The argument is based upon the theory that the public can have no concern with the empty packages; that its deception alone is material; and that in this particular no one could be misled excepting the plaintiff or its

servants.

Technically the argument may be good; but as applied here it can have nothing else in its favor. That is to say, confusion of property arises from the lawless or capricious act of a rival. Having regard to the conditions under which plaintiff must serve its trade, the injury is quite as palpable and vexatious so far as it operates to interfere with and increase the cost of the service, as

Henry Maltzberger, Sherman H. Hoverter and Cyrus G. Derr for plaintiff.

November 25, 1916. ENDLICH, P. J.This is a proceeding in equity for partition, in which the property has been sold by the counsel ask to have a fee of $1,000 taxed as Master for $17,000 and plaintiffs' three costs payable out of the fund thus raised. By agreement of the counsel on both sides the question of the propriety of this demand lowed it and defendants excepted to his dewas passed upon by the Master. He alcision. Possibly it was not within the scope of his functions to determine this matter. The statute seems to refer it to the where it directly tends to take away the Court; Act 27 Apr. 1894, P. L. 641. But trade. In respect to the need of relief, that question is not now important. If nec there is no rational ground of distinction. between the two. Hence, one can appre-demand as before us de novo. essary we can treat the plaintiffs' counsel's With a view ciate the broad statement of the principle as deduced from many cases by the editors of to judging of its admissibility both the judges have subjected this record to careful the Encyclopedia: "A dealer coming into a consideration. Giving full effect to the

field already occupied by a rival of established reputation must do nothing which will unnecessarily create or increase confusion

between his goods or business and the goods or business of his rival. Owing to the nature of the goods dealt in or the common use of terms which are publici juris, some confusion may be inevitable. But anything done which unnecessarily increases this confusion and damage to the estabished trader constitutes unfair competition. Any artifice, device or peculiarity of arrangement adopted by the defendant which tends to increase the probability of deception and which is not necessary for any useful or proper purpose, will be enjoined"; 28 A. & E. Enc. L. (2d Ed.) 422.

***

Whether looked at as a case of technical

trade-mark or as one of unfair competition, the merits are wholly with the plaintiff. The exceptions are dismissed.

C. P. of

Berks Co.

cases cited in support of the exceptions; Grubb's App., 82 Pa. 23; Fidel'y Ins. Co.'s App., 108 id. 339; B. & S. Ass'n v. Bank, 142 id. 121, we are both of the opinion that make the allowance asked grantable without the peculiar circumstances of this litigation decisions. The proceeding, begun in 1909, offending against the rule laid down in those has been one of long duration and unusual complications, owing to the number of the parties on both sides, the intervention of death and lunacy, the nature and subdivision of the interests represented, the various steps successively required, the accounting involved, etc. It is perhaps a significant fact that there are over 50 docket entries in the course of the proceeding up to this date. Practically all that was done by counsel on both

sides was for the common benefit of all concerned a circumstance recognized in the fact, stated at the argument, that, by mutual agreement, the fee of defendants' counReifsnyder et al. v. Reifsnyder et al. out of the fund. If that was proper it is sel was charged against and made payable Partition-Act 17 April 1864, P. L. 641-difficult to see why plaintiffs' counsel's fee Allowance of Fee for Plaintiffs' Counsel. should not be similarly treated. The proUnder the Act 27 April 1864, P. L. 641, the priety of its amount as compensatory, and Court of Common Pleas may, under peculiar cir- no more, of the services rendered, is not in cumstances attending a proceeding in equity for

partition, allow plaintiffs' counsel a fee of $1,000 controversy. We conclude that we ought for services rendered for the common benefit of to decide this matter in favor of the demand all the litigants.

Exceptions by defendant to Master's Report.

P. D. Wanner and S. E. Bertolet for

exceptant.

made. As this case, being sui generis, is not ruled by any precedent, so it cannot become a precedent in future proceedings. lacking its extraordinary features.

The exceptions are dismissed.

17

Work Legal Record

Vol. XXXI

THURSDAY, JUNE 14. 1917

Dillon v. Glatfelter et ux

Parent and Child-Custody.

1906. On the 5th of August, 1912, a divorce a vinculo matrimonii was granted by this Court to Lydia Dillon from the No. 5 petitioner, William D. Dillon. The divorce was granted, as shown by the proceedings therefor, because of the wilful and malicious desertion of the said William D. Dillon. The undenied and uncontradicted evidence Petitioner abandoned his wife and children in of Mrs. Mary Morgan, Lewis Haack, 1906. In 1912 his wife obtained a divorce and Mrs. A. W. Bastrass and Mrs. Amanda supported herself and children until her death in Foyle, taken at the hearing on the applica1914. The child was subsequently, by the church tion for divorce, and placed in evidence of which she was a member, placed in the custody without objection in this hearing, was to the of the respondents, who clothed, fed and schooled her. The petitioner, having remarried, asked effect that for several years prior thereto the that the child be remanded to him as her natural said Lydia Dillon worked hard and supprotector. HELD, that the petition must be refused. ported her three children. After the diIn questions of this nature the Court will in- vorce vestigate the circumstances and act according to Dillon took her daughter Marie Dillon, was granted by this Court, Lydia a sound discretion, the primary object being the supported and cared for her until sometime the care of a stepfather, who evidently in 1914, when she died, leaving Marie to abandoned her. The members of the Westminster Presbyterian Church of the City of York, (of which church Marie was a member) learning of her abandoned condition, procured a home for her with the respondents, Noah Glatfelter and his wife Annie Glatfelter, who have clothed, fed, schooled and cared for her ever since October 2nd, 1914. Marie Dillon was examined in open court and separately by me. She evinced an unusual advancement in the studies taught by our common school system, which evidenced the fact that her schooling and education had not been neglected.

good of the child.

The relator has not shown that he deserves her custody, having abandoned her in her infancy, and never displaying any practical solicitude for her physical, moral or spiritual welfare, until he began this proceeding.

Under the circumstances of the case, and in view of the protests of the child herself, now in her fifteenth year, it would be cruel to place her in the custody of the relator.

Petition for Writ of Habeas Corpus. No. 64, October Term, 1916. Robert C. Fluhrer for relator. H. A. Gross for respondents. June 4, 1917. Ross, J.-This proceeding was commenced by the petition of the relator, William D. Dillon, to obtain the custody and control of his daughter Marie Dillon, whom, he alleged, was placed with the respondents Noah Glatfelter and Annie Glatfelter, his wife, without his consent or knowledge; that he had made numerous demands for the return of the said child to In the interview with the Court, she was his home but the said Glatfelter and wife very frank and candid and she impressed me refused to return the said child and contin- | as being very sensitive, and more thoughtful ued to keep her in their said custody and possession against the express wish and de

sire of the petitioner who (he alleged) is the lawful and rightful custodian of the said Marie.

At the hearing the following facts were developed :

Marie Dillon is the legitimate daughter of the petitioner, and was born September 5th, 1902. She lived with her father, the petitioner, and her mother, together with a brother and sister until sometime in April,

Her demeanor was gentle, quiet and comparatively refined. Her pronunciation was more than ordinarily correct and her voice was well modulated and refined. These things are strong indications that the child's moral surroundings had been refining rather than degrading.

and sad than most young girls of her age. She evidenced a deep sense of devotion to

religious teachings and beliefs and while she expressed a very intelligent conception of her filial duty, she most earnestly implored of her father for whom she evidenced conthe Court not to order her into the custody siderable antipathy and fear. The arguments which she used in urging the Court not to place her in the custody and control of her father were remarkable for the abundance of common sense and logic for one of her age and surroundings. She had

somehow obtained the impression that she rights through neglect and indifference, was one year older than the church records which practically resulted in her abandonshowed her to be; and, indeed, one might ment? It is true that he is fortified now in readily be induced by her manner and talk, his endeavor to obtain the custody of his to believe that she is much older in years than the records show her to be.

daughter by a most estimable and praiseworthy society of religious philanthropy; The law is that, "When a court is asked but does not the evidence show that his to appoint a guardian of the person of a neglect, and indifference for his child, has child, it will investigate the circumstances resulted in her having espoused the faith of and act according to a sound discretion, another religious denomination, in the tenets the primary object being the good of the of which she seems to be well entrenched child." Heineman's Appeal, 96 Pa. 112; both by intellect and faith? Has he not Commonwealth v. Atticks, 5 Binn. 519; by neglect allowed her to obtain and harbor Commonwealth ex rel. v. Hartigan, 19 feelings of antipathy and fear for him? Dist. 961; Commonwealth ex rel. v. Strickland, 27 Pa. Sup. 309; Commonwealth ex rel. v. McDonald, 20. Dist. 1071; Fahs v. Berkstresser, 24 Y. L. R. 184; Miller v. Mitchel, 30 Y. L. R. 36.

The conditions surrounding the subject of this case, as revealed by the evidence, call for the most careful exercise of the judgment of the Court. The unusual intelligence and innate refinement of the child in question, causes my mind to wonder why some of our numerous philanthropic societies ever permitted her to be so neglected as the evidence depicted her to have been before she was placed in the care of the respondents. They seem to be her benefactors since she was abandoned by her stepfather

after her mother's death.

When his past life of neglect of this child is compared with his present demeanor, it cannot result otherwise than in the conclusion that his present action is prompted more by a desire to obtain the physical assistance of his daughter, than by any intention or desire to better her condition in life. There is no evidence before the Court which would warrant it in concluding that the welfare of Marie Dillon would now be enhanced by placing her in the custody of the relator. Indeed, as against the protests of Marie, we think it would be an act of cruely to do so.

After a full hearing of all the evidence in the case and after a careful consideration of the arguments had before the Court, we are of the opinion that the petition should be dismissed, and for the present we remand Marie Dillon to the custody, care and protection of the respondents Noah Glatfelter and his wife Annie Glatfelter, until the further order of the Court.

The relator, her father, now seeks her custody, but he has not shown that he deserves it, for he has not shown by the evidence that he ever had any natural solicitude or affection for her; the evidence conclusively shows that he abandoned her in her infancy and never displayed any practical solicitude for her physical, moral, or mental welfare until he began this proceeding. The most direct and logical inference which can now be drawn from his actions, is, that C. P. of he seeks to obtain possession of her for the purpose of having her assist his recently acquired wife in household duties. He says he will send her to school, but does not say what school. My own knowledge of the schools of the neighborhood in which he now resides leads to the conclusion that they are in no wise better fitted to improve her intellectual condition than the school which she now attends near Glen Rock, in this County. He says that he wants her because he has a natural and legal right to have her; but does not the evidence clearly disclose the fact that he has long since forfeited those

Lackawanna Co.

Weiland v. Weiland

Actions-Form of Alteration of record.

The question whether a bond accompanying a mortgage, after being filed in the prothonotary's office and before entry of the usual notation on the continuance dock, had been altered by the addition of certain words restricting the lien of the judgment to the specific lands bound by the accompanying mortgage, is one of fact for a jury, and cannot be determined by the court on motion to correct the record.

Motion to correct record.

W. L. Schanz and John P. Kelly for temporary absence passed unnoticed, and motion.

R. W. Rymer, contra.

thus the fact was not discovered by petitioner's counsel until oecasion to refer to the record occurred some four months later.

April 30, 1917. NEWCOMB, J.-The record would stand some correction aside from that asked for by petitioner. She is the executrix, etc., of Theodore H. Weiland, deceased, and has been so ever since his death in 1913. The record in question is a judgment d. s. b. founded on a security held by deceased in his lifetime and which came to the hands of his executrix by virtue of her trust. The propriety of making her | the plaintiff when judgment was entered await the result of such issue. thereon in January, 1916, ought to have occured to the mind of counsel who directed the entry. The "estate of A. B." is not a proper party to a judgment recovered by his personal representative on the common law side of the court.

The allegation is just as stoutly denied on the one side as asserted on the other. Thus a dispute arises which is purely one of fact and as such ought to be tried by a jury. An issue is accordingly awarded for that purpose; as to the form of which the parties by their counsel will be further heard.

The disposition of the present rule will

C. P. of

Lehigh Co.

West Auburn Creamery Co.

Foreign Corporations-Doing Business Within State-Art. 16, Sec. 5, of Constitution Act of April 22, 1874, P. L. 108.

The authority for entering it is a general warrant of attorney in defendant's bond of Finance and Guaranty Company v. February, 1912. It was directed, not in the ostensible execution of that power, but by mere praecipe of "plaintiff's attorney." This, however, may be regarded as a defect in form rather than substance. But judgment was taken, as directed, for the penal sum of the bond, $14,000, with interest from its date. This is erroneous in that the interest is payable only on the real debt The purchase, by a foreign corporation not of $7,000. These are pointed out as care-registered in this State, of book accounts covering a number of transactions with different parties, less methods not to be commended and for the collection of which extended over a period of which there is no good excuse, as they would several months, more or less permanent and in be avoided by ordinary attention to the in-line of its corporate activities, the corporation at all times exercising complete control over the strument itself. transactions within the State through its designated agents within the State to carry on these corporate activities, is doing business within this State and is in violation of Article 16, section 5, of the Constitution of Pennsylvania and the Act of April 22, 1874, P. L. 108.

The

Motion to take off Non-Suit.

Sam'l J. Kistler and Chas. F. DaCosta, for motion.

George W. Aubrey, contra.

The thing complained of by petitioner is an alleged alteration of the bond by the addition of a few words which would restrict the lien of the judgment to the specific lands bound by the accompanying mortgage. bond itself has disappeared from the files, but the restriction appears in the continuance docket entry. For technical reasons the prothonotary is made a party to the present motion, but neither he nor any of his office force is charged with being at fault in the premises. The change is alleged March 19, 1917. GROMAN, P. J.—The to have been made during the short time plaintiff, a foreign corporation with its which elasped between the filing of the bond principal office at Baltimore, Maryland, on by attorney and the usual notation on the December 13, 1913, entered into an agreecontinuance docket. Petitioner's case rests ment with the defendant, West Auburn upon the theory that the bond was stealthily Creamery Company, a domestic corporation, taken from the office by someone and in like with its place of business at Allentown, manner replaced, after the alleged alteration Pennsylvania, whereby the defendant comhad been made, with such expedition that its pany sold, assigned and set over to the

plaintiff company, its successors and assigns, in another state, on the ground that the conall its right, title and interest to and in a signee becomes the agent for the company. number of open accounts and contracts fully set forth in said agreement. Under the terms of the agreement collections were to be made, and paid over to the plaintiff; the West Auburn Creamery Company, the defendant, and V. G. Tice of Allentown, Pennsylvania, were designated as agents to

do so.

It thus seems that the tests to be applied are: did the corporation act within the scope of its corporate powers; was part of its capital invested in the state for a more or less indeterminate period; was it a single transaction only, or did it contemplate a series of The plaintiff avers that the defend- acts extending over a period of time; did ant is indebted to it in the sum of $557.53 the corporation have an agent or agents in for failure to comply with certain terms of the state representing it for the purpose of the agreement; suit was brought to recover carrying on the business in which it was said amount. It is admitted that the plain-engaged? tiff corporation was not registered in the State of Pennsylvania, and at the trial the case was submitted as to whether plaintiff was doing business in Pennsylvania as a foreign corporation in violation of the Act of April 22, 1874.

That plaintiff acted within the scope of be the subject of argument. That plaintiff its corporate powers is conceded, and cannot invested part of its capital in Pennsylvania can be found by the facts as disclosed by Article XVI, Section 5 of the Constitu- the pleadings. The purchase of book action of Pennsylvania provides that "no for- with different parties, the collection of which counts covering a number of transactions eign corporation shall do business in this extended over the period of several months, state without having one or more known places of business and an authorized agent line of its corporate activities; the plaintiff was more or less permanent and was in the or agents in the same, upon whom processes at all times exercising complete control over may be served." The Act of April 22, the transaction within the state through its 1874, was passed to make the constitutional provision effectual, and remained in force designated and appointed agents within the until the Act of June 8, 1911, was passed the state after acquiring certain accounts by state to carry on its corporate activities in designating the Secretary of the Common- purchase. The act of the agent coming into wealth as agent for all foreign corporations. the state and soliciting business for the forThe question whether or not the company is doing business within the State of Penn-eign corporation is not here in question; sylvania is one of fact not necessarily dependent solely on single acts or on the effect of single acts, but on the effect of all combined acts which they are performing here: Commonwealth v. Wilkes-Barre and Hazleton Railroad Company, 251 Pa. St., P.

10.

what we are now concerned in is the situ

ation of the plaintiff after the execution of the agreement, and the acts of plaintiff in carrying out the terms of the agreement, indicating whether it was "doing business acted at least a part of the business within in the state" or not. The plaintiff transA single act may or may not constitute "doing business;" Thompson on Corpora- and had personal property therein subject to the state, had part of its capital invested, tions, 6670 et seq. It has also been held that where a foreign corporation appointed tions (White's Supplement 1915), 6671legal process. In Thompson on Corporaa local agent in this state to whom it consigned goods to be sold on commission, the foreign corporation is 'doing business' with6672, we find the following language: "A company employed a portion of its capital within the Commonwealth, that its property some substantial part of its ordinary business in a particular state when it transacts therein shipped here was liable to be sold or return- which is continuous in character, as distined as it might determine, that then it was doing business in this Commonwealth; The quished from merely casual or occasional Milsom Rendering and Fertilizer Company v. Kelly, 10 Pa. Sup. Ct., p. 565. Osborne v. Shilling, 11 American and English Annotated Cases, p. 322, it was held that a foreign corporation maintaining an agency in another state was doing business therein, so also, is the ownership of goods

transactions."

In We, therefore, reach the conclusion that plaintiff corporation was "doing business" in the state which required it to register therein.

Motion to take off non-suit overruled.