Fetridge a. Wells.

it to be, preserving a juvenile appearance even to middle or old age."

Again:

"It effectually cures pimples, blotches, chilblains, all kinds of eruptions, ulcers, wounds, cuts, burns, ring-worms, erysipelas, and St. Anthony's Fire, and is a sovereign remedy for canker, in the mouth or elsewhere."

So much for the skin. Now to the miracles that the Balm works upon the hair :

"This highly perfumed Balm gives life to the hair; an unsurpassed gloss is imparted to it, and it becomes beautifully curled and firm. It promotes its increase and nourishes its roots. It insures with certainty a new growth of beautiful hair to those who even for years, by sickness or otherwise, have been deprived of it. It prevents the hair from changing its natural color, and becoming white or gray."

As to the teeth, the promises are not quite so large; they will merely, if fulfilled, put an end, in a measure, to the occupation of dentists by rendering and preserving the teeth perpetually white and perpetually sound. "It quickly renders them white as alabaster, removes the tartar, prevents ulceration, and prevents their decay." It is to the young, however, that this priceless balm offers its choicest gifts and blessings-increase of strength, unfading beauty, and never-ending youth. Its use will prove to the young (I give the exact words), "a luxury, an antidote, and a cure of diseases; they will increase in energy, be full of elasticity, health, and beauty, and be mirrors of admiration."

Enough-all that I have quoted may possibly be true; but if so, it would seem that so long as the Balm of Thousand Flowers may be procured it will be a folly to grow old, and a mistake to die.

The able counsel for the plaintiff, to whom I always listen with pleasure, and not unfrequently with instruction, approached skilfully this part of his case and treated it with much ingenious pleasantry. That his client's praises of the "Balm of Thousand Flowers" were somewhat extravagant, he was far from denying; on the contrary, he insisted that their very extravagance was proof that they were harmless, and were rather fitted to provoke mirth than criticism and censure; and it must be admitted that

Fetridge a. Wells,

it would be difficult, even for a judge of the most approved and habitual gravity, to read this paper of directions without a smile. But we cease to smile when we remember that these falsehoods -for such they are-are printed and circulated with the intent that they shall be believed, and that, in fact, there are thousands upon thousands who read them and believe. We cease to smile when we remember that the plaintiff, who boldly claims the aid of a court of equity, is filling his pockets by abusing the credulity of the young, the inexperienced, the weak, and the ignorant, and that he resorts to misrepresentation and falsehood to induce those to purchase who would not otherwise buy, and those who buy to give a higher price than they would otherwise pay. If this is not deceiving and defrauding the public, what is?

I have seldom deemed it necessary to cite authorities when there is a clear, plain, firm ground of principle to stand upon; and I know that I stand upon this ground, in holding that this injunction ought to be dissolved; still, there are a few cases to which, as containing a very distinct recognition of the principle upon which I act, it may be expedient to refer, remarking at the same time that in not one of them was the misrepresentation that was held to bar the plaintiff's claim to relief by any means as serious and aggravated as those which it has been my duty to expose.

In the case of Piddings a. How (8 Simons, 479), the plaintiff, who was a dealer in tea, sold a mixture of different teas, which he prepared, under the name upon the label, which was his trade-mark, of "Howqua's Mixture." The defendant stole the name and the label, and affixed them to a mixture of his own. The plaintiff, however, in advertising his mixture for sale, had made a false representation of the mode in which it was procured, and of the teas of which it was composed, and upon this ground alone the injunction which he had obtained was dissolved. The vice-chancellor, in delivering his judgment, said: "There has been such a degree of representation that I take to be false, about the mode of procuring and making up the plaintiff's mixture, that in my opinion a court of equity ought not to interfere to protect him. As between the parties, the course pursued by the defendant has not been a proper one, but it is a clear rule laid down in courts of equity not to ex

Fetridge a. Wells.

tend their protection to persons whose case is not founded in truth."

In the case of Perry a. Truefitt (6 Beav., 66), the master of the rolls referred with marked approval to this doctrine of the vice-chancellor, and in the case before him denied the injunction, and dismissed the bill mainly on the ground that the plaintiff had falsely represented that the "medicated balm" which he sold, was the invention of a German chemist of known skill and great celebrity. I cannot believe that the master of the rolls, in the subsequent case of Holloway a. Holloway (13 Beav., 213), the authority which was chiefly relied on in the argument before me by the plaintiff's counsel, meant to overrule the cases I have cited, since, in his opinion, he omitted to refer to them; but if Holloway a. Holloway is to be construed as it has been contended it ought to be, as an express decision that the vendor of a quack medicine may publish whatever falsehoods he may please to invent in relation to the composition and virtues of his nostrum, and yet claim protection for his sales in a court of equity, I can only say that it is a doctrine I cannot and will not follow.

I prefer to follow the doctrine of our Court of Appeals in Partridge a. Mench (How. App. Cas., 547). The plaintiff in this case was a manufacturer of matches, and he printed in his label on his boxes the words, " A. Golsh's Friction Matches," thus falsely representing Golsh to be the manufacturer; yet, in truth, in doing this, he was guilty of no fraud either upon Golsh or upon the public-not upon Golsh, for he had purchased. Golsh's secret, and was licensed to use his name-not upon the public, for the matches were as good as those which Golsh himself had manufactured, being made by the very process which he had used. Purchasers, although deceived, were not defrauded; yet the manifest intention of the plaintiff to deceive the public was held to be of itself a sufficient reason for denying him the relief which he claimed, and Mr. Justice Gardiner, in delivering his opinion, expressed himself, as he was wont to do, in a few weighty words.

"The privilege of deceiving the public," he said, "even for their own benefit, is not a legitimate subject of commerce; and at all events, if the maxim that he who asks equity must come with pure hands, is not altogether obsolete, the complainant has

Fetridge a. Merchant.

no right to invoke the extraordinary jurisdiction of a court of equity in favor of such a monopoly."

Certainly the plaintiff in the present case has no better right, and hence the injunction that, if continued, would secure to him such a monopoly, must be dissolved. The motion for its dissolution is, however, granted without costs, since, although the plaintiff might be justly required to pay costs, the defendants have certainly no title to receive them. They represent Rice, whose conduct and proceedings have been just as blamable as those of the plaintiff-there is not a shade of difference between them.

FETRIDGE a. MERCHANT.

New-York Superior Court; Special Term, January, 1857. INJUNCTION. TRADE-MARKS.-LEGAL TITLE.

Where it appears, in an action to restrain an infringement of plaintiff's trademark, that defendant has deliberately, and without any previous connection with the particular business, adopted the emblems and appellations employed by plaintiff, simply to break in upon the trade and profit of the latter, an injunetion should be granted, notwithstanding that it may appear to the court that the trade-mark claimed by plaintiff was intended and calculated to deceive the public. The public, in such case, should be left to its own guardianship. The distinction, in the law of trade-marks, between a proper name and a "fancy” name, considered.

An injunction should not be granted at the commencement of a suit brought to enjoin the defendant from the use of plaintiff's trade-mark, unless the legal right of plaintiff and the violation of it by defendant are very clear.

Motion to dissolve a preliminary injunction.

This action grew out of the same state of facts which gave rise to the case of Fetridge a. Wells (Ante, 144). The two cases should be read together. The present case, like that preceding, came up on a motion by defendants to dissolve a preliminary injunction granted by Mr. Justice Hoffman.

Hull & Stocker, for the motion.

Brown, Hall & Vanderpool, and E. W. Stoughton, opposed.

Fetridge a. Merchant.

HOFFMAN, J.-The subject of the right to specific trade-marks, and the cases in which a court will interfere by injunction for their protection has, of late years, been much considered, and some general rules have been fixed with reasonable certainty. The extent and application of other principles, invariably invoked in these discussions, is less clearly determined.

1. I apprehend that the questions as to the nature of the deception upon the public which will prevent the court from giving its protection, falls within the latter class. It is constantly insisted, and the position is sanctioned by some judges, that when the article in question is innocuous, or in some degree useful, no absurd panegyric or extravagant price is a reason for denying the interference. In short, as counsel once said before me, if a man should compound tallow with some high scent and beautiful coloring matter, and term it "The Ointment of Immor tality," he has a right to appropriate so much of public credulity as he can, to this designation.

On the other side, it is well settled that when the deception consists in palming upon the public articles of the party's own manufacture or composition, for those of another who has obtained celebrity or notoriety, the court will remain inactive. This was the character of the deception practised in Partridge a. Mench. That case is reported when before the Vice Chancellor and Chancellor, in 2 Sandford's Chancery Reports, 622. It is also reported in the Court of Appeals in Howard's Appeal Cases, 548. Gardiner, Justice, places his decision upon the ground that the plaintiff was selling matches of his own manufacture as those of "A. Golsh," which had acquired considerable reputation. The decisions in Pidding a. How (8 Simons, 475), and in Perry a. Truefitt (6 Beav., 66), rest upon the same principle.*

I have always considered that upon this branch of the subject the conduct of the defendant has a material influence. Has he deliberately, without any previous connection with the particular business, but simply to break in upon the trade and profit by the notoriety obtained by another, adopted his emblems and appellations? If he has, then, in my view, the question should be judged of solely as between the immediate parties, and the public should be left to its own guardianship.

* Compare the case of Samuel a. Buger (Ante, 88).