with a "mind fertile in casuistry," and his associates as "judicial doctrinaires not endeavoring to discover what the instrument really meant, but endeavoring to invent reasons for making it mean what they wanted to make it mean," he follows the history of this court's decisions, and declares that "but two or three more decisive steps in judicial usurpation will lead to the election of the Federal judiciary. It will require but a few more Original Package decisions and Minnesota Milk decisions to bring about that result." Judge Thompson finds in the Senate a collection of the lawyers and the agents of corporations who should be "unseated and expelled as the money-changers were driven out of the temple." To say nothing of such disrespect to our supreme judicial tribunal, these seem to be the opinions and ideas of an extremist, almost a revolutionist. The arguments advanced in favor of a popular election of the judiciary would meet but little sympathy. While the speaker far oversteps the bounds of possible danger, however, we agree there is some foundation for his words of censure. Corporations have always found lenient justice in

CASE NO. 5.

the Federal courts, and this is their favorite tribunal. These courts have gradually assumed jurisdiction, until it is a rare case of corporation law which cannot be brought before them. Many recent cases involving the "police power" show an almost hopeless confusion of the powers and jurisdiction of the State and Federal courts, and nearly every statute defining their respective authorities has been interpreted out of existence.

The cause lies in making this tribunal the one irresponsible judge of its own powers, which is neither more nor less than clothing it with absolute power. In the corporations which are speedily absorbing all the business and financial interests of our country Judge Thompson foresees nothing but ruin, disaster, and oppression for the masses of the people.

The favor shown these associations by the Federal courts and this court's liberal construction of the law are responsible to a considerable extent for the strength and resources of the corporation and trust of to-day. This is rapidly becoming a vital question, and the necessity for judicial and legislative reform is imperative.

JAMES ALEXANDER, Plaintiff and Appellant, vs. DANIEL BRADLEY, Sheriff of the City and County of New York, Defendant and Respondent.

Statement of Facts.

The plaintiff is a dealer in woollens, and in the course of his business sold goods of the value of $600 to the firm of Stein & Johnson, who were manufacturers of clothing. The latter failed in business and judgment was entered against them. The

defendant took possession of the stock of merchandise belonging to Stein & Johnson under the execution issued on the judgment. The plaintiff, claiming to rescind the sale on the ground of the fraud of Stein & Johnson, brought an action in replevin to recover his material. Upon proceeding to replevy the goods it was found that the material sold by plaintiff had been made up into garments, the total value of which was $1,000. The plaintiff seized all the garments. The defendant at the instigation of the judgment creditor re

bonded and reobtained possession of the garments. On the trial the Court charged the jury that, if they found that the sale had been induced by fraud and that therefore the plaintiff had a right to rescind the contract of sale, he could only recover the value of the material sold by him and not the value of the garments. Plaintiff duly excepted to this charge and relying on this exception appealed to this Court. G. H. FURMAN, A. GARDNER, for Plaintiff. F. HARRISON, C. SIMON, for Defendant.

DWIGHT, J.

Opinion.

As

The only point raised by this appeal is whether, as against an execution creditor, the rightful owner of personal property is entitled to the manufactured product, with its increased value. against the wrongdoer it is well settled that the property may be taken by the owner in whatever form or condition it occurs, no matter how great the difference in value may be, provided the original chattel is, in its altered form, capable of identification; that the title to the chattel once passed to the fraudulent vendee does not change the rule, inasmuch as a rescission of the sale on the ground of the fraud reinvests the vendor with the title.

Had the vendee in the case at bar, prior to the rescission and the replevin, sold the property to an innocent purchaser, there is no doubt that the vendor would have been precluded from following it, even in its original form. An execution creditor is not, however, a purchaser for value, and we are forced to look to some other exception or qualification to the general rule to support the determination of the court below. Though not a purchaser for value, it might be said that the execution creditor occupies a meritorious position, entitling

his claim to consideration. It appears that the value of the goods sold by the plaintiff, and which he sought to recover by his replevin, was $600, while the value of the manufactured property to which, by the verdict below, he becomes entitled, is $1,000. He therefore is richer by $400 than he would have been had there been no fraud or failure. It might be said further on behalf of the execution creditor, that the money or other consideration he advanced to the debtor is represented by the increase of value of the manufactured over the original property, and that if this increase is to go to the replevinor it is at the expense of the judgment creditor; that it is not only "unjust enrichment," on the one hand, it is taking away from an honest creditor the means whereby his debt is to be satisfied. This consideration is rendered important by the decision of the Court of Appeals of New York in a late case-National Park Bank vs. Goddard— not yet reported. It was there held that an attaching creditor might come into equity and compel a sale of manufactured property claimed by several replevinors and a division of the proceeds among the various claimants; that that portion of the property which was unclaimed should be subject to the lien of the attachment, the value whereof should be paid to the attaching creditor. The language of the opinion on this point is: "A court of law cannot divide the article, and so follows a rule not unjust to the fraudulent debtor, but inequitable as against the attaching creditor, and very likely to be so as to some of the vendors; while a court of equity can turn the garments into money and distribute their value in just and fair proportion."

It must be apparent, however, that this doctrine is peculiar to equity, which is wont as far as possible to observe the rule

of equality rather than priority among creditors. In fact, it is so stated in the language of the decision just quoted. The proceeding here is at law, where legal principles must be carefully observed and legal priorities maintained. If we start with the rule that the wrongdoer must lose all he has expended upon the property and can claim neither title nor lien as against the true owner, the conclusion is irresistible that the plaintiff is entitled to the manufactured property, or its value, and that the ruling of the court below was erroneous. For a creditor, in this case the execution creditor, can obtain by legal process no greater rights than are possessed by his debtor. He is bound by whatever imperfections there may be in the debtor's title, and can subject no more than the debtor owns to the ends of his proceeding. He can obtain no more than the debtor has. National Bank of Oswego vs. Dunn, 97 N. Y., 149.

It therefore follows that the plaintiff is entitled to the value of the manufactured property and that the judgment below should be reversed.

MOOT COURT, CASE No. 6. MUNSTER, Plaintiff, vs. REILLY, Defendant,

Statement of Facts.

IN EQUITY. The plaintiff asks for an injunction restraining the defendant from offering for sale as plaintiff's goods, goods not manufactured by the plaintiff.

It appears from the evidence that the plaintiff is the manufacturer of goods known as "Munster's Henriettas," and having a wide and favorable reputation. The plaintiff affixes to his goods a label bearing his name. The defendant offers for sale at his store as "Munster's Henriettas" goods of an inferior quality, which

The plaintiff in this case asks for an injunction restraining the defendant from offering for sale as plaintiff's goods, goods not manufactured by the plaintiff.

It appears from the evidence that the plaintiff is the manufacturer of goods known as "Munster's Henriettas," and having a wide and favorable reputation. The plaintiff affixes to his goods a label bearing his name. The defendant offers for sale at his store as "Munster's Henriettas" goods of an inferior quality, which do not, however, bear the label affixed to the genuine goods, or any imitation thereof.

There can be no doubt as to the moral guilt involved in the conduct of the defendant, but the question of law presented is whether the right of the plaintiff to the use of his own name as applied to goods manufactured by him is so broad and so clearly established that a court of equity will restrain a person from falsely representing by word of mouth that his goods. are of the plaintiff's manufacture, especially in a case where the plaintiff makes use of a label or trade-mark to distinguish the genuine goods, and the defendant does not attempt any infringement of the mark. That in such case the plaintiff was remediless was certainly supposed to be the law not very many years ago. Mr. Parsons puts the matter thus: "If A has a high reputation for making, we will say, gloves, and B sells to C other gloves, falsely asserting that they were made by A, it might be that C would have his remedy for the fraud, but it is certain that A would be without

remedy, unless he had the practice of placing a definite mark upon his own gloves by which they might be known and recognized as of his manufacture, and in that way distinguished from all others, and this mark were falsified by B. Such a mark would be A's trade-mark. It must be intended by him as his trade-mark, and known and recognized as such. And the fraud for which he has his remedy consists in the use by another of this mark, for the purpose of deception, or in such a way as to lead to deception " (2 Parsons Cont.,* 257 bd.). In order therefore to justify a court in restraining mere oral representations where there has been no infringement of a visible trade-mark, it must appear that the plaintiff's right to the exclusive use of his own name has been firmly established in law, and that the act of the defendant constitutes a wrong cognizable in the courts. I think, however, that it will appear that such is indeed the case. Early in the history of trade-mark litigation, language was used by the courts that by constant repetition paved the way to the full recognition of a person's right to the exclusive use of his name. Thus, in the pioneer case of Amoskeag Manufacturing Co. vs. Spear, 2 Sandf, 599, Judge Duer said that "the right to the use of such name is denied, not merely upon the narrow ground of the violation of an ordinary trade-mark, but upon the broad principle that the plaintiff is entitled to protection against the unauthorized use of its name.

Such a use

is conclusive evidence of the wrong which the law undertakes to redress, viz.: The sale of the goods of one person as being those of another." It may be said that the trade-mark cases are to be divided into two sorts first, cases where the property right in a technical trade-mark has been infringed upon, in which cases fraudulent intent need

So

not be shown; and second, cases in which there is a fraudulent intent to palm off one's goods as those of another, and if this be shown, then it has been uniformly held that it is immaterial whether or not there has been an infringement of a technical trade-mark (McLean vs. Fleming, 95 U. S., 245; Perry vs. Truefitt, 6 Beav., 66). long as the plaintiff, has a property right, its violation by deliberate and fraudulent means will be restrained. Thus, peculiar labels and wrappings, and unique shape and coloring, not amounting to a technical trade-mark, have nevertheless been frequently protected from fraudulent imitation (Sawyer vs. Horn, 4 Hughes C. Ct., 239; Burke vs. Cassin, 45 Cal., 467 ; Avery & Sons vs. Meikle & Co., 81 Ky., 73). On the same principle the blue label of the Union cigarmakers has been protected (Strasser vs. Moonelis, 55 N. Y. Super., 196). In Société Anonyme vs. Western Distilling Co., 43 Fed. R., 416, where the defendant, with intent to deceive the public, put up its cordial in such form and guise as to indicate clearly that it was the identical article sold by plaintiff, it was held that an injunction should issue, independent of the question of trade-mark or of exclusive property in the name of the cordial.

And it is now well established that a manufacturer is entitled to the exclusive use of his name as applied to his goods as against every one not of the same name, and even as against any one of the same name making use thereof in such a manner as to deceive the public (Amoskeag Manufacturing Co. vs. Spear, supra; Filkins vs. Blackman, 13 Blatchf., 440: Devlin vs. Devlin, 69 N. Y.. 212). In Lord Byron vs. Johnston, 2 Mer., 29, a temporary injunction was granted to restrain the publication of a work as the plaintiff's, upon affidavit showing that the work was in all probabil

66

ity spurious. In Brown Chemical Co. vs. Frederick Stearns & Co., 37 Fed. R., 360, the defendant was enjoined from falsely stating that its "Iron Tonic Bitters" was made by "Brown & Co., N. Y." In Millington vs. Fox, 3 M. & C., 338, the right of plaintiffs to the name of "Crowley" in advertising and selling "Crowley's Steel" was protected by injunction. In Curtis vs. Bryan, 2 Daly, 312, the name "Mrs. Winslow's Soothing Syrup" was protected. When the patents on the Singer Sewing Machine expired, the Singer Manufacturing Company brought a number of actions to restrain competitors from selling their manufacture as the Singer." While in most cases it was held that the defendant had the right to construct a "Singer" sewing machine and call it by that namesince it only expressed the kind of machine, yet the defendant was ordered to indicate distinctly that his machines were not manufactured by the plaintiff's company (Singer Mfg. Co. vs. Larsen, 8 Biss. C. Ct., 151; Same vs. Wilson, L. R. 3 App. Cas., 376; Same vs. Loog, L. R. 8 App. Cas., 15). It has even been held that fraudulently and falsely selling goods of one's own fabrication as the manufacture of the plaintiff, by which plaintiff is deprived of sales in the market, constitutes a tort for which an action will lie at common law (Miller Tobacco Manufactory vs. Commerce, 45 N. J. L., 18; Merriam vs. Holloway Pub. Co., 43 Fed. R., 450). In the New Jersey case, Judge Knapp said: "The legal wrong is fradulently supplanting the maker of the genuine article by a false one sold as his own; whether it be by the adoption of his mark, or by any deceit and false representation likely to deceive the public and accomplish that end, is material only in form. The cases differ only in their requirements of proof."

It would seem therefore that the right of the plaintiff in this case is well established both at law and in equity, and that independent of the question of trade-mark, a court of equity will restrain the defendant from fraudulently applying plaintiff's name to spurious goods. Nor can it be truly said that the court will not restrain mere oral representation. In Wotherspoon vs. Currie, L. R. 5 H. of L. Eng. & Ir., App., 508, the defendant was enjoined from using the word "Glenfield" on labels, etc., and from in any other way representing starch manufactured by him to be "Glenfield" starch, and from selling or causing same to be sold as "Glenfield" starch, and from doing any act or thing to induce the belief that starch manufactured by him was Glenfield starch (see also Barrows vs. Knight. 6 R. I., 434; Williams vs. Spence, 25 How. Pr., 366). In Probasco vs. Bouyon, 1 Mo. App., 241, the defendant was restrained from selling candies made by him as "Oakes' Candies."

It is however contended by the defendant that the proof is incomplete, and that the plaintiff is not entitled to an injunction because there is no evidence that any one has acted upon the representations of the defendant. In other words, there is no evidence of a sale having been consummated by means of the false representation, and it is maintained that this constitutes an essential difference between the case at bar and the case of Priestley vs. Adams (59 Hun, 380), which on similar facts was decided in favor of the plaintiff. To support this contention, cases have been cited holding that where plaintiff does not show that he relied upon the false statement, he cannot recover in an action for deceit; but it must be obvious that these cases are not in point. It is true that in Wollam vs. Ratcliffe, 1 Hem. & M., 259, the Vice-Chancellor refused an injunction