C P. DE KALB V. GINDELE. Nov. 19. IV. That defendant, Harrington, refuses to deliver up the receipt for said caveat, as well as cerSpecial injunction-Practice-Nuisance, bill to retain letters which he had received commending the strain-Denial of material allegations of bill. This was a motion to continue an ex parte special injunction, restraining the defendant from carrying on his business of brewing in his present establishment, unless he completely stopped the flow of water therefrom into the cellars of the complainant. invention; and that Pile is willing to deliver up the sealed envelope, but desires an order of the Court for his protection. The petition prayed for an order that defendant, Pile and Scollay, for petition, argued that— The bill set forth that complainant was the owner of two small houses, immediately in the rear of which the defendant's brewery was situated; that her cellars were constantly inundated with dirty water, smell-rington is endeavoring to sell his patent-right, he ing of beer, often to the depth of two or three feet, which soaked through her walls from the brewery. Buckley, for motion, read affidavits in support of the bill. C. P. RUSHTON V. HARRINGTON. Nov. 23. Dissolution of partnership-Receiver, right of, to possession of firm papers in hands of partners and third parties-Right of, to commendatory letters"-Insufficiency of description of papers. A bill in equity was filed by plaintiff, one of the firm of Thomas Harrington & Co., in August, 1874, to dissolve the partnership, and praying the appointment of a receiver. Holbrook, who was appointed receiver under an order of that date, now filed a petition, in which Joseph M. Pile and others were brought in as parties defendant, and which set forth : 1. That on the 19th January, 1874, Thomas Harrington, the plaintiff, Rushton. and Gregory, entered into a partnership for the manufacture and sale of anti-friction metal." II. That the articles of partnership contained the following clause: "Thomas Harrington shall contribute as his share of the firm assets a certain secret or discovery made by him of a combination of metals forming anti-friction metal for wheel-boxes. etc., as already tested and exhibited by him, together with the right of the firm to participate in all the results of said discovery, and to apply aз assignees for a patent therefor." And also, " upon the signing of these articles, Harrington is to prepare a full and complete description and receipt for the composition, with accurate directions for its preparation, which shall be placed in a sealed envefope, which was not to be opened save in the presence of two members of the firm, and be placed in the possession of Joseph M. Pile. II. That Harrington has filed in the Patent Office a caveat for this invention, and took a receipt therefor in his own name, but which was, in fact, for the benefit of the firm. should be compelled to make a formal transfer in writing of it to the receiver. J. C. Redheffer (with whom was C. Kneass), contra, after reading an answer for Harrington, which they prayed leave to file forthwith, and which denied that the invention was the property of the firm, who were only entitled to the profits and results of the discovery, argued 1. The letters were mere private letters to Har rington personally, which incidentally commended the invention, and that there was not sufficient cer tainty of description as to the papers prayed for to enable the Court to make an order concerning them. 2. No objection to the surrender of the sealed envelope in Pile's possession had been made; so that an order as to that was unnecessary. THE COURT (ALLISON, P. J) held that the answer of Harrington was insufficient and irresponsive to the allegations of the petition; it did not deny the execution of the articles of partnership, by which all interest in the invention passed to the firm; and that Pile, for his own protection, was entitled to an order directing him to deliver the sealed envelope to the receiver. As to the letters, the description was not sufficiently certain. The prayers of the petition as to the receipt for the caveat and sealed envelope, granted. That as to the letters, refused. Harrington was further ordered to make forthwith a written transfer of all interest in the discovery to the receiver. Fraudulent vendee at sheriff's sale, not entitled to allowance for price actually paid-Partnership -Fraudulent judgment procured by a member of the firm, relieved against. This case came on for hearing on exceptions to the Master's report. The bill in the case was filed by Peter Grim against Henry Grim and one Hutz, setting forthI. That Peter and Henry Grim were partners, engaged in making bricks. II. That, unknown to the plaintiff, defendant Grim had fraudulently confessed judgment, upon which the stock and fixtures at the brickyard, belonging to the firm, and which were worth over $2000, were taken in execution, and sold in one lot to defendant Hutz, the son-in law of defendant Grim, for $160. III. That Hutz was a party to the fraud, and purchased the stock with knowledge of above facts, and that the sale was in violation of plaintiff's rights. The bill then prayed that the partnership be dissolved, a receiver appointed. and Hutz enjoined from exercising any ownership over the property sold. No plea, answer, or demurrer was filed by Hutz, and, the bill being taken pro confesso, upon hearing a decree was made granting the prayers of the bill. More than three months after the entering of this decree, Hutz moved the Court to permit him to file an answer denying the fraud charged upon him. This motion was denied, owing to the length of time which had elapsed since the entering of the decree. Upon the filing of the account of the receiver, it was referred to a master to settle, before whom Hutz presented a claim for $160, the money paid by him for the property at the sheriff's sale. This claim the master refused to allow, which was excepted to. Wagner, for exception, 1. Having paid for the property at the sheriff's sale, Hutz was entitled to be subrogated to the rights of the judgment creditor against the fund in the hand of the receiver. 2. Having never received the property for which he had paid, he was entitled to have his money returned. Gendell (with whom was A. Zane, Jr.) contra. Ex dolo non oritur actio. The sheriff's sale passed a good title to Hutz against all the world except the complainant who was defrauded. THE COURT (ALLISON, P. J.) held, that Hutz, being a fraudulent vendee, was not entitled to the return of the money, and— Exceptions dismissed. This was a motion, before answer, to continue an ex parte special injunction, prayed for in the bill filed by complainants, who were proprietors of the Rising Sun Stove Polish," to restrain the manufacture and sale. by defendants, of packages of stove polish, of similar size and shape, and inclosed in paper wrappers of a similar color (deep red), on one end of which was a vignette and label, with the words "Rising Moon Stove Polish." The vignettes, of which there were two varieties. on complainants' packages, represented a sun, with rays, rising between mountains over a body of water; that of defendants' a moon, without rays, rising over water. One of complainants' labels had the words " This trade-mark patented Oct. 29, 1872," printed across the device on the vignette. 66 A claim had been filed by complainants at the patent office for the names, the "Rising Sun," " Radiant Sun," and other epithets, including the word "Sun," under the act of Congress of 8 July, 1870. Neither articles were patented. Some seventy-four affidavits, made by various dealers, were read on behalf of complainants, alleging that their article was widely known, and that, in their opinion, defendants' trade-mark was an imitation of it, and calculated to deceive. Defendants then read a large number of affidavits denying any intention to imitate, or that their trade-mark was likely to deceive. S. Wagner, Jr. (with whom was W. W. Montgomery), for complainants. 1. Defendants' packages are so like plaintiffs' as to be calculated to deceive incautious purchasers, and regard must be had to the class of persons who deal in the article, citing Brooklyn White Lead v. Masury, 25 Barb. 416. Croft v. Day, 7 Beav. 89. Crawshay v. Thompson, 4 Man. & Gr. 357 [43 Knott v. Morgan, 2 Keen, 214. Seixo v. Provezende. L. R. 1 Ch. Ap. 192. Amoskeag Manuf. Co. v. Spear, 2 Sand. S. C. Gillott v. Esterbrook, 47 Barb. 455. Matsell v. Flanagan, 2 Abb. Pr. [N. S.] 459. Williams v. Johnson, 2 Bosworth, 1. 2. There is no need of proof that any person had been deceived. Filly v. Fassett, 44 Mo. 168, and some of former cases. It is not necessary that an intention to deceive should be proven. Eddleston v. Vick, 23 Eng. C. L. and Eq. 53 [18 Jur., O. S. 7]. Millington v. Fox, 3 Myl. & Cr. 338. Rodgers v. Nowill, 6 Hare, 325. Holloway v. Holloway, 13 Beav. 209. Victor Guillou, for defendants. 1. The plaintiff's trade-mark is not valid, as it does not indicate the origin, ownership, or manufacture of the goods. Amoskeag v. Spear, Cox's Trade-mark Cases, Dixon Co. v. Guggenheim, ib. 559; 2 Brews. 321. 2. Registration of trade-mark, based on his declaration and claim, concludes plaintiff and limits his rights to such claim; and his claim, as filed, does not anywhere attempt to include the word "Moon," and claims the word "Rising" only as part of the phrase "Rising Sun." Dutcher Temple Co., Decisions of Commissioner of Patents, 1871, p. 248; cited in Browne on Trade-marks, p. 272. Smith v. Reynolds, 10 Blat. C. C. R., p. 100. 3. Defendants' wrapper or label is no imitation whatever of plaintiff's. Partridge v. Menck, Cox's Cases, p. 72. C. A. V. Nov. 21. THE COURT (PAXSON, J.) said that affidavits of "experts," who sometimes had a very crude notion of what constitutes, in law, a trade-mark, or its violation, were only of weight in so far as they threw light upon the case. In cases of this kind the Court must exercise its independent judgment. The resemblance on the side on which the vignette was printed on the packages sold by both parties was Striking. The packages were similar in size, shape, and color. This alone, however, was not always enough to justify an interlocutory injunction. The words Stove Polish," appearing in both vignettes, being the commercial name of the article, could not be appropriated by either party. Complainants had the word "Patented" upon their label. A label could not be patented. This was not a reason for refusing the injunction, however, as doubt. less the real meaning to be attached to the word was, that a description and claim had been filed by plaintiffs at the Patent Office. The plaintiffs' claim, as filed at the Patent Office, included only the word "Sun" in various combinations. Without deciding that they were limited to their claim as filed there, it was to be remarked that the word "Rising" was only appropriated in connection with "Sun." The defendants did not use it in that connection. The line between what is the genuine, and what the simulated trade-mark was somewhat nice, and this case was close upon the border. An injunction might not be refused on final hearing, or after an action at law, but at present the plaintiffs' case was not sufficiently clear, and for the present Injunction refused. TITUS V. BAIRD. Defendant having demanded a bill of particulars under the Narr. in 1493, it was furnished to him by D. C. plaintiff, but, by accident, it was indorsed as of No. 497, and defendant filed his plea in the latter number. The case, No. 497, being called for trial, defendant claimed that it was not at issue, as there was no Narr. Plaintiff then entered judgment in 1493 for want of a plea. Scanlan now moved to open this judgment, on the ground that a bill of particulars had been called for in 1493 and not furnished. Fisher, for plaintiff, argued that the bill of particulars, though accidentally indorsed as of No. 497. was furnished in pursuance of a call under 1493, and had been so treated by both parties; that defendant was not in fact at all deceived by the erroneous number, but was seeking to delay a trial by a trivial¦ objection. VOL. I.-6 Rule to set aside sheriff's sale. This rule was obtained by the sheriff. The affidavit on which the rule was granted set forth that the writ was published stayed" in the Legal Intelligencer; that there was another writ against Campbell which was the one in fact stayed; that the auctioneer at the time of the sale announced that this writ was stayed, but subsequently sold the property for $50. Rule absolute. The affidavit of defence alleged that the endorsement was without consideration, having been made by one of the firm without his partner's knowledge, and was not for any debt or purpose of the firm, but for the accommodation of the plaintiff. Deponent D. C. BUILDING ASSOCIATION V. MASON. Nov. 16. stated the above facts upon information received direct from his brother (who made the endorsement, and was then absent from the State on business); and deponent believed the allegations to be true, and expected to be able to prove them upon the trial of the cause. Young, for the rule. D. C. Nov. 17. LINNARD et al. v. Booz. Plaintiff filed copies of book entries of sales of flour to defendant amounting in value to $4488.97. The affidavit of defence suggested that plaintiff was not entitled to judgment because defendant was sued under the name of Booz, whereas her name was Bux, and further alleged, as a defence on the merits, that the amount due was only $530, and that no interest was due because there was no understanding when the sales were made that interest should be charged. Read & Petit, for the rule. Plaintiff having by leave of the Court amended the name of the defendant, rule absolute for judgment for the amount admitted with interest. Sheriff's sale-Misdescription. Rule to set aside sheriff's sale. The property was advertised" all that certain lot or piece of ground with the buildings and improvements thereon erected." The depositions showed that the lot in question was situated on Armat St., Germantown, and ran through to Laurel Street a distance of fifty feet; that a building was erected upon it all under one roof with two entrances on Armat, and two on Laurel Street, and that it could be, and actually was occupied by four different families; the premises were worth $8000 at private sale. They had sold for $4000. Rule absolute on entry of security that the property should bring a larger price at a subsequent sale. Rule to open judgment. Rule for judgment for want of sufficient affidavit of defence. In this case the Court, on the 31st of October, 1874. had ordered a supplemental affidavit to be filed, the affidavit not having been filed. O. A. Law now moved for judgment. Rule absolute. D. C. Sheriff's interpleader-Claimant's own bond. Rule to show cause why claimant should not be allowed to file his own bond. vit that the goods levied on were not the property of Judgment was obtained on a promissory note for want of affidavit of defence. The defendants' counsel alleged a sufficient excuse for the default. The facts, as now set forth by defendants in an affidavit, were as follows: The defendants were partners, and one, without the knowledge or consent of his copartner, gave a note in the firm's name, for two hundred dollars to one Miles for his accommodation. note was afterwards deposited by Miles with the plaintiff as collateral security for a loan of one hun- D. C. dred dollars. E. C. Shapley, for rule. W. H. Browne, contra, cited This As to liability of firm on note signed by one partner Sedgwick v. Lewis, 20 P. F. Smith, 217. THE COURT made the rule absolute on the ground that the note having been given in fraud of one partner, the burden of showing consideration and good faith was upon the plaintiff, and also that the note being given as collateral security there could be no recovery of a sum greater than that advanced. MONTANGE V. WHEATE Motion for rule for new trial. Nov. 19. This was an action of assumpsit on three promissory notes given on the same day, one note for one hundred dollars payable with interest, the others for like sums payable "with use." THAYER, J., allowed the jury to find interest on all three of the notes from their date. R. Ingram, for rule. D. C. Nov. 17. DEVEREUX et al. v. ROGERS. Negligence-Injury to real estate-Insufficient evidence of title. Motion for rule to take off non-suit. Case for negligence, brought by Devereux and The Bevan Levy, agent, against the defendant. negligence alleged was in allowing a hydrant on premises occupied by defendant to leak into plaintiffs' privy well. No title was shown to be in the defendant. Nor was title shown to exist in Receiveur, who owned the adjoining property to Devereux, and whose agent Levy was. The Judge at nisi prius (LYND. J.) non-suited the plaintiffs, on the grounds of, 1, the inability of the agent to sue; 2, the misjoinder of plaintiffs; 3, the absence of evidence of title in or occupancy by the defendant. Wollaston, for rule. |