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the agreement for support the element that it will be conditioned upon a chaste life.

The case briefly stated, in solido, is this:

The parties were married in 1871 and lived together twenty years when they separated by mutual consent for the reasons, now for the first time claimed by the wife, first, for his impotence, and second, for his cruel and bestial practices.

Shortly after the separation the husband sued the wife for divorce on the ground of her adultery, which she defended on the merits, not setting up either the impotence or the cruelty, and succeeded in her defence. She then accepted from her husband a competent support in money and enjoyed it for ten years, and then solaced herself with the marital ministrations of another man while enjoying her husband's pecuniary support. Being discovered in her adultery and sued therefor by her husband she then, for the first time, sets up his impotence and cruelty, not as a direct defence but as the ground of a divorce from her husband. Such a case on her part does not commend itself to an equity judge.

I will advise a decree according to these views.

The vice-chancellor adds the following:

After the foregoing opinion was promulgated and a decree accordingly advised but not yet signed by the chancellor, a motion was made before me to open it and permit the defendant to make actual proof of the impotence alleged. This motion was based on several grounds. The only one of which I considered open to discussion after the foregoing opinion was that the evidence was competent under the general denial of the adultery by way of showing acquiescence, consent and connivance. I denied the motion on several grounds: First, that it could only operate as a defence by way of confession and avoidance and had not been so pleaded; second, that at the time of the trial it had not been offered to be proved and put in evidence under the issue of adultery or no adultery; and third, that the whole course of the proof of the case by the defendant and the facts established thereby in connection with the pleadings negatived the idea of actual consent, con

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nivance or acquiescence. Those facts are that the parties separated by mutual consent in 1891, and had lived separately ever since, and apparently had not met; that during the period covered by the adulteries proven herein, and for some time prior thereto, the petitioner was living in the city of Trenton and the defendant in the city of New York, over fifty miles apart; that the petitioner had sued defendant for adultery in 1892, which of itself was the very opposite of consent, acquiescence or connivance; that defendant did not set up in defence to that action his impotence as a ground of defence or any connivance based thereon. In short, I found no place in the case proven by the defendant where the defence of positive consent, connivance or acquiescence could reasonably intervene, and so far as regards any possible constructive consent arising out of the bare fact of the impotence, I think it is covered by my previous opinion.

I ought to state that the counsel who actually tried the case before me asserted, as I understood him, that he did, in fact, formally offer to prove the impotence while his client was on the stand, but an examination of the stenographer's notes shows that he was mistaken.

Then the other counsel of defendant urges that, as a result of the mode in which the court requested the several issues to be dealt with, his client has missed the opportunity of mitigating the character of her offence and of putting herself in the position of being entitled to the charitable view thereof, which naturally arises from the impotence of her husband. I think the defendant is not entitled to the assistance of the court in that direction. Before she solaced herself with the marital ministrations of another man, she should have dispensed with the pecuniary support of her lawful husband and should have sought and obtained a dissolution of the marriage tie.

It was suggested that the discussion of the value of the cross-bill was sprung upon the defendant's counsel without proper notice.

The fact, as shown clearly by the stenographer's notes, which

Edison Storage Battery Co. r. Edison Automobile Co. 67 Eq.

were written up within three days and with which my own recollection agrees, is that after I had stated my reasons for finding the defendant guilty of the adulteries charged, a full discussion followed as to the argument of the motion to strike out the charge of impotence found in the cross-bill. A day was fixed on which the defendant's counsel should hand in a written argument. The defendant's counsel subsequently asked for and took additional time for that purpose and then handed up a typewritten argument covering the question.

There can be no question that the defendant's counsel had every opportunity necessary to support the value of his client's case on that charge except the actual production of the proofs. As my opinion is, of course, based upon the truth of the allegation of impotence, I do not see how defendant is injured thereby, and if I am wrong the defendant has her remedy by appeal.

THE EDISON STORAGE BATTERY COMPANY and

THOMAS A. EDISON

V.

THE EDISON AUTOMOBILE COMPANY OF WASHINGTON, D. C.,

et al.

[Submitted and decided December 24th, 1903. Filed July 9th, 1904.]

1. A bill by an inventor and a corporation using his surname to enjoin its use by a defendant corporation alleged that its use had been enjoined by a foreign court in a suit brought by the inventor's son, and it was claimed that the failure to allege that the injunction was dissolved was a suppression and want of frankness in the case.-Held, that it was no objection to the bill, since the fact alleged was intended, apparently, only to show that the son, so far as practicable, had revoked his authority to use the name, and his father was not a party to the former suit, and, besides, the present suit did not call for interim restraint, to which the rule of frankness peculiarly applies.

1 Robbins. Edison Storage Battery Co. v. Edison Automobile Co.

2. The fact that affidavits in opposition to an injunction against the use of a corporate name in violation of complainant's rights show that the defendant corporation had no intention of manufacturing anything manufactured by complainants, is immaterial, where defendant's charter empowers it to do so.

3. It is no objection to injunction against the use of a corporate name that it does not appear that any wrong has been done, or that there is danger thereof to complainant's injury, as in such a case complainant must act promptly, before the rights of innocent stockholders in the defendant corporation may become involved.

4. A corporation incorporated to conduct a business apparently in com petition with that of an inventor and a corporation already using his name, incorporated his surname in its own, basing its rights to use the same on an alleged grant from his son, but it was apparent that it sought the use thereof on account of the great prestige attached thereto, and not on account of any connection with the son or prestige connected with his name.-Held, that the son had no right to make such grant.

5. Injunction is a proper remedy to prevent a corporation from including in its name the surname of an inventor already adopted and used by another corporation with his consent.

6. Where a suit for injunction against the use of a name by a corporation is heard on an order to show cause on the bill, affidavits and exhibits, relief should, not await the final hearing where it appears from the defendants' affidavits and admitted facts in the case that it is highly improbable, if not impossible, that defendants will finally succeed.

Heard on order to show cause upon bill and affidavits and upon exhibits and affidavits on the part of the defendants.

Mr. Robert H. McCarter, attorney-general, for the complainants.

Mr. Norman Grey, for the defendants.

PITNEY, V. C.

The object of this bill is to prevent the defendant corporation, the Edison Automobile Company of Washington, D. C.. from continuing to use the word "Edison" either in its corporate name or otherwise in the conduct of its business, and from holding out to the world that the complainant, Thomas A. Edison, is the inventor of any automobiles manufactured or sold by said corporation, or that the complainant, the Edison

Edison Storage Battery Co. v. Edison Automobile Co.

67 Eq.

Storage Battery Company, is the manufacturer of automobiles, or any part thereof, manufactured or sold by it, the defendant. The facts, most of which are undisputed, are as follows:

At and prior to about the 1st day of October of the present year, 1903, the complainant, Thomas A. Edison, had been for many years and was a well-known inventor with a worldwide reputation, and among other things had invented a great number of instruments and machines, designed for and connected with the use of electricity. Among other things he had invented what he claims to be a superior kind of storage battery for the storage of electricity for use in automobiles, and had assigned the same to complainant, the Edison Storage Battery Company, which was one of his numerous companies organized by him for the purpose of manufacturing and dealing in his various inventions, and, at the time before mentioned, the Edison Storage Battery Company was engaged in the manufacture of storage batteries under Edison's patent, and was selling them in the open market, and also selling them in connection with automobiles, and was also selling automobiles equipped with such batteries. At that time two gentlemen by the name of Joslin, father and son, were engaged in the business of dealing in automobiles in the city of Washington, D. C., under a corporation, organized under the laws of New Jersey, with the name "The Automobile Company of Washington, D. C." At the same time complainant, Thomas A. Edison, had established his son, William Leslie Edison, in business in the city of Washington, D. C., under the name of the Edison Automobile Station. The establishments of the Joslins, carried on under the name of the Washington Automobile Company, and that of young Mr. Edison, under the name of the Edison Automobile Station, were rivals in business; the latter selling automobiles propelled by electricity stored in the Edison storage batteries.

About the 1st of October the Joslins approached young Mr. Edison with a view of consolidating their several establishments and changing the name of their own company to the

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