Emerson v. Badger.

account and at a different place from the other; carried on their business at Charlestown, but not at Emerson Place, and used upon their straps the labels of their uncle. This they did with his consent and permission. When Joseph Emerson left his uncle he went into the employ of John Badger, but remained there only a short time and not after his uncle's death.

Charles Emerson, the uncle, died leaving no issue, and making no disposition, by will or otherwise, of his business and stock in trade or of any of his estate, real or personal. All of the said nephews were among his heirs at law, and Benjamin Badger was administrator of his estate. He owned at the time of his death, besides other property, the tools used in his business, some labels, and the plates from which the labels were printed, a small stock in trade, and the lot of land on Emerson Place with the dwelling-house and shop thereon, where he had carried on his business. The tools and stock in trade were purchased from his administrator, and divided among the five nephews, and the lot with the dwelling-house and shop on Emerson Place was purchased in 1836, from the heirs at law, by his said nephew, Charles Emerson, the plaintiff in this case, for the purpose of continuing and carrying on the business there, but there was no expression of such purpose in the deed or otherwise. No conveyance of the business or good will of the business of Charles Emerson, deceased, was made by his administrator or any other person, otherwise than as aforesaid.

After the death of their uncle the five nephews continued to carry on the business, each on his own account; the plaintiff at Emerson Place, and the other four nephews at other and different places in Charlestown. The plaintiff was the only one of the nephews who ever carried on the business on his own account at Emerson Place.

Before and after the death of the uncle, certain parties in Reading and elsewhere, having no right or pretence of right to manufacture the straps, began to make them, imitating the labels of the inventor and selling the straps under the name of "Emsicon's Elastic Razor Strap."

Iwo or three years after the death of their uncle, the neph

Emerson v. Badger.

ews continued to use his labels unchanged, including not only the stock on hand at his death, but new ones, struck off by common consent from the same plates. His customers were divided among four of the nephews, John Badger, Joseph Emerson, Elias Emerson and Charles Emerson, (Benjamin Badger not sharing in the division, but preferring to keep to himself the customers whom he had already acquired in his separate business, rather than to have all the customers divided,) by agreement, made soon after the uncle's death, but no agreement was made between the nephews as to the use of the labels, and no license or permission was given by either to the others therefor, except as aforesaid. The plaintiff, by advertisement and circulars, addressed to the public after the uncle's death, claimed and gave notice that he alone had the right to use on his labels the words "Emerson" and "Emerson Place" as on the original label; and Benjamin Badger and the others, by advertisement and otherwise, denied that the plaintiff had such exclusive right, and claimed an equal right in all the nephews.

The plaintiff never intended to waive any of his rights, either such as he had at his uncle's death or subsequently acquired.

The defendant was the son of Benjamin Badger, and was employed and instructed by his father in his lifetime in the business; and after his father's death continued to carry on the business on Elm Street in Charlestown, and used labels, copies of which are printed in the margin."

The label on one side of the case was this:

DIRECTIONS FOR USING THE GENUINE EMERSON'S ELASTIC RAZOR STRAP.

[Here were given the same directions as on the original label.]

Made and warranted by BENJAMIN F. BADGER, Son and sucCESSOR OF THE LATE BENJAMIN BADGER, No. 51 Elm Street, who was Senior Successor to the Original CHARLES EMERSON, EMERSON PLACE, CHARLESTOWN, (Mass.)

On the other side was this label:

CAUTION. In the year 1810, Mr. CHARLES EMERSON began to make the Straps since known by the name of "Emerson's Elastic Razor Strap." In August, 1835, Mr. Emerson died, leaving the business equally to five of his nephews, all of whom he had taught and employed, and who began to work for

Emerson v. Badger.

The plaintiff, since the death of his uncle, used the labels of his uncle unchanged.

The straps made by the plaintiff and the defendant were of the same kind as those of their uncle, the original inventor, in all essential respects.

D. H. Mason & S. Z. Bowman, for the plaintiff.

J. B. Thayer, for the defendant, was stopped by the court. GRAY, J. The original inventor of the razor straps mentioned in the bill, and the owner and designer of the label put upon them by way of trade mark, was Charles Emerson, Senior, who employed and instructed in his business five of his nephews, of whom Benjamin Badger, the father of this defendant, was the eldest, and the plaintiff was the third. Said Benjamin, in his uncle's lifetime, left his employment, and continued, with his consent and permission, but on his own account, to manufacture and sell such straps and to use the same label thereon, and was succeeded in his business by his son, the defendant. The uncle died without issue, his nephews were among his heirs at law, and his business and trade mark were not disposed of by himself by will or otherwise, nor by his administrator after his decease. The plaintiff, though bearing the same name, is not the original Charles Emerson, and has no greater right than the defendant to hold himself out as such, or to use the label of his uncle. The label used by the defendant does not represent his razor straps to be made by the plaintiff or by any person of the name of Charles Emerson, but states with exact truth the rela

him in the following order: In 1817, Benjamin Badger; in 1818, John Badger; in 1826, Charles Emerson, 2d; in 1827, Joseph Emerson; and in 1829, Elias Emerson. Benjamin Badger and John Badger continued in his employ till 1826 and '7, when they made them on their own account; and, by his consent, still retained on the label the name of Charles Emerson, to identify the strap. In October 1855, Benjamin Badger died, and was succeeded in business by his son, Benjamin F. Badger. In 1828, the celebrity of "Emerson's Strap" induced sundry persons to counterfeit them; and, by assuming the false name of Emerson, to palm them upon the public as genuine. Information is therefore given, that none are genuine but those having on the label the name of one of the above-mentioned persons. Charlestown, Nov. 24, 1855.

City of Charlestown v. County Commissioners of Middlesex.

tion of the defendant to the original inventor and owner, The plaintiff therefore fails to prove either any infringement of his own rights or any wrongful act of the defendant.

Bill dismissed, with costs.

CITY OF CHARLESTOWN vs. COUNTY COMMISSIONERS OF MID

DLESEX.

SAME US. SAME.

SAME US. SAME.

SAME US. SAME.

A person cannot have an abatement of tax before filing with the assessors the list required by the Gen. Sts. c. 11, § 46; although there is good cause why such a list was not seasonably brought in, and although he has offered to make out a schedule of his estate which the assessors have declined to receive, and has made before them an oral statement of his estate under oath.

The St. of 1865, c. 121, does not dispense with the filing of a sworn list as a necessary preliminary to the abatement of a tax.

FOUR petitions by the city of Charlestown for writs of certiorari to quash proceedings of the respondents in abating taxes assessed by the petitioners on the Tudor Ice Company, James Lee, Jr., Jerome G. Kidder and George W. Warren respectively.

These petitions were heard together before Foster, J., and it appeared that the respondents had made abatements of the amounts assessed by the assessors of the petitioners on the real estate of the said Company, Lee, Kidder and Warren; that the assessors of the petitioners in their notice to the inhabitants to bring in lists of their taxable property had not asked for lists of real estate, and had told several tax-payers that they did not want lists of real estate; that neither the said Company, Lee, Kidder, nor Warren, had ever sent in lists of their real estate; and that, considering themselves aggrieved by the amount assessed upon them by the petitioners, they had applied to the respondents for abatements, which the respondents had granted, being of opinion that there was "good cause why the lists were uot brought in."

City of Charlestown v. County Commissioners of Middlesex.

The respondents also abated the tax assessed upon the personal property of Lee, being of opinion that he had no personal property liable to taxation in Charlestown. Lee had never sent in any list of personal estate.

The city insisted that the determination of the respondents as to the reasonableness of the excuses of the several parties applying for an abatement of taxes, for not making a return to the assessors of their taxable property, was not conclusive; and that it appeared by the record in the several proceedings for abatement that the several excuses made were not reasonable and sufficient. The judge reserved these questions for the determination of the full court.

The statutory provisions affecting the cases are cited in the margin.*

Gen. Sts. c. 11, § 22. "Before proceeding to make an assessment, the assessors shall give seasonable notice thereof to the inhabitants of their respective places, at any of their meetings, or by posting up in their city or town one or more notifications in some public place or places, or by some other sufficient manner. Such notice shall require the inhabitants to bring in to the assessors, within a time therein specified, true lists of all their polls and estates, both real and personal, not exempted from taxation."

§ 23. "The assessors shall in all cases require a person bringing in such list to make oath that the same is true, which oath may be administered by either of the assessors."

§ 46. "No person shall have an abatement unless he has filed with the assessors a list subscribed by him of his estate liable to taxation, and made oath that it is full and accurate to his best knowledge and belief. When such list is not filed within the time specified by the assessors for bringing it in, no complaint from the judgment of the assessors shall be sustained by the county commissioners, unless they are satisfied that there was good cause why such list was not seasonably brought in."

St. 1865, c. 121. "When the assessors of a city or town have given notice to the inhabitants thereof to bring in true lists of all their polls and estates, not exempt from taxation, in accordance with the provisions of the twentysecond section of the eleventh chapter of the General Statutes, they shall not afterwards abate any part of the tax assessed on personal estate to any person who did not bring in such list within the time specified therefor in such notice, unless such tax exceeds by more than fifty per centum the amount which would have been assessed to that person on personal estate, if he had seasonably brought in said list; and if said tax exceeds by more than fifty per centum