262 MINNESOTA STATE HORTICULTURAL SOCIETY. 



mestic animal which he owns; and if any one gets possession of 

 buds or slips without the originator's consent, or having lawfully 

 gotten possession propagates others without the consent of the 

 originator, either express or implied, he may be enjoined from prop- 

 agating or selling them, and is liable for any damages which the 

 originator may suffer thereby. But if the originator sell any of the 

 products of his plant, without limiting the purchaser in his right 

 to propagate and sell, then the purchaser has, by implication, an 

 unlimited right to do as he may see fit with his purchase. It was 

 upon this theory of the law that I secured a temporary injunction, 

 prohibiting the sale of the yearlings in question until their ances- 

 try could be determined by a trial in court. 



The difficulties of protecting the originator of a seedling are more 

 of a practical than a legal character. The case in question is a good 

 illustration of the complications likely to arise. You will remem- 

 ber, the seedlings were thirty miles apart, and the yearlings were 

 about a hundred miles from either of the seedlings. This gave a 

 variety of soil, climate and exposure. The yearlings had borne no 

 fruit, and the character of the stock on which they were propagated 

 was unknown. There had not been sufficient experiment to demon- 

 strate to what extent this seedling had the power to transmit its 

 individuality to its descendants. I understand that this power 

 varies in different varieties of plants, and that sometimes entirely 

 new varieties are formed by asexual propagation. 



I got the trial of the case continued so as to have the benefit of a 

 fruitage of the seedlings. But the grandchildren of my client's 

 seedling were wayward, and apparently unconcerned about assist- 

 ing in determining their ancestry, for while they closely resembled 

 the fruit on the parental tree, they were different in complexion, 

 more sour in disposition and not so prompt in getting down to 

 business, that is, they were about two weeks later in ripening. This 

 only complicated matters. 



When you take into consideration all the varying conditions and 

 elements which may enter into any particular case, and when you 

 bear in mind that legal protection will generally be desired at just 

 the period in the history of a seedling when its characteristics are 

 least known and hardest to establish, and at the time when the 

 alleged descendants are themselves undeveloped and their charac- 

 teristics are little known and hard to prove — when all these matters 

 are taken into consideration, I am sure that those of you who have 

 given such things the most attention will agree with me that to 

 prove to a legal certainty the ancestry of fruit plants is likely to be 

 one of the most difficult tasks imaginable. 



Although Prof. Green had seen our seedling and had also seen 

 the trees which we claimed were its descendants, I was unable to 

 get him to say, that in his opinion, they were of the same variety. 

 And since I have learned something about this subject, I have for- 

 given him for refusing to say so, for I am convinced that he came 

 as near saying it in that affidavit as he safely could. 



I shall refrain from giving you a lecture on plant heredity, for I 

 have learned just enough about horticulture to know better than to 



