﻿The 
  Blaczwell 
  Litigation. 
  61 
  

  

  111 
  the 
  following 
  year, 
  1861, 
  said 
  Wright 
  Continued 
  the 
  

   manufacture 
  of 
  smoking 
  tobacco, 
  individually, 
  at 
  a 
  point 
  

   about 
  two 
  miles 
  from 
  Durham 
  ; 
  that 
  the 
  tobacco 
  so 
  manu- 
  

   factured 
  by 
  said 
  Wright 
  in 
  1860 
  and 
  1861 
  was 
  sometimes 
  

   branded 
  with 
  a 
  stencil 
  and 
  sometimes 
  otherwise 
  marked, 
  and 
  

   very 
  soon 
  became 
  widely 
  known 
  as 
  "Durham 
  Smoking 
  To- 
  

   bacco," 
  the 
  precise 
  brand 
  as 
  first 
  used 
  being 
  " 
  Best 
  Spanish 
  

   Flavored 
  Durham 
  Smoking 
  Tobacco." 
  

  

  That 
  said 
  Wright 
  was 
  the 
  first 
  person 
  who 
  ever 
  manu- 
  

   factured 
  smoking 
  tobacco 
  at 
  Durham; 
  was 
  the 
  originator 
  

   of 
  the 
  use 
  of 
  the 
  word 
  " 
  Durham 
  " 
  as 
  descriptive 
  of 
  smoking 
  

   tobacco; 
  that 
  this 
  tobacco 
  was 
  much 
  sought 
  after 
  in 
  the 
  

   markets, 
  a 
  special 
  value 
  attaching 
  to 
  it 
  in 
  consequence 
  of 
  

   the 
  flavoring 
  compound 
  used 
  in 
  its 
  preparation, 
  which 
  

   value 
  was 
  designated 
  by 
  the 
  word 
  " 
  Durliam 
  ; 
  " 
  that 
  said 
  

   Wright, 
  being 
  in 
  service, 
  ins 
  operations 
  were 
  suspended 
  

   during 
  the 
  war. 
  After 
  the 
  war 
  his 
  circumstances 
  were 
  such 
  

   that 
  he 
  did 
  not 
  carry 
  on 
  business 
  until 
  1869, 
  when 
  he 
  again 
  

   manufactured 
  tobacco. 
  

  

  Respondent's 
  (Blackwell) 
  statement 
  is, 
  in 
  substance, 
  that 
  

   the 
  word 
  " 
  Durham 
  " 
  was 
  first 
  used 
  as 
  a 
  trade-mark 
  for 
  

   smoking 
  tobacco 
  by 
  J. 
  R. 
  Green, 
  his 
  assignor, 
  who 
  ap{)]ied 
  

   it 
  in 
  the 
  year 
  1865. 
  

  

  The 
  inception 
  of 
  this 
  controversy 
  is 
  described 
  by 
  Mr. 
  

   Armistead 
  in 
  his 
  answer 
  (p. 
  37) 
  substantially 
  as 
  follows 
  : 
  

   Sometime 
  in 
  1870, 
  W. 
  A. 
  Wright 
  came 
  to 
  him 
  and 
  informed 
  

   him 
  that 
  he 
  (Wright) 
  was 
  the 
  owner 
  of 
  " 
  the 
  Durham 
  

   brand." 
  Knowing 
  the 
  said 
  brand 
  to 
  be 
  popular, 
  Mr. 
  Arm- 
  

   istead 
  entered 
  into 
  a 
  provisional 
  contract, 
  the 
  condition 
  of 
  

   which 
  was, 
  that 
  if 
  Mr. 
  Wright 
  could 
  produce 
  satisfactory 
  

   and 
  sufficient 
  evidence 
  that 
  he 
  was 
  the 
  owner 
  of 
  the 
  said 
  

   brand, 
  he 
  (Armistead) 
  would 
  purchase 
  it. 
  Accordingly 
  Mr. 
  

   Wright 
  proceeded 
  to 
  the 
  town 
  of 
  Durham, 
  and 
  returned 
  with 
  

   a 
  certificate 
  setting 
  out 
  that 
  no 
  person 
  other 
  than 
  W. 
  A. 
  

   Wright 
  was 
  entitled 
  to 
  use 
  said 
  brand. 
  This 
  certificate 
  is 
  

   sworn 
  by 
  Mr. 
  Armistead 
  to 
  have 
  been 
  sufficient, 
  and 
  was 
  

   printed 
  and 
  circulated 
  as 
  conclusive 
  of 
  the 
  facts 
  set 
  forth. 
  

   More 
  than 
  this, 
  the 
  signers 
  are 
  described 
  as 
  "gentlemen 
  of 
  

   high 
  standing 
  and 
  character." 
  (p. 
  55.) 
  It 
  was 
  i^uhesita- 
  

   tingly 
  accepted 
  by 
  Mr. 
  Armistead 
  as 
  a 
  full 
  performance 
  of 
  

   the 
  condition 
  of 
  the 
  provisional 
  contract, 
  and 
  at 
  once 
  acted 
  

   upon. 
  (p. 
  37.) 
  

  

  Now, 
  if 
  the 
  testimony 
  of 
  these 
  "gentlemen 
  of 
  high 
  stand- 
  

  

  