﻿54 
  History 
  of 
  Durham. 
  

  

  veloped 
  it 
  till 
  the 
  plaintiffs 
  instituted 
  their 
  brand 
  in 
  1865 
  

   and 
  1866. 
  

  

  Conceding, 
  then, 
  all 
  the 
  defendant 
  claims 
  by 
  virtue 
  of 
  his 
  

   purchase 
  from 
  Wright, 
  he 
  fails, 
  in 
  my 
  opinion, 
  to 
  rebut 
  the 
  

   plaintiffs' 
  title 
  by 
  proving 
  a 
  brand 
  as 
  used 
  by 
  Wright 
  pre- 
  

   viously, 
  wherein 
  " 
  Best 
  Flavored 
  Spanish 
  " 
  was 
  the 
  distin- 
  

   guishing 
  attribute 
  and 
  " 
  Durham,'' 
  under 
  the 
  circumstan- 
  

   ces 
  at 
  that 
  time, 
  a 
  mere 
  unmeaning 
  incident. 
  Thus 
  stands 
  

   this 
  point 
  in 
  the 
  light 
  of 
  the 
  pleadings 
  alone, 
  the 
  allega- 
  

   tions 
  of 
  the 
  plaintiffs. 
  on 
  the 
  one 
  hand, 
  and 
  the 
  denials 
  aad 
  

   defenses 
  of 
  the 
  defendant 
  on 
  the 
  other. 
  

  

  The 
  testimony 
  as 
  to 
  the 
  fact 
  whether 
  the 
  term 
  "Durham 
  " 
  

   was 
  ever 
  upon 
  the 
  stencil-plate 
  of 
  Morris 
  & 
  Wright 
  is 
  con- 
  

   tradictory. 
  But 
  in 
  my 
  mind 
  it 
  preponderates 
  against 
  the 
  

   existence 
  of 
  that 
  name 
  in 
  that 
  brand. 
  Counsel 
  have 
  adroitly 
  

   insisted 
  that 
  the 
  testimony 
  against 
  it 
  is 
  negative, 
  and 
  cannot 
  

   from 
  its 
  nature, 
  however 
  commanding, 
  overcome 
  clear 
  

   affirmative 
  proofs. 
  The 
  proposition 
  of 
  law 
  involved 
  in 
  the 
  

   statement 
  is 
  correct; 
  but 
  the 
  whole 
  inquiry 
  is 
  into 
  a 
  fact, 
  

   namely: 
  What 
  was 
  the 
  stencil 
  used 
  by 
  Morris 
  & 
  Wright? 
  

   Some, 
  on 
  the 
  one 
  hand, 
  who 
  had 
  used 
  it, 
  declare 
  with 
  em- 
  

   phasis 
  it 
  was: 
  "Morris 
  & 
  Wright's 
  Best 
  Spanish 
  Flavored 
  

   Smoking 
  Tobacco 
  ;" 
  others, 
  but 
  mainly 
  Wright 
  and 
  his 
  two 
  

   sons 
  — 
  the 
  latter 
  at 
  the 
  time 
  but 
  boys 
  — 
  stated 
  it 
  as 
  " 
  Morris 
  

   & 
  Wright's 
  Best 
  Spanish 
  Flavored 
  Durham 
  Smoking 
  To- 
  

   bacco." 
  The 
  proofs, 
  therefore, 
  on 
  both 
  sides, 
  are 
  equally 
  

   affirmative. 
  If, 
  then, 
  it 
  be 
  left 
  in 
  doubt, 
  we 
  must 
  look 
  to 
  

   the 
  probabilities 
  of 
  the 
  case 
  to 
  turn 
  the 
  scales. 
  What 
  mo- 
  

   tive 
  could 
  have 
  existed 
  with 
  Wright, 
  all 
  whose 
  reliance 
  was 
  

   upon 
  the 
  merits 
  of 
  his 
  flavoring 
  compound, 
  to 
  invoke 
  the 
  

   name 
  of 
  a 
  small, 
  thriftless 
  station 
  on 
  a 
  railroad, 
  settled 
  by 
  

   only 
  two 
  or 
  three 
  families, 
  with 
  a 
  store 
  and 
  this 
  factor}^, 
  to 
  

   invoke 
  its 
  name 
  to 
  give 
  celebrity 
  to 
  the 
  preparation 
  to 
  which 
  

   he 
  solely 
  looked 
  for 
  his 
  reward? 
  It 
  seems 
  to 
  me 
  extremely 
  

   improbable, 
  upon 
  ordinary 
  grounds 
  of 
  reason 
  and 
  human 
  

   action, 
  to 
  suppose 
  that 
  he 
  used 
  " 
  Durham 
  " 
  on 
  his 
  stencil 
  at 
  

   all. 
  On 
  comparing 
  and 
  weighing 
  the 
  testimony 
  on 
  both 
  

   sides, 
  I 
  am 
  constrained 
  to 
  adopt 
  the 
  conclusion 
  that 
  he 
  did 
  

   not. 
  Neither 
  he 
  nor 
  his 
  vendee, 
  therefore, 
  have 
  any 
  claim 
  

   to 
  contest, 
  under 
  this 
  state 
  of 
  the 
  evidence, 
  the 
  validity 
  of 
  

   the 
  plaintiff's 
  trade-mark 
  and 
  his 
  original 
  and 
  paramount 
  

   •title 
  thereto. 
  

  

  It 
  cannot 
  be 
  denied 
  that 
  it 
  is 
  abundantly 
  proven 
  in 
  this 
  

  

  J 
  

  

  