not allege that the purchaser was living. the right to use the stream running 6 Hill, 135; 33 How., Pr. 80. through the tannery lot to float logs, Judgment of General Term, affirming timber and lumber, and could improve judgment of Special Term, sustaining demurrer, affirmed. Opinion by Earl, J. TITLE. WATER RIGHT. N. Y. COURT OF APPEALS. There can be no exclusive right to the use Riparian omners. Compensation for Es and deepen said stream, and also make a canal through said lot and roads, and other modes of transportation, and keep and maintain them, and have the full use of them, provided he did not injure the tannery water-power or the business carried on there. At the time of this conveyance the Lyon estate owned the tract below the tannery, which defendant subsequently purchased, and plaintiff claimed that his right to use the stream extended through that tract. The grantor B. described his interest in the premises conveyed to plaintiff as an undivided two-thirds, and covenanted in respect to such interest, and the executors of Lyon covenanted in respect to an interest of one undivided third. Held, That these provisions would be inconsistent with the conveyance of any land, right or interest which did not belong to all the grantors, and the deed therefore conveyed no rights in the lands now owned by defendant; also that plaintiff had no exclusive right, as the creek was declared by statute a public highway. (Chap. 273 Laws of 1872.) Plaintiff sought to prove a paper, alleged to have been lost, which he claimed contained a license from the Lyon executors, executed by only one of them to him, to cut timber on the tract below, to enable him to improve the stream. The evidence was rejected. Held, no error: that if it had been produced it would not have availed to strengthen plaintiff's title. This action was brought to restrain the defendant from using Otto Creek, for floating logs down the same, and to establish an exclusive right in plaintiff to the use of the creek from its source at Otto Lake to his mill. It appeared that defendant has a mill on the creek below plaintiff's mill, and owns a large tract of land above plaintiff's mill, through which the stream runs, and plaintiff also owns a tract above that. The defendant's title was derived from the executors of L. and plaintiff's title Plaintiff objected to the act declaring from said executors and one B., who the creek a public highway, and that no owned the same as tenants in common. provision was made to compensate him. Between the tracts was a lot of 400 acres Held, That as he had no interest becalled the tannery lot, which was also low the tannery lot the objection was not owned by said executors and B. Plain- available. If he had had the exclusive tiff claimed under a grant from said par-right to use the stream he would have ties in 1869, which did not convey the been entitled to compensation under the tannery lot, but included a saw mill ad-provision for compensation to riparian jacent, and provided that plaintiff had owners, and could enforce such compen sation in his own right as grantee, or, if take them. The questions of fact upon necessary, in the name of his grantor. which his liability depended, were fairly If the owner of the land received full submitted to the jury, and found against compensation he would have been enti- him. We discover no error in the record. tled to his portion. Judgment affirmed. Plaintiff claimed defendant was estopped from denying his exclusive right, as he had permitted him to make improvments without objection. Held, That defendant was not estopped, as it did not appear, when defendant took title to the tract below the tannery, and plaintiff had at least made part of the improvements before defendant received the title, and it did not appear that defendant knew that plaintiff claimed the exclusive right to the use of the stream; and if he did, when the stream was declared a public highway defendant had a right to suppose plaintiff would be compensated; that there was no concealment or misconception of facts, but only a misconception on the part of plaintiff as to his legal rights. Judgment of General Term, affirming judgment dismissing plaintiff's complaint, affirmed. Opinion by Church, Ch. J. TORT. SUPREME COURT OF PENNSYLVANIA. Decided October 25, 1876. An officer of a corporation taking perty for its use is a wrongdoer. Per Curiam. TRADE-MARK. COMMON PLEAS-EQUITY TERM. Hennessy, et al, v. Wheeler, et al. Decided January 20, 1876. A trade-mark will not be protected when it is calculated to deceive or defraud the ordinary purchaser. It is a deceit or fraud to represent that a bottle of liquor contains a quart or a pint, when the bottle does not hold those quantities. And when the bottle is so made that it has the appearance of being a full measure, the misrepresentation is more marked. Robinson, J. In the case presented by the plaintiffs it is distinctly alleged that the trademarks in question are only used on quart and pint bottles. The proofs show that this is untrue, and that the trademark sought to be established and enforced is uniformly used in aid of false representations; that the bottles of brandy, the sale of which it is designed to protect, contain neither a quart or pint, and that such bottles are so deceptively cast, and are offered for sale so falsely to represent quart and pint bottles of brandy. This certainly does not present a case where the plaintiffs come into Court with clean hands or with lan pro-guage free from deceit or tricks of trade on their part. Assume, even, that the purchaser or some mass of the purchasers If Barton took or ordered the plank to of the article become such, with full be taken he was a tort feasor, unless he knowledge of this deficiency in the quancould show the contract or license of the tity of the article as represented by the plaintiff. The fact that he was the Presi- quart or pint bottles, it cannot be quesdent of the Railway Company, and that tioned that the deceit is designed for the the plank went to its use, did not change purpose of effecting sales of the article his relation as a wrongdoer, unless he to the great mass of purchasers, under could show that the railway company had the false impression, created by the debought the plank, or had authority to signation of the bottles, that they con tain the quantity of the article repre--that the aid of the Court of Equity is sented by the so-called quart or pint bot-in no respect to be made subsidiary to tles. In the cases in which the equitable any scheme of fraud or deception to power of granting injunctions against which the trade-mark is but used as a infringers upon trademarks have been vehicle or Trojan horse. applied for, that remedy has been uni- There are some cases sustaining the formly denied when the trademark claim-trade-mark wherein it has been held that ed was in any respect of a false or de- the terms implied, though not strictly ceptive character. (Pidding v. How, 8 true, such as "patent eureka shirts,” Simons, 477; Perry v. Truefit, 6 Beavan," patent thread," "patent solid headed 66; Flavel v. Harrison, 10 Hare, 467; pins;" and such use of the word patent Partridge v. Menck, 1 How. App. Cas., on an article not patented in such con558; Phalon v. Wright, 5 Penn., 464; nection were yet of so innocent a characFetridge v. Wells, 13 How., 385; Palmer ter that it was not likely to carry any dev. Haynes, 60 Penn., 166.) So also ception to the public. But even in this where the mere trade-mark in itself the same courts subsequently expressed would have been protected but for its qualifications. The precise question prebeing accompanied by false or exagger- sented in this case as to the effect of a ated statements intended or calculated systematic and intentional short measure to deceive the public as to the character or false representation of the quantity, of the article offered for sale. (Phalon attending the trademark which it is dev. Wright, 7 Phila. C. P., 176; Towle signed to protect or give effect to, does v. Spear, 7 Penn. L. J., 176; S. C., L. R., N. S., 130; Heath v. Wright, 3 Wall; S. C. Am. T. M. Cas., 154; Smith v. Woodruff, 48 Barb., 438; Wolfe v. Burke, 56 N. Y., 155.) not appear to have been brought to the attention of the court; but, in my opinion, it manifestly comes within the principle before asserted in Lee v. Haley (5 L. R. C. A. C., 155), where the trademark claimed was "The Guinea Coal Company," representing that the plaintiff's business was selling Wallsend coal for a guinea a ton, Lord Justice Gifford says: "Now, as to the short weight, if In the Leather Cloth Co. v. the Am. Leather Cloth Co. (13 Jur., N. S, 515), the Lord Chancellor says: "But when the owner of the trade-mark applies for an injunction to restrain the defendant from injuring his property, by making the plaintiff had been systematically and false representations to the public, it is essential that the plaintiff should not in his trademark, or in the business connected with it, be himself guilty of any false or misleading representation. For, if the plaintiff makes any materially false statement in connection with the property which he seeks to protect, he loses the favor of justice and his right to claim the assistance of a Court of Equity. knowingly carrying on a fraudulent trade and delivering short weight, it is certain that this court would not interfere to protect them in carrying on their trade." (Upton on Trade-marks, 43). In the justice and propriety of this observation (of Upton), so far as they have application to the question under consideration, I concur, and regard them as fully warranted by the uniform spirit While countenance has been given by of the cases above cited, as all others deno Court of Equity to upholding any fining the principles upon which the trade-mark which, though ostensibly fair powers of a Court of Equity can be inand innocent, is yet attended by disin-voked to protect any right to a tradegenuous or deceptive concomitants to mark beyond such would be recognizawhich it is designed to give aid or effect, ble at common law. That principle is the cases all speak in but one language that "he who hath committed iniquity child, his or her share to be assigned and transferred to his or her issue then living, if any; if none, to the brothers or sisters of such deceased child. shall not have equity." The ground for to be applied to the use of such child rethe jurisdiction is the promotion of hon-spectively, and at the death of each est and fair dealing. It is not necessary to the defence that it should appear that any one had been actually deceived or defrauded. It is enough that the misrepresentation is such that it is calculated to have that effect upon the unwary and unsuspicious. The rule of caveat emptor may prevail in a court of law, but does not recommend itself to any favor in a Court of Equity. The complaint in each case dismissed, with costs. TRUST. In case either child died before the testator, leaving issue, such issue to take the parent's share.” The executors were empowered, should they deem it judicious and proper, to make advances in their discretion to such of the testator's children, respectively, out of the capital of his or her share, from time, and in such amounts as may be safe and conducive to the true interests of the beneficiary. Plaintiff's counsel claimed that the last part of said clause aforesaid, giving to N. Y. SUPREME COURT-GEN'L TERM, the executors power to make advances in FIRST DEPT. their discretion to each of the testator's children, as they might deem conducive to their interest, was so far inconsistent with the previous provisions that one or the other must be declared void for repugnancy. Roosevelt, et al., applts. and respts. v. Roosevelt, et al., applts. and respts. Decided December 6, 1875. Trust estates may, like legal estates, be rendered dependent for their future exHeld, A clearly defined trust has been istence upon any proper legal condition. A discretion in an executor to transfer a created, which at most may be subverted portion of the capital of the trust estate by future contingent events. The trust to a child does not give him authority was intended to be in whole or in part to transfer the whole estate, for in such conditional; but it cannot, under any a case that was not the intention of the testator. well considered authority, be void in its Trusts in personal property in New York inception for that reason. Conditional are subject to the same statutory pro-trusts are not legal anomalies, and no good reason seems to exist for distinAppeal from judgment at Special Term guishing them in this respect from legal on the trial of an action for the construc-estates. The right to subject their contion of certain portions of the will of tinuance to conditions arises out of the James J. Roosevelt, deceased. authority possessed by the testator over Two portions only of the testator's will the disposition of his property. And have been drawn in question. First, the clause making disposition of the personal estate, viz: visions as trusts in real estates. trust estates may, like legal estates, be rendered dependent for their future existence upon any proper legal condition. 3 Beavon 227; Lyman and Parsons, 28; Barb. 564; 20 N. Y. 103. "The testator gives all his personal property to his executors in trust, to divide the same into as many shares as the Held further, That it was not the intestator may have children living at the tention of the testator to give the executime of his death, which shares are to be tors discretion to transfer the whole of invested for each child, respectively. The the capital of the trust estate to the chilinterest or income of each of such shares dren, for he directed such sums as they thought conducive to the interest 1. In the construction of a will, the of the child to be taken out of his sole purpose of the court should be to share, and contemplated some of such ascertain and carry out the intention of share would exist as a remainder, for the the testator. testator unqualifiedly directed the assignment of each share at the decease of the person to be benefitted by the trust, to his or her child and children, or if none existed to the surviving beneficia-cal sense, and if not technical, in their ries. 2. Such intention must be ascertained from the words contained in the will. 3. The words contained in the will, if technical, must be taken in their techni ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense. 4. All the parts of the will must be construed together, and effect, if possi 5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretation of the testator's words, but for no other purpose. Per Curiam opinion. The second portion of the will in controversy was the provision whereby the testator created trusts for the benefit of his children in the rents and profits of his real estate, not otherwise or different-ble, given to every word contained in it. ly disposed of. And as to that realty, he conferred upon the trustees the power, if in their judgment expedient so to do, to make sales and conveyances from time to time in fee simple, for such prices as they may deem just, investing the proceeds of such sale in other real estate, to be substituted in the place of, and to be held upon the like trusts and subject to the like powers, limitations and conditians as the real estate so sold. The validity of this disposition was questioned upon the supposition that the change permitted by it from real to personal property was inconsistent with the in WRITS OF ERROR. SUPREME COURT OF THE UNITED STATES. Watts, plt. in error v. The Territory of Washington. Jurisdiction. Criminal Case. Territory of Washington. Decided October Term, 1875. In error to the Supreme Court of the Territory of Washington. alienable nature of trust estates in land. Held, Thar the power created by this provision of the will was lawful; that it is the law in this State that trusts in personal property are subject to the same. statutory provisions as trusts in real es-judgments of the Supreme Court of the tate. 35 N. Y. 361. Judgment modified to conform to views of opinion. Costs to all parties to be paid out of the estate. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring. WILL. SUPREME COURT OF OHIO. Townsend's extrs. v. Townsend, et al. 25. Ohio, p. 477, (advance sheet.) Construction, rules of. Disputed identi ty, evidence of extrinsic facts as to, hov far allowed. This court can only review the final Territory of Washington in criminal cases, when the Constitution or a statute or treaty of the United States is brought in question.-(Rev. Stat., sec. 702.) This is a criminal case, but the record does not present for our consideration any question of which we can take jurisliction. It no where appears that the Constitution or any statute or treaty of the United States is in any manner drawn in question. The writ is dismissed for want of jurisdiction. Opinion by Mr. Chief Justice Waite. |