DEVISE OF USE OF REALTY.

MINNESOTA SUPREME COURT, JANUARY 15, 1883. FARMERS' NATIONAL BANK OF OWATONNA V. MORAN. A will contained this: "I devise to my executors my farm on which my son-in-law, C., now lives, in trust to permit my said son-in-law to use and occupy the same during his life, and after his decease in trust for my daughter, etc.", Held, that the interest of C. was liable to sale under execution against his property.

A

CTION to recover land. The opinion states the facts. Plaintiff appealed.

A. C. Hickman, for appellant.

Burlingame & Crandall, for respondent.

VANDERBURGH, J. The plaintiff claims, by virtue of an execution sale against one Charles Adsit, to have acquired an estate for his life in the land in question, and seeks by this action to recover the possession from the defendant, who is occupying under the authority of Adsit. Adsit's interest was derived under the will of Jonah Woodruff, his father-in-law, the provisions of which, in so far as they relate to this land,are as follows: "Item 4, I give and devise to my executors, hereinafter named, my farm in the State of Minnesota of 160 acres, on which my son-in-law, Charles Adsit, now lives, in trust to permit my said son-in-law to use and occupy the same for and during the term of his natural life, and after his decease in trust for my daughter, Janet Adsit, to be held in the same manner and upon the same trusts as is hereafter provided for my residuary estate." By item 14 of the will, the residue and remainder of his real estate is given to his executors in trust "for his daughter, Janet Adsit, for the term of her natural life, to permit her to use and occupy such of said real estate as she may desire, and pay over to her the rents, issues, and profits of all my said residuary estate for her sole and separate use, * and upon her demise in trust for her said children in equal shares." The executors are also appointed trustees under the will. The 80 acres of land sought to be recovered in this suit by plaintiff is a part of the 160 acres mentioned in item 4; the remaining 80 acres being admitted to be the homestead of Adsit. His wife, Janet Adsit, deceased in 1878, leaving her surviving four children.

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1. The devise of the land to the trustees "to permit Charles Adsit to use and occupy the same for and during his natural life," is equivalent to a disposition thereof in trust for him or to his use. The general rule is that wherever there is a limitation to trustees they are to take only so much of the legal estate as the duties imposed by the trust require. Barker v. Greenwood, 4 Mees. & W. 429-30; Richardson v. Stodder, 100 Mass. 529. And where the words of a trust are to permit and suffer another to take the rents or to occupy lands the use is executed in the party, the purposes of the trust not requiring that the legal estate should be in the trustees; otherwise where the trustees are directed to collect and receive rents and apply them to the use of another. Gen. St. 1878, §§ 5, 11; Barker v. Greenwood, supra; Upham v. Varney, 15 N. H. 464; 2 Jarman, Wills (5th ed.), 294; Hill Trustees, *233; 1 Perry Trusts, § 306.

It is the doctrine of some of the cases, where the devise is to trustees in trust to secure the beneficial enjoyment of an estate to several persons in succession, as to some of which active trusts are created and others not, that the legal estate must be deemed to be

in the trustees from the beginning. Hill Trustees, *242; Horton v. Horton,7 Term. R. 652; 1 Perry Trusts, $ 309.

This construction was probably justified by the peculiar circumstances of special cases in order to

protect and secure the several beneficial interests in succession, especially in the case of married women, and to avoid the construction of a repetition of the legal estate in the trustees. Hawkins v. Luscomb, 2 Sw. 391.

As respects the facts of the case at bar however the trust must be deemed executed in Adsit for the term. As to whether any active trusts are created by the will requiring the legal estate in the remainder to be executed in the trustees after the expiration of the life estate of the cestuis que trust in this land, we need not inquire. The construction declaring the legal estate vested in Charles Adsit for life satisfies the statute of uses, and also the general rule that the interests of the trustees cannot be broader than the duties imposed. Tucker v. Johnson, 16 Simmons, 341; Heardson v. Williams, 1 Keen, 42; Richardson v. Stodder, supra; Foster v. Witherill, 11 Phila. 177-8; Williams v. Waters, 14 Mees. & W. 172.

It will be observed that there are no qualifications or conditions limiting the beneficial interest secured to Adsit under the will. It does not depend upon the discretion of the trustees. No act or duty in respect to it is required on their part. He is not required to reside on the land, nor restrained from selling or incumbering his interest. He is entitled to the whole beneficial interest in the land for the term devised, and subject to no right of interference or revocation by the trustees. Earl v. Rowe, 35 Me. 419. The terms use and occupy are not here to be interpreted in the narrow sense of personal occupation, but as entitling the beneficiary to the whole estate for life. "For a licensee, to occupy an estate for a particular time, is a lease of the whole estate for that time." Rex v. Inhabitants of Eatington, 4 Term R. 182; Hawkins, Wills, *119.

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The devise passed an estate in the land to Adsit, and he could therefore assign it, and it became liable to be sold for his debts. Jarman, Wills (5t ed.), *798. It is not pretended that the defendant has acquired any interest in the land. The court simply finds "that he has resided on the premises with said Charles Adsit, and worked the 80-acre tract in controversy under the lease and authority of Adsit." It seems clear therefore that the plaintiffs are entitled to recover.

Judgment reversed.

TRADE MARK — NAME OF MANUFACTURER OF MACHINE.

HOUSE OF LORDS, DECEMBER 13, 1882.

SINGER MANUFACTURING COMPANY V. LOOG, 48 L. T. REP. (N. S.) 3.

The imitation of a trade mark in a manner liable to mislead the unwary cannot be justified by showing either that the device upon the imitated mark is ambiguous, or that a person who studied it carefully might not be misled. Where the evidence shows that a name has come to be used in the trade to denote machines made on a particular system, not the machines of a particular maker, the publication of circulars, price lists, and invoices by a wholesale dealer referring to his goods by that name, for the information of the trade, which could not mislead any person for whom they were intended, but might possibly mislead a retail purchaser if they reached his hands, will not be restrained, even though accompanied by an infringement of trade mark calculated to mislead a retail purchaser.

The facts and arguments appear fully from the judg ment of the Lord Chancellor.

Aston, Q. C., Benjamin, Q. C., Hemming, Q. C., and Rigby, Q. C., for appellants.

Webster, Q. C., Everitt, Q. C., and F. M. Abrahams, for respondents.

Their Lordships gave judgment as follows:

The LORD CHANCELLOR (Selborne). My Lords: The plaintiffs (appellants here) are the same American company who were appellants in the case of Singer Manufacturing Co. v. Wilson, decided by this house in 1877 (3 App. Cas. 376; 38 L. T. Rep. [N. S.] 303). They are the successors in business of an American manufacturer of and dealer in sewing machines, named Singer. Mr. Singer was not originally the inventor or patentee of any machine, but he held a license to manufacture and sell them from a patentee named Howe. The plaintiffs succeeded to his business on their first incorporation, in 1863, and they have since carried on a large and successful trade, both in this country and in America. They became proprietors of, or interested in several patents (some American, some English) for improvements, or supposed improvements, upon the machines manufactured and sold by them. All these patents however had expired some time before the acts were done which are complained of in this suit. The plaintiffs say that the machines which they now make and sell, and have for considerable time past made and sold, are not in any important respect (except that most of them have what is called the "needle and shuttle" action) identical with any sewing machines which were ever patented; and that they have from time to time varied the form and construction of their machines, so that those which they make now are different from those which they, and Mr. Singer before them, formerly made. They allege that the word "Singer," as applied to sewing machines, is understood in the trade to signify machines of their own manufacture (of which there are several known varieties), and nothing else. They have used that name or word on the brass plates or labels which they have affixed to all the machines sold by them. They admit that everybody is at liberty to make and sell machines exactly similar, both in form and in construction to their own, but they deny the right of any one to use the word "Singer" in any way whatever in connection with machines not of their manufacture. The present action was brought by them for an injunction and damages against the defendant(the agent in this country of a sewing machine manufacturing company established at Berlin), on the ground, as alleged in the sixteenth paragraph of the statement of claim, that by "representing sewing machines sold or offered for sale by him as Singer machines," he had "endeavoured to obtain, and succeeded in obtaining, for the machines sold by him, some of the reputation attaching to the plaintiffs' manufacture, and had induced" (and unless restrained, would continue to induce) "purchasers of his machines to believe that the machines sold by him were in fact machines of the plaintiffs' manufacture, or (in the case of purchasers whose attention had not been called to the plaintiffs' firm) to believe that machines sold by him were machines made by the manufacturers of the machines by which the reputation of the name 'Singer' had been acquired." If the case so stated were established, there could be no doubt of the plaintiffs' right to some relief, upon the ordinary principles applicable to trade marks and trade names. To a certain extent the case was established, and indeed was not contested by the defendant. It was not in controversy that to some of the machines manufactured by the Berlin company, and sold by the defendant (exactly similar,

in form, pattern, and construction, to some of those manufactured and sold by the plaintiffs), a brass plate or label, also similar in form, size, and position to the brass plates, or labels, engraved with the plaintiffs' trade mark had been attached; on which brass plate or label the word "Singer" appeared, though associated with other words, which if carefully read, might inform a customer that the machine was manufactured by the Berlin company. The defendant, as representative in this country of the Berlin company (in which character I shall throughout speak of him), was a wholesale dealer only; and all persons who bought direct from him knew that the machines which he sold were of the Berlin company's manufacture and not of the manufacture of the plaintiffs. But the machines bearing those brass plates or labels, though supplied by him to wholesale customers who could not be themselves deceived, would be liable to pass from them by retail into the hands of other persous, some perhaps ignorant and unwary, who seeing upon them a brass plate or label with the same appearance as the plaintiffs', and also having the word "Singer" upon it, might mistake that plate or label for the plaintiffs' trade mark, and believe that those machines were really of the plaintiffs' manufacture. The principles applicable to such a case are well established, and have been several times recognized and illustrated in your lordships' house, the most recent authority in this house being Johnston v. Orr Ewing, 7 App. Cas. 219; 46 L. T., Rep. (N. S.) 216. The imitation of a man's trade mark, in a manner liable to mislead the unwary, cannot be justified by showing either that the device or inscription upon the imitated mark is ambiguous, and capable of being understood by different persons in different ways, or that a person who carefully and intelligently examined and studied it might not be misled. The plaintiffs have obtained an injunction to the full extent necessary to protect their trade mark. But Bacon, V. C., by whom the action was tried, went further, and also prohibited the defendant (in effect) from using the word "Singer" in any way whatever, with respect to any machines not manufactured by the plaintiffs company. The Lords Justices, on appeal, thought that when the trade mark was out of the case nothing else was shown by the evidence to have been done, or intended, or likely to be done by the defendant, against which he ought to be enjoined. They therefore discharged that part of the Vice-Chancellor's order which went beyond the protection of the plaintiffs' trade mark, and the question upon this appeal is whether they were doing right in doing so. It is necessary for this purpose to consider what the defendant (representing the Berlin company) has actually done, beyond the use of the objectionable brass plate or label, which must be taken to have now finally ceased, and what may be reasonably presumed, from the nature of his business and course of dealing, to be the intention or the probable effect of what he has done or is likely hereafter to do. The plaintiffs take exception to the employment of the word "Singer" in a certain manner in four documents, of which the defendant makes use for the purposes of the Berlin company's business. One of these is a broad sheet or advertisement, printed on both sides, and headed on one side, "The Improved Wheeler Wilson and Singer systems manufactured by the Sewing Machine Manufacturing Company, late Frister and Rossmann, Berlin." In this title the words "Wheeler Wilson," Singer," and "Frister and Rossmann" are all in large type, and all equally conspicuous. It is divided into two equal parts by an engraving of the Berlin company's manufactory, in the margin of which the addresses of their agents in nine continental cities, besides London, are given. Below there follows half a page of letterpress in small

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Wheeler and Wilson (like Mr. Singer) formed a company for the manufacture of sewing machines; and that company, like the plaintiffs in the present case, sought to restrain the use of the name Wheeler Wilson" by other manufacturers. It was decided however by James, V. C., in 1869, that this name "Wheeler Wilson" had come to siguify in the trade, not the particular manufacture of Messrs. Wheeler and Wilson, or of the Wheeler Wilson Company, but the kind or kinds of machines which they made, the manufacture of which was publici juris. The injunction therefore asked in that case was refused. Wheeler and Wilson Manufacturing Co. v. Shakespear, 39 L. J. 36 Ch. Your lordships have not now to review that decision, nor do I assume either that it was or that it was not right; but it is part of the history of the trade in those sewing machines, in which the present defendant now deals; and it is manifest, on the face of the defendant's advertisement sheets and price lists, that he has used the words "Singer system" in exactly the same sense relatively to the plaintiffs' and their predecessors in business, in which he uses the words "Wheeler Wilson system" relatively to Messrs. Wheeler and Wilson's and the company carrying on business under that name. The defendant's witness, Mr. Newton Wilson, says, "every sewing machine as it came into the English market successively from America came to be known in the first place by its outward form, and secondly, by the arrangement of parts which constitute that machine, and that arrangement of parts combined with that peculiar outward form, constitutes a type or class." This is evidently what the defendant and others in the trade who used the same phraseology with the defendant mean by the word system. In the ninth paragraph of his statement of defense the defendant avers that the words "Singer system and "Singer machines, as he uses them, are and are understood in the trade to be, descriptive of certain special characteristics of outward form and internal con struction, which he there specifies; and this statement is supported (with only, as it seems to me, verbal and immaterial variations) by the evidence of a scientific witness for the defendant, Mr. Imray. That witness divides sewing machines into three principal classes: 1, the lock-stitch, working with a needle and shuttle; 2, the chain stitch; and 3, the double chain stitch. To the first or "lock-stitch" type of machines, he says, all those known under the appellations "Howe," "Thomas," Singer," and "Wheeler and Wilson" belong, and he specifies the distinctive characters of each kind, and among them, in much detail, those of the machines known (according to him) under the name of "Singer." The names, he says, "always convey to my mind a distinctive idea of a distinct thing," that is, of "great similarity;" "there might be variations in detail, and yet the broad construction and form might be the same." I believe this evidence. It is in substance confirmed by facts admitted in crossexamination by the plaintiffs' own manager, Mr. Woodruffe, and also by a considerable body of documentary evidence, some of which proceeds from sources independent of the parties to the present litigation, and some is traceable to the plaintiffs themselves. Among the defendant's exhibits were circulars of two German houses (unconnected so far as appears with the Berlin company) carrying on business respectively at Frankfort and Hamburg, in which sewing machines made or sold by them are classified under the several appellations of 'system Wheeler and Wilson," "system Singer," "system Grover and Baker," "system Howe," and "system Wilcox and Gibbs," showing that these are known denominations of particular kinds of machines upon the continent of Europe. It may be (as was said by the plaintiffs' counsel) that all these were issued after 1870, the time

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to which the plaintiffs refer the commencement in this country of that use of the name "Singer by other manufacturers, which they allege to be unlawful. No such explanation however can be given of the circulars of M. Callebaut, a French manufacturer, who, in 1865, obtained a gold medal at the Paris exhibition for a machine or machines of the plaintiffs' own manufacture, for which medal the plaintiffs, in their own circulars, claimed credit, and to whom the plaintiffs, by agreement, relinquished the exclusive right of manufacturing that class of machines in France. In this circular of M. Callebaut, published certainly before 1870, the words "système Singer" are used to describe the machines of his own French manufacture. Nay, more, the plaintiffs themselves, in the same circulars in which they reckoned M. Callebaut's gold medal among the premiums obtained by them at various industrial and international exhibitions, said: "The principle of the Singer Manufacturing Company's sewing machines has never been changed since their first introduction to the public; yet many beantiful labor-saving additions have been attached,” etc., and they describe their family machine as constructed on sound mechanical principles which have been thoroughly tested with a view to attain the greatest possible degree of simplicity and durability without liability to derangement," and as sewing "with a straight needle, thus obtaining the greatest possible amount of strength and power to pass seams and irregularities in the work, which manifestly can never be equalled by any system using a curved needle." The italics are in the circular. This language the plaintiffs' manager, Mr. Woodruffe, tried in his crossexamination to explain away by saying that it "had no meaning" and was very stupid" and "deceived people," and that the plaintiffs were capable of doing stupid things as well as other people." It is superfluous to say that the fact appears to me to be of much more value than the explanation. There were also expressions of an import which, in my opinion, amounts to much the same thing, in the specifications of several patents taken out in this country, by the plaintiffs or their agents, for improvements in their machines. In Newton's specification of 1863 (the invention patented being a communication from Mr. Singer), mention is made of “an ordinary Singer machine, fitted with a novel arrangement," and of "Singer's well-known construction of sewing machine." In Woodruff's specification of 1865, "the means shown for operating the needle and shuttle' are said to "require no special explanation," because it is "the well-known arrangement of Singer machines." I think it unnecessary to pursue this point further. It may be true, as the plaintiffs say, that the machines to which they now attach that appellation vary in points which may possibly be useful and important from their older machines by which it was originally acquired; but the conclusion to which I am brought unhesitatingly by the whole evidence is, that there has been for many years past sufficient continuity and identity of method in the construction of the plaintiffs' lock-stitch machines (particularly of machines of those classes described as "Family" or "Medium," which are also manufactured by the Berlin company) to make the term Singer system," as used with respect to those machines, a bona fide and intelligible description, which has obtained extensive' currency both in England and on the continent of Europe of some really distinctive character or characters in that method of construction. It follows that in my opinion the use of that phraseology by the defendant is not evidence of any fraudulent purpose or intent. It was urged however that it ought not to be regarded separately from the use of the brass plate or label which has been adjudged to be an infringe

ment of the plaintiffs' trade mark; that it is one of a series of acts, designed with a view to, and practically terminating in, the use of that plate or label; and that all such acts, being so connected together, ought to be alike prohibited. In this view I cannot agree. I think that the representations made by the defendant to his wholesale customers, whether orally or by broad sheet, price list, or invoice, have no natural or necessary connection, in intention or in fact, with any deception of retail customers, which might possibly arise from the use of the brass plate or label. No one would contend that there was any such connection if, in those representations to the defendant's wholesale customers, the word "Singer" had not occurred; and the case is really the same if (as I think) the word "Singer" was so used as to obviate any reasonable possibility of misunderstanding or deception. The counsel for the appellants lastly argued that the plaintiffs, trading under Mr. Singer's name, and using his trade mark, had acquired such a right of property in that name as to entitle them to restrain any rival in trade from introducing it into any office price list, circulars, or advertisements, even in such a way as might exclude the possibility of its being understood to represent, directly or indirectly, that the goods sold by him were manufactured by the plaintiffs, or that his trade or business was identical or connected with the trade or business of the plaintiffs. For that argument no authority was cited; and it cannot, in my opinion, be maintained on any principle. The reputation acquired by machines of a particular form or construction is one thing; the reputation of the plaintiffs, as manufacturers, is another. If the defendant has no right, under color of the former, to invade the latter, neither have the plaintiffs any right, under color of the latter, to claim (in effect) a monopoly of the former. If the defendant has (and it is not denied that he has) a right to make and sell in competition with the plaintiffs' articles, exactly similar in form and construction to those made and sold by the plaintiffs. he must also have a right to say that he does so, and to employ, for that purpose, the terminology common in their trade, provided always that he does this in a fair, distinct, and unequivocal way. The Court of Appeal has thought that (apart from the infringement of the trade mark) this is all that they have done. I think the same, and I therefore move your lordships to dismiss this appeal with costs.

Lords Blackburn, Watson, and Bramwell concurred.

Judgment appealed from affirmed, and appeal dismissed with costs.

UNITED STATES SUPREME COURT ABSTRACT

APPEAL -AFTER WAIVER OF JURY. The rule is well settled that if a written stipulation waiving a jury is not in some way shown affirmatively in the record, none of the questions decided at the trial can be reexamined here on writ of error. Kearney v. Case, 12 Wall. 283; Gilman v. Illinois & Mississippi Telegraph Campany, 91 U. S. 614; Boogher v. New York Life Insurance Company, 103 id. 96; Hodges v. Easton at the present term. Judgmen of U. S. Circ. Ct., S. D., Illinois, affirmed. County of Madison v. Warren. Opinion by Waite, C. J.

Statutes. The limitation of time in that section applies to suits by the assignee to recover debts and other moneyed obligations, as well as to controversies concerning adverse interests in property, more strictly speaking. See Glover v. Bailey, 21 Wall. 342. Judg ment of Illinois Sup. Ct., affirmed. Jenkins v. International Bank of Chicago. Opinion by Miller, J. [Decided Jan. 29, 1883.]

EQUITY JURISDICTION.-(1) The loss of a draft is not sufficiently proved, to support a suit in equity thereon against the drawer or acceptor, by evidence that it was left with a referee appointed by order of court to examine and report claims against an estate in the hands of a receiver, and that unsuccessful inquiries for it have been made of the referee, the receiver, and the attorney for the present defendant in those proceedings, without evidence of any search in the files of the court to which the report of the referee was returned, or any application to that court to obtain the draft. (2) A decree of the Circuit Court, dismissing upon the merits a bill of which this court on appeal holds that there is no jurisdiction in equity, will be reversed, and the cause remanded with directions to dismiss the bill without prejudice to an action at law, and with costs in the court below, and each party to pay his own costs on the appeal. Horsburg v. Baker, 1 Pet. 232; Barney v. Baltimore, 6 Wall. 280; Kendig v. Dean, 97 U. S. 423 Decree of U. S. Circ. Ct., N. D. Illinois reversed. Rogers v. Durant. Opinion by Gray, J. [Decided Jan. 29, 1883.]

EVIDENCE -LOSS OF DRAFT APPEAL

CONSTITUTIONAL LAW- - STATE LAW FOR INSPECTION OF TOBACCO HELD VALID. Section 41 of chapter 346 of the laws of Maryland of 1864, as amended and re-enacted by cnapter 291 of the laws of 1870, provides as follows: "After the passage of this act, it shall not be lawful to carry out of this State in hogsheads and tobacco raised in this State, except in hogsheads which shall have been inspected, passed and marked agreeably to the provisions of this act, unless such tobacco shall have been inspected and passed before this act goes into operation; and any person violating the provisions of this section shall forfeit and pay the sum of three hundred dollars, which may be recovered in any court of law in this State, and which shall go to the credit of the tobacco fund; provided, that nothing herein contained shall be construed to prohibit any grower of tobacco, or any purchaser thereof, who may pack the same in the county or neighborhood where grown, from exporting or carrying out of this State any such tobacco without having the same opened for inspection; but such tobacco so exported or carried out of this State without inspection shall in all cases be marked with the name in full of the owner thereof, and the place of residence of such owner, and shall be liable to the same charge of outage and storage as in other cases, and any person who shall carry or send out of this State any such tobacco, without having it so marked, shall be subject to the penalty prescribed by this section." Under that proviso, no requirement of the act of 1864 is dis pensed with, except that of having the hogshead opened for inspection. The hogshead must still be delivered at a State tobacco warehouse and there numbered and recorded and weighed and marked and be found to be of the dimensions prescribed by statute, and to have been packed and marked as required. Said section 41, as so amended and re-enacted, is not in its provisions as to charges for outage and storage, in violation of clause 2 of section 10 of article 1 of the Constitution of the United States, as respects any im post or duty imposed by it on exports, or in violation of the clause of section 8 of article 1 which gives power to the Congress "to regulate commerce with foreign