to denote that they are made by such person or firm, and that the name has gained currency and credit in the market (there being no secret process nor invention), could such person or firm, on ceasing to carry on business, sell and assign the right to use such name and mark to another firm carrying on the same business in a different place? Suppose a firm of A., B. & Co., to have been clothiers in Wiltshire, for fifty years, and that broadcloth, marked "A., B. & Co., makers, Wilts.," has obtained a great reputation in the market, and that A., B. & Co., on discontinuing business, sell and transfer the right to use their name and mark to a firm of C., D. & Co., who are clothiers in Yorkshire; would the latter be protected by a court of equity in their claim to an exclusive right to use the name and mark of A., B. & Co.? I am of opinion that no such protection ought to be given. It is true that a name or the style of a firm may, by long usage, become a mere trade-mark, and cease to convey any representation as to the fact of the person who makes, or the place of manufacture; but where any symbol or label, claimed as a trade-mark, is so constructed or worded as to make or contain a distinct assertion which is false, I think no property can be claimed in it; or, in other words, the right to the exclusive use of it cannot be maintained. To sell an article stamped with a false statement is pro tanto an imposition on the public, and, therefore, in the case supposed, the plaintiff and defendant would be both in pari delicto. This is consistent with many decided cases." And on page 145, the complainant "de Vol. 5-3. sires to restrain the defendant from selling his own goods as the goods of another person; but if, by the use of the trade-mark in question, the plaintiff himself is representing and selling his goods as the goods of another, or if his trade-mark gives a false description of the article, he is violating the rule on which he seeks relief against the defendant." Lord Kingsdown (11 H. L., 544) says: "Though a man may assign his business, and the use of his firm, and of his trade-mark, as belonging to it, that proceeds, in my opinion, upon the ground which I have stated, that the use of the name of the firm is not understood in trade to signify that certain individuals and no others are engaged in the concern. Though a man may have a property in a trademark, in the sense of having a right to exclude any other trader from the use of it in selling the same description of goods, it does not follow that he can, in all cases, give another pera right to use it or to use his name. If an artist or an artisan has acquired by his personal skill and ability a reputation which gives to his works in the market a higher value than those of other artists or artisans, he cannot give to other persons the right to affix his name or mark to their goods, because he cannot give to them the right to practice a fraud upon the public." Westbury, L. C. (11 II. L., 546), says, in concluding the case: "What is here called by the appellants a trade-mark is, in reality, an advertisement of the character and quality of their goods." son There is to be noticed a peculiarity in some English cases, growing out of the practice of keeping up the name of an old mercantile firm for several claimed by the respondents that the generations, or successions of partners, complainants intend any deception. and when no partner of the original The facts are pretty well understood name remained. This practice is by the large dealers, and by the trade noticed and commented on in Hall v. generally. And if we look upon the Barrows, 4 De G., J. & S., 150, 156; mark as having come to designate a The Leather Cloth Co., v. The Ameri- quantity or sort of goods, in that light can Leather Cloth Co., Ib., 137, 143; the complainants would not be enand by Lord Kingsdown, in the last-titled to the exclusive use of it. named case in House of Lords, 11 II. L., 542, mentioning instances. See also, Croft v. Day, 7 Beav., 84. In such cases no one is deceived. The name and good-will are understood by the public to belong to the existing firm. It is believed, so far as we can learn from the cases, that that practice is not common in this country, and in New York it is forbidden by express statute. So also in France. Parsons on Contracts, 6th ed., 1873, vol. 2, bk. iii., cap. 15, § 4, C., 257, b. 2, states the rule, that, where a trade-mark "declares that an article is made by a particular person or firm, it cannot be transferred; and this seems to be sustained by the cases. On the other hand, the defendants. hired the old mill, formerly occupied by Stillman & Co., and are making linseys there. While there is evidence that this mill was often called the "Seventh Day Mill," there is reliable evidence that it was also called the "Stillman Mill." It was leased to the defendants by that name, two years before they began the manufacture complained of. Persons of that name have been engaged in Westerley in manufacturing for many years, and there is evidence that the name of Stillman has also been applied to other mills. The defendants have a right to call their mills so, if they choose. We The labels, it is true, are of about the same size, but the borders are dissimilar, and the defendants' ticket gives the true names of the makers, not in small type, but in letters of sufficient size not to be overlooked. The similarity is only in the one prominent word, "Stillman." cannot deny them the right to use the name of their mills on their tickets, being satisfied that the name was not a new name, given to the mills for purposes of deception, but that their mill might properly be, and had been, so called; and that the name "Stillman" was used with sufficient explanation (to use the language of some cases) to prevent any misunderstand In the present case there has been no continuation of an old firm by a gradual change of its members. There is no person of the name of Stillman in the complainants' firm, and the goods (although one of the partners was superintendent of the old firm) are made by a new firm, and in another place. The goods had (and it may be, as claimed, through the skill of Carmichel) acquired a valuable reputation; but that old firm does not now exist. They do not describe themselves as successors, or the goods as made by one who was formerly superintendent, but by the old firm as if it still existed. It has not beening. Evidence has been put in showing the excellent quality of the goods made by the plaintiffs, and, so far as the evidence goes, some of the goods of the defendants have been of a less substantial make, and were sold for a less price, the purchasers knowing the difference. The fact that Stillman, Stanton & Co. paid George Stillman for the use of the old name, we cannot consider as of much weight, as that firm contained several of the persons who were in the old firm who had sold to George the right to use it. We must therefore deny the motion for an injunction. Opinion by Potter, J.; Durfee, C. J., concurring. BANKRUPTCY. and after the final order confirming the same was entered, had petitioned the Circuit Court for the said district to review the order. Before the hearing upon the petition in the Circuit Court, the deferred composition payments became due, and the bankrupt attended at the office of the Register in pursuance of a notice sent to all of his creditors, and paid the notes of all excepting the petitioners, who did not appear to receive payment. Subsequently the petitioners demanded payment of their notes which was refused. E. II. Lewis, for the creditors. A. C. Fransiola, for the bankrupt. Held, I understood from the affidavit of the bankrupt, that on each occasion when each of the notes coming to each of the four unpaid creditors U. S. DISTRICT COURT. S. D. or fell due, he had ready and in hand the NEW YORK. In re Alfred P. Reynolds. Decided August 30, 1877. money to pay them, according to the terms of the composition. In respect to such money he was a trustee thereA composition creditor need not sue at law, of for the creditors. Although a debut has a summary remedy in the Bankrupt- livery of the notes to the register was cy Court. a delivery of them to the creditors, so Motion to enforce the provisions of as to absolve the bankrupt from the a bankruptcy composition. The resolution of the creditors provided for the payment by the bankrupt of his composition settlement in deferred payments, to be evidenced by the promissory notes of the bankrupt, payable in six, nine, and twelve months. In pursuance of the provisions of the resolution, the bankrupt delivered to the Register having charge of the proceedings, his promissory notes payable at the times provided for. The petitioners in this application were four creditors who had opposed the composition in the District Court, necessity of making any other delivery of the notes to the creditors, yet, when the time came to pay the notes, it was the duty of the bankrupt, if he could find no one who would take the money for the four creditors, to pay the money into the Bankruptcy Court; and this all the more because he must have known that while those creditors were prosecuting their petition of review, they would not take either the notes or the money. In fact, the affidavit of the bankrupt shows that the notes, when they severally matured, remained with the register, and it is to be inferred that the bankrupt then knew that fact. The bankrupt, even if he had tendered the money in each instance to each of the four creditors personally, would not have discharged his whole duty without paying it into Court on their refusal to receive it, unless he was willing to take the risk of being ready to pay it whenever afterwards called upon to pay it. As it was, on the facts shown by him, he ought to have paid it into Court. If he had done so, he would have discharged himself from responsibility. The creditors are entitled to an order that he pay them the money. Opinion by Blatchford, J. half of the buggy to the plaintiff and William A. Green. Green subsequently transferred his interest in the mortgage to the plaintiff. On the 15th December, 1873, Weaver and Green mortgaged the buggy and harness to one Conderman to secure a precedent debt owing to Conderman. Conderman assigned his mortgage to John Olph, who, in March, 1874, caused the property to be sold by a constable at public sale, by virtue of his mortgage. The harness and the whole of the buggy were sold, and were bid off by the defendant. The plaintiff was present and forbade the sale of the harness and of his half of the buggy, in the hearing of the de TENANTS IN COMMON. CON- fendant, who has since had possession VERSION. N. Y. SUPREME COURT, GENERAL TERM. FOURTH DEPT. of them and used them for his own individual purposes, claiming to own them exclusively, and denying that William Van Doren, respt., v. Rob- the plaintiff has any interest in them, ert I. Balty, applt. Decided June, 1877. One tenant in common of chattels has no right to sell the share of his co-tenant; such a sale is a conversion for which the vendor and purchaser are liable in trover after demand and refusal. Appeal from a judgment of the Livingston County Court entered on a verdict in favor of the plaintiff, and also from an order of the said court denying a motion for a new trial. The action was brought to recover damages for the alleged conversion of certain personal property described in the complaint. The facts of the case are undisputed. On the 27th of July, 1872, John W. Weaver, being the owner of a double harness, and also of the undivided half of a buggy wagon, the property of himself and Theodore S. Green, as tenants in common, mortgaged the harness and his and has refused on demand to deliver them to the plaintiff. The plaintiff recovered a verdict for the value of the harness and of one-half of the buggy. The action was originally commenced in a justice's court, where, also, the plaintiff had a verdict, which was slightly increased in the County Court. The right of the plaintiff to recover for the value of the harness is not questioned by appellant's counsel, and the contention in the case relates to the buggy alone. F. C. Peck, for applt. Held, That as the sale of the plaintiff's share of the buggy was a wrong to the plaintiff for which the seller is liable, it follows that the defendant, who participated in it by purchasing the whole, with notice of the plain tiff's rights, and thereafter asserting tain subsequent proceedings on the part of the defendants. an exclusive title to the property, is equally liable as a wrong-doer, and the plaintiff may maintain an action against him for the conversion of his share. Held, That one tenant in common has no right to sell the share of his co-tenant, and such sale is a conversion for which he is liable in trover. Held, That a purchase of property from one who has no power to sell, when the purchaser takes a delivery of it, and retains the possession, claiming it under the sale, after notice of the title of the true owner, is a conversion of it. Judgment and order affirmed. PROMISSORY NOTE. CONSID ERATION. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. On the 12th of January, 1871, Samuel Weare executed two promissory notes dated on that day, by one of which he promised to pay the sum of $375 in ten months, and by the other, the like sum in twenty-two months, to "the Treasurer of the First Society of the M. E. Church of the town of Ogden, with use, in consideration of liquidating the debt on said Society." Weare died, leaving a will, and the defendants are the executors. The plaintiff having presented the claim, it was referred under the statute, and a trial having been had, the referee reported against the claim, holding the notes void for want of consideration. The defendants' attorney having served motion papers for an order to confirm the report and for costs and judgment, the plaintiff's attorney (thoughtlessly and improvidently, as he asserts), stipulated that motion, to save the defendants' attorthe order might be taken without The First Society of the Methodist Episcopal Church of the town of Ogden, applt., v. George W. Rath-ney the trouble of attending court to bun, et al. exrs., etc., respts. Decided June, 1877. Where defendant promised the trustees of a church that if they would go on and complete a church edifice, the erection of which they had abandoned, he would give some money to help them out, and the trustees completed the building, after which defend ant gave his note, although the original promise was void for uncertainty in stating no amount, the note relates back to the original consideration and must be paid. Appeal from an order of the Monroe Special Term, denying a motion on the part of the plaintiff to set aside a written stipulation made by the plaintiff's attorney, and also cer make the motion. The order and judgment were entered on filing the stipulation, and the plaintiff's attorney having appealed, as he avers he intended to do when he gave the stipulation, his appeal was dismissed on the defendants' motion, on the ground that the defendants had not moved to set aside the report, nor opposed the motion to confirm the same. The plaintiff then moved at Special Term, on affidavits stating these facts, and on the referee's minutes of trial, for an order setting aside said stipulation, and all subsequent proceedings on the part of the defendants, except the order dismissing the appeal, which |