1 Hopk. Ch. 347 | New York Court of Chancery | 1825
The defendant Noah, was the editor but not the proprietor of the newspaper establishment, called the National Advocate; and immediately after the sale of that establishment by its former proprietor to the complainant, Noah established another newspaper, under the title of the New York National Advocate. This new gazette thus established, is sent to the subscribers of the former National Advocate, and Noah has solicited and continues to solicit the support of the patrons of the former paper and of the public, to his new paper-. This is briefly and in substance, the case upon which an injunction is now asked.
The business of printing and publishing newspapers, being •equally free to all, the loss to one newspaper establishment, which may follow from the competition of any rival establishment, is merely a consequence of the freedom of this occupation, and gives no claim to legal redress. But a newspaper establishment is also a subject of property; and so far as the rights of such an establishment are private and exclusive, this species of property like any other, is entitled to the protection of the laws.
The material property of the National Advocate, is not here in question. The printing office, press, types and other materials of a printing establishment, are subjects of exclusive right; and the injuries alleged in the bill, in respect to these subjects in this case, are matters, for which redress must be sought in the courts of law.
- The subject in respect to which an injunction is asked, is what is called the good will of the establishment, or the custom and support which the National Advocate had before received from its subscribers and patrons, or from the public. The effort of Noah, is, to obtain for his newspaper the support of the public in general, and especially, the custom and good will of the friends of the National Advocate ; this object is distinctly avowed ; and an open appeal is made to the friends of the National Advocate and to the public, to give their support to the new paper. The question is, whether
The open appeal made to the public in favor of the new journal, as a new and distinct paper, seems to remove from . this case, every objection. Noah is at liberty, to invite the subscribers and patrons of the National Advocate, to give him their support; and they are entirely free to accept or reject his invitation. They like others, may give their support to either, or neither, or both of these papers. The only circumstance in this case, which has any appearance of an undue encroachment upon the rights of Snowden, is, that Noah’s new paper is published under a name nearly the : same with that of Snowden., But .the name of the new paper is sufficiently distinct from the name of Snowden’s paper, to apprize all persons, that these are really different papers. These different titles and the different matters which must appear in two daily gazettes, seem to afford all the information which can be desired by those who choose to give their patronage to either of these papers. I do not perceive, that any person can be misled in this respect; and the whole case seems to be nothing more than an open competition between two newspaper establishments, for the good will of those who were the patrons of the first establishment, and for the favor of the public.
The good will of an established trade, the custom of an inn, and the right of a publisher of books, may be injured by acts of deception or piracy; but the injury for which redress is given in such cases, results from the imposture practised upon the customers of an existing establishment, or upon the public. When the friends of an existing newspaper and the public, are informed by a rival newspaper, that the two papers are not the same, but are distinct establishments, there is no deception ; and the detriment which either establishment may suffer from the competition of the other, results from the free option of those who choose to give their support to one establishment in preference to the other. This employment is subject to all the incidents of a free competition; and when no
The adjudged cases cited in support of this application, are Hogg against Kirby, 8 Vesey junior, 215, and Crutwell against Lye, 17 Vesey junior, 336. These cases seem to be rather authorities against the application. In the last of them, the substance of lord Eldon’s opinion, was expressed in the following sentence, which is directly applicable to this case. “ It amounts to no more than that he asserts a right to set up “this trade, and has set it up, as the like, but not the same “ trade, with that sold ; taking only those means, which he “ had a right to take, to improve it; and there is no fact, “ amounting to fraud, upon the contract made with the “ plaintiff.”
It appears.to me, that every person who is disposed to patronise or support the National Advocate, may do so, without being deceived or misled by the existence or publication of the New York National Advocate. / The struggle of these parties, seems to be merely a competition, in which there is no imposture or deception. I do not perceive any fraud; but if there is any question whether the acts of Noah, are a fair competition or a fraudulent interference with the establishment of Snowden, it is a question wholly uncertain; and as a doubtful matter of fact, it should be left to the trial by jury, in the ordinary course of law. The writ of injunction is a most important remedy; but it is used to protect rights which are clear, or at least, free from reasonable doubt. Upon all the facts of the case, the motion for an injunction is denied.
