author: Embry, Y. C.

text:
    Jennie Storms v. William F. Storms.
    [Decided September 25th, 1906.]
    1. In a suit for divorce for the husband’s adultery, evidence held to establish condonation of the offence.
    2. On a husband’s cross-petition for divorce, evidence held to establish adultery on the part of the wife.

      3. The Divorce act (Rev. 1902; P. L. 1902 p. 509 § 22) provides that if, in a suit for divorce for adultery, it appears that both parties have been guilty of adultery, no divorce should be decreed.—Held, that where a husband had committed adultery, and his offence had been condoned, he was not “guilty of adultery,” within such section, so as to preclude him from a divorce for the subsequent adultery of his wife.
    4. The act of 1902 (P. L. 1902 p. 503 § !/■ ¶ 1) confers jurisdiction to grant a divorce where either of the parties resides within the state at the time of the adultery charged and at the time of filing the bill, but paragraph 7 confers jurisdiction in all cases, except desertion, when either of the parties is a resident of the state at the time of the filing of the bill, and the defendant is served with process within the state. Section 6 provides for like process and procedure as in cases under the .Chancery act, which (Rev. 1902; P. L. 1902 p. 507 § 6) declares that a written appearance by a solicitor shall have the same force and effect as if defendant had been originally served with process by an officer.-—Held, that the phrase “served with process within the state,” in section 7, included an appearance by a solicitor, so that, where a non-resident wife filed a bill in New Jersey for a divorce against her husband for adultery, he was entitled to a divorce on a cross-bill for her adultery'committed while both parties were residents of another state.
    Heard on petition, answer, cross-petition and answer, replication and proofs.

      Mr. Harry Ealisch, for the petitioner.

      Mr. Alexander P. Maxwell, for the defendant.
   Embry, Y. C.

In this ease, the wife, a resident of New York, on January 18th, 1906, filed a petition for divorce for adultery against the husband, who, since August, 1903, has been a resident of New Jersey. The marriage between the parties took place in 1885, and the alleged adultery, with one Mary Davidson, occurred in 1886 and 1887, and the wife, in her petition, denies cohabitation after knowledge of the adultery. The husband pleads condonation, and alleges cohabitation as husband and wife, after knowledge of the adultery, from 1889 to August, 1903, when the wife deserted him by forcing him to leave their common home in Brooklyn, New York. The husband’s cross-petition (filed October 10th, 1905) charges adultery by the petitioner in Brooklyn, from January to July, 1903, with one Curtin, and also with one Iiowlwell. The defendant, by her solicitor, filed an answer denying these charges.

On the hearing, the adultery charged against the husband, which consisted of a bigamous marriage, followed by the birth of a child, was proved, and the only question on this branch of the case was whether the offence had been condoned. On the proofs I am satisfied that the condonation has been satisfactorily made out. The parties went to California to live about 1888, and while there the wife, having found and read a letter to hex husband from the Davidson woman, signed by her as Mrs. Storms, and giving information of the marriage and the child, was informed by her husband of the truth of the charges, and she then joined with her husband in writing a letter to Davidson, stating that she (the petitioner) was defendant’s lawful wife, and that she and her husband were living together in California. The letter is not produced, having been destroyed by Miss Davidson some years ago, but its contents have been proved by her and by the husband, and the wife’s own testimony, to some extent, corroborates them. After this disclosure the parties lived together as husband and wife in California until about 1893, when they returned to Brooklyn, and lived there together until about August, 1903. While living in Brooklyn, Miss Davidson (who proposed to marry another person) desired a statement or affidavit from the petitioner that she (the petitioner) and defendant had been married previous to the bigamous marriage, and this led to a visit to petitioner by defendant’s son, and subsequently to a visit by Miss Davidson to the house of the parties in Brooklyn. The evidence of the son, which seems entirely trustworthy, shows that petitioner then knew of the bigamy as well as of adultery charged. This is further corroborated by the evidence of Miss Davidson (now Mrs. Thompson), and the petitioner’s own evidence as to these interviews seems only to raise the question whether she knew of the bigamous marriage. This she denies, but the essential question is whether she knew of the adultery charged in the petition, and condoned it. Dpon all the proofs I must hold that she did, and this defence being specially set rip and proved, her petition must be dismissed.

As to the charges in the cross-petition, the adultery in Brooklyn with Curtin is directly proved by Curtin himself, a lad then about sixteen years of age, who is called by the husband. To some extent he is corroborated by evidence showing the wife’s disposition and behavior toward other persons, especially Iiowlwell, and the latter’s own testimony as to the familiarity of their relations and by his bearing on the witness stand. A letter of the wife, written to the husband on March 3d, 1905, containing statements about herself and her intentions, which she now says are altogether untrue, is, in my judgment, entitled to much weight, in considering this whole question of the wife’s unfaithfulness both with Curtin and Howlwell, who lived in the house or were there constantly.

Evidence of this- character bearing on the relations to other persons may in some cases be considered as corroborative. Adams v. Adams, 17 N. J. Eq. (2 C. E. Gr.) 324, 336 (Chief-Justice Beasley, Master, 1866). Curtin’s evidence alone, if believed, is sufficient to establish the charge,- and although his admissions on the stand show that he has since been dissolute in his relations with other women, he is not a witness of such a character that his evidence must necessarily be corroborated. Delaney v. Delaney, 69 N. J. Eq. (8 Robb.) 602.

On the whole evidence I find that the charge of adultery of the' petitioner with Curtin is sustained by the proofs.

The charge of adultery with Howlwell is not sustained. The proof mainly relied on is the subsequent admission made by the petitioner to Curtin, that Howlwell and the petitioner were in a room or closet which Curtin found locked. No one saw this co-respondent in the house at the time, and this admission is not sufficient proof of the only act charged.

The petitioner being found guilty of adultery, the further question arises whether under the statute a divorce can be granted to the husband, who has himself been guilty of adultery, although this has been condoned. The language of the statute (.Divorce Acl, Rev. 1902; P. L. 1902 p. 809 § 22) is:

“If it appear to the court that the adultery complained of shall have been occasioned by the collusion of the parties, and done with an intention to procure a divorce (or that the complainant was consenting thereto), or that both parties have been guilty of adultery, then no divorce shall be decreed.”

The original Divorce act, December 2d, 1794 (Pat. L. US), contained this clause, and it has since been included as a separate clause in all of the divorce acts. The question is one of statutory construction, and is simply whether “guilty of adultery” in the act means “committed adultery,” or whether it means “guilty of” or “chargeable with” adultery under the Divorce act. If an adultery be condoned a divorce could not be granted, and therefore the party charged with such an adultery could not be found guilty of adultery within the purview of the act, although he or she might be “guilty of adultery,” within the meaning of the Crimes act, or in the common acceptation of the term. I think the adultery which was characterized in the statute as a guilt and which was to be a bar to divorce, was an adultery which was a “guilt” or offence, entitling the party injured to a divorce under the act. Chancellor Zabriskie, in Jones v. Jones, 18 N. J. Eq. (3 C. E. Gr.) 33 (1866), inclined to this view of the statute, but as the proofs in that case did not establish the commission of the offence, the decision, although of great weight, cannot be considered as controlling.

That adultery condoned is not in itself an absolute bar to a divorce for subsequent adultery by the other spouse, is the general doctrine of the courts where there is no express statute, and the general opinion of the leading text-writers. Anichini v. Anichini, 2 Curt. Eccl. 210 (Dr. Lushington 1839); Cumming v. Cumming, 135 Mass. 386 (1883); Fisher v. Fisher, 48 Atl. Rep. 833 (Md., 1901). A contrary view, it is said, would permit a sort of license to commit adultery without punishment to be set up on one side by guilt on the other, however distant in point of time, or however completely forgiven or condoned. In most of the states having statute provisions, the bar of adultery by the party seeking divorce is expressly confined to cases where he or she has been guilty under such circumstances as would have entitled the opposite party to a decree, and decisions under these statutes, unless they be considered declaratory of the previous rule, do not aid in the construction óf our statute. Morrell v. Morrell, 1 Barb. 318 (N. Y., 1847); Eikenbury v. Barns, 70 N. E. Rep. 837 (Ind.); Burn Annot. St. § 1045.

If, as a matter of statutory construction, the words “guilty of adultery" are held to mean guilty of adultery punishable or actionable under the act, then the court finding the adultery not to be within the act, has no discretion as to granting a divorce, if the guilt of the other party under the statute be proved. The statute itself prescribes the rule that is to be enforced in cases where both parties are charged with adultery, and in the absence of express provision in the statute giving a discretion to the court, in eases where both parties have in fact committed adultery, it should not be exercised. It is altogether a safer and sounder practice to determine such cases by a certain rule of law prescribed by statute than by a judicial discretion based on the special circumstances of each case. Cumming v. Cumming, supra. The difficulties arising under the English Matrimonial Causes act (£0 and 121 Viet. oh. 85 § 81), which expressly gives discretion to the court, arc pointed out by Lord Penzance in Morgan v. Morgan, L. R. 1 Pr. & Div. 644; S. C., 38 L. J. (N. S.) Prob. & Mat. Cas. 38 (1869), and subsequent cases. McCord v. McCord (by Sir James Hanner), L. R. 3 Pr. & Div. 237; S. C., 44 A. J. (N. S.) 30, 38 (1875).

The adultery of the petitioner was committed in Brooklyn in 1902, and while both parties resided in New York. Where adultery is committed without this state the Bevised Divorce act of 1902 (P. L. 190£ p. 508 § 4 1) confers jurisdiction where either of the parties resides in this state at the time of the adultery, and at the time of filing the bill or petition, but paragraph 7 (at p. 504) confers jurisdiction in all cases, except desertion, when either of the parties is a resident of this state at the’time of filing the bill or petition, and the defendant is served with process within this state. At the hearing I requested counsel to submit further briefs on the question whether jurisdiction existed under the statute to decree divorce on the cross-petition, inasmuch as neither party resided in this state at the time of the adultery, and the defendant was not herself personally served with process on the cross-petition, but appeared by solicitor and answered. The question in my mind on the latter phase of the case was whether the Divorce act did not intend to exclude the possibility of appearances made by consent for the purpose of giving jurisdiction.

The Divorce act, however (section 6), expressly provides for the like process and procedure as in cases under the Chancery act, and in this act (Rev. 1902; P. L. 1902 p. 511 § 6) it is provided that a written appearance by solicitor shall have the same force and effect as if defendant had been originally served with process by an officer. On further consideration, I think that “served with process,” under the Divorce act, must be held to include an appearance by solicitor, provided by the Chancery act. And it should also be stated that, according to the rule declared in two cases, jurisdiction for relief on a cross-bill or petition depends on the jurisdiction in the bill or petition, and exists independent of the statutory provision as to relief on an independent bill. Power v. Power, 65 N. J. Eq. (20 Dick.) 93 (Vice-Chancellor Pitney, 1903); Duke v. Duke, 70 N. J. Eq. (4 Robb.) 135 (Vice-Chancellor Pitney, 1906). These decisions apply to the cross-bill for divorce, the rule as to equitable jurisdiction followed in cases where the cross-bill, being a mode of defence to the original bill, is considered as a mere auxiliary suit, in which the plaintiff is not obliged to show jurisdiction. 2 Dan. Oh. Pr. (6th ed.) *1548.

I will advise a decree dismissing the petition, and a decree on the cross-petition.


source: Caselaw Access Project

author: Stevens, V. C.

license: Public Domain

text:
    Standard Table Oil Cloth Company v. Trenton Oil Cloth and Linoleum Company.
    [Decided May 15th, 1906.]
    1. A corporation will not be restrained from stamping the initials of its corporate name on its goods, though another corporation previously used the same initials as a part of its trade mark.

      2. Where complainant used as its label “Standard T. O. C. Company,” enclosed in an ellipse, another corporation which stamped on its goods the words “superior quality,” enclosed in an ellipse in the position occupied by the words “Standard Company,” together with the initials of its corporate name, “T. O. C. & L. Co.,” will be enjoined from using the initials “T. O. C.” in connection with the ellipse.
    On bill by the Standard Table Oil Clotb Company against the Trenton Oil Cloth and linoleum Company to restrain the latter from using a label claimed by the complainant.

      Messrs. Pitney .& Hardin, for the complainant.

      Mr. Edwin R. Walker, for the defendant.
   Stevens, V. C.

This ease lies within a vdry narrow compass. The complainant was organized as a corporation under the laws of this state in Juty, 1901. The defendant, which is also a New Jersey corporation, was originally organized in 1887 under the name of the Trenton Oil Cloth Company, but in 1898 it changed its name to that of the Trenton Oil Cloth and Linoleum Company. The complainant, very shortly after its organization, began to irse as a mark or label for its goods the letters “T. 0. C.,” arranged thus:

It will be observed that the word “Standard” is printed over the “T,” and the word “Company” under, and the whole is cmclosed by an ellipse. In July, 1902, at the request of a customer, the defendant marked five thousand pieces of its goods with a oTc, surrounded by an ellipse, the word “Superior” taking the place of the word “Standard,” and the word “Company” being omitted. This was a palpable imitation. On October 9th, 1903, the attention of defendant was called to the matter, and it at once discontinued the use of the oTc, with an expression of regret for having trespassed on complainant’s rights. From that time on it adopted a label like the following:

In this label “Superior” takes the same position in the ellipse as “Standard,” and “Quality” as “Company.” The complainant’s mark is in light green; the defendant’s in dull red. The defendant’s mark was objected to by complainant and a correspondence ensued, beginning on July 5th, 1904, and ending on December 13th, 1904. On August 19th, 1904, the defendant wrote a letter to complainant, in which it stated that it was advised by its attorney that its trade mark was no infringement upon that of the complainant, “because of the conspicuous dissimilarity between them.” In this letter occurs the following passage:

“TV'e prefer not to have any trouble with our competitors of any kind. We have always been on a friendly footing with them, as far as we know, and would say this, if' the ellipse is what you and the Standard people take exception to in the marking of our goods, while the writer at this time will make no positive promise, we might consider discontinuing this certain feature in the marking of our goods, if by our doing so the Standard people would feel any better. If we should do this, it would simply be done out of courtesy. If, however, you and the Standard people still feel inclined that you have a right to insist upon our not only discontinuing the use of the ellipse, but that part of the marking of our goods which contains the letters T. O. C., then, as we have above intimated, we shall have to allow the court to decide this between us.”

Instead of acceding to this offer the complainant replied by letter of August 30th:

“We think you are perhaps laboring under a misunderstanding as to ihe legal rights of the Standard Oil Cloth Company. This corporation is the owner of two registered trade marks, one consisting of the letters T. O. C., surrounded by an ellipse, and the other having the letters T. O. C. alone; that is, without any ellipse.”

This broader claim, it persisted in maintaining np to the commencement of this suit.

I think it quite clear that complainant cannot restrain defendant from stamping the initials of its name upon its goods, more especially as that name was taken several years before complainant was incorporated. All that complainant can ask is that defendant shall not be allowed to use marks, letters or other indicia by which he may induce purchasers to believe that the goods which it is manufacturing and selling are the manufacture of another person. International Silver Co. v. Rogers Corporation, 66 N. J. Eq. (21 Dick.) 119, 125; on appeal, W Atl. Rep. 18.7. It is not necessary to prove that the defendant’s marks or figures are identical with those of complainant, for, as was well said bj’’ Justice Bradlejq in Celluloid Company v. Cellonite Company, 32 Fed. Rep. 94, “similarity, not identity, is the usual recourse where one party seeks to benefit himself by the good name of another.” And, in the words of Lord Granworth: “It would be a mistake to suppose that the resemblance must be such as would deceive persons who should see the two marks placed side by side.”

In the case in hand the defendant had been in business since 1887. It had not, prior to the year 1902, so far as appears, stamped the words T. 0. C. upon its manufacture, nor had it used an ellipse. AVhen, at the request of its customer, Feuerstein, it stamped upon its goods oTc, enclosed in that figure, it did an act plainly calculated to deceive buyers. It says that it had no intention of palming off its goods as those of complainant, and that as soon as it was informed that the label which Feuerstein had asked for was an imitation of complainant’s label it stopped using it. The label, after the objectionable oTc had been taken out of it and the letters T. O. C. & L. Co. substituted, still bore some resemblance to complainant’s label, and inasmuch as it had never found it necessary to use an ellipse before, and inasmuch as the letters T. O. C. (part of the initials T. O. C. &-L. Co.) were still conspicuous in an ellipse resembling in form the complainant’s ellipse, and the words “Superior” and “Quality” still maintained their place in the same relative positions as “Standard” and “Company” in complainant’s label, I think it ought to have abandoned the ellipse and substituted some other geometrical figure. Indeed, it offered to abandon it, but did not, because complainant persisted in the untenable position that T. O. C. was its exclusive property. With the ellipse enclosing the T. O. C., and with the words “Superior” and “Quality” placed as they are, there is still considerable-similarity between the two stamps. There is great force in the following observation of Lord-Justice Lindlev, in Powell v. Birmingham Vinegar Brewery Co., 2 Ch. 69 (1896) : “A person who designs or adopts a mark to denote his goods imposes no unreasonable burden on rivals in trade by forbidding them from using the same mark to denote similar goods, if the public are thereby misled, but to monopolize the use of words imposes a much more serious burden. Consequently limits have been put to the right to complain of the irse of words which have not been put to the right to the use of marks.” In the case principally relied upon in defendant’s brief (Ligett Tobacco Co. v. Finzer, 128 U. S. 182) the distinguishing features of the two trade marks were so pronounced that it was thought that there could be no possibility that persons using their eyes would be misled. The question is always one of degree of resemblance. It may not always be easy to draw the line between resemblance calculated to mislead and non-resemblance, but it must, nevertheless, be drawn, and drawn with reference to the facts of the particular case.

The evidence here is that the class of buyers of the goods on which complainant’s label is stamped is largely made up of uneducated foreigners living on the east side of New York City, and among this class the defendant’s label might, in the hands of interested or unscrupulous retailers, be made an instrument of deception, the purchaser having no opportunity of seeing the two stamps side by side. I think an injunction should issue restraining the use of the ellipse in combination with the letters 'T. O. C. As the defendant made an offer to discontinue its use and this offer was refused by complainant, who insisted upon more than he was entitled to, I think each side should.pay its ■own costs.


author: Stevens, Y. C.

text:
    The International Silver Company v. William H. Rogers.
    [Decided July 3d, 1906.]
    1. The fact that one has been a wrong-doer in the use of his name as a trade name does not warrant equity in restraining him from subsequently using in good faith his name as a trade name in the same business.
    2. No one has the right to represent his goods as the goods of someone else, and equity will restrain a man from so using his name on or in connection with his own goods as to suggest, except as the mere name itself may suggest, that his goods are the goods of a competitor, and i>ass them off as such.
    3. The gist of an action to enjoin one from using a trade name is not an impairment of complainant’s profits by defendant’s competition, but the fraudulent representation that defendant’s goods are complainant’s, and the fact that a complainant is or may be injured by the use of the name is not material.
    4. A manufacturer, using his own name as a trade name, is not required to so use his name as to inform the public that his goods are not the goods of a prior manufacturer using the same name, for the prior manufacturer must know that he has no exclusive right in the name as against others of the same name.
    5. An actual manufacturer of silver-plated ware carried on the business under the name he had always been known by, “W. H. Rogers.” He stamped his silverware with the words “W. IT. Rogers, of Plainfield, N. X Not connected with any other Rogers.” He advertised himself as “W. IT. Rogers, manufacturer of very best silver-plated ware, of Plain-field, N. X”—Held, that equity would not prevent the use of the name “W. H. Rogers” as a trade name on the suit of a prior manufacturer of similar goods using the word “Rogers” as a trade name.
    G. A bill to restrain one from using his name as a trade name alleged that the term “Rogers goods” had acquired a secondary meaning as meaning the goods of complainant. The evidence did not show that defendant called his goods “Rogers goods,” and he announced that his ware was made by “W. IT. Rogers, of Plainfield, N. X”-—Held, not to authorize equity in restraining defendant from using his name as a trade name.
    On supplemental bill, answer and proofs.

      Mr. Edward A. Day, Mr. Hiram R. Mills and Mr. John P. Bartletl, for the complainant.

      Mr. Graig A. Marsh, for the defendant.
   Stevens, Y. C.

This is a supplemental bill filed against the defendant, praying that be be enjoined from stamping silver-plated spoons, forks or knives, or other silver-plated tableware, with the mark “W. H. Rogers,” “Wm. H. Rogers” or “William H. Rogers,” or any mark of which the word “Rogers” is a characteristic part, or from using those words, or any words of which the word “Rogers” is a prominent part, in a way calculated to indicate that such goods are the original Rogers silver-plated ware.

The original bill was filed against the Wm. H. Rogers corporation, its officers and directors. A decree was made enjoining it from making; marking or selling silver-plated tableware under the corporate name, Wm. II. Rogers, or under any name or mark of which the word “Rogers” was a part. 66 N. J. Eq. {21 Dick.) tl&j 67 N. J. Eq. (1 Robb.) 61 fi.

After decree the corporation changed its name to the Plain-field Silver Plate Company, but soon ceased to do business, and was dissolved. After the dissolution the present defendant, William II. Rogers, purchased its plant and the lease of the factory and office in which it' conducted its business, but did not purchase its good will. Since then he has conducted the business in his OAvn name, and has stamped on all the goods he manufactures “W. H. Rogers of Plainfield, N. J.” The evidence shows that he is now a manufacturer; that he personally supervises and conducts all the operations of silver-plating; that his ware is of excellent quality, and that it is made by a patented process, of which he claims to have the exclusive control, and which he says is superior to any process used by complainant. Whatever may have been his shortcomings in time past, I have no doubt that he is now a bona -fide manufacturer of all the goods put out under his name. The name which he stamps upon his goods is the name by which he was known before he attempted to engage in the silver-plating business, and he uses it in the form in which he was theretofore accustomed to use it. He no longer abbreviates it in a way that appeared to me to indicate an intention to appropriate to himself the reputation and name of another.

The question is whether and how far he is entitled to use his own name in a business which is, in every sense, Ms own.

The complainant’s contention is twofold—first, that because the defendant was a fraud-doer in the past, he should be prevented from using his own name in this particular business.; second, that if he has the same right to use his name that any other bona fide manufacturer bearing that name would have, he must use it only in connection with words that shall “unmistakably disconnect” him from the original Rogers.

I shall not devote any time to the first contention, because it has no authority to support it. It is not the function of a court of equity to punish past misconduct. That is the function of a criminal court. What equity does is to enjoin present and future invasion of the right of complainant, so far as he possesses any right. If proof of what is so obvious were needed, it would be found in the form of every decree that has been made in this class of cases. Of course, if a defendant’s present conduct and intent be ambiguous, his past action may throw light upon them. In this way, and in this way only, do I apprehend that past misconduct can be in any way relevant.

The only question, then, is, How far, if at all, does the law prohibit a man from using his own name, in his own business, where that name happens to be the name of a competitor previously engaged in that business?

In the former proceeding I stated the general principle governing cases of unfair trade in terms which met with the approval of the court of errors and appeals. That principle, shortly stated, is that nobody has the right to represent his goods as the goods of somebody else. &6 N. J. Eq. (21 Dick.) 125. As applied to the particular case of a proper name it is that the .court will restrain a man from so using his name on or in connection with his own goods (if that name has come to be recognized/ as characterizing a rival trader’s goods) as to suggest, except as the mere name itself may suggest it, that his goods are his rival’s, and to pass them off as such. The cases hold that complainant must prove affirmatively that defendant is so using his name as to do this.

Now, in the first place, the mere fact that the competitor is, or may be, injured by the use of the name is not material. “The law,” says Justice Brown (Brown Chemical Co. v. Meyer, 139 U. S. 544), speaking with reference to this class of cases, “does not visit with its reprobation a fair competition in trade. Its tendency is rather to discourage monopolies, except where protected by statute, and to build up new enterprises from which the public is likely to derive a benefit. If one person can, by superior energy, by more extensive advertising, by selling a better or more attractive article, outbid another in popular favor, he has a perfect right to-do so. Nor is this right impaired by aii open declaration of his intention to compete with others in the market.” The gist of the action, therefore, is not impairment of complainant’s profits by defendant’s competition, but the false or fraudulent representation that defendant’s goods are complainant’s.

The leading case is Croft v. Day, 7 Beav. 84 Here the successor to Day & Martin, originators of a famous blacking, filed a bill to enjoin the defendant, a nephew of the elder Day (his name, too, being Day), from using a label of the same color and size as complainant’s, with the letters arranged in the same way and with the same name, “Day & Martin,” on the boxes. The defendant was enjoined, not upon the notion of any peculiar or exclusive right that complainant had to use the name “Day & Martin,” .but upon the fact of its use in a manner calculated to mislead the public. Said Lord Langdale: “He (defendant) has a right to carry on the business of- a blacking manufacturer honestly and fairly. He has a right to the use of his own name. I will not do anything to deprive him of that or any other name calculated to benefit himself in an honest way. But I must prevent him from using it in such a way as to deceive and defraud the public.”

Holloway v. Holloway, 13 Beav. 209, is another case. There Thomas Holloway had for many j^ears made and sold pills and ointment, with the label “Holloway’s Pills and Ointment.” His brothei*, Henry, subsequently manufactured pills and ointment under the same designation. The pill boxes and pots of the latter were similar in form to, and were proven to have been copied from, those of the former. The master of the rolls said: “The defendant’s name being Holloway, he has a right to constitute himself a vendor of Holloway’s pills and ointment, and I do not intend to say anything tending to abridge any such right, but he has no right to do so with such additions to his own name as to deceive the public and make them believe that he is selling the plaintiff’s pills and ointment.”

The facts of these cases showed a fraudulent design to take away a rival’s trade by simulating his boxes and labels. The mere collocation of the words employed may point to a similar design. Thus, in the late case of Valentine Meat Juice Co. v. Valentine Extract Co., 17 Rep. Pat. Cas. 673, the complainant company had put upon the market an extract of meat which had acquired favor with the public, and had been sold in large quantities. A rival by the name of Valentine organized a corporation and began to sell a preparation which he called “Valentine’s Meat Extract,” although in fact he made no extract himself, and did nothing more than put up the extract of another in pellets of his own devising. He was enjoined from so using his name.

The case involving the name “Baker’s Chocolate” was somewhat similar. W. Baker & Co. v. Saunders, 80 Fed. Rep. 889. Chocolate, under that name, had been manufactured for many years by Walter Baker & Company, and this particular collocation of words had come to denote, for the public generally, the source of manufacture. It was held that the defendant, W. H. Baker, could not call his chocolate “Baker’s,” or “W. H. Baker’s Chocolate,” but might state on the package that it was chocolate made by W. H. Baber.

On the same principle, the defendant in Wotherspoon v. Currie, L. R. 5 H. L. 608, was prohibited from calling his starch “Grlenfield Starch,” though made in Glenfield, and the defendant in Montgomery v. Thompson, L. R. App. Cas. (1891) 217, was prohibited from calling Ms ale “Stone Ale,” though made at Stone. “It was,” to quote from my former opinion, “distinetty said in one of the judgments that the defendant was entitled to brew ale at Stone, and to indicate -that it was manufactured there, but there were various means of stating that fact without using the particular collocation of words that had, by long usage, become the designation of the plaintiff’s ale.” The cases so far cited illustrate how a competitor may not use his name. The following show how he may:

Burgess v. Burgess, 3 De G., M. & G. 896, is a leading authority. John Burgess had for many years sold exclusively “Burgess’s Essence of Anchovies.” A grandson, who had been employed in the business, went off by himself and started a similar business on his own account, and advertised and made a sauce which he also called “Burgess’ Essence of Anchovies.” The lords-justices, on appeal, refused to enjoin him from doing this, although he had been enjoined by the vice-chancellor from doing certain other things, such as continuing on the sides of his shop door a plate with the words “Burgess’ Eish Ware House, late of 107 Strand,” where the grandfather had manufactured it. The judgment of Lord-Justice Turner has been repeatedly quoted as an accurate exposition of the law. He said: “No man can have any right to represent his goods as the goods of another person, but in applications of this kind it must be made out that the defendant is selling his own goods as the goods of another. Where a person is selling goods under a particular name, and another person not having that name is using it, it may be presumed that he so uses it to represent the goods sold by himself as the goods of the person whose name he uses. But when the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant i's selling his ■ goods as the goods of the plaintiff. It is a question of evidence, in each case, whether there is a false representation or not.”

Turton v. Turton, 42 Ch. Div. 128, is another case. The' plaintiffs had for many years carried on the business of steel, manufacturers under the name of Thomas Turton & Sons. The defendant, J ohn Turton, had for many years carried on a similar business in the same town, at first as J ohn Turton, and then as Turton & Company. In 1888 he took his two sons into partnersliip and carried on the same business as John Turton & Sons. There was no evidence that defendants imitated the trade mark or labels of plaintiff, or otherwise attempted to deceive the public. Lord Esher, 'in the course of his judgment, quoting from what Lord-Justice Turner had said in the passage I have just quoted, continued: “He [Lord-Justice Turner] does not say whether there is a representation or not, but false representation; that is, he goes back to his fundamental proposition: No man can have the right to represent his goods as the goods of another person. Therefore, if a man uses his own name, that is no prima facie case; but if,,besides using his own name, he does other things which show that he is intending to represent, and is, in point of fact, making his goods represent, the goods of another person, then he is to be prohibited, but not otherwise.” This quotation seems to me to be specially important, because it appears to represent the view which the supreme court of the United States has taken of this question in the very recent case of Howe Scale Co. v. Wykcoff, Seamans & Benedict, 198 U. S. 118, a case to which I will presently advert.

The same idea is expressed by Lord-Justice Lindley in the recent case of Jamieson v. Jamieson, 15 Rep. Pat. Cas. 169 (1898) : “It is said, because yours may be mistaken for ours, you are bound to take extra precautions to prevent yours from being mistaken for ours. T am not aware of any case that goes so far as that. * * * In all cases in which a person has been restrained from carding on business in his own name he has done something more than use his name. He has copied something from somebody else in the trade, or he has gone out of his ■way to make his things look like those of his rival in the trade, as was the case in Holloway v. Holloway, and as was the case, I believe, in one or two others.”

In Duryea v. Manufacturing Company, 79 Fed. Rep. 651, complainants called their preparation “Duryea’s Starch.” Justice Shipman said that by continuous and rightful user for forty years this name had become identified with its source of manufacture, and that wdnle no one else of the name of Duryea could call his starch “Duryea’s Starch,” yet the defendant might, as he was doing, place on his package the words “Laundry Starch, prepared by Duryea & Company,” such statement being in accordance with the truth.

I have already referred, on another point, to the case of Brown Chemical Co. v. Meyer, 139 U. S. 542. There the plaintiffs had for many years been engaged in the preparation of a medicine known as “Brown’s Iron Bitters.” After these bitters had acquired considerable reputation, one E. L. Brown, in connection with one Lincold, put up and sold another preparation called “Br'own’s Iron Tonic.” An injunction was refused. Mr. Justice Brown said: “It is hardly necessary to say that-an ordinary surname cannot be appropriated as a trade mark by any one person as against others of the same name who are using it for a legitimate purpose.” After adverting to the cases of Croft v. Day, Holloway v. Holloivay and McLean v. Fleming, in which latter case a person was enjoined from using his own name in connection with certain pills, upon the ground that they were put up in such form as to mislead purchasers into buying defendant’s article for plaintiff’s, the justice continued: “These cases obviously apply only where the defendant adds to his own name imitations of the plaintiff’s labels, boxes or packages, and thereby induces the public to believe that his goods are those of the plaintiff. A man’s name is his own property, and he has the same right to its use and enjoyment as he has to that of any other species of property. If such use be a fair, honest and reasonable exercise of such right, he is no more liable for the incidental damage he may do to a rival in trade than he would be for injury to his neighbor’s property by the smoke issuing from his chimney, or for the fall of his neighbor’s house by reason of necessary excavations upon his own land. These and similar instances are cases of damnum absque injuria.”

The complainant largely relies upon certain cases in the United States circuit court founded on the case of Singer Manufacturing Co. v. June Manufacturing Co., 163 U. S. 169. That was a case in which a kind of sewing machines, which had come to be known by the name “Singer Machines,” had been' manufactured under certain patents which had expired. The court held that the right to make the patented article and to use the generic name “'Singer” had, on the expiration of the patents, passed to the public, but that.anyone manufacturing the machine and using the name was -compellable to indicate that the article was made by him, and not by the proprietors of the expired patents. This case differs from that in hand in the material circumstances that the subsequent manufacturer, having acquired a new right by dedication, was not allowed to avail himself of it in such a manner as to mislead ordinary purchasers. The putting out of a machine under its generic name—a machine which the original manufacturer had had for many years the'exclusive right to make—without informing the public that it was in fact made by another manufacturer, would be likely to confuse and mislead. What the court required in that case, and all that it required, was a plain statement that the machine was made by the corporation which actually made it. Its application to a case in which the effort is to restrain or limit the use of one’s own name as the maker of the goods he puts out is not very obvious. That the supreme court so thought appears from its very recent decision in Howe Scale Co. v. Wykcoff, Seamans & Benedict, 198 U. S. 118, decided since the case in hand was passed upon by the court of errors and appeals. That was an appeal from the circuit court of appeals, which had affirmed a decree enjoining the use of the word “Remington” in the corporate name “Remington-Sholes Company.” The decree was reversed. The question was, indeed, whether the word “Remington” might be used as part of a corporate name, but the decision is all the stronger for that reason. The individual does not choose his name. The corporation does. Whatever name it' takes, it takes without necessity. After quoting from the opinion of Justice Brown, to which I have already referred, and after saying that it is dishonesty in the use that is condemned, and not the use itself, Chief-Justice Fuller quotes, with approval, the following passage from the judgment of Lord Esher in Turton v. Turton: “Therefore the proposition goes to this length, that if a man is in business, and has so carried on his business that his name has become a value in the market, 'and another man comes and carries on business, he must discard his own name and take a false name. The proposition seems to me so monstrous that the statement of it carries its own refutation.” The chief-justice sums up the entire matter as follows: “We hold that, in the absence of contract, fraud or estoppel, any man may use his own name in all legitimate ways, and as the whole or a part of a corporate name.”

It is hardly necessary to refer to the many other cases cited in the briefs of counsel. None of them, so far as I am able to see, lay down any different principle. I have not been referred to any case in which a man has been enjoined from using his own name, if he does so honestly. No authoritative case decides that the bare use of one’s name, in the way in which one has always used it, is evidence of fraudulent intent. It is argued that the subsequent manufacturer should, when he uses his name, inform the public that his goods are not the goods of the original manufacturer. To put this burden upon him would, or might, put him at a disadvantage—discredit his goods at the outset. If it did,, it would amount to a partial deprivation of the right to use his name. But if a man’s name be, in the words of Mr. Justice Brown, his own property, and if he has the same right to its use and enjoyment that he has to any other property, he cannot be fettered with limitations imposed for the benefit of another of the same name, for that would be to give that other a more ample right to its use. There is no hardship in this, for the original manufacturer must know that he has no exclusive right in his name as against others of the same name. If he wishes to differentiate his goods from others he may adopt a fancy name or a trade mark, either of which will afford him adequate protection.

I now come to the facts. In my previous opinion I have fully stated'the defendant’s (W. H. Eogers) connection with the silver-plated business from the time it began in 1898 to the filing of the original bill in June, 1902. It therein appears that his first effort was to have the name “Wm. H. Eogers Co.” (by which he indicated himself and an inactive partner, Hubbard) stamped upon goods made and put up in packages by another manufacturer. These goods he himself sold. When the partnership was dissolved he contracted, for a royalty, to give to the Benedict Company, a firm manufacturing silver-plated ware under its own name, the right to use that name upon its manufacture. The goods thus manufactured were sold by that firm.

Up to this point nothing could be clearer than that he was engaged or co-operating in a fraudulent attempt to pass off goods stamped with his name as the goods of the Connecticut Eogers. The indicia of fraud were (1) the use of the abbreviation “Wm.,” in imitation of the name “Wm. Eogers” and “Wm. Eogers Manufacturing Co.;” he had always theretofore done business in the name of “W. H. Eogers;” (2) the fact that he himself was neither a manufacturer of silver-plated ware nor otherwise known, and that his name stamped upon such ware could subserve no purpose other than that of inducing the erroneous belief that his goods were those of the Connecticut Eogers; (3) his contract with the Benedict Company, who agreed to pay him a price for the mere use of his name in the objectionable form, “Wm.”—a contract that nobody would have made with him had his name been Smith or Jones, or some other name unknown to the trade. When the Wm. II. Eogers corporation was formed the situation became, to some extent, different. The fraud was not so bald. He organized this company under advice of counsel, and his effort no doubt was to sail as close to the line as he could without crossing it. But he did cross it. The company was made a legatee of the fraudulent business, and it took, without necessity, the objectionable abbreviation, “Wm.” It was the company that was enjoined from the use of this name by the decree made in the original bill.

No one of these indicia of fraud are to be found in the case as it now presents itself. The defendant is an actual manufacturer. He has become familiar with every detail of the business. He claims to have a patented process for applying silver in solution superior to the process employed in complainant’s many factories. He carries on business under the name by which he has always been known, “W. H. Eogers.” He makes an excellent grade of silver plate. Every mark or stamp that he puts upon it, or upon the boxes or wrappers that enclose it, and all his advertisements, serve to differentiate it from, and not to confound it with, the goods of complainant. Thus he stamps upon every knife, fork and spoon of his manufacture, in type of equal size, the words “W. il. Rogers of Plainfield, N J.” On a band around each knife are the words “W. H. Rogers of Plainfield, N. J. Not connected with any other Rogers.” On every package of spoons and forks is a sticker containing the same words. He advertises himself as “W. PI. Rogers, manufacturer of very best silver-plated ware, of Plainfield, N. J. Not connected with any other Rogers.” It is npt pretended that the defendant is in any way imitating the complainant’s wares, or the packages, boxes or wrappers in which they are contained. The only complaint is that because, in using his own name, he may be getting some of the trade that would otherwise go to complainant, he should further differentiate his manufacture from that of complainant’s by stamping upon the ware itself the words “Not connected with the original Rogers.” This was, as the complainant’s counsel admitted, when pressed, the only suggestion in the way of further differentiation that they could offer. Now, aside from the fact that the proposed form of words may perhaps suggest contrary to the fact that the original Rogers is living and competing for the trade, when in fact he and his sons died many years ago, and the name in the hands of complainant is purely a trade name, there are two answers to the complainant’s contention—first, defendant is not obliged to injure his plate by putting upon it matter which other makers do not put upon it, and which might tend to disfigure it and make it less salable, and secondly, under the authorities cited, he is under no legal obligation to do anything more than use his own name fairly. The mere use of -his name, in the way in which he has always used it, does not, according to these authorities, give rise to a presumption of fraud. With the suggestion that he should, because of past misconduct, be prevented from using it at all, or from using it as anyone else might use it, I have already dealt. This court does not punish past misconduct by prohibiting the doing in the future of that which is lawful per se.

Complainant’s final contention is that the term “Rogers goods” has acquired a secondary meaning; that it means complainant’s goods. Conceding, for the sake of the argument, that it has that meaning, complainant’s case fails, for there is no proof that complainant calls his goods “Rogers goods.” What he does announce is that his ware is made by W. H. Rogers,.of Plainfield, N. J. In every authoritative case upon the subject this distinction is vital. Thus, in Montgomery v. Thompson, A. C. 217 (1891), the defendant was enjoined from calling his ale “Stone Ale,” but it was conceded that he might state that it was made at the town of Stone. In Reddaway v. Banham, A. C. 199 (1896), while the defendant was prohibited from calling his belting “Camel Hair Belting,” that phrase having, at least as against defendant, come to mean in the trade the plaintiff’s belting, and nothing else, it was-conceded that any manufacturer might inform the public that his belting was made of camel’s hair, if such were the fact. In the still later case of Cellular Clothing Co. v. Maxton & Murray, A. C. 326 (1899), in which Reddaway v. Banham is explained, one of the lords says that he thought that it should be made impossible for anyone to obtain the exclusive right to the use of a word or term which is in ordinary use in our language, and which is descriptive only (and proper names are always put'in the same category), and goes on to say that were it not for Reddaway v. Banham he should have said that this should be made altogether impossible. The American cases are to the same effect. In W. Baker Co. v. Saunders, 80 Fed. Rep. 889, already cited, while W. H. Baker was prohibited from calling his manufacture “Baker’s Chocolate,” he was allowed to say that his preparation was made by W. H. Baker. In Duryea v. Manufacturing Company, 79 Fed. Rep. 651, the court refused, on the application of a plaintiff, who called his starch “Duryea’s Starch,” to enjoin the use by defendant of the words “Laundry Starch, prepared by Duryea & Co.” Indeed, 1 have not found any decision in which the right of a person to announce to the public that he was the maker of the goods was denied on the ground that his proper name had theretofore acquired a secondary meaning as applied to goods of that kind, and that therefore he could not use it in connection with his manufacture, except the decision of Justice Kekewich, in Cash v. Cash, 84 L. T. R. 849 (1901). There it was held that inasmuch as the plaintiffs had established a reputation for making Cash’s frillings, and inasmuch as the defendant, Joseph Cash, had also commenced to make and sell frillings, and there was a likelihood that the public might in time come to denominate his (Joseph’s) frillings as Cash’s frillings, to the injury of plaintiffs, Joseph Cash should be enjoined from selling any frillings at all. This rather astonishing decision, which, so far as my examination has gone, stands alone, was corrected by the appellate court and the decree made to conform to the established rule. 86 L. T. 211 (1902).

Under these and other decisions that might be cited, it is plain that defendant could not be enjoined from stating that the goods were made by him merely because “Eogers goods” had come to mean goods made exclusively by complainants.

I think the complainant’s bill should be dismissed.


text:
    John E. Lanning v. Albert C. Twining et al.
    [Decided July 31st, 1906.]
    1. A defendant in equity is entitled to question the jurisdiction of the court for lack of proper service in Umine before answer.
    2. In a suit by the receiver of a corporation against non-resident directors, to recover money lost to it by reason of their negligence and Improper conduct, the court acquired no jurisdiction in personam by service by publication and mailing only.

      Mr. Jolin S. Applegate, for the complainant.

      Mr. Sherrerd Depue, for the defendants.
   Stevens, V. C.

This is a suit against the directors of the Monmouth Trust and Safe Deposit Company to recover money lost by reason of their negligent and' improper conduct. The defendants White & Yreeland have put in pleas to the jurisdiction, alleging that they are not residents of this state; that they have not been served with process, and that they have not been notified otherwise than by publication and mailing. The question is whether ilie pleas are a defense. Complainant argues that they are “premature;” that want of jurisdiction cannot be interposed at this stage of the proceedings. The court of errors and appeals, in Wilson v. American Palace Car Co., 65 N. J. Eq. (20 Dick.) 780, has held otherwise. The contention is without merit, and the case on this' branch of it is not arguable.

It is further contended, or rather suggested, that the directors of a New Jersey corporation stand, in respect of the protection guaranteed by the federal constitution, upon a different footing from ordinary defendants. No case is cited in support of this proposition, and it seems to be unsound. The legislature has not attempted to put non-resident directors, when they are sued for negligence, on any different footing, in respect of service of process, from any other class of persons when so sued. It has not sought to compel them to waive their constitutional privilege as a prerequisite to holding corporate office. The distinction made by the supreme court of the United States is between suits in personam and suits in rem or quasi in rem. Freeman v. Alderson, 119 U. S. 185; 7 Sup. Ct. 165; 30 L. Ed. 372; Elsasser v. Haines, 52 N. J. Law (23 Vr.) 10; Smith v. Colloty, 69 N. J. Law (40 Vr.) 365; Elmendorf v. Elmendorf, 58 N. J. Eq. (13 Dick.) 113; Watkinson v. Watkinson, 67 N. J. Eq. (1 Robb.) 142; Hill v. Henry, 66 N. J. Eq. (21 Dick.) 150; Andrews v. Guayaquil and Quito Railway Co., 69 N. J. Eq. (3 Robb.) 211; Wilson v. Car Company, supra. This is admitted to be a suit purely in personam, and I am quite unable to understand why the fourteenth amendment does not apply.

I think the pleas are good.


author: Stevens, V. 0.

text:
    Harry C. Haskins v. Thomas F. Ryan.
    [Decided August 10th, 1906.]
    1. Complainant studied the situation with regard to the white lead industries outside a certain company, and conceived and formulated a plan for combining them in one company, to do which would require several millions of dollars; procured options on such industries, or opened negotiations for their purchase, and laid the plan before defendant, a capitalist, seeking his co-operation and aid, himself agreeing to contribute, if necessary, as much as $200,000, if defendant would join him therein, and also contribute enough to carry the enterprise through. Defendant expressed a willingness to join him therein, provided an examination of the plan and papers by defendant’s attorneys, and experts confirmed the statements made by complainant to defendant, and such examination confirmed such statements. Defendant, however, availed himself of the information furnished by complainant, and, independently of him, organized a company, and got control of the industries, and made large profits therein.'—Held, that there being but an agreement to enter into a definite agreement, equity could give no relief, but the remedy, if any, was by action at law for wrongful appropriation of the plan.
    2. A mere idea, unprotected by contract or statute, is not capable of legal ownership.
    On demurrer to bill.

      Mr. Robert II. McCarter, for the complainant.

      Mr. Richard V. IAndabury and Mr. William II. Page, Jr., for the defendant.
   Stevens, V. 0.

To the bill in this case a general demurrer is pleaded. The bill alleges, in substance, that during the years 1898 and 1899, ] 900 and 1901, the complainant devoted a large part of his time to the study of industrial conditions connected with the output of pig lead in the United States, and had conceived the plan of uniting the outstanding lead interests, which had not already become a part of the National Lead Company, into one company, and had either procured options thereon or had opened negotiations for their purchase; that in the spring of 1891

“he had crystallized and formulated a complete plan for the combination of the white lead industries in the United States not already in the National Lead Company; that he laid such plan before the defendant, a capitalist; that he sought his co-operation and aid, and himself agreed to contribute, if necessary, as much as $200,000, if the defendant would join him therein, and also contribute enough to carry the enterprise through.”

The bill alleges further that defendant, to quote from the bill,

“expressed a willingness to join your orator therein, provided an examination of the plan and papers by the attorneys, and experts of said Ryan Fthe defendant] confirmed the statements of your orator made to him.”

The bill then alleges that the complainant submitted the plan to Ryan’s attorne}r, and was subsequently told by him that he had submitted it to Ryan, and had endorsed it “as comprehensive, feasible and attractive;” that through the efforts of Ryan’s agents, options had been obtained upon most, if not all, of the properties upon which the complainant had options, and that on January 20th, 1903, the United Lead Company was organized as a corporation under the laws of New Jersey, and, under the direction and control of Ryan, proceeded to acquire, and now owns, the interests in nearly all the companies, firms and individuals named in complainant’s plan, and is capitalized with a capital stock of $15,000,000, and has issued bonds for $17,000,000; that in the formation and exploitation of this company, the defendant, Ryan, “has made an enormous profit, the amount of which is unknown to complainant,” and that a combination substantially as planned by complainant has taken place, or is about to take place, with the result of great profits to said Ryan.

The bill then charges that Ryan’s act of availing himself of the information complainant had collected and had only disclosed to Ryan

“upon the agreement and understanding on the part of the said Ryan that he would join your orator in the. said scheme and share with him in the profits arising therefrom is contrary to equity,”

but 1 do not understand that by this general charge it is intended to allege any other understanding or agreement than that contained in the stating part of the bill, viz., that Eyan had expressed a willingness to join complainant in his project, provided an examination of it by Eyan’s attorneys and experts should confirm complainant’s statements. The bill asks for a discovery and account of Eyan’s profits and a decree that complainant is entitled to a share of them. Eyan is the sole defendant.

It is perfectly plain that no recovery can be had in this case on the basis of a completed agreement broken by Eyan. The plan, a copy of which is appended to the bill, contemplates the raising of $15,000,000 for the purpose of acquiring the properties of the various concerns, twenty-two in number, other than that of the National Lead Company. The raising of a fund with which to purchase these properties was of the essence of the plan, but complainant had not bound himself to coniribute any definite sum, and Eyan had not bound himself to contribute anything. Even if, without direct. averment, we should infer that an examination of the plan and papers had been made by Eyan’s experts, and that such examination confirmed complainant’s statements to Eyan, nothing more is shown than that Eyan agreed to join in the plan—that is, agreed to enter into a definite and explicit agreement on the subject. But nothing is better settled than that equity will not compel the specific performance of an agreement to make an agreement. Lane v. Calvary Church, 59 N. J. Eq. (14 Dick.) 413; affirmed on appeal.

An account on the basis of a completed agreement is therefore quite out of the question.

As I understand the complainant’s argument, he does not rest his case on any such basis. His contention is this: The plan is my property. The defendant has appropriated it to his own use. I claim an account of the profits arising from its appropriation.

If in point of fact the plan has been wrongfully taken or appropriated, the remedy, if any, would appear to be an action on the case for damages, the amount of damages being its fair value. But the plaintiff does not, and in this court could not, demand damages. He asks for a discovery and an account of profits. .

The fact that he has not been able to cite any precedent for the claim he makes is not, of itself, conclusive if he can bring himself within the principle upon which an account is given.

The complainant has undoubtedly the right to claim protection in this court for his manuscript. It would seem that, without any reference to whether the plan is or is not open to the objection that it seeks to create a monopoly (Kerr Inj. 186; Oliver v. Oliver, 11 C. B. (N. 8.) 139), he would have the right to restrain its publication or to prevent its use; and in the case of an author the law does more than protect the manuscript regarded as a material thing of ink and paper. The combination of words .of which it is composed (whether written down, or acted or sung before an audience admitted on payment of a fee) is also protected, and publication is restrained even if the manuscript be destroyed and an attempt be made to reproduce it from a copy rightfully in the possession of another, or even from memory. The work is protected indefinitely, before publication, by the common law (Aronson v. Baker, 43 N. J. Eq. (16 Stew.) 366; New Jersey State Denial Association v. Dentacura Company, 57 N. J. Eq. (12 Dick.) 594; 58 N. J. Eq. (13 Dick.) 582), and for a limited time, after publication, by the statutory law of copyright. The law has never attempted to go beyond this and to .enjoin, for the benefit of the author, after publication, the use of the ideas contained in his work.

In the case of secret processes of manufacturing, the law does, to a certain extent, enjoin the use of ideas. It would, of course, on the same principle on which it affords protection to the unpublished manuscript in the hands of the author, enjoin the publication or exhibition of the paper containing the formula; but it does more. In enjoining the use of the formula it restrains the wrong-doer from putting the idea formulated to practical account. Stone v. Grasselli Company, 65 N. J. Eq. (£0 Dick.) 756. The protection ends when the secret becomes known. In the ease of patent rights the statute goes still further. It affords protection for a limited period to a certain class of ideas, known as useful inventions, after the inventor has published them to the world, and because -he has so published them. The valuable right here protected is not, as in the case of copyright, the manuscript or writing regarded as a peculiar combination of words or figures, but the idea or conception to which those words or figures give rise, so far as that idea or conception may admit of material embodiment. If the idea contained in the patented device of A suggests to the mind of B another idea, which would not have arisen in the mind of B but for the stimulus of the prior idea, A can claim no property in that, and yet B has mentally appropriated A’s idea and made it the basis of his own, and I do not suppose that it has ever been contended that the entire public are not at liberty to subject A’s idea to such investigation and discussion as it may desire. The wrong-does not commence until the attempt is made to make or dispose of its material embodiment.

I now come to the precise question here involved. It is this: Has the complainant a property right in the scheme or idea to be found in his plan as contradistinguished from the property right which he has in his manuscript, regarded as a combination of words and figures, a thing of ink and paper ?

A right is defined to be that interest which a person actually has in any subject of propert]', entitling him to hold or convey it at pleasure. But 'that can hardly be styled property over which there is not some sort of dominion. Now, as I have already said, the combination of words and figures contained in complainant’s plan belongs to him absolutely. Its publication or reproduction or exhibition in any form may be enjoined. But the idea eontáined in the plan differs from the ideas to which I have already called attention in this important respect: It involves the voluntary action and co-operation of many different men. When I say voluntary action, I mean action not restrained by contract, for the allegation that complainant had “options” is altogether too vague to warrant an inference that they are still subsisting, or that complainant had the means of availing himself of them without the aid of outside capital. Besides, the allegation is not that he has procured options on all the properties which it was proposed to combine, but that he either had options on them or had “opened negotiations for their purchase.” The means of carrying out the plan; of giving effect to the idea lay, therefore, beyond his control. It was an idea depending for its realization upon the concurring minds of many individuals, each of them unbound by contract and free to act as he chose. Such a project or idea can scarcely be called property. It lacks that dominion—that capability of being applied by its originator to his own use—which is the essential characteristic of property. It differs fundamentally from the secret process or patented invention which is capable of material embodiment at the will of the inventor alone. It is worthless unless others agree to give it life. It was, as far as complainant was concerned, an idea pure and simple. Now, it has never, in the absence of contract or statute, been held, so far as I am aware, that mere ideas are capable of legal ownership and protection. Says Lord Brougham, in delivering his judgment in Jeffreys v. Boosey, 4 H. L. Cas. 965: “Volat irrevocabile verbum, whether borne on the wings of the wind or the press, and the supposed owner instantly loses all control over it. * * * He has produced the thought and given it utterance, and eo instanii it escapes his grasp.”

Justice Yates, in his dissenting opinion in the great case of Millar v. Taylor, 4 Burr. 2303, 2366 (an opinion which was afterwards concurred in by the house of lords), said: “Where are the indicia or distinguishing marks of ideas ? What distinguishing marks can a man fix upon a set of intellectual ideas so as to call himself the proprietor of them? They have no earmarks upon them.” A case much like the present is that of Bristol v. Equitable Assurance Society of New York, 5 N. Y. Sup. 131; 132 N. Y. 264. There the complainant confidentially disclosed to the president of a life insurance company a system of soliciting life insurance devised by him. It was alleged that the company, after the disclosure, used the plan without complainant’s' consent. On demurrer, it was held that the'plaintiff could not recover for the alleged use.

I am therefore of opinion that complainant has no property right in his plan regarded as an idea. Having no property right, iie has no right to an account. .

But if a court of equity cannot treat complainant’s idea as property, it is also incapable of giving him the remedy of account on another ground. The charge of the bill is that Ryan should account for complainant’s share of any profits reaped by him-from, or in connection with, the promotion and exploitation of the United Lead Company. Now, what profits could the defendant reap therefrom? The suggestion is that he might reap the profits of a promoter. A promoter may sometimes get shares not issued for money or property purchased. Such shares, viewed from a legal standpoint, are not of much value. But he may also get, by contract, fully-paid shares. It is presumably of such shares that the complainant desires an account. Now, on what basis. could there be an equitable division of such shares ? The complainant charges, that it was part of his plan, personally, to contribute up to $200,000 if necessary. He has, in fact, contributed nothing. The plan contemplated the raising of $15,000,000. Ryan’s interest in the company would depend in part upon the extent to which he had himself contributed, and in part upon other considerations having no relation to complainant. This being so, it would seem to be utterly impossible, on any recognized basis of apportionment, to take from Ryan a part of his shares and give them to complainant. Complainant no doubt expected to secure shares, partly in return for the money, to be put in by him and for the services to be performed by him, and partly for the prior work /Ioffe in formulating the scheme. How much his collaborators ijX the undertaking, had they taken him in, would have allowédHrim for what he had done or would do is altogether conjectural It would naturally have been a matter of express contract. ‡ am quite unable to see how a court of equity could make hrr^ an allowance by way of account of profits, based upon a condition of affairs wholly unanticipated and wholly unprovided 'for. Manifestly the-only way of compensating him on any rational basis would be to ascertain what hi^ plan was reasonably worth, and then to give him damages. This, of course, would presuppose a property right in the plan. Conceding such right, the damages, if recoverable at all, would be recoverable in a court of law in an action on the case, and not in equity.

I think the complainant’s bill should be dismissed.


text:
    William E. Ten Broeck et al. v. Charles A. Jackson.
    [Decided October 13th, 1906.]
    1. In a suit by a widow against the executor and devisees of her deceased husband for an accounting, based on the husband having stolen a sum of money from her, she was not a competent witness to prove the presence of the husband at the time of the taking, for the transaction began the instant she recognized him.
    2. Evidence held not to show that a husband stole money belonging to the wife, requiring the dismissal of a bill by her against his executor and devisees for an accounting based on such taking.
    3. Laches in bringing a suit until it has become impossible to hear both parties, and to ascertain the exact facts, bars a recovery in equity.
    On bill, answer and proofs.

      Mr. Freeman Woodbridge, for the complainants.

      Mr. Alan II. Strong, for the defendant.
   Stevens, V. 0.

This is a peculiar case. Emma J. Jackson, one of the complainants, alleges that on February 12th, 1894, her husband, Thomas A. Jackson, stole from her person, while she was asleep on a lounge, her pocketbook, containing $2,000. She alleges further that a part of this sum was, on July 6th, 1902—that is, over eight years afterwards—used by him to pay off’ a mortgage on his property. He died on February 23d, 1893, and this suit is brought against his executor, against a devisee and against the executor and infant heir of another devisee. The bill prays for an account, and asks that the money used to pay off the mortgage may be charged upon the land mortgaged. ■

There is no direct evidence to support the allegation that the money was stolen or taken as alleged. There is little or no circumstantial evidence. The proof of it consists in an alleged admission made to a detective by the name of Oliver, to which I shall presently advert. It appears -that about a year and a half before the money is said to have disappeared $2,000' was paid to Mrs. Jackson on two mortgages held by her. This sum she says she carried constantly in her pocket after that time. She was.a widow when the money was paid to her, but was married to-Jackson, a widower, on October 14th, 1894. They lived together up to the time of his death in a house owned by him on Georgm street, New Brunswick. On February 12th, 1894, early in the evening, she says she went to 191 George street, a house owned by her, about a block away from their residence, and then unoccupied, to look after a fire which she was keeping up to prevent the water pipes from freezing. She testifies that she had the money when she went to this house, and that she first missed it on her return home. The allegation of the bill is

“that between the hours of five and eleven o’clock p. m. the said Thomas Jackson, the husband of the said Emma Jane Jackson, fraudulently abstracted the said sum of two thousand dollars, cash money, from the pocket of the dress of the said Emma Jane Jackson, while she, the said Emma Jane Jackson, his wife, was sleeping, without her knowledge or consent.”

There is not any legal proof of her husband’s presence on this occasion. Mrs. Jackson did, indeed, state, against objection, that her husband entered the house after dark, but I think that this must be treated as evidence addressed to the judge on the voir dire, and that she was not a competent witness to prove even this fact as evidence in the cause, for the “transaction” began the instant she recognized him. No one else was called to prove that the husband was in the company of his wife at any time during that day, so, as I have said, direct proof of the talcing fails altogether.

The only evidence, then, is that of Oliver. Mrs. Jackson testifies that, suspecting her husband, she employed him as a detective within a few days after the alleged taking. He says that he had two interviews with Jackson; that he could not give the conversation as it was eleven or twelve years ago, but that he could give “the substance.” On being asked for this substance, he replied: “I had two interviews with Mm, and at the second interview he admitted that he had taken the money.” On being asked for the words in which the admission was made, he replied : “Well, he said he got that $2,000; he finally said, 'Well, what are you going to do about it ?’ ” On cross-examination, he said: “I met him once or twice upon the street and had talks with him once or twice.” On being pressed further, he said he could not tell whether he didn’t tell Senator Van Cleef that J ackson made no admissions to him, and he concluded by saying:

“I did tell Senator Van Cleef that I did not pretend to remember what was said, and I don’t, either. I cannot remember what Mr. Jackson said to me or what I said to him.”

I think that anyone perusing this testimony, and regarding the halting way in which it was given, will not be disposed to consider it as very satisfactory. The detective does not speak from notes made by him at the time, but from memory only. Zealous in the cause of his employer, he may have drawn an inference of guilt from what Jackson said or failed to say in answer to his questions, the soundness of which we cannot now pass upon, and this inference may very well, after a lapse of nearly twelve years, have been remembered as a direct admission. Of course, this is conjecture, but conjecture not unsupported by circumstances.

It appears that Jackson had, prior to his marriage,‘been a builder. He was a man of good character. He had accumulated some property. The bond offered in evidence shows that year by year lie had paid something on account of principal. He owned two dwelling-houses and the lot on which he had carried on his business of carpenter and builder. He had, in February, 1894, just completed two buildings taken on contract. It appears conclusively by his bank account, put in evidence by complainant, that on the day before the alleged taking there stood to his credit in a New Brunswick bank $1,585, and that a considerable sum of money remained on deposit for over a year afterwards. A part of it ($1,000) was actually invested by him in bank stock. The deposits of $1,440.50, made on February 12th (before the time of the alleged taking), and of $2,551, made on February 24th, are accounted for. It is not claimed that they were composed in part of complainant’s money.

Now, when a crime is committed we look to see the motive of it. Here motive seems to be wanting. Jackson was not being pressed for money. He was living with his wife, and he would have had the benefit of the investment of the $2,000 iñ his wife’s hands as part of their joint income. He had two grown-up sons. That a man so circumstanced wordd have been willing to imperil his good name by such an act seems hard to believe.

There is another strong circumstance. Oliver says that after the alleged admission he and Mrs. Jackson went together to consult Judge Eice, and that after the consultation nothing further was done. Mrs. Jackson says she consulted another lawyer, and he did nothing. Now, Mrs. Jackson was not a young woman, inexperienced and confiding. The evidence shows that she then had a grandchild eight years old. The union was evidently a mariage de convenance. I cannot, under these cireum-" stances, conceive why a lawyer of the ability and experience of Judge Eice should not, upon the strength of an unqualified admission, have sent for Mr. Jackson and insisted upon his returning the money. The remedy was clear, and an interview could scarcely have ended otherwise than favorably to his client. It cannot be suggested that Jackson may, to their knowledge, have dissipated the money, for the complainants’ entire case - rests upon the theory that he kept it; that a year and a half after he took it he deposited it in a New York savings bank, and that he drew it from there to pay off the mortgage.

If the complainant knew that she had a case, and knew, as she must have known, that her husband was pecuniarily responsible, it is very strange indeed that for the nine years that he lived she made no effort to recover the money; that she waited until his lips were sealed by death before she took action.

It is argued by counsel that the cancellation of the mortgage was withheld from the record, and that, with a view to concealment, it was assigned, and not discharged, he being afraid to let it be known that he had tire money to cancel it. This might have been a circumstance in complainants’ favor had it. not been for her own evidence that he told her he was going to pay it off.

The so-called admissions made to Mrs. -McCauley and her. daughter I regard as of scarcely any importance. Recollection of casual conversations occurring years before would necessarily be imperfect, and the reference might.have been to a dozen other subjects of controversy.

If the evidence of the taking is unsatisfactory, the attempt to trace the money into the New York savings ba,nk account is still more so. The only proof is an inference that the deposit nvust have been made with Mrs. Jackson’s money, because Jackson had no other money available for the purpose. But this is pure assumption. He might have held.notes given to him while in active business, or the money might have been derived from other sources unknown to Mrs. Jackson.

It seems to me that this is a case to which the doctrine of laches expounded by the court of errors and appeals in Lutjen v. Lutjen, 64 N. J. Eq. (19 Dick.) 773, is peculiarly applicable. ■The complainant has waited until .it has become impossible to hear both sides and to ascertain the exact facts. It is said in counsel’s brief that the statute of limitations does not apply. This is undoubtedly so. The court of errors and appeals so decided in Gray v. Gray, 39 N. J. Eq. (12 Stew.) 511, but in that very case Chief-Justice Beasley used this language: “That a stale claim of this character would be open to the gravest suspicion, and would often be rejected in a court of conscience on its own peculiar methods of dispensing justice, is, evident at a glance.”

I think the bill should be dismissed.


author: Grey, Y. C.

text:
    Amelia Albert v. Emily B. R. Haeberly et al.
    [Argued November 1st, 1905.
    Decided May 28th, 1906.]
    1. Where an absolute gift, without reservation of power to revoke, is made by a dependent member of' the family to the dominant member, without any valuable consideration proceeding to the donor, the burden of proof is laid upon the donee to show that the donor had the benefit of competent and independent advice explaining the effect of the challenged transaction.
    2. Where the lawyer who drew the transfer of property from the dependent member of the family, and conducted the business incident to its execution, had for years previously been employed as counsel for the dominant member (who was the donee) ; had received his instructions for preparing the transfer in the presence of the husband of the donee, and in .the matter of the transfer is not shown to have acted- independently for the protection and advantage of the donor, the burden of proof cast upon the donor is not successfully carried.
    3. This case held to be controlled by the decision of the court of errors and appeals in the case of Albert v. Haeberly, 68 N. J. Bq. (2 Robb.) 664.

    On final hearing on bill, answer and proofs.

      Messrs. Bourgeois & Booy, for the complainant.

      Mr. William I. Garrison, for the defendants.
    The cause was argued by Mr. Garrison for the.defendants.
   Grey, Y. C.

(orally).

I do not care to hear from complainant’s counsel, because I am convinced that this case ought to be settled in the way I am about to determine it. I have listened with interest to the defendants’ counsel to hear any suggestion why this cause is not substantially controlled by the decision of the court of errors and appeals in the case of Albert v. Haeberly, reported in <&8 N. J. Hq. (£ Robb.) &6J/.. The circumstances in this case differ very slightly from'those which were before that court in that judgment. The present matter is the challenge by the complainant of the validity of a release in writing, made by her on October 16th, 1902, to Mr. Challes Wells, an attorney-at-law of the State of Pennsylvania, of what was called a trust fund in his hands, with a direction to deliver the corpus of that fund to the defendant Mrs. Haeberly.

The circumstances under which this paper was made are as follows: William Robinson was the father of Lena and Amelia Robinson by a wife who died. He then married the defendant (now Mrs. Haeberly), who bore him one child, named Edna. William Robinson died intestate, leaving at his death his three children, Amelia Robinson, the complainant in this suit; Lena Robinson, her sister of the whole blood, and Edna Robinson, her sister of the half blood, an infant about two years old. Edna Robinson died about two years after the death of her father. There was litigation in the State of Pennsylvania between the representatives of the estate of William Robinson and his brothers, Charles and Augustus, touching the settlement of a brewery property, which had been held in partnership between them, which resulted in the final establishment of the right of William to one-third. The property consisted of both real and personal estate, and was of such a character that there was some uncertainty as to what part was realty and what personalty. Under the law of Pennsylvania, as it has been proven here, the real estate part of William Robinson’s estate descended, on his death intestate, to his children, one qf whom was his daughter Edna. Edna’s portion, upon her death, an infant, and of course intestate, under the law of the State of Pennsylvania, as to the real estate, passed to her mother for life, and to her half-sisters, Lena and Amelia, in fee. The controversy in this case arises touching the transfer, or claimed transfer, on October 16th, 1902, by Lena and Amelia, to their stepmother, the defendant Mrs. Haeberly, of their reversion in the fund arising from the sale of the real estate to the extent of Edna’s share, the fee in which came to them on Edna’s death. There has been, as has been stated, a considerable amount of flat contradiction in the testimony in this case. This is true, however, only of minor matters, for as to the essentials which I deem to be controlling the decision of the cause there is no dispute whatever. In matters of family contention it is not at all unusual to have members of the family of creditable appearance give testimony against each other which is directly contradictory. This is, to a certain extent, true in this case, but touching the important phases settled by the court of errors and appeals, the evidence presented by both sides is in harmony.

In the court of errors and appeals case above cited the contention was between the complainant, Mrs. Amelia Eobinson Albert, and her stepmother, Mrs. Haeberly, who is the principal defendant in this suit. The complainant sought to set aside a conveyance of her share of her father’s real estate, which Mrs. Haeberly, while Amelia was a member of her family, in December, 1902, had induced her to make to herself (Mrs. Haeberly), without any independent, uninfluenced advice on the subject, by a deed of gift which contained no power of revocation. The court of errors and appeals held that the circumstances proven showed that Amelia, though of age, was one of the family of which Mrs. Haeberly was the head and dominant member; that Amelia lived in an atmosphere of trust and confidence in Mrs. Haeberly; that it was an inequitable advantage taken of Amelia to accept from her an irrevocable conveyance of her lands, given without competent and independent advice, and without valuable consideration passing to her. On these grounds the court of errors and appeals declared Amelia’s conveyance of her lands, made in December, 1902, to Mrs. Haeberly, to be void.

In the case at bar Ariieliá seeks to set aside the transfer of her interest in the principal of her sister Edna’s share of the lands, which Amelia made to'Mrs. Haeberly on October 16th, 1902.

Amelia had come of age in August, 1902.

As above stated, it is affirmatively proven by both sides that on October 16th, 1902, she 'was a member of Mrs. Haeberly’s household. At that time Amelia was living, as she had for more than ten years, in entire harmony with her stepmother, accepting and obeying orders from Mrs. Haeberly as the head of the fámily. All the evidence tends to prove that Mrs. Haeberly was a positive woman, who understood and appreciated the fact that wealth was a means of power. She had conducted the law suit ágainst her first husband’s brothers, Charles and Augustus Robinson, for several years, and had finally won it. While her stepdaughters were under age she received $1,000 a year from the guardian of each of them for their maintenance and education. Amelia says she was for years kept in ignorance of the fact that she had an independent fortune. In the settlement of William Robinson’s estate, his widow (who had now become Mrs. Haeberly) secured for herself, as against her stepdaughters, every element of value to which her status as widow entitled her. Her personal appearance and bearing when she was giving her testimony accord with all the evidence which indicates that in the family she was easily “monarch of all she surveyed.” A claim that she specially considered her stepdaughters was based on her assent to the correction of a clerical mistake in the settlement of the estate, which was only discovered after it had passed 'unnoticed through several courts. This correction was a matter of the simplest honesty, about equivalent to 'the return of too large a sum of money given in change. Nothing in this incident or in the case lessens the clear proof that Mrs. Haeberly dominated the family.

On the other hand, Amelia, who was on the stand, is plainly 'wholly unacquainted with the modes in which business is managed. She did not know the meaning of the simplest legal language, or of words ordinarily used in the conduct of business. She is fairly intelligent and well educated, but on lines quite remote from bargaining, trading or managing business.

It is quite evident that in October, 1902, she was entirely under the tutelage and control of her stepmother, Mrs. Haeberly.’ The defendant Mr. Wells, the Pennsylvania lawyer, who had conducted the settlement of the William Robinson estate, and who had in his hands the Edna Robinson share of the fund which proceeded from the sale of the realty, testifies without hesitation that Mrs. Haeberly and ’ her stepdaughters constituted a family in which harmonious affection was the controlling feeling, to a degree that Was distinctly noticeable.

This condition and relation of the parties to this suit continued after Amelia came of age in August, 1902, and until the spring and early summer of 1903. There was no change in the family situation when Amelia came to her majority. There was then neither suggestion nor thought that she should be emancipated and depend upon herself. On October 16th, 1905, she was still the submissive and obedient stepdaughter, and Mrs. Haeberly was the commanding head of the house.

The court of errors and appeals, dealing with this element, •declared that under such circumstances the mere arrival of Amelia at the age of twenty-one years was of very little importance; that “the relationship existing between a loving parent and child is universally conceded to be one of trust and confidence, and during the youth of the child, and even after the child reaches her majority, when she continues to.be a member of the parent’s family, the parent ordinarily occupies the dominant position.”

The court goes on to say, as has been decided in many cases, that where such a relationship exists, an irrevocable gift, made by one of the subordinate members of the family to the parent or other member who dominates the situation, must be characterized by certain incidents, and that the burden of proof to show that it was so characterized is east upon the recipient of the benefits of the transaction. Mrs. Haeberly has received the benefit of this gift by the execution of the instrument, a copy of which is annexed to the bill of complaint. With that she must take the burden of showing that the incidents which are required by the law to make such transactions valid happened at the time when the transaction took place.

This case varies slightly from the other in the attempt here made to show that the young lady acted with'the benefit of counsel. It is claimed that Mr. Wells was her counsel in this transaction. • It is, however, quite clear that the relation of Mr. Wells to the complainant in making the settlement of October 16th, 1902, was not (within the meaning of the decision cited in the previous case) that of counsel for Amelia. Hp to that ' time Mr. Wells had never been her counsel. He had previously acted as counsel for the estate, in which the active persons 'employing Mm were Mrs. Haeberly and the guardians of Amelia and her sister. These young ladies might have protested and objected, and done all they could to prevent the employment of Mr. Wells, and their opposition would have been absolutely useless, for Mrs. Haeberly and the guardians might have chosen him as counsel in spite of all that Amelia and her sister might do. The fact of his employment to act for the estate did not put Mr. Wells in the attitude which the court of errors and appeals declares the counsel of a junior and dependent member of a family should occupy in order to sustain a gift made to the dominant and controlling member of the family. Mr. Wells admitted that he had never, prior to this transaction, been independently employed by Miss Amelia Robinson to advise her and care for her interests.

The essence of the decision of the court of errors and appeals is that, under the circumstances named, the dependent member of the family has a right to rely on the care and protection which have heretofore saved her from improvident and ill-advised action, and that the making of any irrevocable gift of large value to the dominant member of the family requires that the donor shall have the benefit of the counsel and advice of an experienced person, whose attitude is that of independent devotion to her advantage.

In this case it is clear that there was no reason for Amelia’s absolute transfer of $9,000 or $10,000 to her mother, except the family feeling of love and affection, and it is exactly that situation contemplated by the court of errors and appeals when it declared that a gift made under such circumstances is voidable at the choice of the donor, unless when she made the gift she had the benefit of competent and independent advice.

Mr. Wells testifies'that the complainant gave him his instructions to prepare the challenged instrument, but admite that Mr. Haeberly, the husband of the' donee, was present when they were given. Mr. Wells had long served as the family adviser, and was in all probability selected by Mrs. Haeberly. He had successfully conducted a hard-fought litigation for her. He says he made no charge for his services at Atlantic City in arranging the settlement and transfer of the complainant’s interest in Edna’s share to Mrs. Haeberly. He certainly did not feel himself to be in the position of an independent adviser of the donor-complainant, looking solely to her interests in the matter. The transaction involved the passage of an interest which the donor had never had in possession. The challenged instrument is not expressed in the form of a gift to Mrs. Haeberly, but in that of a statement of account with Mr. Wells, as trustee, and an agreement that all the property should be delivered over to Mrs. Haeberly, and that thereupon Mr. Wells should be discharged.

At the time it was executed, the trustee, Mr. Wells, had in his hands $19,000 (and a fraction) of securities, notes and other evidences of value, the result of the sale of real estate, which had been divided off and ascertained to be the portion due to Edna Eobinson. In Edna’s share (dealing with it as real estate), under the law of Pennsylvania (which has been proven here), the mother, Mrs. Haeberly, had a life interest in the income, and Edna’s two sisters, the complainant and Lena, had a right to the payment of the principal of the fund, on Mrs. Haeberly’s death. The effect of the disputed transfer (a copy of which is annexed to the bill) was to end the trust, as to the fund in the hands of Mr. Wells, and to empower him immediately to deliver over the principal of it to Mrs. Haeberly. This he has done, as she admits. Part,of the fund was an evidence of debt with an ascertained value, part of it was in stock, which was delivered in kind. A part of the stock, one hundred and twenty-four shares of the Central Brewing Company, has since been returned to the complainant.

While the legal effect of the instrument is to transfer to Mrs. Haeberly the complainant’s reversion in Edna’s share of the real estate, that effect is not obvious on the face of the instrument. There was therefore the more reason that the complainant should have had competent advice from someone acting in her interest before executing it. She says she was entirely-misled, and did not understand that she was making to her stepmother an absolute gift of the $9,000 or $10,000 which constituted the principal of the fund in Mr. Wells’ hands.

In my view the elements referred to in the opinion of the court of errors and appeals in the previous ease are all here present: An absolute gift, without reservation of power to revoke, made by a- dependent member of a family to the dominant member, without any valuable consideration proceeding to the donor, and without the donor’s having the benefit of competent and independent advice explaining the effect of the challenged instrument. In such cases the gift is voidable at the option of the donor.

The accuracy and fairness of Mr. Wells’ statement of account as between himself and the complainant, touching the moneys in his hands, has not been attacked by the complainant, either in the proofs or in argument. The whole case has been made to turn upon the efficiency of the transaction as a gift to Mrs. Haeberly.

I feel 'constrained, under the rulings of the court of errors and appeals, to hold that the settlement release of October 16th, 1902, so far as it operated as a gift of the share of the complainant to her stepmother, the defendant Mrs. Haeberly, must be declared to be invalid.

Under the peculiar circumstances of this case, the defendant Mrs. Haeberly being entitled to the income of the fund during her life, there can be no decree for the delivery to the complainant of her share of the principal of the fund, for she is not presently entitled to have possession of it. There should be a decree that Amelia’s portion of the fund be paid to a trustee, who should, I think, be nominated and appointed in this suit, to hold upon trusts which accord with the interests of the life tenant and of Amelia, the holder of the reversion. I will not name the trustee at this time, because I think his selection should be the subject-matter of agreement between the parties, if that be possible. The defendant Mrs. Haeberly appears to have received from Mr. Wells, and to have, the whole of the fund. She will be directed 'to deliver to the trustee the. portion of the fund which may be in kind, and to pay in money such additional amount as may be necessary to make the fund good as to the share of the complainant, Mrs. Albert, formerly Amelia Robinson. As none of the fund remains in the hands of the defendant Wells, and his good faith in accounting for it and paying it over are not impugned, there will be no decree that he pay any of it.

My impression is that no costs should go against Mr. Wells, because the litigation has been carried on in the interest of Mrs. Haeberly, and the contest has been made by her. The decree should be that she pay costs. As for Mr. Wells’ claim to have costs against the complainant, my reading of his answer is that he did not content himself with defending his own position as trustee under the release and transfer, but that he has sought to aid Mrs. Haeberly in the maintaining of the validity of the transfer to her. I will not pass finally upon this matter, but before I sign any decree I will examine Mr. Wells’ answer. If he was in his pleading an active litigant, and is defeated, I do not think I ought to allow him costs.