Opinion of the Court.

given Morrison the mortgage to secure him, it was further observed: "He did not attempt to enforce this mortgage, it is true, and did not have it renewed, but followed out the original idea of preserving the stock entire, and keeping up the property as a going concern. Instead of giving this mortgage, the company might, with perfect propriety, have placed funds in the hands of the sureties to enable them to protect themselves, and the transaction would not have been questioned. By not doing so, the receipts and revenues which would have been required for this purpose, went, in the end, to the benefit of the bondholders." And the case was distinguished from those where the claim was for operating expenses only, by referring to the fact that the claim then under consideration was based upon a bona fide effort made by the intervener to preserve the fund itself from waste, and the case was further distinguished from the case of the claim of an intervener to be subrogated to the lien of the judgment, which was subject to the lien of the mortgage; and, after stating that the court did not understand that the claim was presented as one upon subrogation, it was said: "The Holbrook judgment and execution could have greatly deranged the business of the company as a going concern. The rolling stock could have been seized and removed. Whether such seizure could, or could not, have been prevented by the mortgagees is a different question. It would, at all events, have required legal proceedings, and probably serious litigation; and this the mortgagees did not see fit to undertake. To save the property from being taken, to prevent the catastrophe which its taking would have caused, and the serious questions which would have arisen had it actually been sold, the intervener gave his bond to obtain an injunction. It was not done for the purpose of being subrogated to the questionable rights of Holbrook under his judgment; but to prevent the certain injury to the property itself, which the attempted enforcement of those rights would have involved."

Another fact of much importance exists in this case which was not present in the case just cited. There the surety went upon the bond for the relief of the railroad property at the solicitation of the railroad company itself, and the mortgagee

Opinion of the Court.

had nothing to do with the transaction. It simply had knowledge of it. Here the mortgagee intervened for the protection of its interests and brought these sureties to the rescue of the mortgaged property, a circumstance which manifestly makes firmer the position of the sureties in the present case. The case of Union Trust Company v. Morrison was subsequently cited in the case of St. Louis, Alton and Terre Haute Railroad Company v. Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, 125 U. S. 658, with the cases of Fosdick v. Schall, 99 U. S. 235, Miltenberger v. Logansport Railway Company, 106 U. S. 286, Union Trust Company v. Souther, 107 U. S. 591, Burnham v. Bowen, 111 U. S. 776, Union Trust Company v. Illinois Midland Rail way Company, 117 U. S. 434, Dow v. Memphis and Little Rock Railroad Company, 124 U. S. 652, and Sage v. Memphis and Little Rock Railroad Company, 125 U. S. 361, as illustrations of instances where, owing to special circumstances, an equity arises in favor of certain classes of creditors of an insolvent railroad corporation otherwise unsecured, by which they are entitled to outrank in priority of payment, even on a distribution of the proceeds of the sale of the property, those who are secured by prior mortgage liens. And indeed, the doctrine applied in Union Trust Company v. Morrison, supra, rests upon the same foundation as that which has been applied in affording relief to unsecured creditors who have contributed to the payment of operating expenses, which of right should have been paid out of current income, but which income has been applied in the payment of the mortgage debt, the substantial ground and reason for the rule being that the mortgaged property has been conserved or augmented at the expense of others acting in good faith, and whose interests have been sacrificed for that purpose.

But there is another ground upon which the right of these sureties to the relief which they seek may be well supported. The Central Trust Company of New York was a principal in the bond to Evans, and was one of the defendants to the bill in which James and Kratzenstein became co-complainants. For reasons herein before stated it stood in the same equitable

Opinion of the Court.

relation to the sureties in reference to the claims of James and Kratzenstein that it did in relation to that of Evans. As to it the sureties were such in respect of all the claims. It is bound to exonerate its sureties. The rule is that each of the principals is individually bound to protect the sureties. Apgar's Administrators v. Hiler, 24 N. J. Law, 812; West v. Bank of Rutland, 19 Vermont, 403; Riddle v. Bowman, 27 N. H. 236; Representatives of Dickey v. Rogers, 7 Martin (La.), N. S. 588. Nor is the surety obliged to wait until after he has paid the debt, but he may proceed in equity to compel the principal to pay it. Antrobus v. Davidson, 3 Meriv. 569; Wooldridge v. Norris, L. R. 6 Eq. 410; Irick v. Black, 17 N. J. Eq. 189; Thigpen v. Price, Phillips Eq. 146; Taylor v. Miller, Phillips Eq. 365. And this doctrine has been recognized and affirmed in Tennessee. Greene v. Starnes, 1 Heiskell, 582; Saylors v. Saylors, 3 Heiskell, 525; Miller v. Speed, 9 Heiskell, 196; Howell v. Cobb, 2 Coldwell, 104. And here the Central Trust Company would, upon such proceedings, be compelled to relieve the sureties by paying the debt. Inasmuch as the bona fides of the trustee in taking the action which has involved the sureties is not questioned, and indeed is apparent, what the trustee would so pay would be chargeable upon the mortgaged property as expenses in the administration of the trust. Equity, for the purpose of avoiding circuity of action, may appropriately lay hold of the ultimate fund and appropriate it to the satisfaction of this debt for which the sureties are liable.

The contention that the court below should have turned these parties over to the United States Court in Georgia for relief cannot be sustained. All the transactions out of which this controversy has grown took place in Tennessee; the creditors' suit of Evans and others was prosecuted and ripened into judgment there; the attached property was found and seized in Tennessee; the bonds given to release it were to be discharged by payment in that State; the court had already taken jurisdiction of the subject-matter; the Central Trust Company of New York was a party to the proceeding; and both the main suits were pending in that court. In that situa

Syllabus.

tion of affairs the Circuit Court in Tennessee would not have been justified in refusing to continue to exercise its jurisdiction to complete relief.

We think that the court below committed no error in its proceeding for the relief of the sureties by requiring the receiver to pay these debts. The order of the Circuit Court is therefore

Affirmed.

CALIFORNIA FIG SYRUP COMPANY v. FREDERICK STEARNS & COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.

No. 328. Argued February 5, 1896. - Decided April 14, 1896.

Words that are merely descriptive of the character, qualities or composition of an article, or of the place where it is manufactured or produced, cannot be monopolized as a trade-mark.

In this case it was held that the term "Syrup of Figs" was so far intended to be used as indicative of the ingredients, characteristics, etc., of a certain medical preparation called by that name that it could not be used as a trade-mark.

Even if a person is using something to designate his articles which he cannot claim to have the exclusive right to use as a trade-mark, yet, if he can show to a court of equity that another person is selling an article like his in such a way as to induce the public to believe that it is his, and that he is doing this intentionally and fraudulently, he may have relief by injunction to prevent such piracy.

If a person wishes his trade-mark property to be protected by a court of equity, he must come into the court with clean hands, and, if it appears that the trade-mark for which he seeks protection is itself a misrepresentation to the public, and has acquired a value with the public by fraudulent misrepresentations in advertisements, all relief will be denied to him.

In this case it was held that the California Fig Syrup Company was not entitled to relief in equity against one who was selling a medical preparation on which was used the term "Syrup of Figs," because the company which used the same term on a medical preparation which it sold did not come into court with clean hands, the preparation which it sold having in its composition a suspicion merely of fig juice, which

Statement of the Case.

was put into it, not for the purpose of changing or having any effect whatever in its medicinal character, or even its flavor, but merely to give a weak support to the statement that the article sold was syrup of figs, thus constituting a fraud upon the public.

California Fig Syrup Company v. Putnam, 33 U. S. App. 283, followed. Improved Fig Syrup Company v. California Fig Syrup Company, 7 U. S. App. 588, disapproved.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, District Judge.

This is an appeal from a decree of the Circuit Court for the Eastern District of Michigan dismissing a bill in equity brought by the California Fig Syrup Company, a corporation of the State of Nevada, against Frederick Stearns & Company, a corporation of the State of Michigan, to enjoin the defendant from infringing that which the complainant claims to be its trade-mark property in the name "Syrup of Figs or "Fig Syrup," to designate a liquid laxative medicine. The ground upon which the Circuit Court refused the relief prayed for was that the complainant did not come into court with clean hands, because in its advertisements and in the use of the term "Syrup of Figs " to designate the medicine which it sells, it was committing a fraud upon the public. 67 Fed. Rep. 1008. Richard E. Queen in 1879 or 1880 was a druggist in Reno, Nevada. After experiments he succeeded in making a liquid laxative preparation, the secret formula of which is now the property of the California Fig Syrup Company. He selected the name "Syrup of Figs" to designate the preparation because of the popular impression that the fig when eaten has the medicinal property of opening the bowels and curing or preventing constipation. The chief medicinal agent in the preparation is senna. Its exact composition is a trade secret, but this much is admitted. There is not now and never has been in the mixture more than one-tenth of one per cent of the juice of the fig, and this, it is conceded, is not enough to have any effect either medicinally or by way of flavor. The popular impression that figs are laxative by reason of any medicinal element contained in them is erroneous. Their lax