to be inferior in finish and Polish. A declaratiori was also Proved to have been imade by the defendlant Sikes, that he would makce flasks so like those of' the plaintiff titat the plaintiff shouild not be able to discern the difference betwceei them, and thiat hie wotald mark the words " Sykes," andl "Sykes's Parent," upon them. Notice was also proved to have been served upon the detfendant, forbidding Ihim to continue to inifix these mnarks on te pwde-flaks,andthretenng im with an action at law if he did cntine. Th peron wh sered titis notice swore that tie (deeednt)sai, i rely,tha ti wuld continue to inlix those mark aslon as ie hos. Soe o th witnesses admitted titat the good wee sod nt asSyks's atet,bt as goods made in itnitation Mr. BstOUGUAMt submittetl that thie plaintiff must be nonsuited, as the evidence which he had called negatived the avernien t of the declaration. The action was brought against the defendantsfor hiavizng made and maarked certain articles withn a certain mark, and for having sold thiem as and for the t-anufacture of the plaintiff, whereas they knew tue same not to be his imanufacture. Now the evidence was,thait the defendants lhad sold the goo-ds as goods of tlteir own mnanufacture, made in imitation of the plaintiff's goods. Thie foundation of the actions for the fish-sauce and the blacking, and of a third action for a druggist's commodity of a less innocent material, was v-ery dif- ferent fromu the fouwidation of the present. In those cases the parties sold a commodity of their own inventton, as, and for the inventioni of another party. in those cues there was a dlistinct fraudl committed on thle puchaser. ri. Jutice BATYrEy was of oninion, th at whethier the vendee was a party to the fraud or not, aznd whether lie was deceived or not, the injury to the plaintiff was the same. ~iIr. BROUGaeA-31reminded hiis Lordship that the loss of cutstotn was mentioned as a ground of'the action. It was stated that his client had sold to ~lhird parties articles wvhichi they would otherwise hiave been obliged to Purchase of the Flaintiiff.'No evidletiee had been pfferedI in suipport of that part of t c dt-cartion. Mrf. iJsstkeo BAEYWarws of opinion that the evidence whiich hiad been offered fell in with the charge. NVhether the party selling im- poseud on the vendee, or he and the vendec conspireda to imipose upon others, i~ was clearthapt if he had been sellitig goodIs made and nn'rkedj4-th ", Sykes's Patent" as% and for articles of.the Plaintiff's imanufa,ZlIe, litehad been doing it to the plaintiff's injury. fil r. l3nOUGHA3e then proceedled to address the jury, aind called their attention in thte first place to the great difieretice whichi there wits between the case, as it had been opened by his learned friend, ainti as it had beenimade out in, evidence by his witnesses. The first point, which it wras material for them to recollect througlaout the whiole of thle case, wvas, th-at as the patent whiceh the plantiff's father had obtained hbal been set aside more thian six years ago, the plaintiff had no rmore righit to tmark his powtder.flasks snd shot-belts as" Sykes's POatent"' than Any other individual had, no matter wise- t'.mff his isame were Frith or Greeves, or were Sykues, like east of the present defendant. The plaintiff had hnnerely atsxed the word "patent" to hiis articles, because lie thouglt that it was the best way of gtving themi a pufr: There were patent blacking, and patent axle-trees; and why shoititl there not be atent powder-flasks atid patent shot-belts? His Lord- Ahip would tell tlern that the plaintiff had no rigltt to claim a mo- nSpoly of the werd " patent ;" and if theplaintiff had not such nra. 5dpoly, what reason could be urged against the defendants applying tae =ane word to articles of titcir manufacture ? He contended titt the evidence clearly established the fact that the defendant had bten accustomed to spell his name with a y as well as his coUsi,t Sykes, tie plaintiff; and if that were tIle case, could any thing be "lore preposterous than for hin tocomplain- that his father's brother's Own childl ahould affix hig-own name of Sykes on his owni artiCles. If, then, thedefendant's name was Sykes, and the plaintifi had ino trereright thanhehadtoapply the word"patent"tohispowder-flasks tWaat rational objection could there be urged against his sdcing his POsder.ffasies es -'; Sykes's Patent ?" it was said, however,, that tie artIcles manufactured by the defendants were inferior to those Wanaufactured by the plaintif. It might be so, or itmight not; but surely iobody would contend that the defendants had not a right to t;ake their articles as cheap as they could, soll them ass cheaj as t,ey could; spell their names as they liked, and even affix the word at.ent" after therm. .or these re.sons,he was of opfnion that their must be for his client: hut if they should be of a contrary ]Pl5leli, then hcs would tell tiiem, that sm estimating their datnages tgY itsust n.ot tddmie as corect,either the declaration of theplaintiff's j3tmil or his witnesses, that his business had fallen off a full fourth M >d seqoence of the conduct pursued by the defendants. If tbere tbeen a falling of f to that amount, it was occaioned not by theI fiaild which had been. so cruetly imputed to the defendanstg, but by the aubversion of the patent which the plair.tiff had go long enjoe He trusted that the sury would' take this circttmgtance into their consideration eapecially as it had bcen proved that the defendauts were not in alarge way of business, butmerely journeymen employ- inS a few boys under them. He also called their attention to the wide difference which existed between this case and those cases to which his learned friend had referred. In the fish-sauce case the defendant had done something widely different from any thing that had been done by the present defendants. Thie de- fendart in that case had sold his own fish-sauce as that made by Ars. Lazenby; he had thereby coMmitted a fraud upon the pur- chaser; for he said to him, if not in so nany words at least in sab- stance,' I am now seling you Mars. Lazenby's fisti-sauce," when in point of fact. he knew that he was doing no suclh thing. No such declaration had been made by the present detendants; on the son. trary, the evidence distinctly proved that tbe!hadtold theircustom- ers that the articles which they sold as Sykes a patent were not made by the plaintiff Sykes, but merely in imitation of his articles. With these observations he should leave the case to the jury, being fully convinced that they would do what was riglht between the parties to the resent action. MIr. Justice BAYr.EY then addressed the jury; and, taking up one of the powder-flas,ks made by the plaintiff, told them that the defendant had certaisly a right to make a powder-flask of that de- scription, but that neither sc nor any other man had a right to put an inscrptioA on itt stating that it was manufactured by the plain- tiff. He wouildeenteavour to make the point which they had to de- cide in tais cMesas clear as possible. If the defendant had put upon any of bis flasksk this inscription at full lengthb-. This is a flask of the manufacture of John Sykes, the plaintiff," it would to say the least of it, not be an honest proceeding; indeed, it wou13 be a fraud on the purchaser, if John Sykes liad the character of being a good manufacturer, and the purclaser had bought it in consequence. Now the law would not allow the defendant to put such an inscription1 on his flasks at length; and if he could not do it at lengtih, it would not allow him to put on it a few words, which in pointot fact, were equivalent to it. The question, therefore, for tiec jurv to consider was, whether the flasks of the defendants had the words " Sykes's Patent" marked upon them,. with the intentioni of making them pass in the world as the manufacture of John Sykes the plainthll: If the% were of opinion that the flasks were so marked wit't that intention, they were wrongfully niarkedh by the defendants, and the jury must make themn responsible for their misconduct by returning a verdict for the plain- tiff They had been told that the purchasers in this inqan.'e were a ware that the articles in question were not manufactured by the plain- tiff, JohnSykes. Itwas not, in his opinion,neeessary to aupport thisac- tion, that these purchasers should be inmposed upon. Therc might, ibr instance, be a contract between the defendants and the purchasers, who were factors, to put off the goods in suclh a manner as to chent others by imposing upon them spurious articles. The injury which tthe tefendants would commit under such a supposition would be of two-fold a nature: first, there wotild be an injury done to the pur- chaser by imposing upon him a counterfeit article, and then there would be an injury done to the plaintiff by depriving hism of a cas- tomerwhom he inightotherwise havehad.Possibly theplaintiffmieht have no right to put the word" patent" upon the articles he m anufac- tured, but if the defendants put his name and mark upsn articles of their manufacture, soas to makeothers believe thatthey were not their patent powder-flasks, but his patent powder-flasks, their conduct was not alterel, but still remained a fraud. The groper description of the defrndants was " Sykes and Co.," or * Sylces and Bcatson." Now, if the jury, as pttrchasers, had gone to a shop to buy " Sykes's patent" flas,s. and hail been shown *- Sykes and Co.'s Patent," or " Sykes and Beatson's patent," they would have known at once that the articles shown to them were not the articles whici they wattted. If, then, they were of opinion that the defendants had afiTxedl the mark " Sykes's Patent" to their goods for the pirpose of mnislead- ing, they must find a verdict for the plaintiff, with tuch damages as th'ey might tlhink him entitled to from the various facts whichi had been proved in evidence; if, however, they were of opinion that they were not put there wvith such intent, they mu3t then in that case find a verdict for the defendant. The Jurv retired from their box, and after an absence of th-ee- quarters of an hour, rcturned a verdict for the plaintiff-Damages 501.; costs 40s. . A?UV4WMBR Sz?s -xs ~--- - YORK, SATIYIDAY. ATTL7