Snowden v. Noah

A newspaper establishment is a subject of propeily and of contract, and the right to itmay be protected by this court A person having sold such an establishment, has no right to continue a publication as the same: but he may set up a different rival paper. If the question whether the rival paper is the same or different, be doubtful, that doubt is a sufficient reason to refuse an injunction, and to leave the parties to their remedies at law. The writ of injunction is used only for the protection of rights which are clear, or at least, fxee from reasonable doubt. \

The bill in this cause set forth a deed poll, dated the 14th of September 1824, whereby Henry Eckford, for the consideration of one dollar, assigned to John B. Brown and several others, “ all his right, &zc. in and to the newspaper “ entitled the National Advocate, now publishing in the city of “ New York, at number 48 Wall street, with all the books, “ types, presses, issues, profits, rights and incidents belonging “ or appertaining to the said newspaper.” The assignment J was in trust, to make sale of the establishment. The complainant then stated, that the trustees published the National Advocate daily for the city, and semiweekly for the country, issuing a very considerable number of papers, and that the income from subscriptions and advertisements was several thousand dollars: that the paper W'as printed at No. 48 Wall street, where persons w'ere accustomed to carry their advertisements ; and that the trustees employed agents to print and distribute the paper, and that they owned and were possessed of the printing establishment belonging to the paper, and the books of account, with the lists of the subscribers and their residences, all which were conveyed to the trustees : that the trustees derived their right from the defendant Noah and one Phillips, who formerly occupied the tenement No. 48 Wall street for the purposes of the publication; and that they were proprietors of the establishment with the good will of the same, from which they derived a very considerable income : that in September last, the trustees employed Noah at a stipulated salary, to edit the paper, but subject to be discharged at will: that on the 8th of December, he published an advertisement for the sale of the establishment, accompanied by certain explanatory remarks, which are set forth in the bill, and which, after giving a detail of the expenditures and the income from subscriptions and advertisements, added, “ I can make it apparent to an approved purchaser, that by “ attention alone, the profits of the establishment may be “ fairly estimated at from 4 to 5,000 dollars per annum:” that the complainant became the purchaser for 11,500 dollars, intending to purchase the establishment with its good will, and its books, and all appurtenances : that after the purchase on the 14th of December 1824, the trustees accompanied the complainant to the office of the paper ; gave him possession; and discharged Noah. The bill then complains, that Noah interrupted the possession of the complainant at No. 48 Wall street, and forcibly ejected him ; that he induced subscribers to withdraw their good will and patronage : and that to do this more effectually Noah published on the 15th of December, a hand bill, entitied “ National Advocate extra,” and lias since continued another regular paper, under the title of “ the New York Na- “ tional Advocate,” which is published at 48 Wall street; where he receives and intercepts advertisements intended for the National Advocate,, and has retained the subscription and other books, till he had made copies of them, for the purpose of supplanting the complainant, and depriving him of the good will of the establishment, Sic. That Noah is wholly insolvent, and was discharged in 1824 under the act, &c. That the trustees paid the rent of the tenement during his occupation ; that it was fully and clearly understood between the parties that the good will of the establishment was to be sold with it, and the premises to be delivered to complainant, and that Noah was privy to that understanding. The bill prays, that the trustees may be compelled to repay the complainant his purchase money: or to put him in possession : that Noah may account for profits received, &c. and for an injunction to prohibit him from publishing any paper under the title of the National Advocate; from sending it to the old subscribers; from collecting subscriptions, receiving advertisements, &c. upon the filing of the bill, moved for an injunction according to its payer. The conduct of the defendant is a gross fraud. He advertises the establishment for sale, commends it as very valuable, and advises a purchase. Then, when the purchase is made, he continues the paper with only an immaterial difference in the title ; he continues it at the same place, and there solicits and receives advertisements; sends his paper to former customers, and in effect usurps that very good will of the establishment which constitutes its principal value, and which he had just induced the complainant to purchase. Mean time the defendant is insolvent, so that we have no remedy, but in prevention. This court will give protection in every case of fraud. Injunctions have been granted to restrain publications in cases of invasions of right, far less violent. The counsel then cited and commented upon the cases in 17 Ves. 336. 8 Ves. 215. Eden inj. 224, 5, 6. The courts will take notice of that which is called the good1 will of a trade or business. It is benefit derived from customers ; in this case, the subscriptions, advertisements, 8tc. The defendant does not treat his paper as a new one ; but as a continuation of the former National Advocate. He speaks of the continuation of advertisements and subscriptions. There was nothing of all this in Hogg v. Kirby. It will be urged that the act is lawful. But if fraudulent, it is not lawful. The case of Hogg v. Kirby goes much further than this. The injury is irreparable to the complainant. No case can be more urgent on that ground. read the assignment of the establishment, to show that the place, is only mentioned descriptively and not as part of the property sold. The complainant did not acquire the right to issue any paper from No. 48 Wall street, of which the defendant holds the lease in his individual name. He has then a right to issue a paper from that place ; and universally he has a right to issue advertisements for whoever will send them. And he, or any other publisher, has a right to send his paper to the readers of any other paper. It is not alleged that the public are deceived by the title. The real gravamen is that the public prefer Noah’s paper. The trustees had no power to sell the point and spirit, the sprightliness, gaiety of heart, and good humour which constitute the character of his paper. Neither did the complainant acquire by his purchase any lien upon the minds of men. As to seducing away subscribers, it is perfectly lawful. It is the spirit of competition in trade. In 8 Ves. the case was that of a real continuation of the former publication and great similarity in its appearance. But in Keene and Hawes it is admitted that he might publish a similar work as his own ; not as plaintiff’s. If advertisements are sent to No. 48 Wall street it shows the intention of the publishers that Noah shall publish them. True, he did at first intend to continue the paper under the former title. But there was locus poenitentise; and he now expressly invites attention to his paper as being distinct from the other ; Noah’s Advocate. If there is any doubt, the chancellor will at least suspend the injunction, till we can have time to answer.