Tradesmen's Marks. thorities, and it is apprehended such must where none was alleged.* The name of a particular firm seems to be considered in the nature of good will, and, therefore, the right to use the name of any firm goes to the surviving partner, and his representative on his death has a right to make use of that name in any manner he pleases, and may restrain others from using it. whether a person, who, as tenant of parThus, where A. and B. carried on business ticular works, had derived the benefit of a together under the firm of A. and L., and distinguishing mark, employed for the purA. died, and B. carried on the business pose of marking the goods made there, and under the firm of A. and L., an injunction who, during the term of his lease, quits the was granted to retrain him from using the premises and establishes a similar manuname of that firm.† When a party in as- factury elsewhere, and then after the expiserting his title to vend a particular article, ration of his lease continues to use the mark falsely states the manner by which he be- which he had obtained the right to use, or came possessed of the secret of the manu. at all events the benefit of using, by being facturer, or the mode of obtaining and pre- tenant of the works, so far obtains the paring the article, the court will not grant right to use that mark ever after, to the its protection to him, even though the arti- exclusion of the owner of the works; as cle sold be a new production, or at least under these circumstances to say to the first introduced into this country by him.‡ landlord of the works; "not only have I The vice chancellor there said: "There acquired the right to use this mark, but has been such a degree of representation, you have lost the right to use it." The which I take to be false, held out to the question was a matter of much nicety, public about the mode of procuring and and had never before came before the making the plaintiff's mixture, that, in my court; the court of chancery, under these opinion, a court of equity ought not to inter-circumstances, refused to grant the injunc fere to protect the plaintiff until he has tion, but permitted the right to be tried established his right at law." It was not at law. It does not appear whether this necessary for the vice chancellor to decide right was ever tried at law; or if it were, the point how far a plaintiff, having by what the result was. It would seem, some means or other acquired a method of however, that the right to use such a mark mixing teas which was much approved by might, under the circumstances, be considthe public, sold it under the name of "How- ered as attached to the manufactory, it hav. qua's Mixture," and the defendant, finding ing been first, and for a great number of that the plaintiff's mixture was in consider years, continuously used by all the occupants able demand, sold a mixture of his own, of the works, whether owners or lessees. under the same designation, was entitled to And it is suggested whether the right to use restrain the defendant from so doing; but such a mark may not be considered as good he expressed his opinion that the defendant will, and annexed to the situation of the was not at liberty to do that. If by "desig. works. The infringement of any right to nation" the vice chancellor meant "How- use a particular name or mark does not qua's Mixture," it is apprehended from the consist in using the exact name or mark : tenor of the other cases on this subject, a colorable imitation is as much an infringethat such a doctrine could not be supported; ment of the right-and, this, on the princifor if it could, it would go to the extent of ples before laid down. A company was concreating, in such persons a monopoly for stituted by deed, under the title of "The the sale of any particular production, which London Conveyance Company," for the he might be the first to import. If by purpose of running omnibuses, and on their "designation" his honor meant "Howqua's omnibuses were painted the words, "LonMixture" in packets, with labels and de- don Conveyance Company;" the defendvices similar to the plaintiff's, then the doc- ants started omnibuses with the words, trine is in accordance with the other au- "London Conveyance Company." Delondre v. Shaw, 2 Sim. 237. t Pidding v. How, 8 Sim. 477. Lewis v. Langdon, 7 Sim. 421. It was there held,† that the company had * 3 M. & C. 1. † Knott v. Morgan, 2 Keene, 213 Tradesmen's Marks. oval ring, and that such mark was a colorable imitation of plaintiff's mark, and that the difference between the two in appearance was so slight that parties were de a right to restrain the defendants from using being any persons property, and under the those words in the manner specified, or in belief that they were merely technical any manner, so as to induce the public to terms. We here see, that the fraudulent believe that their omnibuses were the om- use of the marks need not be wilful fraud, nibuses of the plaintiffs. The master of the but it seems that this is a natural conserolls then said, he did not hold "that the quence of the principle on which relief is plaintiffs had any exclusive right to the granted in these cases. The plaintiff has words Conveyance Company, or London a right to be protected and to restrain any Conveyance Company, or any other words; improper use of his name or reputation; but they have a right to call upon this court and he has a right to this whether the to restrain the defendants from fraudulently injury be done innocently or otherwise. using precisely the same words and devices In a late case,* the plaintiff claimed to which they have taken for the purpose of be entitled to use a certain mark upon distinguishing their property, and thereby his iron, which was intended for, and depriving them of the fair profits of their regularly sold in the Turkish market, and business, by attracting custom on the false was well known there; the mark was W. representation that carriages really the de- C. in an oval ring. The infringement fendants' belong to and are under the man-complained of was, that the defendants supagement of the plaintiffs." According to plied the Turkish market with W. O. in an the principle in this case, which is the principle pervading all the modern cases, Lord Hardwicke's doctrine-that the court would not interfere to prevent one tradesman using the sign of another, is complete- ceived. The mark was stated in the bill ly overruled; and, at the present day, there to have been used by the grandfather and seems no reason to doubt but that in such father of the plaintiff, who carried on the case the court would grant an injunction. same business; but the affidavit of the In a case decided in easter term, 1833,* plaintiff swore only to user by him, and it the vice chancellor granted an injunction appeared that the infringement took place restraining the defendants from manufac- very shortly after the plaintiff's commencing turing and vending watches with the word to use this mark. The defence set up, "Pessendede," in Turkish characters, to- was, that the mark W. O. in an oval ring gether with the plaintiff's initials, in Turk- was a well known mark used by the Roish characters, or with the plaintiff's cipher mans, and that iron so marked was in great engraved on them—the plaintiff having been request in the Turkish market, and that the in the habit for many years of supplying defendants had no intention of imitating watches for the Turkish markets with these plaintiff's mark. The vice chancellor, marks and words on them, although the de- however, refused to grant the injunction on fendants used such word with their own the ground of the plaintiff not having shown name, and not the name of the plaintiff, a sufficient legal title to warrant him in reand the word "Pessendede "* signified in instating the defendants; for the commencethe Turkish language "warranted." The ment of the title and the infringement apcourt then held, that in this case the prin- peared to be nearly contemporaneous. ciple of fraudulent representation applied. The point of the case is one of great novelThe case of Millington v. Fox † carries the ty, and one not hitherto known. It is new; doctrine even further than the former cases. for supposing the plaintiff to show a long The plaintiffs in that case filed a bill to re-user by himself, his father and grandfather, strain the defendants from using certain all carrying on the same business in suctrade marks, and the court, on the hearing of the cause, granted a perpetual injunction; although it appeared that the defendants had used such marks in ignorance of their * Goutt v. Aleploghler, not reported, but argued by Mr. Knight Bruce and Mr. Roe, for the plaintiffs, and by Mr. Spence for the defendants. Register Book A. 1832, folio 1247. 13 M. & C. 338. cession, the defence set up, namely, the right of the defendants to use not their own mark, but the mark of another nation. It seems, that if the defendants are using this mark, which is so similar to the plaintiff's, for the purpose of fraudulently selling their Crawshay v. Thompson, not reported, but argued, by Mr. Jacob, for the plaintiffs, and Mr. Knight Bruce and Mr. Roupell, for defendant. Practical Points-Equity. iron as the plaintiff's iron, then the plaintiffs might restrain them, but not otherwise. The point is, however, still in litigation, and will shortly have to be decided. The principles to be extracted, after an examination of these cases, appear to be the following: PRACTICAL POINTS. EQUITY. Ne exeat Regno.-Filing Bill.-Prayer of LORD REDESDALE (Treat. plead. p. 46, 4th ed.) says: "For the purpose of preserv. First, That the first producer or vend- ing property in dispute, pending a suit, or er of any article gains no right of property to prevent evasion of justice, the court in that article so as to prevent others from either makes a special order on the subject, manufacturing, producing, or vending it. or issues a provisional writ; as the writ of Secondly, That although any other per- to restrain the defendant from proceeding son may manufacture, produce, and sell at the common law against the plaintiff, or any such article, yet he must not, in any from committing waste, or doing any injumanner, either by using the same or simi-rious act; the writ of ne exeat regno to relar marks, wrappers, labels, or devices, or strain the defendant from avoiding the plaincolorable imitations thereof, or otherwise, tiffs demands by quitting the kingdom; and hold out to the public that he is manufac- other writs of a similar nature." turing, producing, or selling the identical article prepared, manufactured, sold, or produced by the other; that is to say, he may not make use of the name or reputation of the other in order to sell his own preparation. Thirdly, The right to use, or restrain others from using, any mark or name of a firm, is in the nature of good will, and therefore goes to the surviving or continuing partner in such firm, and the personal representative of a deceased has an interest in it. Fourthly, That courts of equity in these cases only act as auxilary to the legal right, and to prevent injury, and give a relief by account, when damages at law would be inadequate to the injury received; and they will not interfere by injunction in the first instance, unless a good legal title is shown, and even then they never preclude the parties from trying the right at law, if desired. Fifthly, If the legal title be so doubtful as not to induce the court to grant the injunction, yet it will put the parties in a position to try the legal right at law, notwithstanding the suit. Sixthly, That before the party is entitled to relief in equity, he must truly represent his title, and the mode in which he became possessed of the article, for the vending of which he claims protection; it being a clear rule of courts of equity, not to extend their protection to persons whose case is not founded on truth. As to the writ ne exeat regno, Lord Redesdale, in a note to the above passage, says: "It seems requisite that the writ of ne exeat regno should be prayed for by the billAnon. 6 Madd. 276; unless the application be made in a cause depending. Collinson V. 18 Ves. 353; Moore v. Hudson, 6 Madd. 218. See further on the subject of this writ-Hyde v. Whitfield, 19 Ves. Flack v. Holm, 1 Jac. & W. 405, and the 342; Raynes v. Wyse, 2 Meriv. 472; cases there cited; Leake v. Leake, 1 Jac. & W. 605; Graves v. Griffith, 1 Jac. & W. 646; Blaydes v. Calvert, 2 Jac. & W. 211; Parmell v. Taylor, 1 Turn. R. 96. In addition to these authorities, see 1 Black. Com. 137. 266; 4 id. 122; Com. Dig. tit. " Chancery." (4 B.) Lord Chancellor Talbot is reported to have declared (3 P. Will. 312.) “that in his experience he never knew this writ of ne exeat regno granted or taken out without a bill first filed." "It is true," he further stated, "it was originally a state writ; but for some time, though not very long, it has been made use of in aid of the subjects for the keeping of them to justice; but it ought not to be made use of where the demand is entirely at law; for there the plaintiff had bail, and he ought not to have double bail, both in law and equity." See, also, Lord Bacon's Ordinances, No. 89. However, there have been instances in which the writ has been granted, though no bill was filed. In Brunker's case, 3 P. Will. 312, it was stated that Trevor, master of the rolls, in a case of Lloyd v. Cardy & Cowper, C., in another case in 1790, granted Practical Points-Conditional Tender. CONDITIONAL TENDER. writs of ne exeat regno, though no bills had been previously filed. In a case in Prec in Chanc. 171, it is said that the writ will be Ir is a general rule that a tender of mogranted without a bill being filed, on pre-ney to be valid must be unconditional. senting a petition to the chancellor. son v. See Strong v. Harvey, 3 Bing. 304; RichNot only must a bill be filed, but there ardson v. Jackson, 9 Dowl. 715. Theremust be a prayer for the writ. But in the fore, where a tender is accompanied by a earlier cases the contrary was held. In demand of a receipt in full, it will be bad. Moore v. Hudson, Madd. & Geld. 218., the Glascott v. Day, 5 Esp. 48; Higham v. writ was granted, although the bill did not Padeley, Gow. 213; Ryder v. Townsend, pray for it. The same was held in Collin-7 Dowl. & R. 119. But though a party 18 Ves. 353. In a recent tendering money cannot in general demand case Sharp v. Taylor, 11 Sim. 50, a motion a receipt for the money, yet where the was made for a writ ne exeat regno. The creditor did not object to the demand of a bill neither prayed for the writ nor stated receipt, but that the sum was insufficient, that the defendant intended to go abroad. the tender was held to be good. Cole v. The counsel in support of the application cited Moore v. Hudson, (supra.) He admitted, however, that in case the plaintiff did not know that the defendant intended to leave the kingdom until after the bill was filed: whereas, in the present case the affidavit showed that the plaintiff, when he filed his bill, knew that the defendant intended to go abroad. The vice chancellor of England said, that he could not grant the writ, unless it was prayed for by the bill; and that, as the affidavit in support of the motion, stated acts done by the defendant since the filing of the bill, as evidence of his intention to leave the kingdom, a supplimental bill must be filed for the purpose of stating those facts, and praying for the ne exeat. But in a subsequent case, Barned v. Laing, 6 Jur. 1050, the same judge is reported to have said that it was too broad a proposition to say that the writ will not be granted unless prayed for by the bill; for where, after filing the original bill, the plaintiff obtained such information as induced him to believe that the defendant intended to go abroad, but knew of no facts by which he could prove the intent, and afterwards amended his bill, but did not state defendant's intent to go abroad, nor pray the writ, and then learned certain facts, by which to prove the defendant's intent to go abroad. It was held, upon affidavit of those facts, that the writ should issue. But semble, if the facts from which the intent to go abroad was to be inferred happened after the filing the original bill and came to the plaintiff's knowledge in time to be introduced by supplement, a supplemental bill should be filed, stating such facts, and praying the writ. Blake, Peake 179. But in a case where the defendant took the money out of his pocket, and said: "If you will give me a receipt I will pay you the money," and the plaintiff replied that he would not take it, but would serve him with a writ, Abbott, C. J., held that this was not a good tender. Laing v. Meader, 1 Car. & P. 257. This rule, however, has by recent decisions been somewhat modified. In Richardson v. Jackson, 9 Dowl. 715, the defendant, in order to prove his plea of tender, called a witness who said, that he went to the plaintiff's shop, and saw his sister there, when he told her " that he had come to settle the defendant's account;" she then produced a book, and, after looking at it, said, "she could say nothing about it, unless her brother were present;" the witness then of fered her £3. 11s. She said that "her brother had looked over the book, and that there was £1 or £2 more owing.' "" On his cross examination, the witness admitted that he told the plaintiff's sister, that he would not pay the money unless she gave him a receipt for £3. 11s. A verdit was found for the defendant. On motion for a new trial, it was contended that the demand of the receipt rendered the tender conditional, and therefore invalid; and Laing v. Meader, 1 Car. & P. 257 was cited. But the court said: "The case of Cole v. Blake, Peake 239, is a sufficient authority to warrant the court in deciding against the application." There Lord Kenyon indeed says: "That it had been determined that a party tendering money, could not, in general, demand a receipt for the money. But, where no objection is made on that account, but the creditor insists on a larger sum, he cannot afterwards object to the tender, be In Chancery-Soule v. Corning. 66 B. David Noxon, for complainant. cause the debtor required a receipt. Here, another person, and which was alleged to it appeared, that the sum tendered was suf- be for a part of the same subject, matter ficient to satisfy the plaintiff's demand. In for which the suit is brought. The defendFoord v. Noll, 2 Dowl. & S. 617, the wit-ant had demurred to the complainant's bill ness called to support the plea of tender and the demurrer was still pending and unstated, "That he had at first offered the decided at the time the application to elect plaintiff £5. 17. 8., as the residue which was made. was due to him; but, that on this sum being rejected, he increased his tender by £2, saying, I offer you £7. 17. 8., as the balance of £35, and request a receipt in THE CHANCELLOR.-The affidavit upon full;" the witness added, at the trial, "I which this motion is founded, states, that would not have parted with the money the suit at law is actually brought by the without the receipt." The sum the plain- complainant in the name of Scroepel, as tiff claimed was £42, but the jury assessed his assignee. I am, therefore, of opinion the damage at £35, they finding, under the that the nominal plaintiff in the suit at law direction of the judge, that a legal and suf- being a different person from the complainficient tender had not been made. A mo-ant, here affords no sufficient reason for tion was afterwards made to set aside the refusing an application to elect. The apverdict on the plea of tender, but the court plication, however, is premature, while the refused the rule except to reduce the dam- demurrer is undisposed of in this suit. The ages to 1s; Tindal, C. J., saying, "I am rule is stated in all the books of practice, of opinion, looking at the whole of the evi- and in reported cases, to be that the dedence together, the witness who made this fendant is not entitled to an order to elect tender clogged it with a condition which until he has fully answered the complainrenders it an invalid and insufficient ten-ant's bill. In Tillotson v. Ganson, 1 Vern. der." He said, in fact, "That unless he had a receipt in full, for £35, he would not pay the money; that is to say, that on this disputed account, unless the plaintiff admited that £35 was all that was due, he should not receive the money. He calls upon him to admit three things: 1st. That £35 is the full amount which is due 2nd. That the sum is reduced by a set off: 3rd. The amount by which it is reduced. I do not think that the cases go to the length of establishing the proposition that a tender so made is a valid tender. R. 103, an order that the complainant should elect was discharged as irregular, because it was obtained before the defendant had answered. And in Brown v. Poyntz, 3 Mad. Rep. 24, Sir John Leach discharged an order to elect which had been obtained during the pending of exceptions to the defendant's answer for insufficiency; on the ground that the complainant was entitled to a complete answer for insufficiency; on the ground that the complainant was entitled to a complete answer to enable him to decide in which court it would be most advisable to prosecute his claim. In the case of Vaughan v. Welsh, Mosel. to elect which had been obtained before the Rep. 218, Lord King discharged an order argument of the defendant's plea. And a similar decision was made by the same chancellor a few months afterwards, in an anonymous case where the defendant had pleaded in bar of the relief sought by the complainant's bill, Idem. 303. In this last case his lordship observed that the order to elect went upon the supposition that the complainant had an election to proceed in either court, and yet the defendant had pleaded matters to show that he had no relief in equity. Therefore the complainant was not bound to make his election until |