T. Jones obtained a rule calling upon the defendant to shew cause why the judgment should not be entered for the plaintiff non obstante verdicto. Against this rule,

such sale as they shall think fit. And it is hereby and a majority in numbers, representing three-fourths declared and agreed, that the said James Knowles and in value of the creditors of the defendant whose debts Benjamin Berry, and the survivor of them, and his amounted to 107. and upwards, have in writing apheirs, shall hold the moneys to arise from any such proved or assented to the said deed; and the said sale (after payment thereout of the expenses attend-trustees appointed by the said deed duly executed the ing such sale), upon such and the like trusts, and with, same, and the said deed was duly registered, and the under, and subject to such and the like powers, inte- defendant has done and performed all things, and all rests, and purposes as are hereinafter declared and con- things have happened and exist, required by the statained concerning the moneys to arise from the sale and tute to make the said deed valid and binding on the conversion into money of the personal estate and effects plaintiff in respect of the said debt; and the defendof the said John Berry, hereinafter expressed to be as- ant has always been ready and willing, and still is igned. And this indenture further witnesseth, that in ready and willing, to pay to the plaintiff the said comfurther pursuance of the said agreement, and for the position of 38. in the pound upon his said debt, as by considerations herein mentioned, he, the said John the said deed in that behalf provided, and tendered Berry, doth hereby grant, bargain, sell, assign, and trans- and offered to pay the same to the plaintiff at the ferunto the said James Knowles and Benjamin Berry, times and in the manner in the said deed provided, their executors, administrators, and assigns, all and and the plaintiff refused to accept the same; and the angular the stock-in-trade, utensils of trade, book- defendant now brings into court the sum of 157., being lebts, ready money, securities for money, goods, chat- the amount of the said composition upon the said els, personal estate and effects, whatsoever and where- debt of the plaintiff, ready to be paid to the plaintiff, ever, of him, the said John Berry, or whereto he is and all conditions having been performed, and all anywise entitled (save and except the wearing apparel things having happened necessary in that behalf, the of him, the said John Berry, his wife and family); and plaintiff became, and was and is, bound by the said also all the books of account, papers, and documents deed as if he had been a party thereto, and had exeelating thereto; and all his right, title, and interest cuted the same. The plaintiff replied by traversing whatsoever therein or thereto, to hold the same unto the allegation of tender, and the defendant joined the said James Knowles and Benjamin Berry, their issue on the replication. The cause was tried at the executors, administrators, and assigns, upon trust that Middlesex sittings before Pigott, B., and a verdict was hey, the said James Knowles and Benjamin Berry, found for the defendant. In Easter Term, or the survivor of them, his executors or administraters, or their or his assigns, do and shall, with all convenient speed, collect and receive all debts and sums of money due and owing to the said John Berry, and sell and dispose of all the rest of the said personal Hayes, Serjt., and Kemplay, shewed cause.-The plea estate and effects hereby assigned, and out of the mo- is a good answer to the action, for the deed is a valid neys to arise therefrom, do and shall pay the expenses deed, under the Bankruptcy Act, 1861. Three-fourths of and relating to the preparation, execution, registra- of the creditors have assented in writing, but none has tion, and carrying into effect of these presents; and executed. [Bramwell, B.-It was intended that the crethen do and shall pay the said composition of 38. in ditors should execute?] Yes. [Bramwell, B.-Then, the the pound upon all the said debts (including the debt deed is a good deed only until it is executed. Martin, B. of themselves, the said James Knowles and Benjamin-Who, then, can sue upon the covenant?] In Clapham Berry), and take up and provide for the said promissory notes as and when the same shall become payable respectively; and after paying such expenses, and paying or retaining the amount of such composition pon all the said debts, do and shall pay the ultimate urplus (if any) of the said moneys to the said John Berry, his executors, administrators, or assigns; and he said John Berry doth hereby nominate, constitute, and appoint the said James Knowles and Benjamin Berry, and the survivor of them, and the executors, Iministrators, and assigns of such survivor, to be the rue and lawful attorneys and attorney of him, the and John Berry, to ask, demand, sue for, recover, and eceive all debts, moneys, and other personal estate wing or belonging to the said John Berry, from or in he custody or possession of any other person, and to ve proper receipts and discharges for the same, he, the said John Berry, hereby ratifying and confirming whatsoever his said attorneys or attorney shall lawally do in the premises. And the said John Berry uth hereby, for himself, his executors and administrators, covenant with the said James Knowles and Benjamin Berry, his heirs, executors, administrators, and assigns respectively, that he hath good right to ant, convey, and assign the said real and personal states and premises hereinbefore expressed to be ereby granted, conveyed, and assigned respectively; and that he and all other necessary parties will at ll times hereafter make, do, and execute all such urther acts, deeds, and assurances as may be necesary thereto.

The plea then alleged that the deed was executed by ohn Berry, James Knowles, and Benjamin Berry,

v. Atkinson (ante, p. 217) there was no covenant. The case of Benham v. Broadhurst (3 H. & C. 474) is distinguishable. As this a perfectly fair and honest deed, and there is no inequality on the face of it, the Court will make every possible intendment to give it effect. There is no inequality on the face of it, and the Court will not imagine any. The creditors must all sue, so there can be no inequality. [Pollock, C. B.-It says, "A majority of the creditors in number and value has before or after the execution of the deed, &c., assented." What is this?] Mala grammatica non vitiat chartam. The covenant is a joint covenant only. [Martin, B.-Although the words of a covenant be joint, yet if the covenantees have separate interests each may sue separately.] Yes. (Bradburne v. Botfield, 14 M. & W. 559).

T. Jones, in support of the rule, referred to Martin v. Gribble (ante, p. 490), and Ex parte Cockburn_(10 Jur., N. S., 573), as conlusive. The only remedy a non-executing creditor would have would be to get an executing creditor to sue for him. Besides, the deed is not executed, and if it be not executed there is no covenant, and if there is no covenant there is no composition. Suppose the deed is valid, there is no release. The pretended release is conditional on payment, and the plea is an equitable plea. But if it is admissible as an equitable plea, the money has not been been paid, which is necessary to make the plea good in that manner. [Channell, B., referred to Garrod v. Simpson (ante, p. 227).]

POLLOCK, C. B.-The plaintiff in this case applies for the judgment of the Court non obstante veredicto. The action is in debt, and the plea is a deed

24

of composition. The plaintiff claims the judgment | to feel any great confidence in the views I am about on the ground that the plea is no answer to the to express. The application is to have the judgment action. We are all of opinion that, substantially, the entered for the plaintiff non obstante veredicto; and plea is an answer to the action. Mr. Jones con- at this stage of the proceedings we must make the tends that the present case is governed by the case plea a valid defence if we can. In order to do that, of Martin v. Gribble (ante, p. 490), a case which the deed must be good so far as it is disclosed by the rests upon the judgment of the Lord Chancellor, plea. The deed is meant to be executed by three parin Ex parte Cockburn (10 Jur., N. S., 573). I do not ties, the insolvent, the trustees, and the several peragree to that, for, as my Brother Martin says, the sons whose names are subscribed of the third part. point in that case was, that there was a difference We are entitled, nay, bound, to see that this deed has made between the two classes of creditors, so that the been executed by the first and second parties only distinction between the cases is clear. There is no such Under this state of circumstances, whatever disadvan difference between the creditors in this case as to pre- tage there may be to the parties to the deed, there is vent the deed from operating as it was intended to no inequality between them; and there is no coveoperate. But it is said that the non-executing cre- nant with any one. Thus, the case is different from ditors have no covenant by which they can obtain that Ex parte Cockburn, where there was inequality; and which is allotted to them by the deed. But that is we are freed from that difficulty. Our decision does not so. They have a covenant to the others, although not interfere with the decision in Ex parte Cockbura not expressly to themselves, and they have a legal or with our decision in the case of The Chesterfield course by which they can obtain the benefit it was in- Midland, and Silkstone Company v. Hawkins; and the tended to give them. I think the deed is sufficient in deed is valid according to the decision in Clapham v. its arrangements to call upon us to say that it is an Atkinson. But it is said that, even if the deed be good answer to the action. it is no answer to the action. But that was decided otherwise in the case of Garrod v. Simpson, in accord ance with which we are bound to act; and if Garre v. Simpson is to be set aside, it must be by a Court of Error.-Rule discharged.

MARTIN, B.-The law which has been established about the deeds of composition sanctioned in the act of Parliament is not in a satisfactory condition. I cannot help feeling that, every time I deliver judgment on the subject. This arises from the intrinsic difficulty of the subject. As to the present case, I think the plea setting up this deed may be upheld on a motion to enter judgment for the plaintiff non obstante veredicto. We are at liberty to make any intendment of a reasonable kind to uphold the verdict. Now, judging from all the averments made, the deed has not been executed by any of the creditors. If that be so, there is no inequality between them, and no objection can be taken to the deed on that ground. The transaction then appears to be one by which an insolvent person gives by deed promissory notes to all his creditors: all the provisions of the act are complied with. There is nothing in it originally which should make it a void deed. As to the distinction between this case and the case of The Chesterfield, Midland, and Silkstone Company v. Hawkins (ante, p. 468), the operative part of the deed in this case provides that the creditors shall receive payment of the promissory notes when they fall due. The covenant is with the parties of the third part, which, according to Ex parte Cockburn, is restricted to the executing creditors. But here no creditor has executed, and, therefore, there is no inequality. The case may be looked at from a different point of view. It is true, that the executing creditors have the right to sue, and have the sole and undivided control of the proceedings; and are so in a better condition than the others. But I think this may be got over. It is best, however, to put the decision on the other ground.

BRAMWELL, B.-I agree that the judgments on this subject are not satisfactory. I might even say they are unsatisfactory. I do not regard such judgments as I deliver as satisfactory, either each in itself, or as contrasted with others. In the present case I am content that the judgment should be for the plaintiff. No doubt the principle is, that the creditors should be equally treated. This may be construed to mean that all should be treated as well as they can be; but if there be some who can be better treated, there is no reason why they should not be. The non-executing creditor has a right secured him whenever he is minded to come in under the deed. Meanwhile the executing creditor has a right secured beforehand. I think that if this is an honest deed, the plea should be upheld. CHANNELL, B.-After what has been said by my Brothers Martin and Bramwell, I cannot be expected

COURT FOR DIVORCE AND MATRIMONIAI

CAUSES.

FORSTER v. FORSTER and BERRIDGE.-Feb. 7, Apri 20, and May 9.

Application of damages.

Where an order had been made as to the manner in which the damages should be applied, the Court refused to sanction an agreement between the petitioner and co respondent, by which the children were deprived of th benefit conferred upon them by such order, but as th petitioner had been put to further expense by appeals &c., the Court varied the original order so as to y him a larger share of the damages, on the ground the the intent of the original order was to reimburse th petitioner all the expenses he had incurred.

In this case, after a decree absolute for dissolutio of marriage, the following order was made in Jun 1863, respecting a sum of 5000l., assessed by the jur as damages against the co-respondent:

"The Judge Ordinary having taken time to deli berate, directed that the sum of 50007., being the da mages assessed in this cause, be paid to the petitioner solicitor, to be by him applied in the following mar ner:- -That 1000l. be paid to the petitioner for hi own use; that an annuity of 1207. a year be bough in the names of two trustees, on the life of the spondent, and that such annuity be paid by the tras tees to the respondent so long as she shall lead moral and respectable life, but should the responden not lead a moral and respectable life, then that he interest in the annuity should be forfeited, and th the trustees should pay such annuity to the tw daughters of the marriage in equal portions, or to th survivor of them; and that the residue of the sa sum should be invested in the purchase of equal an nuities for the use of the two daughters of the ma riage on their own lives, and that a deed should prepared and settled by one of the conveyancin counsel of the Court of Chancery, whereby this orde should be effectually carried out through the interv tion of trustees, and anticipation of the annuitie should be prevented."

An agreement was afterwards entered into betwe

respondents is the same as that made and sold by the appellants, or as being the article known as Crockett's leather cloth. A trade-mark is assignable, and the expression of a trade-mark by words does not differ in effect from the expression thereof by a symbol. [Lord Chancellor. Can an advertisement be converted into a trade-mark? and must not the assignee shew that such trade-mark is applicable to him? Here are series of statements.] The distinction between an advertisement and a trade-mark is, that the former is an announcement, drawing, extraneously from the goods, the attention of the public to an intended sale; the latter is the symbol identifying the article sold as the manufacture of the adopter of the trade-mark. We contend that the appellants' trade-mark must be aken and tested as a whole-not resolved into its component parts, and each of them tested as a separate assertion. As a whole, it does not assert either that the article was the manufacture of Crockett & Co., or of J. R. & C. P. Crockett, or that every piece It appears from the pleadings that the article known of cloth so stamped was tanned cloth. The use of the in commerce by the name of "leather cloth" was oriexpression "patented" is legitimate, for the tanned ginally invented in America. It is produced by spreadcloth had been patented, although the patent had ex-ing over sheets of woven cloth a japanning or enamelpired. (Edelsten v. Vick, 11 Hare, 78). We do not ling material, so as to produce a resemblance to leather. dispute, that there may be such a misrepresentation Among the principal manufacturers of this fabric were in a trade-mark as to disentitle the person using it to Messrs. Crockett, of the State of New Jersey, who, relief, but it must be an original misrepresentation in with three other gentlemen, obtained, in the month of the concoction of the trade-mark; and the consequence October, 1855, an incorporation in that State, under of any other contention would be, that there could be the name of "Crockett International Leather Cloth no assignment of a trade-mark. In this case there Company." They carried on their manufacture, not was no intention to deceive the public on the part of only at Newark in the State of New Jersey, but also the appellants, who fairly and openly bought the ma- in this country at West Ham in Essex, and in other nufacture as carried on in this country, with full right parts of Europe. to use the trade-mark of the vendors. [They also cited and commented upon Pidding v. How (8 Sim. 477); Sykes v. Sykes (3 B. & Cr. 541); M'Andrew v. Basset (10 Jur., N. S., 492; S. C., Id. 550); 18 & 19 Vict. c. 132, s. 45; and Croft v. Day (7 Beav. 84).]

relief, there must be either the animus decipiendi, or the fact of actual misleading. Here there is neither, for there is no evidence that the public were actually deceived. The evidence upon this point was given diverso intuitu, not to shew that the witness bought untanned leather cloth, believing it to be tanned, but that he bought leather cloth believing it to be patent. Lord CRANWORTH.-My Lords, this case coming by appeal from a decision of the Lord Chancellor, I believe it to be more consistent with ordinary usage, and I know it will be more agreeable to his Lordship, that some member of your Lordships' House other than the Lord Chancellor should move the judgment of the House. I have, therefore, undertaken to do it. My Lords, the object of the bill filed by the appellants in this case was, to restrain the respondents from selling leather cloth having the trade-mark of the plaintiffs affixed to it, so as to represent the cloth so sold as being cloth manufactured by the plaintiffs.

Rolt, Q. C., and Fischer, for the respondents.-If the trade-mark of the appellants is to be looked upon as an advertisement, there is an end of their case, because it does not mention the name of the company issuing it, and therefore comes within the penalties of the 18 & 19 Vict. c. 132, s. 45; and penalty implies prohibition. Moreover, the appellants represent their goods to be the goods of the Crockett International Leather Cloth Company; that J. R. & C. P. Crockett are the manufacturers thereof; that their goods are both patented and tanned, and are made at Newark; whereas none of these assertions are true. The proposition of the other side, that there must be an original misrepresentation in the concoction of the trademark, broadly stated, amounts to this-that if the trade-mark be true in its inception, and it is purchased by a person in whose mouth it is untrue, that is of no consequence. The misrepresentations of the appellants may not be made animo decipiendi; but we say the public is deceived by them; and if the public is deceived, it is such a misrepresentation as disentitles the appellants to be protected in the use of the trade-mark. The appellants, again, are not assignees, but mere licensees. Further: even if the appellants have a right to protection in the use of their trade-mark, there is no similarity between it and that of the respondents, amounting to an infringement of that right. Their representations are, however, a upon the public, and fraud cannot be protected. They cited Flavell v. Harrison (10 Hare, 467); Dent . Turpin (2 Johns. & H. 139); and Perry v. Truefit (6 Beav. 73).]

fraud

Sir Hugh Cairns, Q. C., in reply.-Parliament has proclaimed that you may continue to call a thing patent after the patent has expired. (5 & 6 Will. 4, c. 83, s. 7). In order to disentitle the appellants to

In the year 1857 they resolved to sell that part of their works which was carried on in this country; and the persons who now constitute the appellants' company, having agreed to become purchasers of what was so to be sold, procured themselves, on the 22nd May, 1857, to be incorporated under the Joint-stock Companies Act, 1856, under the name and style of "The Leather Cloth Company (Limited)." By an indenture, dated the 8th July, 1857, the Crockett International Leather Cloth Company sold and assigned to the appellants the whole of the machinery and goodwill of the business carried on at West Ham, with authority to use the trade-mark theretofore used by the Crockett International Leather Cloth Company; and from that time the business was accordingly carried on by the appellants at West Ham.

The trade-mark which had been used by the Crockett International Leather Cloth Company is thus described by the appellants in their bill:

"A drawing of what is usually known as 'the American eagle,' immediately above which is printed the word 'Excelsior,' and below are the words following:Crockett & Co., Tanned Leather Cloth, patented Jan. 24, 1856. J. R. & C. P. Crockett, manufacturers.— 12 yds.' The whole being surrounded by the following words, in a circular form:- Crockett International Leather Cloth Company, Newark, N. J., U. S., A.; West Ham, Essex, England.""

The appellants continued after their purchase to use the same trade-mark.

The defendants (respondents) were incorporated under the Joint-stock Companies Act, 1856, in August, 1861, by the name or style of "The American Leathercloth Company, Limited," the object of their incorporation being like that of the plaintiffs, the manufacture and sale of leather cloth. They carry on their business at No. 5, Gresham-street, their manufactory being situate in the Old Kent-road.

The trade-mark used by them is thus described by the appellants in their bill:-" Above the symbol of the eagle are printed, in a semicircle, the words fol