cases where injunctions have been granted to restrain such a use. It was established as early as Popham's Reports, that an action. at law would lie for the piracy of a trade mark, but Lord Hardwicke seems to say that this is owing to the use being made with a fraudulent design of putting off bad cloth on the public by this means, or to draw away customers from the other clothier. But these reasons, if valid, would be as applicable to equity as to law, and in Webster v. Webster an injunction was applied for to restrain the surviving partner from using the name of the deceased partner; and when it was suggested by Mr. Mitford that, if the use of the deceased partner's name did not subject his estate to the debts of the firm, it must be a fraud on the public. Lord Loughborough refused the injunction, and stated, fraud on the public is no ground for a plaintiff coming into this Court; that is, as I understand it, by a person who has no interest in the subjectmatter by which the fraud is committed. And this is in accordance with the constant principle prevailing both at law and in equity, which is, that although they will discountenance, and do nothing to assist, any false representation, still they do not deal with the general interest of the public at the suit of persons having no property in the subject-matter, and for these reasons, the suit must be at the suit of the Attorney General. As to the second ground put forward by Lord Hardwicke, namely, the benefit to be fraudulently derived by the person who takes another's mark, it is obvious that the motive of the person who pirates the mark must be the same both in contemplation of law and equity, and it appears that the same principle must govern both cases. It must, therefore, be conceded that some property exists in the use of a trade mark, which at present is sufficient to support an action and to maintain an injunction. It is true that this property, like property in a goodwill, is of a very evanescent character; still, frequently, it is one of great value. It is clear from a variety of decided cases, that a manufacturer who has originally stamped his goods with a particular brand, has a property in his mark at law, and can sustain an action for damages for the use of it by another. It is also clear that Courts of equity will restrain the use of it by another person. It has sometimes been supposed that a manufacturer can only acquire such a property in a trade mark as will enable him to maintain an injunction against the piracy of it by others, by means of a long-continued use of it, or, at least, such a use of it as is sufficient to give it a reputation in the market where such goods are sold. But I entertain great doubt as to the correctness of this view of the case. The interference of a Court of equity cannot depend on the length of time the manufacturer has used it. If the brand or mark be an old one, formerly used, but since discontinued, the former proprietor of the mark undoubtedly cannot retain such a property in it, or prevent others from using it; but, provided it has been originally adopted by a manufacturer, and continuously, and still used by him to denote his own goods when brought into the market and offered for sale, then I apprehend, although the mark may not have been adopted a week, and may not have acquired any reputation in the market, his neighbours cannot use that mark. Were it otherwise, and were the question to depend entirely on the time the mark had been used, or the reputation of it had been acquired, a very difficult, if not an insoluble inquiry, would have to be opened in every case, namely, whether the mark had acquired in the market a distinctive character denoting the goods of the person who first used it. The adoption of it by another is proof that he considers that at that time it is likely to become beneficial; and if the manufacturer who first used it were not protected from the earliest moment, it is obvious that malicious and pertinacious rivals might prevent him from ever acquiring any distinctive mark or brand to denote his goods in the market by adopting his mark, however varied, immediately after its adoption or change by the original user of it. This evil would not be obviated by putting his name in full, for if the name of the manufacturer was a common one, it would be difficult for him to point out to the public what goods were or were not manufactured by him. These observations apply to brands and marks generally; but it is essential to point out the distinction that exists between the two different sorts of marks already noticed, namely, the marks which denote the place where the goods are manufactured, and nothing more; and those which, on the other hand, denote the person who manufactures them, and nothing more. In Motley v. Downman, the mark was the letters "M.C." branded on tin plates made at certain works at Carmarthen. The letters had been adopted and used for a long series of years at those works although carried on by different persons who succeeded each other. One of the lessees of these works, who had used the brand while he occupied the works, was held not to be entitled to restrain his successors from using the same brand. Lord Cottenham seems to have considered the letters "M.C." denoted tin plates made at the works in question, and not those made by the plaintiff at any other place. Assuming this to be so, then I apprehend the mark or brand which denotes goods manufactured at a particular place may be, and probably would be sold with the works themselves, and the mark would be, as it were, attached to the spot, to denote which it was first adopted, and which might possess peculiar local advantages for the manufacture of the article. If, in this case, the mark had denoted the Bloomfield Iron Works at Tipton, and nothing else, then it might properly have been the subject of sale with the works, and the exclusive use of the mark would have been given to the purchaser so long as he carried on the same business at these works. But that is not so here, the mark or brand in the present case belongs to that class of marks which denotes the persons who manufacture the goods. Such marks it is obvious have no distinctive object of locality. It is personal and not local. I remember a firm in Sheffield of the name of Rodgers had great celebrity for cutlery, and that their name was stamped in a particular manner with a peculiar device on knives manufactured by them. This mark would have followed them everywhere, and any one attempting to adopt it would have been restrained from doing so by this Court. But, as a person bona fide possessing the same name would have been entitled to use the name of Rodgers, though not with the same device, many manufacturers have adopted a device to distinguish their goods instead of putting their name on the article. In the present case, I am of opinion the letters B B H, surmounted with a crown, designated the firm which manufactured the particular goods. Such a device is not. the subject of a sale. It would obviously be a fraud on the public if the Court of Chancery were to attempt to sell to another person the right of holding out to the public that the goods manufactured by him were, in fact, goods manufactured by another and distinct firm. The case of Webster v. Webster established the right of the continuing partner to retain the original name of the firm, and this is correct where there is no break in the continuity, although every one of the original partners may have been long since dead. For instance, in London, no one doubts the legality of one set of bankers calling themselves Child & Co., and another set of bankers calling themselves Coutts & Co., although it may have been many years since a person of the name of Child was a partner in the one, or a person of the name of Coutts was a partner in the other. The name, in such cases, denotes the original firm continued without interruption by successive additions of partners down to the present time. The defendant, therefore, is fully entitled to use the letters B B H with a surmounted crown, and this Court, consistently with its principles and decided cases, could not interfere with that right. But, on the other hand, it cannot give to any new firm the right of making use of that mark which, as it denotes a particular firm of manufacturers, is not of an alienable character, whatever may be the value of it. Upon these grounds, my opinion is, that in the sale of these works, it is not competent to give the purchaser the right to use these letters with the symbol of a surmounted crown, or without it; but that the exclusive right of using them survives to the defendant. All the goodwill that may attach to the spot where the works are carried on, will be sold, and the purchaser will have the benefit of the species of habit which will induce customers to deal with the persons who carry on business at the spot. But the right of using such a device as to induce the public to believe that the works there carried on are under the management of the former proprietors or their surviving partners, will not be given to the purchaser; and to whatever extent this may prejudice the sale of the works, it is inevitable, and must be submitted to. ROMILLY, M.R. Feb. 11, 23. who Merger of Charge-Presumption. T. J, and J. A. L. were trustees of a sum of 9,2001. as to the whole fund upon trust for J. M. for life, and after his decease as to 5,000l. upon trust for H. E. C. M, and as to 4,2001. upon trust for T. J, the trustee. The fund was advanced to T. J, gave a mortgage for the amount on property belonging to him in fee; and by the mortgage deed trusts were declared of the mortgage money for J. M. for life, and after his decease as to the 4,200l. for T. J., his executors, administrators and assigns. J. M. died, leaving T. J. surviving, who died, seised of the property and absolutely entitled to the 4,200l., without expressing any intention either that the charge should or should not merge:—Held, that the declaration of trust for T. J., his executors, administrators and assigns, was to be regarded merely as the statement of the trust then affecting the fund, and not affording any indication of an intention to keep the charge on foot, and that T. J, the owner of the estate, having subsequently become absolutely entitled to the charge, the charge must be treated as having merged. as The following is a brief outline of the leading facts of this case, which will be found more fully stated, in some respects, in the judgment of the Master of the Rolls. Under a settlement, dated 1820, Sir Tyrwhitt Jones and John Arthur Lloyd were, in 1827, trustees of a sum of 9,2007. which, in the events that had happened, was held by them upon trust for John Mytton for life, and after his decease, as to 5,000l., upon certain trusts for Harriet Emma Charlotte Mytton, and as to 4,2001. upon trust for Sir Tyrwhitt Jones himself. The whole 9,2007. was, in 1827, advanced to Sir Tyrwhitt Jones, who, by indentures dated the 1st and 2nd of August 1827, made between Sir Tyrwhitt Jones of the first part, John Mytton of the second part, and Sir T. Jones and J. A. Lloyd of the third part, gave a mortgage for the amount upon estates of which he was owner in fee simple; and he and his NEW SERIES, 32.-CHANC. co-trustee, by the mortgage deed, declared the trusts of the 9,2001. for John Mytton for life, and after his death, as to the 4,2007. upon trust for Sir Tyrwhitt Jones, his executors, administrators and assigns. Upon John Mytton's death, in 1834, the charge became absolutely vested in Sir Tyrwhitt Jones, who had previously become lunatic, and who died, in 1839, without any indication of intention, except as afforded by the deed of 1827, either to merge the charge or to keep it on foot. Sir Tyrwhitt Jones, by his will, made previously to the mortgage of 1827, bequeathed all his personal estate to his wife, the plaintiff, absolutely, and devised his real estates to the plaintiff for life, with remainder to the testator's son Henry Thomas for life, with remainder to his first son in tail male, with remainders over. The bill was filed by the widow (who together with the testator's son Henry Thomas had resumed the original family surname of Tyrwhitt) against the son Sir Henry Thomas Tyrwhitt, and his eldest son Henry Tyrwhitt Tyrwhitt, and the surviving trustee John Arthur Lloyd, praying claration by the Court that the 4,2007. ought to be raised and paid, or else a declaration that it was no longer a charge and ought not to be raised. de Mr. Kenyon and Mr. Rodwell, for the plaintiff, Dame Eliza Walwyn Tyrwhitt, the widow of Sir Tyrwhitt Jones.-The 4,2007. is an existing charge upon the estate of Sir T. Jones. His declaration of trust was evidence of intention to keep the charge on foot at that time; and the defendants were bound to prove some change of intention at or subsequent to the death of John Mytton, which in this case could not be done in consequence of the lunacy of Sir T. Jones. Wigsell v. Wigsell, 2 Sim. & S. 364; Mr. Tudor, for John Arthur Lloyd, the trustee. Mr. Selwyn and Mr. Karslake, for Sir H. T. Tyrwhitt and H. T. Tyrwhitt, devisees in remainder of the real estate. The charge 4 B must merge in the beneficial interest of the estate, in the absence of some expressed or implied intention to keep it on foot. The declaration of trust in the mortgage deed afforded no evidence of intention against merger, it being antecedent to the actual union of the property and the charge. The trust declared by the deed was satisfied on the death of the surviving tenant for life, and nothing less than an express subsequent declaration of trust could prevent the charge from merging.-— Astley v. Milles, 1 Sim. 298. The MASTER OF THE ROLLS.-The question in this case is, whether a charge of 4,2007. merged in the estate of Sir Tyrwhitt Jones on the death of Mr. Mytton, who was entitled to a life interest in that sum. There was a charge of 40,000l. affecting the estates of Sir Tyrwhitt Jones, created by a deed of the 19th of December 1814, of which Harriet Emma Jones, one of the daughters, was entitled to one-fourth, namely, 10,0007. On her marriage with Mr. Mytton, a settlement was executed, dated the 20th of May 1818, by which 800l., part of it, was paid to Mr. Mytton for his benefit; the remainder was settled upon trust to pay the income to Mrs. Mytton for life, with remainder to Mr. Mytton for life, and after the decease of the survivor, "if there should be issue of the said John Mytton by the said Harriet Emma Jones, an eldest or only son who should become entitled under the limitations of the said indenture of release of equal date therewith, and only one other child, then as to the sum of 5,000l., part of the said monies and premises, after the decease of the survivor of them, the said Harriet Emma Jones and John Mytton, upon trust that they, the said John Arthur Lloyd and Sir Tyrwhitt Jones, their executors, administrators and assigns, should transfer the said sum of 5,000l., and the stocks, funds and securities on which the same should be invested (and which said sums are thereby directed to be set apart from the residue of the trust monies therein mentioned), to or among such child or children, or the issue of any of the same child or children, who should depart this life in the lifetime of the said Harriet Emma Jones and John Mytton, or the survivor of them, leaving issue then living, in manner therein mentioned, that is to say, the same to become and be vested in such child or children or other issue respectively, or any one or more exclusively of the others or other of them, to be paid to him, her or them respectively at such age or respective ages, in such manner and, if more than one, in such proportions as the said Harriet Emma Jones, notwithstanding her coverture, should by deed in manner therein mentioned, or by her last will and testament, to be signed and published by her in the presence of and attested by two or more witnesses, direct and appoint; and in default thereof then to and between such child or children in manner following, that is to say, if there should be but one such child the said sum of 5,000l. to vest in such child, being a son, at his age of twenty-one years, or being a daughter, at her age of twenty-one years or on her marriage." And as to the residue of the 9,200, and if the previous limitations did not take effect, then as to the whole, upon trust, in case Mrs. Mytton died in the lifetime of her husband, as she should appoint; and in default of appointment, for her next-of-kin. Mrs. Mytton made a will which was dated the 23rd of June 1820, and she appointed the 4,2007. to her brother, Sir Tyrwhitt Jones, subject to the life interest of her husband; and she also in fact appointed the whole of the 9,2007., in case the previous conditions as to the 5,000l. did not take effect. She died in the following month, leaving an only daughter Harriet Emma Charlotte Mytton her surviving, and upon this will and the trusts of the indenture made on her marriage, some doubt arose whether the daughter was entitled to the 5,000l. so settled, because no eldest son had been born. Sir Tyrwhitt Jones, however, resolved not to raise that question, but to confirm the claim of his niece; and in August 1827, the 9,2001. remaining due on Mrs. Mytton's share was raised and paid to the trustees of her settlement, who were Mr. Lloyd and Sir Tyrwhitt Jones, and after it had been paid to them it was lent to Sir Tyrwhitt Jones on a mortgage of a certain estate of his in the parish of Hatcham, in Shropshire, and the trusts of the money were expressed in these terms: "It is witnessed that for the considerations herein mentioned, the said John Arthur Lloyd, at the request of the said Sir Tyrwhitt Jones, and also the said Sir Tyrwhitt Jones and each of them, do hereby agree and declare that they, the said John Arthur Lloyd and Sir Tyrwhitt Jones, their executors, administrators and assigns, will stand possessed of the said sum of 9,2001. and the interest, dividends and proceeds thereof respectively, subject to the life interest therein of the said John Mytton, upon and for the trusts, intents and purposes following; that is to say, as to the sum of 5,000l., part of the said sum of 9,2007, and the dividends and produce thereof upon and for such, or the like trusts, intents and purposes, and subject to such or the like powers for maintenance and otherwise, in such manner for the benefit of the said Harriet Emma Charlotte Mytton, her executors, administrators and assigns, as under the said indenture of settlement the trustees for the time being would have held the said sum of 5,000l., and the interest and proceeds thereof for her and their benefit, in case there had been issue of the said marriage an only son entitled as therein mentioned, and also her the said Harriet Emma Charlotte Mytton and no other child; and as to the sum of 4,2007., the residue of the said sum of 9,2007. hereby secured after deducting therefrom the said sum of 5,000l., immediately from and after the decease of the said John Mytton, and as to the whole of the same sum of 9,2007. in case the said Harriet Emma Charlotte Mytton should die under the age of twenty-one years and without having been married, and the interest, dividends and proceeds thereof respectively, in trust for the said Sir Tyrwhitt Jones, his executors, administrators and assigns, for his and their absolute benefit." The question is, whether, on the death of Mr. Mytton, the tenant for life of this fund, the 4,2007. merged into the inheritance-into the fee simple of the estate at Hatcham which was vested in Sir Tyrwhitt Jones in fee, or whether this reservation of the trust of it to him, his executors, admin istrators and assigns, kept it severed from the freehold, and made it part of his personal estate? Mr. Mytton died on the 29th of March 1834. Sir Tyrwhitt Jones survived him about five years and a half; but as he had, in consequence of an accident, been incapable of managing himself and his affairs as early as 1830, no expression of intention of his, relative to this matter, is to be found on the death of Mr. Mytton, or indeed at any other time, except what is to be gathered from the trusts of the mortgagedeed. Now I take the rule to be this: prima facie, the charge merges in the inheritance; but this presumption may be rebutted, if it can be shewn that the intention of the owner of the charge was that it should not merge. Three tests are usually applied for the purpose of ascertaining whether the owner of the charge intended that it should merge in the inheritance at the time he became entitled to the absolute interest of the charge first, any actual expression of that intention; secondly, where the form and character of the acts done are only consistent with the keeping the charge on foot; and thirdly, that such an intention may be presumed when, although there is a total silence in all other respects, it appears it is for the interest of the owner of the charge that it should not merge in the inheritance. This last point does not assist the case of the plaintiff on the present occasion, for Sir Tyrwhitt Jones was owner in fee simple of the land on which the 4,2007. is charged, and in such cases it is the presumption of law, which is also in accordance with the ordinary, custom, that it is for the interest of the owner of the estate that the charge should not be kept on foot. If, therefore, the presumption of merger is to be rebutted in the present case, it must be by reason of the intention of Sir Tyrwhitt Jones expressed or to be implied from the form of the transaction. Except from the contents of the deed of August 1827, and the declaration therein contained, no such intention can be gathered from any words or acts of Sir Tyrwhitt Jones. The question, therefore, is confined to the fair inferences to be drawn from that deed. After carefully considering this case, I am |