July 21, 1896, to M. A. Cadden on what is What appears to be eseentially the same known as "the twenty-year distribution question has been distinctly ruled in the U. plan." That is to say, the contract called S. Supreme Court. In that case the policy for the payment of $2,500 to the designated was on the tontine dividend plan having a beneficiaries upon the death of the assured, given surrender value at the completion of with the privilege at the end of the first the dividend period. It was payable to the twenty years, during which the premiums wife of the assured if then living, otherwise were payable, to surrender the policy for a to his children "or their guardian for their value to be computed as therein specified. use," etc. The wife died during the dividThe beneficiaries are the wife and children end period so that the claim for the surrenof the assured. In July last year, about the der value eventually accrued to a minor expiration of the twenty years, Cadden gave the company notice that he and his family elected to exercise this option. The company was then, and at all times since then has been, ready and willing to comply and pay the money; but three of the children being under legal age and joining in the election by their guardian, it was at a loss to know whether their rights could be exercised by guardian in the absence of special authority from the orphans' court by which she was appointed. That is the single question at issue. While the fact doesn't appear in the pleadings, it was disclosed at the argument that the orphans' court had declined to entertain a petition for such authority. That accounts for the law suit as the company is asking only that the powers of the guardian in the premises be defined in order that it may avoid eventual liability to the wards upon the death of their father. It is agreed there is no statute on the subject and therefore the question is one of common law power. As between keeping a policy alive by paying the premiums, and accepting the surrender value at a given time, it has been held to be the duty of a guardian to elect whichever appeared to be the most beneficial to the ward: Cocke v. Rucks, 34 Miss. 105; Martin v. Tarver, 43 Ib. 517; Chapman v. Tibbits, 33 N. Y. 289. child for whom the father was appointed guardian. He surrendered the policy, accepted the value, and gave the company a formal receipt. Later he died and was succeeed as guardian by one Maclay who sued the insurance company for the amount payable on the death of the assured. The question at issue was as to the validity of his predecessor's receipt. It was held to be good. While it is to be noted that the promise to pay in that case referred to the guardian, the decision isn't put upon that narrow ground. "A guardian," says the court, "unless his powers in this respect are restricted by statute, is authorized by virtue of his office and without any order of court to sell his ward's personal property and reinvest the proceeds, and to collect or com promise and release debts due to the ward, subject to the liability to be called to account in the proper court if he has acted without due regard to the ward's interest." The transaction was held to be neither a compromise nor a sale, but the collection of a debt which the guardian had the right to make in the absence of statute to the contrary: Maclay v Equitable, ete., Society, 152 U. S. 499. Mahon v. Mahon True, in this instance the policy was fully Judgment-Opening-Collateral agreement paid. But one can see no good reason on The defendant in a judgment entered by conthat ground why the like duty doesn't rest attack it on the ground that it was voluntary and fession in his promissory note has no standing to upon the guardian. If she decline to act, without consideration, inasmuch as only the dethe result would be that during their min-fendant's creditors are prejudiced in law by such ority the money of the wards would remain voluntary confession. in the company's hands without interest, as it does not become payable until the policy is surr.ndered in due form; and thus the wards would sustain a loss. Looked at in its true light their interest has become a chose in action and it would seem to be the right and duty of the guardian to collect it as in case of any other indebtedness. Motion to open judgment. November 13, 1916. NEWCOMB, J.The effort is, (1), to avoid the obligation of the note on the ground that it was purely voluntary and without consideration; and, (2), to set aside the judgment as entered in violation of plaintiff's collateral promise, not in writing. grandfather, and the mother and grandmother, and the children and grandchildren, of every poor person not able to work, shall, But the effort fails for several reasons: First, at their own charge, being of sufficient no one but defendant's creditors are preju- ability, relieve and maintain such poor perdiced in law by his voluntary confession of son, at such rate as the Court of Quarter judgment, and he himself has no standing Sessions of the County where such poor perto attack it on that ground; second, the son resides shall order and direct," it is of alleged promise not to put the confession in no avail, because that Act provides that judgment rests upon defendant's uncorrobor- before the order can be made, the court ated assertion, controverted by distinct shall find that the party is of sufficient denial on the other side; third, his account ability to relieve and maintain such poor of the transaction involves a material vari- person. It may be further noted that the nce in that he shows by his own testimony Act of 1836 confines the proceeding to the hat he gave the note to secure a loan then Court of Quarter Sessions, and does not give obtained from the sister together with the Orphans' Court any power to hear or various other loans and advances which she determine this proceeding. had heretofore made to him and on his account, the aggregate of which he was very hazy about, but according to her testimony was fully equal to the face of the note. There is no other witness in the case. The motion is therefore without merit either in law or fact and the rule to show cause is discharged. O. C. of If the Act of June 25, 1895, Section 1 P. L. 369, is invoked, the position of the petitioner is not strengthened, because that Act confines the proceeding to the Court of Quarter Sessions, and gives no jurisdiction to the Orphans' Court. The last mentioned Act requires the Quarter Sessions Court before making an order of this character, that the defendant shall be found to be a person of sufficient ability to pay such sum as the court shall think reasonable and Schuylkill Co. proper. ORPHANS' COURT Carroll's Estate Burial Expenses of Minor's Mother. There is no Act of Assembly which authorizes the Orphans' Court to make an order in the estate of a minor to pay out of such estate the expenses of interment of the minor's mother. Petition for an order to pay burial expenses of minor's mother. No Act of Assembly has been pointed out to the court, which would permit the making of the order prayed for. The Act of March 29, 1832, Section 13. P. L. 192, allows the Orphans' Court in the case of an infant child being without adequate provision for its support and education to direct a suitable periodical allowance out of the miner's estate for the support and education James A. Dolphin for petition. of such minor, according to the circumFebruary 26, 1917. WILHELM, P. J.—stances of each case, and this is the only Act This is the petition of Thomas P. Ryan, of Assembly giving the Orphans' Court guardian of Leo Carroll, a minor thirteen authority to make allowance out of the esyears of age, and who has an estate amounttate of a minor. ing to Eight Hundred Dollars, praying for an order directing him to pay the expenses of interment of Annastasia Carroll, the deceased mother of said minor, amounting to One Hundred and Eighty Dollars. The petition further sets out that Thomas Carroll, the father of said minor, was divorced from Annastasia Carroll by decree entered in Common Pleas Court of Philadelphia County in the year 1906. It is impossible to determine the Act of Assembly relied upon for this proceeding. If it is under the Act of June 13, 1886, P. L. 547, which provides that the father and This minor is thirteen years of age. The income from this estate is not large, and surely not more than sufficient to support it? If this order should be made the principal of the estate would be seriously depleted, and the minor may become a pauper. The petition does not assert, although Thomas Carrol was divorced from his wife, Annastasia Carroll, the mother of the minor, that he is not legally bound to pay the expenses of interment. Neither does it state to whom this amount is due, and the nature and character of the charges. The petition is dismissed. Dork Legal Record tiff, and in order to place said property. Vol. XXXI THURSDAY, JUNE 7, 1917 COMMON PLEAS No. 4 Bank of Glen Rock v. Sheffer et. al. Equity-Collusive Remedy-Jurisdiction Plaintiff's bill alleged a collusive conveyance of B's property to C., for the purpose of defrauding B's creditors, and praying for a cancellation of the deeds, an injunction against conveving or encumbering the property and other relief. C demurred because plaintiff's claim had not been reduced to judgment and because there was a remedy at law. HELD, that the demurrer must be -dismissed. Defendant B being a non-resident, no personal action could be successfully prosecuted against him in this jurisdiction and a proceeding in rem would be so inconvenient and slow as to make it an inadequate remedy as compared with a bill in equity. The equity court is itself the judge of whether the legal remedy is an adequate one, and where such action is circuitous and burdensome, and in any way uncertain, it will not prevent the court of equity from taking jurisdiction of the case. A. C. Wiest for demurrer. Niles Neff and S. D. contra. Demurrer to plaintiff's bil. beyond the reach of legal process and execution to enforce payment of said notes held by the defendant against said Benjamin F. Sheffer. It is also alleged in the bill that said deeds were given without good and lawful consideration, and that they were not recorded in County of York by the renewed the above mentioned notes of Bengrantees therein, until after the plaintiff had jamin F. Sheffer without any knowledge of the sale of said real estate. The prayer of the bill is that said deeds be declared void and a decree be made for their cancellation, and that defendants be enjoined from conveying or encumbering said real estate, and for such other and further relief as the plaintiff may be entitled under the circumstances. The defendants, Isaac Sheffer and Lydia Sheffer, have filed separate demurrers to said bill questioning the jurisdiction of the Court and denying the right of the plaintiff to the relief prayed for (1) Because it has not reduced its claims against Benjamin F. Sheffer to judgment. (2) Because it has an adequate remedy at law, by obtaining Warehein, judgments against the defendant, Benjamin Warehein, F. Sheffer in a foreign attachment, and buying his title under an execution and subsequently testing the same in an action of ejectment. May 21, 1917. WANNER, P. J.-The First National Bank of Glen Rock, the The allegations of the plaintiff's bill plaintiff, alleges in its bill that the defend- specifically allege that the sale of this real ant, Benjamin F. Sheffer, on the 4th day estate by Benjamin F. Sheffer to Isaac of October, 1915, and for a long time prior Sheffer and Lydia Ann Sheffer, was colthereto, was indebted to it on three promis-lusive and fraudulent in its purpose, and sory notes for $494.40, $475.00 and $415.00 with knowledge of the indebtedness of said respectively, which notes were accepted by said Bank upon the credit and security of certain real estate situate in York County, Pa., which, at the time of the making of said notes, belonged to the defendant, Benjamin F. Sheffer. Benjamin F. Sheffer to the plaintiff, and that recording of the deeds for said property was withheld by the grantees until after the plaintiff had renewed the notes and extended the credit of said Benjamin F. Sheffer on the faith of his supposed ownership of said real estate. That subsequent to the making of said notes, to wit, on the 4th day of October, This brings the case directly within the 1915, the defendant, Benjamin F. Sheffer, well settled equitable jurisdiction of this and Amanda Sheffer, his wife, executed court on the ground of fraud and collusion, deeds for said real estate in the State of and interference with the rights and remedies Florida, where they then resided, and deliv-prescribed by law for the enforcement of the ered the same to Isaac Sheffer and Lydia Ann Sheffer, the grantees, who then were, and still are residents of the County of York, Pennsylvania. The plaintiff alleges the said deeds were collusively and fraudulently delivered by the grantors to the grantees therein, for the purpose of cheating and defrauding the plain plaintiff's claims. Such jurisdiction is also given by the Acts of June 13, 1840, P. L. 671, and February 14, 1857, P. L. 39. It is held that in cases of that kind, courts of equity acquire concurrent jurisdiction with the courts of law; Mortland v. Mortland, 151 Pa. 593; Clauer v. Clauer, 22 Pa. Super. Ct. 395; Read & Co. v. Real Est. &c. Co., 156 Pa. 181; Wagner v. Fehr, 211 C. P. of Lackawanna Co Pa. 435-8; Curtis Co. v. Olds, 250 Pa. Pennsylvania Central Brewing Co. v 324; Orr v. Peters, 197 Pa. 606. Anthracite Beer Co. tion-Similarity of markings on beer kegs. As relating to the necessary daily recovery of empty beer kegs for re-filling, peculiar to the brewery business, the defendant's act must be regarded as mischievous, and tending to cause confusion of property, and to increase both the of handling in that branch of the service, and on hazard of mistake in collection and the expensethat ground the complainant is entitled to relief in equity. It is well settled, too, that the plaintiff's legal remedy must be fully efficient and Injunction-Trade-Mark-Unfair competi adequate under the circumstances, to defeat the defendants alleged fraud, and to secure the plaintiff's rights, if it is to stay the interThe use by a brewer of certain markings of his beer kegs in unnecessary and exact imitation position of the equity courts. of the markings used by a rival brewer for many The equity court is itself, to a large ex-years before the imitator came into the field, wilk tent, the judge of whether or not the remedy be enjoined. suggested in the court of law is a fully adequate one, and where such legal action is circuitous and burdensome and in any way uncertain, it will not prevent the court of equity from taking jurisdiction of the case. The promptness and convenience of the equitable remedy, as against any uncertainty, delay or difficulty in the available legal process, is always to be considered by the Court; Fuller v. Fisk, 43 Pa. Super. Ct. 489-492. In this case, the defendant, Benjamin F. Sheffer, is a non-resident of this Commonwealth and no personal action could, therefore, be successfully prosecuted against him in this jurisdiction. The only remedy at law suggested as an adequate one in this case, is a foreign attachment, which is a preceeding in rem, in which a judgment might be obtained in this Commonwealth, and the title to these premises be finally tried in a subsequent action of ejectment. Proof of actual deception is not essential. Plaintiff's right to relief by injunction is the liability of injury to his trade by means of deception. There is no rational ground of distinction, in respect to the need of relief, between an injury which operates to impose additional cost of service on another, and one which directly tends to take away his trade. Exceptions by defendant to decree nisi. Warren, Knapp, O'Malley & Hill and M. J. Martin for Plaintiff. D. J. Reedy, R. W. Archbald and J. D. Jordan for Defendant. January 2, 1917. NEWCOMB, J.-The exceptions are numerous but those only need This, however, is manifestly a circuitous be considered which go to the pivotal ques-and difficult proceeding involving several tion whether in any view of the facts a caseactions whose inconvenience and delay make is made out either of trade-mark or unfair it inadequate as compared with the prompt competition; and specific discussion would, and efficient equitable remedy which is available to the plaintiff in this proceeding. If the defendant, Benjamin F. Sheffer, lived within this jurisdiction so that the plaintiff might get a judgment, and sell the defendant's title on an execution in the ordinary way, it might present an adequate remedy and the necessity of an equitable proceeding would not be so apparent. Equity avoids a multiplicity of actions by disposing in one proceeding of all the questions affecting the various parties involved in the case; Corbe v. Burkhart, 33 Pa. Super. Ct. 317-320. The authorities cited to us for refusing equity jurisdiction to this creditor do not rule this case, because in those proceedings the creditors had already reduced their claims to judgments and there was nothing to prevent their issuing execution and testing the title in the usual way in an action at law. The demurrer is overruled, therefore, serve no useful purpose. It is neither disputed nor disputable that the facts disclose a case of unnecessary and exact simulation by one brewer of the marking exclusively used on its packages by a rival brewery for many years before the imitator came into the field, which on its face is repugnant to one's instintive sense of fair competition. The attempt to say it has not been so exclusively used by plaintiff is vain. The semblance in case of any other rival has only been partial, and thus the pack-ages of the various brewers have heretofore been easily distinguishable and not calcu-lated to deceive. So, too, it is believed to, be no answer to say that no mere colors or combination thereof can be adopted as a trade-mark. Unless the doctrine of the cases has been misunderstood, the authorities relied upon by the learned counsel for that criticism are not applicable here. This is not an instance of mere stripes in differ- ent colors. The marking must be regarded business because their customers would acin its entirety and includes, (1), stripes; cuse them of being "bought off," a reproach (2), colored chimes; and (3), circle to that had already been intimated in that match, around the name of the brewery, on quarter. Bought off from what? What each head. This device could have no pos- advantage either actual or potential is to be sible significance except by reason of its lost in that way, if none was to be gained association with the particular product so by the imitation? What interest can its marked for more than one generation, thus customers have in the maintenance of the indicating indentity of origin, manufacture imitation unless it is calculated to advance and ownership. "Every person is at liberty their trade? How could it serve that end to affix to a product of his own manufac-¡ unless its lends itself to a deception of the ture any symbol or device, not previously ultimate consumer? appropriated, which will distinguish it from "Now it has been said more than once in articles of the same general nature manu- this case, that the manufacturer ought not factured or sold by others. The to be held liable for the fraud of the ultiobject of the trade-mark is to indicate either mate seller; that is, the shop-keeper or the by its own meaning or by association the shop-keeper's assistant. But that is not the origin or ownership of the article to which true view of the case. The question I have it is applied"; Mfg. Co. v. Trainer, 101 U. to try is whether the defendants have not S. 51. The general principle is well stated knowingly put into the hands of the retail in the text of the Encyclopedia: "Devices dealers the means of deceiving the ultimate or symbols are the most usual forms of purchaser"; per Chitty, J., in Lever v. trade-mark. Any device or symbol may be Goodwin, 36 Ch. Div. 1. The same has protected as a trade-mark which is arbitrary been held in our own Federal Courts; For in its character and selection, and does not example, in Lead Co. v. Cary, 25 Fed. Rep. by its inherent character necessarily describe 125, where it was said by Judge Gresham: the goods upon which it is employed, nor "The complainant is entitled to relief if the contain any misrepresentation of the fact brand used by defendants sufficiently resemwith reference to the goods, their origin, bles complainant's brand to be mistaken for character, qualities or contents. Trade- it, and the defendants adopted their brand marks of this class usually consist of devices or symbols in combination with words or names": 28 A. & E. Enc. L. (2d Ed.) 361. Thus a plain triangle inclosed by an oval with the words "Bass & Co.'s Pale Ale" is held to be a valid trade-mark; In Re. Worthington, 14 Ch. Div. 8; also a mixture of colors in the selvage edge of worsted goods; Mitchell v. Henry, 15 Ib. 181; a red cross for absorbent cotton; Johnson v. Brunor, 107 Fed. Rep. 466; and a label on beer bottles consisting chiefly of a striking diagonal band in red; Brewing Ass'n v. Clarke, 26 Fed. Rep. 410. But, it is urged, the brewer's trade is peculiar; it is carried on with regular cus tomers to whom deliveries are regularly made; and therefore it cannot be interfered with by any imitation of the color device on the rival's packages. Why then go to the trouble of exact simulation? Why simulate the marking of the leading competitor? Why so insistent upon retaining the imitation despite plaintiff's offer to bear the expense of re-marking? Taking defendant at the word of its managers, the only reason is that to now give up the imitation would ruin their own for the purpose of selling their kegs as the kegs of complainant, or for the purpose of enabling retail dealers to do so, and the complainant has been injured by this fraud or is likely to be injured by it. Proof of actual deception is not required. The test of plaintiff's right to relief by injunction is the liability of injury to his trade by means of deception; Vulcan v. Myers, 139 N. Y. 364. But that the nature of the business is peculiar, is true enough, and it compels some recognition. It can be carried on only by means of the daily recovery of the empty packages for .re-filling. That the act complained of is mischievous and tends to the confusion of property at that stage is selfevident and not seriously disputed, so that if there were nothing else in the case, the hazard of mistake in collection and the expense of handling in that branch of the service must be increased. To this it is answered that at best it would be mere damnum absque injuria as it has to do only with handling the empty packages after the sale of the contents has been completed, and therefore cannot be regarded as tending to steal plaintiff's trade. |