trial. Among their reasons for doing so were the following: Other testimony in the case showed that Johnson was present during the negotiations between Pico and Cohn, not only as interpreter, but as the particular friend and adviser of the former; and counsel for plaintiff feared that by omitting to offer Johnson's testimony they would incur the odium of suppressing evidence known to exist, whereas by putting it before the court they would have the advantage of some facts that they could prove by no other witness. They would have his admission of other facts inconsistent with the theory of a sale. The court would see that he was hostile to Pico, and he could be contradicted by proof of his statements made in the presence of others. Without going more fully into the reasons which induced counsel for plaintiff to submit the testimony of Johnson to the consideration of the court on the second trial of the former action, we content ourselves with saying that the allegations of the complaint show that the course pursued by them was, under the circumstances, wise and proper, if not absolutely necessary. But, contrary to their expectations, the court believed his false testimony, and for that reason alone decided against the plaintiff. In support of this conclusion the complaint sets out the substance of all the testimony of Cohn and Pico, and in detail the material portions of Johnson's testimony, from which, with other averments, it appears that but for Johnson's positive perjury and suppression of the truth the judgment here in question would not have been given. This being shown, it is next alleged that, after the final affirmance of that judgment by this court, plaintiff made the discovery that Cohn had paid Johnson $2,000 to testify falsely. The particulars of this bribery and its discovery are detailed in the complaint and show that on the very morning that Johnson gave his testimony Cohn placed $2,000 in the hands of one Forbes, with directions given in Johnson's presence to pay it to him if he testified to an absolute sale, and that, immediately after he had so testified, he demanded and received the money.

hausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in the books are such as these: Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or, where an attorney fraudulently pretends to represent a party, and connives at his defeat, or, being regularly employed,__ corruptly sells out his client's interest. United States v. Throckmorton, 98 U. S. 65, 66, 25 L. ed. 95, and authorities cited. In all such instances the unsuccessful party is really prevented by the fraudulent contrivance of his adversary from having a trial; but when he has a trial he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of the evidence, and that necessarily the truth or falsity of the testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him, on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy. The wrong, in such case, is, of course, a most grievous one, and no doubt the Legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for, if this could be done It is averred, and we think sufficiently once, it could be done again and again, ad shown, that upon proof of these facts there infinitum. But counsel for appellant seek to is a reasonable certainty that plaintiff would distinguish this case from those in which it upon another trial gain his cause. Such be- has been held that a judgment will not be set ing the case, is plaintiff entitled to a decree aside by reason of its being based upon forged vacating and annulling the former decree on documents or perjured testimony. They say the ground that it was procured by fraud? that the fraud committed by Cohn was the After a careful and extended examination of bribing of Johnson; that this was collateral the authorities, we are constrained to answer and extrinsic; that it was not, and could not this question in the negative. That a former have been, the subject of investigation at the judgment or decree may be set aside and an- trial of the original action. We do not think nulled for some frauds there can be no ques- this distinction can be maintained. tion, but it must be a fraud extrinsic or fraud which Cohn committed was the produccollateral to the question examined and de- tion of perjured evidence in support of his termined in the action. And we think it is defense. The means by which he induced the settled beyond controversy that a decree will witness to swear falsely was but an incident. not be vacated merely because it was obtained It may be safely asserted that a witness does by forged documents or perjured testimony. not often deliberately perjure himself withThe reason of this rule is that there must be out being induced thereto by some frauduan end of litigation; and when parties have lent or corrupt practice on the part of him once submitted a matter, or have had the op- who gets the advantage of the perjury. It portunity of submitting it, for investigation is a matter of indifference what particular and determination, and when they have ex-form such corrupt practice takes. The evil

The

and the wrong is in the perjury which fol- 1573, 8 Cent. Rep. 560, contain expressions lows. In this case the truth of Johnson's which seem to imply the same doctrine, but evidence was necessarily drawn in question they do not directly support it. Other cases at the trial, and determined by the decision cited by appellant are less in point. of the court; and all that has since been discovered is another item of testimony bearing on that point. We cannot find any substantial ground upon which this case can be distinguished from United States v. Throckmor- | ton, supra. The decision in that case has been approved by this court as recently as Re Griffith, 84 Cal. 113. The following de-J.; Paterson, J. cisions of this court are also in point: Allen v. Currey, 41 Cal. 321; Amador C. & Min. Co. v. Mitchell, 59 Cal. 176.

TEXAS SUPREME COURT.

RROR to the District Court for San Saba Saba, and owed the plaintiff for goods six

claimant in an attachment suit in which the attachment was laid upon certain property alleged to belong to Stockbridge & Teague, but which was claimed by George Baker. Affirmed.

The facts are stated in the commissioner's opinion.

Messrs. West & McGown, Leigh Burleson, and Reeves & Channcy for plaintiffs in error.

Messrs. Hancock, Shelley & Hancock for defendant in error.

date July 22, 1885, and payable 2, 4, 6, 8, 10, and 12 months after date. The first two were unsecured. The others were signed by the claimant as surety; the two last being also secured by a deed of trust on land belonging to Stockbridge. Reeves, a witness for the plaintiffs and their agent, testified that it was intended that Baker should sign the first four notes, but that by mistake he signed the last four, leaving the first two unsecured. There is no other direct evidence on this point, and no explicit finding of the court thereon. Plaintiffs' writ against Stockbridge & Teague, in which the attachment was issued and levied on the goods in controversy, was on the two unsecured notes. Some time prior to November, 1885, Stockbridge sold out his interest to Teague; the latter assuming the debts of the firm. Teague paid Stockbridge no money, but took the goods to pay the debts. Reeves was sent by plaintiffs from Dallas to San Saba to see Stockbridge about securing or collecting the first two notes then due. He found Teague in possession of the stock of goods sold by plaintiffs to Stockbridge & Teague. Reeves wanted the notes paid or secured. After an effort during the day to raise money, Teague met Reeves at his hotel at about 8 o'clock that night, and found that he had prepared a bill of sale for the stock to plaintiffs in consideration of the two unsecured notes, amounting to about $800. Teague declined to take that amount, but offered to let plaintiffs have the goods at invoice price; to pay the two unsecured notes first, the balance to be credited on the notes on which Baker was security. This Reeves refused to do. Teague then went down town, and sold the goods to

Garrett, J., filed the following opinion: This was an action to try the right of property. On December 1, 1885, Frees & Son, plaintiffs in this suit, filed a suit in the District Court of Dallas County against Stockbridge & Teague, of San Saba County, for the sum of $820.10, and levied an attach ment on the goods in controversy on the 4th day of December, 1885. Defendant in error, George Baker, claimed the goods. Plaintiffs tendered issue that the goods were the property of Stockbridge & Teague, and, as such, were subject to their writ. The claimant replied that he was a purchaser of said goods in good faith, for a full, fair, and valuable consideration, and was in possession thereof when the attachment was levied; that the consideration was that claimant should assume the payment to plaintiffs of four certain promissory notes executed by Stockbridge & Teague to them, on which claimant was surety, for the sum of $391.91 each, dated July 22, 1885, and due January 22, 1886, April 22, 1886, and on dates afterwards; that he had paid the note due January 22, 1886, and was ready and willing to pay the others as they matured; that claim-Baker, made him a bill of sale, and delivered ant was solvent, and worth, in excess of exemptions, $50,000, while the aggregate amount assumed by him for said goods was about $1,600 and interest; and that said sale was not made with the intent to defraud the creditors of Stockbridge & Teague. To this answer the plaintiffs demurred generally, and pleaded, further, that Stockbridge & Teague were insolvent at the time of the sale, which was or might have been known to claimant; that claimant was not surety on any note then due; that, of the four notes alleged to have been assumed, two were secured by a deed of trust on land belonging to Stockbridge, and that the claimant had failed to pay any of said notes except the one due January 22, 1886; that, when conveyed, the property was worth $2,000; that the goods were in fact the property of Stockbridge & Teague when they were levied on, and that the conveyance was made to defraud their creditors, they and the claimant acting together with such common intent, and hence the sale was pretended and void. The case was tried without a jury, and on May 21, 1886, judgment was rendered in favor of the claimant. J. Frees, one of the plaintiffs, having died after judgment, the writ of error was sued out by W. J. Frees as surviving partner. Stockbridge & Teague were dealers in musical instruments and supplies at San

to him the keys of the store. The consideration was that Baker assumed payment of the four notes on which he was security, amounting to about $1,600, and released Stockbridge from all liability thereon. Baker was worth at the time about $50,000. He paid the note due January 22, 1886. Very little of the stock had been sold at the time of the sale, or when this case was tried. Baker testified that he bought the stock of goods in order to protect himself as the surety of Stockbridge & Teague. He had notice that Reeves was trying to buy the stock of goods for plaintiffs. Plaintiffs' attachment was issued and levied after the sale. On January 1, 1886, the claimant employed Teague to take charge of the stock and sell it for him. His agreement was to sell the goods so as to net Baker the invoice price, and whatever there was over he was to receive for his services. The invoice price of the stock of goods at the time of the levy was about $2,000. At the time of sale they were fairly worth about $1,600. Neither Stockbridge nor Teague had any other property subject to execution when the sale was made.

Plaintiffs, by their third and fifth assignments of error, complain of the findings of the court on the facts of the case: (1) that Baker was surety on four notes; and (2) as to the circumstances attending the sale. The

latter finding is clearly supported by the as descriptions of the class of persons proevidence; and the former is not unsupported. tected by the Statute; for the language of If, as according to the testimony of the wit- the Statute is, "creditors, purchasers, or other ness Reeves, Baker signed the two last notes persons. Rev. Stat. art. 2465. If a crediby mistake, whether or not he would be tor or other person having a legal demand bound as a surety thereon would be a ques- against another receives from his debtor proption of law arising from the facts. This erty for his claim, bona fide, and no more question is not properly before us, either than is reasonably sufficient to pay the same, under the pleadings or the evidence. Again, he may do so, because he is a "creditor" or if Baker had the right, as surety, to take a "other person" who is protected by the Statconveyance of a sufficient amount of the goods ute; the principle of law being that, if the to protect himself, he could also, for any debtor transfers the property directly to the balance of the sum agreed to be paid there-person to whom the law intends it should go, for, assume a debt of the seller for which he the conveyance cannot be fraudulent. And was not before liable, being bound only to the same may be said of the sales permitted see that such balance was so applied. Ellis to stand where the debtor has sold his propv. Valentine, 65 Tex. 532. If he has not paid erty openly for a fair price, and appropriated all that he assumed, it is the fault of the the proceeds to the payment of his just obplaintiffs, who seized the goods under their ligations; so, also, where the purchaser writ of attachment. They will not be per- takes the property, and assumes and at once mitted to set aside the sale, and apply the pays debts of the seller. The sole object of goods to their unsecured notes, and at the the Statute is to protect lawful debts, claims, same time require its terms to be complied or demands; and if Baker's liability on the with by demanding payment of the notes notes of Stockbridge & Teague amounted which were assumed. "The right of a cred- to a lawful debt, claim, or demand against itor to receive property from an insolvent them, and the transfer was otherwise in good debtor in payment of a debt due to him, if faith, and in accordance with the principles the same be openly done, and more property of law, often announced, authorizing the is not taken than is reasonably necessary to creditor to receive property from his debtor pay the debt, although the creditor may in satisfaction of his claim, then the sale know at the time he receives the property was valid. A liberal construction is given that he will thereby prevent other creditors to the words "creditors and others." Mr. from enforcing their claims, and although Bump, in his work on Fraudulent Conveythe creditor may know that the debtor is prompted to give him the preference through motives of friendship, is recognized. Such reception of property, however, must be bona fide; that is, for the sole purpose of securing the debt, and not with intent to cover up any of the property or its proceeds for the benefit of the debtor to the prejudice of other creditors." Edrington v. Rogers, 15 Tex. 188; Hancock v. Horan, Id. 507; Greenleve v. Blum, 59 Tex. 126. Whether Baker's claim was just or not was determined by the court, and its findings necessarily affirm that it was. They establish conclusively, also, as matters of fact, the good faith of Baker in the purchase of the goods, and that he paid for them a full and fair consideration by assuming the four notes, amounting to twice as much as Reeves had offered.

ances, says: "The character of the claim, if it is just and lawful, is immaterial. It need not be due; for, although the holder cannot maintain an action until it is due, he nevertheless has an interest in the property as a fund out of which the demand ought to be paid." Page 503. And again: "A contingent claim is as fully protected as one that is absolute. A liability as surety is within the Statute, as much as a liability as principal." Ibid. It is a general rule that all claims arising from contract are in force from the date of the agreement. It has been held that a surety is the creditor of his co-surety. Hoe v. Ward, 4 Me. 195. These questions are ably discussed in the opinions of Justice Bronson in the case of Van Wyck v. Seward, 18 Wend. 375. In concluding the discussion of the question whether apThere is only one question presented by pellant in that case was entitled to the prothe remaining assignments of error, includ-tection of the Statute as a creditor of Wiling the first, which assigns as error the action of the court in overruling the plaintiff's demurrer to claimant's answer, and that is the controlling question in the case. Was Baker, as surety for Stockbridge & Teague on obligations that had not matured at the time of the transfer, such a creditor or other person with a claim as could purchase from an insolvent debtor, in order to protect himself, considered both as to whether a surety or a surety on an obligation that has not matured is such a person or creditor? Would the consideration for the transfer be deemed valuable in law? Finally, was Baker, the surety, a creditor or other person with a demand against Stockbridge & Teague? It will be observed that in the consideration of this question we are not confined to the word "creditor" alone,

liam Seward, the learned judge said: "In these and all other cases depending upon contract the person to whom the engagement is made is as much a creditor, within the meaning of the Statute, as though he had a debt on which the right of action already existed. There is no reason why he should not be entitled to the same protection in the one case as in the other. In the language of Chief Justice Mellen in Howe v. Ward, although he cannot maintain an action on the contract until it has been violated, still he has an interest in the property conveyed, as a fund out of which the debt ought to be paid. '” In Bonham v. Taylor (Tex.) 16 S. W. Rep. 555 (decided at the present term of this court), it was held that the sureties on the bond of a city treasurer had the right to protect themselves by injunction restraining

the treasurer from paying over money, which | entitled him to receive a conveyance of the had been raised for city purposes by taxation, goods in controversy to indemnify him to a bank to which the city council had against ultimate liability on assumption by agreed to lend it. Had the sureties on the time of the debts for which he was security. city treasurer's bond been compelled to await | We are of the opinion that the sale was also action until their liability accrued, it would complete, and not a mortgage or conditional have been inequitable and unjust; and so if sale, and that the title to the goods vested Baker should be forced to wait until the at once in Baker; yet, if it had been a mortmaturity of the notes on which he was surety gage or conditional sale, with Baker in posfor Stockbridge & Teague, and they had session, he would have still had the right to made default thereon, the goods to which the possession of the property until the conhe, as well as other creditors, had a right to ditions had been complied with or broken. look for the payment of the debts for which In either event the judgment of the court behe was bound, would in all probability have low in his favor was right, and should be been absorbed by the plaintiffs in this case affirmed. to satisfy their unsecured notes. Baker was a creditor of Stockbridge & Teague, such as

Adopted by Supreme Court, May 26, 1891.

PENNSYLVANIA SUPREME COURT.

Eli W. HOYT et al.

v.

Frank HOYT et al., Appts.

(....Pa.....)

1. No trade-mark can be claimed in the shape of a bottle in which extracts are put up

for sale.

2. No exclusive right can be acquired by adoption in a cap label for a bottle, which was originated by a third person and has been used by him for years.

3. Neither the shape of a box in which bottles of extracts are packed for purposes of trade, nor the mechanical arrangement of the bottles therein, is subject to appropriation as a trade-mark.

4. Combining a label and bottle cannot infringe a trade-mark if the separate use of each would not have that effect.

(October 5, 1891.)

APPEAL by defendants from a decree of
the Court of Common Pleas, No. 4, for
Philadelphia County enjoining them from in-
fringing plaintiff's trade-mark. Reversed.

The facts are stated in the opinion.
Messrs. William Henry Peace and F.
Carroll Brewster, for appellants:

It may be seriously questioned whether la-
bels and advertisements as mere labels and ad-
vertisements constitute trade-marks.
Leather Cloth Co. v. American Leather Cloth
Co. 11 Jur. N. S. 513; Browne, Trade-marks,

p. 144.

The bottle is not a trade-mark, because it is but the form of the goods.

Moorman v. Hoge, 2 Sawy. 78; Browne, Trade-marks, p. 108; Harrington v. Libby, 12 Pat. Off. Gaz. 188.

The shape and arrangement of the boxes cannot constitute a trade-mark.

Sawyer v. Meyer, 2 W. N. C. 197; Browne, Trade-marks, p. 113.

Plaintiffs' fraud in falsely representing their

NOTE. For a full discussion of the subject of "Trade-marks," see Putnam Nail Co. v. Dulany (Pa.) 11 L. R. A. 524, and cases referred to in note.

cologne to be of German origin bars their right to relief.

Fetridge v. Wells, 4 Abb. Pr. 144; Hobbs v. Francais, 19 How. Pr. 567; Leather Cloth Co. v. American Leather Cloth Co., Limited, 4 De G. J. & S. 137; Morgan v. McAdam, 36 L. J. Ch. 228; Palmer v. Harris, 60 Pa. 156; Kenny v. Gillet, 70 Md. 574; Laird v. Wilder, 9 Bush, 131, 15 Am. Rep. 707; Connell v. Reed, 128 Mass. 477; Manhattan Medicine Co. v. Wood, 108 U.S.218, 27 L. ed. 706; Siegert v. Abbott, 61 Md. 276, 48 Am. Rep. 101; Pidding v. How, 8 Sim. 477; Ginter v. Kinney T. Co. 12 Fed. Rep. 782; Flavel v. Harrison, 10 Hare, 467; Re Saunion & Co. Cox's Manual, 625 (1878).

For the law on the question of similarity, see

Spottiswoode v. Clark, 2 Sandf. Ch. 628, 7 L. ed. 733; Partridge v. Menck, 2 Sandf. Ch. 622, 7 L. ed. 729.

If it appear that the marks used by the defendants, though resembling the plaintiffs' in some respects, would not, probably, deceive the ordinary mass of purchasers, paying the

attention which such persons usually don buying the article in question, an injunction will not be granted.

Blackwell v. Crab, 36 L. J. R. Ch. 504; Sawyer v. Meyer, 2 W. N. C. 197.

The shape and arrangement of the boxes cannot constitute a trade-mark.

Gilman v. Hunnewell, 122 Mass. 139.

A person cannot have a right in his own the same name, unless the latter's form of name as a trade-mark, as against a person of stamp or label is so similar as to represent that his goods are of the former's manufacture.

Laughman's App. 5 L. R. A. 599, 128 Pa. 1;
stock v. White, 31 Barb. 301; Faber v. Faber,
Burgess v. Burgess, 3 DeG. M. & G. 896; Com-
49 Barb. 357; Emerson v. Badger, 101 Mass. 82;
James v. James, L. R. 13 Eq. 421; Hardy v.
Cutter, Sebastian's Digest, Case, 427 (1873);
Decker, 52 How. Pr. 218.
Meneely v. Meneely, 62 N. Y. 427; Decker v.

of packages, boxes, bottles, labels or wrappers.
There is no trade-mark in the size and shape
Gillott v. Esterbrook, 47 Barb. 461; Moorman
V. Hoge, 2 Sawy. 78; Sawyer v. Meyer, 2 W.
N. C. 197.