report which was thus confirmed it appeared that after the allowance for receiver's services there was a balance of cash in the receiver's hands of $1,272.66. On October 3, 1904, the receiver filed an account as a final account, and asked for its confirmation and for his discharge from his trust. By this account the receiver has charged himself with the balance of $1,272.66, and with no other receipts or collections, and claims allowance for disbursements made by him to a greater amount. There was an order to show cause, with a direction for notice, etc. Isaac S. Taylor, for receiver. O. Bancroft Gould, for respondent. An MAGIE, Ch. (after stating the facts). Upon the hearing of this order, Jeremiah Casey presented a voluminous document, intended, it is presumed, to present his objections. examination of it discloses no objection except such as could have been urged in this court against the making of the decree of insolvency or upon an appeal from that decree, or such as were and could have been presented under the order to show cause obtained by him on October 18, 1900. All those matters have been considered and adjudicated upon, and the objections are not pertinent upon the present application. Other exceptions were filed by a solicitor of this court for Bertha Engelking, formerly Bertha Ehard, claiming to be a stockholder of the insolvent corporation. She excepts (1) because the allowance claimed for the receiver's personal expenses is excessive; (2) because debts of the insolvent company do not appear to have been paid; (3) because the allowance claimed for fees paid to one Brown, as counsel for the receiver, is not shown to have been an allowance proper to be made; (4) because the receiver does not show that certain of the assets, consisting of book accounts against various parties, have been collected or were uncollectible; and (5) because the receiver has not enforced the liability of the stockholders of the company for their stock, or such sums as remain unpaid thereon. It is contended that the receiver is not entitled to a discharge under these circumstances. I think these exceptions, if presented by a person interested, require the receiver's account now presented to be passed upon by a master. The files of the court show that 10 out of 1,000 shares of the stock of the insolvent corporation were held by J. Ehard, Jr., on which $850 only has been paid, leaving $150 due. The exceptant claimed to be a representative of said stockholder, who has since deceased. Upon a reference and proof of her being entitled to said shares, her exceptions must be considered. While I regret to be obliged to protract this litigation by a reference, and upon exceptions which there is reason to suppose may result, if successful, in a very small and perhaps infinitesimal benefit to exceptant or to any stockholder or creditor, yet I am constrained to say that the receiver's account is not presented so as to require confirmation against objections. The allowance he claims for personal expenses is not accompanied by a sworn voucher of their actual payment. The allowance claimed for payment of counsel fees to Mr. Brown is supported by no voucher or proof. It is within the knowledge of the court that the receiver was appointed ancillary receiver in the state of New York, where the property of the insolvent corporation was, and there is good ground to infer that this payment to counsel was in respect to litigation in that state extending over a number of years. But a court cannot discharge from his trust a receiver, except upon an accounting. It may be further suggested that a receiver ought not to be discharged until he discloses whether there are debts of the insolvent corporation remaining unpaid, and whether any more of the assets have been or could have been collected for the payment of debts, and also whether the receiver in this case was bound to enforce the liability of the stockholders for the amounts unpaid upon their stock. The result is that an order of reference will be made, but the order will be so made as to exclude every matter adjudicated upon February 1, 1901, by the discharge of Casey's order to show cause, and by the confirmation of the master's report upon the previous accounts of the receiver. (71 N. J. L. 549) STOKES v. HARDY. (Court of Errors and Appeals of New Jersey. March 6, 1905.) INSOLVENCY-DISCHARGE OF DEBTOR-PROCEEDINGS-PETITION-ASSIGNMENT FOR CREDITORS-PREMATURE DISCHARGE. 1. Under Gen. St. p. 1728, § 6, authorizing a person in confinement for debt, or discharged on bond, to present a petition to the court of common pleas for the benefit of the insolvent debtors' act, the debtor, on presenting the petition, is not to be deprived of the benefit of a discharge in insolvency because of the failure of the judge to file the petition with the clerk within a reasonable time. 2. The failure of a debtor, who petitions for a discharge in insolvency, to comply with section 11 of the insolvent debtors' act (Gen. St. p. 1728), requiring him to make an assignment of all his real and personal estate, except such property as is exempt from execution, is fatal to the validity of a discharge under the act, although the inventory filed by the debtor discloses the existence of no property other than that which is exempt. 3. The assignment for the benefit of creditors, required by the eleventh section of the insolvent debtors' act (Gen. St. p. 1728) as a condition precedent to a discharge, operates not only upon the property which is exhibited in the inventory made by the debtor, but upon all other property of which he may be possessed and which he fails to disclose. 4. Where the court of common pleas entered an order of discharge in insolvency without first requiring the insolvent to make an assignment of his property, as required by section 11 of the insolvent debtors' act (Gen. St. p. 1728), the Supreme Court, in reviewing the order, should remand the cause to the common pleas, to be proceeded with according to law, and should not permit the creditors to sue on the bond given by the insolvent, and thus entirely deprive him of his right to a discharge because of the fault of the court. Error to Supreme Court. Application by Albert Hardy for the benefit of the insolvent debtors' act; Thomas Stokes, objector. There was a judgment of the Supreme Court setting aside the discharge (58 Atl. 650), and Hardy brings error. Reversed. A. V. Dawes, for plaintiff in error. Freeman Woodbridge, for defendant in error. GUMMERE, C. J. This case originated in the Middlesex common pleas, and was an application by Hardy, the plaintiff in error, for the benefit of the insolvent debtors' act. His petition was presented to the court on the 7th of April, 1903, but was not filed in the clerk's office until the 30th of November, it apparently having been retained in the possession of the judge during the intervening period. On the 14th of September the court made an order fixing the time when it would hear what should be alleged for or against the liberation of Hardy, and notice of this order was published once a week from the 5th of November until the 7th of December, the latter day being that fixed for the hearing. At the hearing, counsel for Stokes, the defendant in error, appeared and objected to the further prosecution of the matter, on the ground that Hardy's petition had not been filed in compliance with law. The objection was overruled, and the hearing proceeded with. At the close of the proceeding the court made an order "that the said Albert Hardy be discharged from the confinement on account of debts by him personally contracted, pursuant to the provisions of the above-mentioned act," 1. e., the insolvent debtors' act. Stokes then sued out a certiorari to review this order, and at the hearing on the writ the Supreme Court set the order aside, and directed that the bond which had been given by Hardy for the benefit of his creditors should be taken from the files of the court for prosecution. The grounds of the decision of the Supreme Court are stated in its opinion to be: First, that the proceeding was void because of the failing to file the petition in due time; and, second, because the discharge of the insolvent was ordered without first requiring him to make an assignment of his property, in compliance with the provisions of the insolvent debtors' act. The first ground for reversal given by the Supreme Court for its action does not seem to us to justify its action. In the first place, It is to be observed that the insolvent debt ors' act does not require the petition to be filed, but to be presented to the court (Gen. St. p. 1728, § 6), and, as appears from the record in this case, there was a strict compliance with the provision of the statute. By the presentation of the petition it came into the custody of the court, and the insolvent parted with its control. After its presentation, the judge who was sitting should within a reasonable time have deposited it in the office of the clerk, where the records and files of the court were kept. The failure of the judge to do this during a period of nearly seven months may be conceded to have been a neglect of his official duty, but certainly Hardy was in no way responsible for it. The court very properly refused to punish Hardy for its own failure to deposit the petition. If the delay in filing the petition in the clerk's office was prejudicial to the rights of his creditors, the remedy for that injury was a postponement of the matter for so long a time as would enable the creditors to ascertain what was set out in the petition and to prepare for the hearing. The second ground upon which the Supreme Court based its decision setting aside the order of discharge cannot be successfully attacked. The eleventh section of the insolvent debtors' act (Gen. St. p. 1728) requires, as a condition precedent to the insolvent's discharge (in case the facts disclosed at the hearing justify that discharge), that he shall make an assignment, to parties nominated by the court, of all his real and personal estate, except apparel for himself, his wife and children, the tools of his trade, and such property as is exempt from execution, and this was not done. The fact that the inventory filed by Hardy disclosed the existence of no property, except that which is exempted by the statute, affords no ground for not making the assignment; that instrument operates not only upon the property, which is exhibited in the inventory made by the debtor, but upon all other property of which he may be possessed, a disclosure of which he has withheld. But although we concur in the conclusion reached by the Supreme Court that the order of discharge must be set aside by reason of the failure of Hardy to make an assignment, we consider that the court went too far when it granted leave to the defendant in error to take from the files of the common pleas court, for prosecution, the bond given by Hardy in the insolvency proceedings. The latter was not responsible for the premature making of the order of discharge, but the court. All that the defendant in error was entitled to ask from the Supreme Court was that the status quo 'should be restored; that, having set aside the order of discharge made by the court of common pleas, the Supreme Court should remit the case to that tribunal, to be there further proceeded with according to law. If Hardy, upon the hearing, had made it plain that he was entitled to his discharge, the act of the court in granting it without first requiring an assignment to be made by him ought not to have the effect of entirely depriving him of that right, and of imposing upon the surety on his bond the obligation of paying his debts. The judgment of the Supreme Court should be reversed, and the record remitted to that court in order that the rule therein entered may be modified to the extent which we have indicated. (71 N. J. L. 568) STEWART CONTRACTING CO. v. TREN- MECHANICS' LIENS-PROVISIONS IN CONTRACT SUBCONTRACTOR. 1. A provision against liens in an unfiled building contract does not protect the building from liens other than those of the party to such contract. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, § 135.] 2. A building erected under an unfiled contract with the owner of the land is liable to a subcontractor for the lien given by section 1 of the mechanic's lien act (P. L. 1898, p. 538) without the written consent of the owner under section 7 (page 540). [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, § 132.] 3. The cases of Atlantic Coast Brewing Company v. Atlantic Lumber Co., 35 Atl. 647, 59 N. J. Law, 48, and Same v. Frank Muth (affirmed in this court), followed. 4. When a building is erected by some person other than the owner of the land, such building and the estate which such person had in the lands at the commencement of the building, or which he subsequently acquired, is subject to lien under section 7 of the mechanic's lien law (P. L. 1898, p. 540) and to sale and conveyance under section 28 (page 550). [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, §§ 328–333.] (Syllabus by the Court.) Error to Circuit Court. Action by the Stewart Contracting Company against the Trenton & New Brunswick Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed. Richard V. Lindabury and Chauncey G. Parker, for plaintiff in error. George J. Bergen, for defendant in error. GARRISON, J. This writ of error brings up the judgment recovered in a mechanic's lien suit against H. M. Sciple, contractor, and the plaintiff in error as owner. The case shows that prior to February 27, 1902, the land now of the plaintiff in error was owned by Edward Nutt; that on February 5th, while Nutt was still owner, a corporation, called in the "case" the "Construction Company," made a written contract with H. M. Sciple for the erection of a power house, and on February 27, 1902, took from Nutt and wife a conveyance of the said land; that on March 1, 1902, Sciple contracted with the defendant in error for a part of the work on the power house which was erected on said land; and that on July 28, 1902, the land was conveyed by the construction company to the plaintiff in error. In the recent case of Bates Machine Company against this same plaintiff in error (58 Atl. 935) it was held that under these circumstances a lien was enforceable against the plaintiff in error as owner, notwithstanding its incorporation for railroad purposes. This disposes of the assignment of error argued in the present case as to the right to lien railroad property. A second assignment of error is based upon the fact that the contract between Sciple and the defendant in error provided that the bills of the latter should be paid by Sciple when approved by the engineer of the construction company, that such approval was not shown, and that the trial judge charged the jury that Sciple had the right to waive his provision, and left to the jury the question of waiver. The correctness of this ruling will not be considered, inasmuch as the defense of the nonperformance of this condition was not open to the plaintiff in error. The plaintiff's declaration averred generally the performance by it of all the conditions of the contract sued on; hence under our statute, which requires the party to specify in his pleading the condition the nonperformance of which he intends to contest, the pleas of the defendant could not support the suggested defense. Ottawa Tribe v. Munter, 60 N. J. Law, 459, 38 Atl. 696. Another ground urged for the reversal of this judgment is that the trial court charged the jury: "If Sciple chose to accept the work when Sciple chose to consider it as completed, then the debt from Sciple to the plaintiff arose, and, that being so, and if you find upon the grounds that the contract was substantially performed, the defendant railroad company would have no right to complain." No exception was taken to this part of the judicial charge, or any assignment of error based upon it, that I can find. If I am mistaken in this, the language cited as applied to the debt from Sciple to the plaintiff correctly stated what the plaintiff must establish in order to recover in its action. No other application of it was made, and no request preferred, that raised any other point touching it. Error is also assigned upon the refusal of the trial court to nonsuit the plaintiff, "because the principal contract offered in evidence, being the contract between the construction company and Sciple, expressly provides that no contractor or subcontractor shall have a lien upon the property; in other words, that the right of lien has been waived." This assignment is supported also by SCY eral requests to charge, as well as by the language of the charge itself, to which exception was duly taken, and presents the question whether the existence of a provision against liens in an unfiled building contract protects the building from liens other than those of the party to such contract. This question is not a new one. It was before this court in the case of Atlantic Coast Brewing Company v. Atlantic Lumber Company, on error to the Supreme Court. 59 N. J. Law, 50, 35 Atl. 648. In the Supreme Court it had been shown by a bill of exceptions that the plaintiff in error had claimed at the trial in the circuit court that the building contract between it and Frank Muth, contractor, prohibited all liens, and that a certain bond from which the name of the defendant in error had been erased referred to this contract. It was thereupon contended, first, that the defendant in error had notice of the provision against liens contained in the building contract; and, second, that the mere existence of such provision in the principal contract barred the defendant in error from asserting a lien, and the circuit court was requested so to charge. The first of these contentions was disposed of by the Supreme Court upon the ground that, as the testimony did not establish all of the facts recited in the request, its denial was not error. As to the other contention, viz., that the existence of a provision against liens in the principal contract was a bar against liens, irrespective of the question of notice, the opinion of the Supreme Court was as follows: "The plaintiff [in error] was not injured unless the bare existence of the waiver of liens in an unfiled contract protects a building from liens. This obviously is not So. The right of lien given by the first section is fixed when the materials are furnished, unless it is taken away by section 2. The fact that the builder who made the contract has waived his right does not affect the rights of others. In each case the right is personal, and is vested, unless personally waived. There is nothing substantial in the assignment." The case was affirmed in this court upon the opinion of the Supreme Court by a unanimous vote, as appears by the check list filed in the office of the Secretary of State as of the March term, 1897. That the provision of the contract in that case, which was a lien for materials, was broad enough to raise the same question that is here presented, is apparent from its terms, which were: "The owner shall not in any manner be answerable or accountable for any of the materials or other things used or employed in furnishing or completing the building." 59 N. J. Law, 49, 35 Atl. 647. In the recent case of Bates v. Trenton & N. B. R. Co. the rule of this earlier case was incidentally stated, and some additional reasons for its propriety suggested. These two cases, read together, declare the established doctrine of this state upon this subject, viz., that the mere existence in a building contract of a provision against liens is without force against a subcontractor who has no notice of such provision, but that with such notice the mere acceptance of employment under such contract will bar such subcontractor from the assertion of any lien. The argument upon this subject was re-enforced in the brief of counsel by the following contention, which I quote at length as it is recurred to in a supplemental brief: "But, even supposing that the court shall hold that the contract made by the construction company with Sciple was signed by the construction company as owner, yet under the circumstances of this case such a written contract was not a consent in writing for the erection of the building contemplated by section 8 of the mechanic's lien law [P. L. 1898, p. 540]. "The reason for this contention is that the contract of the railroad construction company contained the following provision: ""The contractor agrees to file no liens for any labor or material furnished under this contract; such waiver of liens, however, is in no way to be considered as a waiver of action by law for the recovery of the amount due the contractor, as approved or awarded by said engineer. It is further agreed that no subcontractor for work or material shall have any right to file any lien for any sum which may be due or become due to him, and any right to file such lien is expressly waived.' "The intent of these provisions was that the consent to the building was given upon the express condition that the owner of the land should not be charged with a lien for the erection of the building, while the consent required by the mechanic's lien act is an absolute consent to the erection of the building by or through any person or persons, so that the land might be chargeable with the lien thereon. "This case is controlled by the case of Hervey v. Gay, Court of Errors (1880) 42 N. J. Law, 168." Unaided by any exception to any ruling elicited from the trial court touching the necessity of the written consent required by the statute, and finding no assignment of error in which such consent is even mentioned, I am at loss to see the pertinence of that section of the statute, or of the case of Hervey v. Gay, to the argument advanced. The purpose of that section and the purport of that decision are that the title of an owner of lands should not be incumbered by a lien by reason of an erection on such land by any person other than himself. No such situation is presented by the judgment before us in which the land subjected to the plaintiff's lien was conveyed to the plaintiff in error by the construction company, who at the time of such conveyance and at the date of the plaintiff's contract was itself erecting the power house upon its own lands, under an unfiled contract with Sciple. If the point intended to be made is that at the date of the signing of such unfiled contract the construction company had not acquired Nutt's title, the foregoing argument totally fails, inasmuch as the contract of the construction company not being in such case the contract of the owner could not be the consent of the owner, and hence could not qualify the statutory rights of the plaintiff. If, in aid of the argument, the hypothesis suggested in the brief of the counsel be adopt-❘ ed, viz., that the construction company contracted as owner, then its contract was not the contract of some person other than the owner, and hence the juncture requiring such consent was not presented. A building erected under an unfiled contract with the owner is liable to a subcontractor for the lien given by section 1 of the mechanic's lien act without his showing the written consent of the owner under section 7. This was expressly held in the case of Atlantic Coast Brewing Company v. Frank Muth, which was affirmed by this court on the opinion in 59 N. J. Law, 48, 35 Atl. 647. (See check list in office of Secretary of State.) If, therefore, the building in the present case was erected by the construction company as owner, its consent in writing was not required; whereas, if the construction company be regarded as "some person other than the owner of the land," then such building and the estate which the construction company "had in the lands at the commencement of the building on which it subsequently acquired" is subject to lien under section 7 of the mechanic's lien act (P. L. 1898, p. 540) and to sale and conveyance under section 28 (page 550). We have also examined the assignments of error respecting grading, and the itemizing of the lien claim, and find in them no prejudicial errors. The judgment of the circuit court is therefore affirmed. (69 N. J. E. 114) CHARLES R. DE BEVOISE CO. v. H. & W. CO. (Court of Chancery of New Jersey. April, 1905.) TRADE-MARK-FOREIGN WORD-RIGHT TO EXCLUSIVE USE-INJUNCTION-LENGTH OF USE-AFFIDAVIT-SUFFICIENCY. 1. In a suit to enjoin the alleged illegal use of a trade-name, an affidavit that complainant had used the name "for a long time" is too indefinite for judicial action. 2. The French word "brassière," which means simply "brace," as applied to an article of women's wear, but includes the idea of "restraint" and "to be under constraint," is not subject to exclusive appropriation as a trade-mark for a combined corset cover and bust supporter, even by a manufacturer first so using it in the United States. [Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 11.] Bill by the Charles R. De Bevoise Company against the H. & W. Company. On rule to show cause why injunction should not issue. Rule discharged. Harry N. Reeves and Jacob L. Newman, for complainant. J. Edward Smith, for defendant. PITNEY, V. C. This is a dispute over the right to use the word "brassière" for the purposes of trade. The complainant company asserts its right to the exclusive use of that word as descriptive of an article of wearing apparel which it manufactures in large quantities. The defendant disputes that right. The article in question is described by complainant, and that description is acquiesced in by the defendant, as "a combined corset cover and bust supporter." It is a close-fitting, armless jacket, reaching in a narrow band over the shoulders, and opening at the back. There is no assertion or proof that the article in question is a new invention of complainant. There is no charge or proof that the article manufactured by defendant corporation is an attempt to imitate that manufactured by complainant corporation. There is no distinguishing mark on either. Each article is put up in a small paper box, and on the end of the box containing that manufactured by the complainant are printed the words "De Bevoise Brassière," together with the size and style numbers, and on the end of the box containing that manufactured by the defendant are printed the words "H. & W. Brassière," together with the size and style numbers. In all the advertising circulars and trade journal insertions the same distinction is maintained. There is no charge or attempt to prove that the defendant is seeking or attempting to put its goods on the market as goods manufactured by the complainant. In point of fact, the defendant, as between the two, was the first to manufacture ladies' wear, including the article in question and other articles of that class. Mr. De Bevoise, the president and principal proprietor of complainant, was formerly in the employ of defendant corporation, and left its employ to promote the complainant corporation. The issue, then, is narrowed down to the right to the exclusive use of the word "brassière." There is no satisfactory proof on the part of the complainant as to how long it has used that word. The affidavit says "for a long time," but that is altogether too indefinite for judicial action. The affidavit on the part of the defendant says that Mr. De Bevoise left its employ about a year ago. The complainant's case rests solely upon its first having adopted the word "brassière" as the name for the article in question. This is disputed by defendant, who asserts that it was long ago used in France. But admitting that it was first used by complainant in the United States, let us see whether complainant can stand on that claim. The word "brassière" is a familiar French word, found |