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That company has contended that the surety company is liable, over and above the penal sum of the bond, for interest thereon, and for the costs of the suits brought against the surety company. A surety's liability does not ordinarily extend beyond the penal sum of the bond, unless he has in some way resisted or obstructed the recovery of the claim against him. No acts of resistance or obstruction have been shown in this case, other than those which have been already compensated by the allowance in the suits at law of costs accrued up to the time of the filing of this bill. This court is not now asked to decide if costs or interest should be allowed the claimants as against the fund arising from the penalty of the bond, but only if costs or interest should be allowed as against the surety company outside that fund. To some extent the former appear to have been allowed, and to some extent allowance has been suspended to await the further action of the circuit court.

The Laughlin Company further contended that in computing the claims which are to be satisfied by the surety company out of the penalty of the bond there should be excluded certain claims now held for the benefit of one Allen, who had contracted to indemnify the surety company from loss on its bond. The evidence does not show, as was contended, that Allen was a partner of Morgan, and so the claims are not to be excluded on that ground. It follows, therefore, as stated by the learned judge below, that in computing the pro rata to be paid the other creditors these claims must be taken into consideration, "as any other ruling would compel Allen to now reimburse the complainant the full penal amount of its bond, notwithstanding he had acquired these claims; and it would also give the other creditors a larger percentage than they are technically entitled to.” If these claims-some purchased by Allen, and others already paid by the surety company, which has been reimbursed by Allenbe not reckoned among the liabilities of Morgan to be charged against the fund furnished by the penalty of the bond, Allen will be required under his guaranty to pay not only the penalty of the bond, but also an additional sum equal to the amount expended by him in this purchase and reimbursement.

In each case the decree of this court is as follows:

The decree of the circuit court is affirmed, and the costs of appeal are awarded to the appellee.

NOTE. Liability of Sureties for Interest, Costs, and Attorney's Fees. 1. Interest.

[a] Sureties on a tax collector's bond are liable for interest on money in his hands from the date of approval of the bond until payment,

and on moneys afterwards received and retained by him after it was his duty to pay it over. -Conn. Sup. 1879) City of Hartford v. Franey, 47 Conn. 76;

(Tenn. Sup. 1873) McLean v. State, 55 Tenn. 22. [b] (Ala. Sup. 1845) It is correct, as a general proposition, that the penalty of a bond limits the responsibility of one who executes it as a surety, and consequently he is not liable, in the event of a breach, for interest upon the penalty.—Ansly v. Mock, 8 Ala. 444.

[c] (Ala. Sup. 1845) On the breach of appeal bond, a surety is not liable for interest on the penalty, which generally limits his responsibility.-Ansly v. Mock, 8 Ala. 444.

[d] (Ga. Sup. 1877) A surety on a bond cannot be held liable for more than the penal sum named therein, with interest.-Westbrook v. Moore, 39 Ga. 204.

(el (Ind. App. 1891) Where defendant became surety on a note bearing interest from date, and providing for payment of attorney's fees, and the pa vee agreed in writing that defendant should "not be bound for interest, but for the principal alone,” such agreement did not relieve defendant from liability for interest after maturity.-McDonald v. Huestis, 27 N. E. 509, 1 Ind. App. 275.

[f] (La. Sup. 1851) Though the principal on a bond for a debt bearing interest must pay interest, the surety is bound to pay it only from default, if but a surety for the debt.–Dorsett v. Lambeth, 6 La. Ann. 51.

[g] (Md. App. 1830) A surety is liable to interest on the amount of the obligation or an unliquidated demand.-State v. Wayman, 2 Gill & J. 251, 280.

[h] (Mass. Sup. 1813) A surety is liable for interest on the amount of his obligation from the date of demand.—Heath v. Gay, 10 Mass. 371.

[i] (Mass. Sup. 1866) Where a surety is sued on a penal bond, he is liable for interest on the penalty from the time he has notice that he has become liable, not as part of the debt for which he originally became responsible, but as damages for its detention.—Bank of Brighton v. Smith, 12 Allen, 243, 90 Am. Dec. 14.

[j] (Mass. Sup. 1884) Where a note is taken by a bank as collateral for advances to be made, and afterwards advances for less than its face are made, but, because it is due, the maker gives the bank a demand note bearing the same date as the collateral note, a surety on the latter note is liable for interest only from the time the demand note was given.-Proctor v. Whitcomb, 137 Mass. 303.

[k] (Mo. App. 1876) In an action on a penal bond, judgment may be entered for the amount of the bond with interest from date.-St. Louis Domicile & Savings Loan Ass'n v. Augustin, 2 Mo. App. 123.

[1] (Pa. Sup. 1889) Where one conducting a business for another gave a bond, on the termination thereof, that he would pay on demand any balance that shall appear to be due from him, after an examination of the accounts and inventory, to be concluded within two months from that date, it was proper, in an action on the bond, to refuse to charge that the surety could not be required to pay interest until the balance was found, and then only on such balance.—Holmes v. Frost, 17 Atl. 424, 125 Pa. 328.

[m] (S. C. Sup. 1883) A., as principal, and B., as surety, signed a note bearing 12 per cent. interest. Judgment was recovered against A., and afterwards, the judgment remaining unsatisfied, judgment was entered against B. for a larger sum by the addition of the accumulated interest. Held, that B. could not, in the suit against him, plead the unsatisfied judgment in bar, nor (A. having subsequently paid the amount of the lesser judgment against himself) escape liability for the difference between the judgments.- Noble v. Cothran, 18 S. C. 439.

{n} (Va. App. 1156) In equity, the obligee or judgment creditor may recover interest against the principal debtor on a bond or judgment, beyond the penalty.-Tazewell's Ex'r v. Saunders' Ex’r, 13 Grat. 354.

(0] (Wis. Sup. 1881) When the damages resulting from the breach of a penal bond exceed the penalty, if interest on such damages would be recorerable against the principal, interest upon the penalty, in addition to the full amount thereof, may be recovered against the surety.–Clark v. Wilkin. son, 18 N. W. 481, 59 Wis. 543. 2. Costs.

(a) (Ill. Sup. 1855) When a capias is issued at the instance of a surety on a criminal recognizance against his principal, the costs on it are not taxable as costs on scire facias against the surety.—People v. Phelps, 17 Ill. 200.

1b) (S. C. App. 1847) Where the sheriff and his sureties were sued upon their bond, executed prior to the act of 1839, in South Carolina, and when by law the sureties were only liable for their proportional parts of the penalty of the bond, it was held that they could not include, as parcels of their proportions of such penalty, the costs of former judgments against them, nor the interest paid upon such former judginents; such costs being additional to the penalty, as well as the interest, when payment of the sum recovered had been delayed.-State v. Wylie, 2 Strob. 113. 3. Damages.

[a] (Tenn. Sup. 1873) The sureties of a tax collector are liable for damages.-McLean v. State, 55 Tenn, 22. 4. Attorney's Fees.

[a] (Ga. Sup. 1889) Attorney's fees, though embraced in a promissory note given for rent, are not collectible by distress warrant, and the surety on a replevy bond growing out of a levy of the distress warrant is not liable for such fees.-Jones v. Findley, 10 S. E. 511, 84 Ga. 52.

[b] (Ind. App. 1891) Defendant signed as surety a note which bore interest from date, and which provides for the payment of attorney's fees, and the payee agreed in writing that defendant should not be bound for interest, but for the principal alone.Held, that said agreement did not relieve defendant from liability for attorney's fees.- McDonald v. Huestis, 27 N. E. 509, 1 Ind. App. 275.

(c) (Iowa, Sup. 1874) Upon a promissory note which stipulated “that a reasonable sum, to be fixed by the court, for attorney's fees, shall be allowed and taxed as costs against the parties making this note,” in default of payment by the principal maker the sureties are liable for the attorney's fees as well as the principal amount.-First Nat. Bank v. Breese, 39 Iowa, 640.

(113 Fed. 289.)

BARTHOLOMEW et al. v. UNION PAPER & BAG CO.

(Circuit Court of Appeals, Seventh Circuit. January 21, 1902.) APPEAL-REVIEW-ORDER GRANTING PRELIMINARY INJUNCTION.

An interlocutory order granting a preliminary injunction is largely discretionary, and will not be reversed on appeal unless it appears to

have been improvidently entered. Appeal from the Circuit Court of the United States for the North ern Division of the Northern District of Illinois.

Thomas A. Banning, for appellants.
Charles K. Offield, for appellee.

Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

PER CURIAM. This case is before us on an appeal from an interlocutory order restraining the appellants from selling, disposing of, or in any way incumbering a certain patent application filed by them in the patent office in January, 1901, and from issuing, or causing to be issued, a patent on such application, and from entering into any contracts or agreements or taking any steps which will jeopardize appellee's interests in certain inventions embodied in a contract entered into between the parties August 27, 1900, or in any improvements upon such inventions. It is enough now to say that appellants have failed to show that the provisional order was improvidently entered; and, inasmuch as the case will probably be before us again on its final hearing, no further reasons for our judgment need be given.

The decree is affirmed.

(113 Fed. 291.)

THE PECK BROTHERS & COMPANY v. PECK BROS. CO. et al.

(Circuit Court of Appeals, Seventh Circuit. January 21, 1902.)

No. 818.

1. UNFAIR TRADE-ADOPTING SIMILAR CORPORATE NAME-RIGHT TO INJUNCTION.

“Peck Brothers & Co.," a Connecticut corporation, conducted business in that state as a manufacturer of brass and plumbers' goods for over 30 years, during which time its goods became widely known over the country, and attained a high reputation. Becoming embarrassed, a suit was instituted by stockholders for a dissolution and receivership, for the purpose of reorganization. The receivers continued the business until by order of the court the entire property, good will, trade-marks, etc., of the company, were sold to a committee representing all the stockholders, who reorganized under the name of "The Peck Brothers & Company” and the old corporation was dissolved. Prior to the receivership the company maintained a branch house for the sale of its goods in Chicago, which was in charge of three stockholders, one of whom, whose name was Peck, was vice president of the company, and one of the complainants in the receivership suit. Another of the number was appointed ancillary receiver of the Chicago property. Pending the receivership such parties, with the possible exception of the receiver, and joined by the attorncy for the receiver and one other, procured a charter from the state of Illinois for a corporation under the name of "Peck Bros. Co." to engage in the same business, in which company the ancillary receiver also became a stockholder and officer prior to his resignation as receiver. The Eastern receiver, having learned such facts from outside sources, protested against the use of the name before the organization of the new company was completed, and directed the Western receiver not to recognize it. The new company purchased the Chicago stock of the old, but not its good will. There was but one person named Peck interested in the new company. Both cinpanies continued in business in the same territory, and a considerable confusion of goods resulted, even with experienced purchasers, owing to the similarity of the names with which such goods were stamped. Held, that the name of the new company, which was unwarranted in fact, because there were no "Peck brothers” interested therein, was clearly adopted for the fraudulent purpose of obtaining the advantage of the reputation and established trade of the old company, and in violation of the duty which its organizers owed to the old coinpany as stockholders, and that the carrying on of business thereunder in the manner shown constituted unfair competition, against which the old company was en

titled to an injunction. 2 Trade-NAMES—TRANSFER BY SALE OF Good WILL OF CORPORATION—Rights

OF SUCCESSOR.

The sale under a decree of court of all the property of a manufacturing or commercial corporation, including “its franchises, name, and good will,” to a reorganization committee representing all its st ckholders, passes to the purchasers and the reorganized company the right to the old company's trade-name, and to protection in its exclusive use to the same extent that such protection could have been in

Viked by the old company, had it continued in business. 3. SAME - SUIT AGAINST CORPORATION FOR INFRINGEMENT EFFECT OF STATE

CHARTER.

The fact that a corporation has been chartered by a state under a certain name, which it selected, does not afford it immunity from a suit in a federal court by a corporation of another state to enjoin it from prosecuting its business under such name, where the name was deliberately adopted by its incorporators in imitation of complainant's for the fraudulent purpose of deceiving the public and appropriating complainant's good will and reputation.

Appeal from the Circuit Court of the United States for the Northern District of Illinois.

The appellant, a corporation of the state of Connecticut, filed its bill against the corporation "Peck Bros. Co." and the individual defendants, who are its officers and directors, to restrain (1) the use of the name "Peck Bros. & Co." or "Peck Bros. Co." or "Peck Bros." or names substantially identical therewith, in connection with the prosecution of the business of the manufacture, purchase, and sale of plumbing, gas and steam fitting materials and supplies, fixtures, brass and iron goods; (2) from holding out or representing that the goods manufactured by them are the same as those manufactured by the complainant; and (3) from using or interfering with the paramount right of the complainant to the name of “Peck Br thers & Co.," or "Peck Bros.," or "Peck Bros. Co.," in connection with the manufacture and sale of goods of the character stated; and seeking also to recover damages sustained by reason of the alleged unauthorized interference with the complainant's paramount right in the use of the names stated. The bill was answered to, and upon the evidence taken the court below ou July 8, 1901, dismissed the bill for want of equity.

Elnathan Peck and his two sons, J. M. Peck and Henry F. Peck, under the firm name of E. Peck & Sons, in the year 1859, commenced the business of the manufacture of brass goods for plumbers and gas and steam fitters at New Britain, in the state of Connecticut. In the year 1862, the corporation “Peck Brothers & Co.” was organized, and became the successor in business of the firm of E. Peck & Sons. This corporation was composed, in part, at least, of the two sons of Elnathan Peck, and the plant of the business at that date had been removed to the city of New Haven. The capital stock of the corporation was originally $35,000. This was increased from time to time until in March, 1896, it was $750,000. The business had greatly grown in volume, and its product had become well and thoroughly known to the trade throughout the country as “Peck Brothers' Go ds.” Branch offices for the sale of its product were established in the cities of New York, Boston, and Chicago,-in the latter city in the spring of 1889. The office in Chicago was placed in the charge and management of the defendants Oliver D. Peck and Albert D. Sanders. The firmer was then a stockholder in, and the secretary of, the Connecticut corporation, and was its vice president from 1894 to 1896, and is now the president of the defend:int corporation. The latter was a stockholder in the Connecticut corporation, and conducted the branch on a salary, and is now the general manager of the defendant corporation. The defendant William A. Ratcliffe was also a stockholder in the Connecticut corporation, and was the principal salesman in the Chicago branch, and is now the secretary of the defendant corporation. On the 14th day of March, 1896, the corporation became embarrassed; and a bill was filed in the superior court of the county of New Haven, Conn., by the owners of a majority of the stock, against the corporation, for the app, intment of a receiver. Oliver D. Peck, one of the defendants in this suit, was a plaintiff in that suit. Receivers were duly appointed, who took charge of the corporation and managed its business. On March 16, 1896, the defendant Oliver D. Peck, with others, filed an ancillary bill in the circuit court of the United States for the Northern district of Illinois, upon which the defendant Albert D. Sanders was appointed ancillary receiver of the corporation with respect to its property in the state of Illinois, for the benefit of the principal receivers, appointed by the superior court for the county of New Haven, Conn. On June 25, 1896, Henry D. Coghlan, W. J. Naughton, and George C. Morton filed with the secretary of state of the state of Illinois a certificate signed by them, respectively, in which they proposed to form a corporation under the name of "Peck Bros. Co.," for the manufacture and sale of plumbing, gas fitting, steam fitting, sewer pipe, sewer building materials and supplies, also bardware, brass, and iron goods, metals, and machinery, with a capital stock of $75,000, divided into 750 shares; the principal office of the company to be located in the city of Chicago. A license was thereupon issued to them as commissioners to open books for subscription for the capital stock. On August 21, 1896, they re

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