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Yates v. Madden, 3 Man. & G. 532 ; s. c. 21 Law J. Rep. (N s.) Chanc. 24; reversing 16 Sim. 613; s. c. 18 Law J. Rep. (N.8.) Chanc. 310;

Blewitt v. Roberts, 10 Sim. 491; and

Cr. & Ph. 274; s. c. 10 Law J.
Rep. (N.S.) Chanc. 342.

BACON, V.C., said, that first as to the annuity directed to be paid to the testator's widow, it had been urged that where the testator had intended to give an annuity for life he had used language about which there could be no doubt. That was so, but the remark was not conclusive, and in his opinion the widow took an annuity of 567. for her life only. A greater difficulty arose as to the gift to the children of Mrs. Hicks. The testator had put himself towards them in loco parentis. They were his grandchildren and he desired that they should take his name, which was a significant fact. He had estimated that his Indian estate would produce an annual income of 8001., and had directed his trustees to appropriate that sum to the maintenance and education of these children. [His Honour having read the material clauses of the will continued as follows.] As to the general meaning of the testator there could be no doubt. Having taken upon himself to provide for his grandchildren, he had done so in terms which made his Indian estate liable for this 800l. per annum, or if that estate proved insufficient then he had directed that his whole estate should be liable to make up that amount. The gift was an absolute one, unlimited in time and in terms. The testator's whole estate was liable to such an amount as would give to each child 100l. per annum. Upon the whole the construction of the will was to give property to that amount out and out to the children. The residuary gift to the testator's brother was only of what should remain after his wishes were accomplished.

Each child was therefore entitled to such an amount as would produce 100l. per annum. The testator had directed that these annuities to his grandchildren should be appropriated by his trustees, therefore the point raised in Crockett v. Crockett (ubi supra) did not arise here, and the money ought not to be paid to the mother of the children as had been ordered in that case.

Solicitors-Mr. J. P. Theobald, for plaintiffs; Messrs. Fladgate, Clarke, Smith & Forster for defendants.

BACON, V.C. 1872. April 25.

In re THE TEIGNMOUTH AND
GENERAL MUTUAL SHIPPING
ASSOCIATION.

Marine Insurance-Unstamped PolicyMutual Association-Winding up-Admission of Debt-Claim by Policy Holder allowed.

A ship was insured in 1863 by M. in a Mutual Marine Insurance Association. The policy, which was unstamped, was renewed up to 1868, when the ship, with M. on board, was lost at sea. The money due in respect of the insurance was collected by the order of the Association, according to their usual practice, from the members liable to contribute the same, but was retained by the secretary until a personal representative to M. should have been appointed. Before any such appointment was made the association was ordered to be wound up. Subsequently M.'s widow took out administration to him, and brought in a claim in the winding up under the policy. A portion of the amount due under the policy had already been paid to persons having a lien thereon:Held, that the relation of debtor and creditor had been sufficiently established between the parties, and the widow was entitled to recover the amount, notwithstanding the want of a stump on the policy.

This was a claim by the widow and administratrix of Edwin Martin, deceased, to be allowed to rank as a simple contract creditor against the assets of the above-named association which was in

course of liquidation, for 1501. being the balance due on a policy of marine insurance for 2001. effected by E. Martin with the association after deducting 501. which had already been paid thereon.

In 1863, Martin effected with the association an insurance for 2001. on his ship Arbitrator. According to the custom of the association the insurance was renewable annually, and the policy was renewed every year down to the year ending March 20, 1868. It was the practice of the association to issue unstamped policies in respect of assurances effected with them unless special application was made by the insurer for a stamped policy. It appeared that no such special application for a stamped policy was ever made by Martin. The Arbitrator was totally lost in February, 1868, and its loss was duly reported to the association. Martin met his death upon the occasion of the loss of the ship. At the next quarterly meeting of the association the claim in respect of the loss of the ship was allowed, and an entry to that effect was made in the minute book, and at that and subsequent meetings the whole sum of 2001. was ordered to be drawn for. It was the practice of the company upon any sum being ordered to be drawn for to collect that amount in proper proportions from the several members liable to contribute to the same, and when the whole amount was collected to pay the same over to the insured.

The 2007. due to Martin had been accordingly collected, and 501., part thereof, had been paid to the Torquay Brewing and Trading Company, which had a charge to that amount thereon. The balance of 150l. was retained by the secretaries of the association under a resolution of the committee until a personal representative to Martin had been constituted. The association was subsequently wound up, and Martin's widow, having taken out administration to him, made this claim in the winding up against its assets for payment of the 1507. due on the policy. The claim was resisted by the official liquidator upon the ground that the policy had been an unstamped one.

Mr. Ince, for Mrs. Martin, in support of the claim, contended that, notwith

standing the want of a stamp on the policy she was entitled to recover upon an account stated, for that the entries relating to the 2001. which had been made in the books of the association amounted to a sufficient admission of the debt.

He cited

Cocking v. Ward, 1 Com. B. Rep. 858; s. c. 15 Law J. Rep. (N.s.) C.P. 245;

Newhall v. Holt, 6 Mee. & W. 662 ; s. c. 9 Law J. Rep. (N.S.) Exch. 293;

Barker v. Birt, 10 Mee. & W. 61; s. c. 11 Law J. Rep. (N.s.) Exch. 375.

Mr. A. G. Marten, for the official liquidator, argued that as the policy was unstamped it was altogether void, having regard to Stat. 53 Geo. 3. c. 63

In re London Marine Insurance Association, Smith's Case, Law Rep..

4 Chanc. 611.

In order to enable a claimant to recover upon an account stated, the acknowledgment of indebtedness must have been made either to the claimant himself or his agent. In this case the only statement of amount was in the entries in the minute book of the association made several years before any representative to the insured had been constituted. He referred to

Breckon v. Smith, 1 Ad. & E. 488;
Bullen & Leake's Pleading, p. 52.

BACON, V.C., said that in this case the validity of the claim had in effect been admitted by the payment of 50l., part of the insurance moneys, to the Torquay Brewing Company, as well as by the entries in the minute books of the association. There had been a sufficient acknowledgment of the debt to establish the relation of debtor and creditor between the parties, and Mrs. Martin was entitled to recover the amount admitted in the books to be due upon the policy subject to an inquiry as to the claims thereon.

Solicitors-Messrs. Clarke, Woodcock & Ryland, for claimant; Messrs. James, Curtis & James, agents for Messrs. Whidborne & Tozer, Teignmouth, for official liquidator.

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Elizabeth Basset, by her will dated April, 1869, gave certain legacies. Her will concluded with these words, 66 After these legacies and my doctor's bills and funeral expenses are paid, I leave to my sister, Mary Perkins, Pipin Pipin, Wisconsin, North America, without any power or control whatsoever of her husband, John Perkins, in case of her death to be equally divided amongst her children or grandchildren."

Among the legacies she gave to "William and Elizabeth Barfoot's three children the sum of 101. each, and all my furniture, goods and clothing to be equally divided amongst them."

This was a suit to administer the estate of Elizabeth Basset. Two questions had to be decided by the Court, whether Mrs. Perkins took the residue, and whether, there being four children of William and Elizabeth Barfoot instead of three, each took 101. and a share of the furniture, &c.

Mr. Kay and Mr. Nalder, for the personal representatives of Mary Perkins who had died since the testatrix, contended that, if necessary, the Court would supply words in the will to carry out the manifest intention of the testatrix to give Mary Perkins the residue

Leighton v. Baillie, 3 Myl. & K. 267; s. c. 3 Law J. Rep. (N.S.) Chanc. 133;

Hope v. Potter, 3 Kay & J. 206; 1 Jarman on Wills, 3rd ed. 456. All the children of the Barfoots were entitled to take 101. and to participate in the furniture, &c.

Spencer v. Ward, Law Rep. 9 Eq. 507. NEW SERIES, 41.-CHANC.

Mr. Green, for the executor of Elizabeth Basset.

Mr. Eddis and Mr. Harvey, for her nextof-kin, contended that words could not be supplied, for there was nothing to shew what words ought to be put in—

Abbott v. Middleton, 7 H.L. 68; s. c.

28 Law J. Rep. (N.S.) Chanc. 110; Clarke v. Clemmans, 36 Law J. Rep. (N.S.) Chanc. 171;

James v. Shannon, Ir. Rep. 2 Eq. 118;

Miller v. Travers, 1 M. & S. 342; s. c.
8 Bing. 244;

Buckle v. Bristow, 13 W. R. 68;
Nunn v. Hancock, 16 W. R. 818;
Drake v. Drake, 8 H.L. 172; s. c. 29

Law J. Rep. (N.S.) Chanc. 850.

BACON, V.C., said, I should feel the greatest objection to supplying any words in a will; but I do not think this will unintelligible as it stands, and accordingly I do not see the necessity of supplying any words. I read the will as containing a disposition of the whole of the testatrix's estate and effects. That must have been her intention, as is generally the case, when she set about making her "last will and testament." That would vest the whole of her estate in her executor, when she gives certain legacies which it was the duty of the executor to pay. Then she says, "after these legacies are paid, I leave to my sister, Mary Perkins, without any power or control whatsoever of her husband, John Perkins; in case of her death to be equally divided among her children or grandchildren." The intention of the testatrix is express. If I could find any indication of an intention to give anything else, as for instance, a legacy of 500l., it would be different. But what other meaning can be attributed to those words except that which I have suggested? What answer can be given to the question, "What did she mean to leave?" except this, the entirety of the residue of her estate. Where then is the difficulty? No doubt the word "residue," if supplied, would satisfy the meaning; but that only shews that the meaning of the testatrix may be expressed by other words than those she has used.

The cases cited furnish no rule for the

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interpretation of the present case. If the whole of the property had been realised and placed on a table, the executor must first have paid out the legacies, and then have handed over all the rest to the testatrix's sister.

As to the point about the children, I also have no doubt whatever. Each of the four children must have a legacy of 101., and the furniture must be divided among them all. There will be declarations accordingly; the legacies of infants to be carried to separate accounts, with liberty to apply respecting any of them; the costs of all parties as between solicitor and client to come out of the estate.

The misrepresentation, such for example, as falsely calling himself a "Patentee," which will disentitle a plaintiff to relief in equity in respect of an infringement of his trade-mark, must be such a misrepresentation as would prevent him from recovering nominal damages in an action at law brought to establish his right to the trade-mark. And since a misrepresentation, not forming a part of the trade-mark itself, although used in connection with the trade-mark, and with the article to which the trade-mark applies, would be no answer to the plaintiffTM8 action to establish his title at law, neither will such a misrepresentation disentitle the plaintiff to relief in equity.

The plaintiff Ford, a shirt manufacturer, gave the name "Eureka" to a particular Forster, and Mr. J. W. Sykes, for all parties shape of shirt invented by him, and stamped

Solicitors-Messrs. Fladgate, Clarke, Smith &

interested.

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Trade-Mark-Infringement—Injunction -Part of a Mark-Word Publici jurisUser by a certain Class-AcquiescenceFraudulent Misrepresentation "Patentee" -Fraud Collateral to Trade-Mark.

The user by a dealer or manufacturer in connection with an article of manufacture of a single word, being a material part of a particular title to which as a trade mark another manufacturer has a right in connection with the same article, may be an infringement of the trade-mark.

The test whether a fancy name adopted by a manufacturer as a trade-mark for certain goods has become publici juris is the question whether the use of it by other persons in connection with the same goods is calculated to deceive the public, so as to induce them to believe that in purchasing the gods so named they are purchasing goods of the original manufacturer. Consequently a trade-mark may have become publici juris among a certain class, as between the wholesale and retail dealers who will not be deceived by it, and yet may not have become publici juris, as between the retail dealers and their ordinary customers.

all such shirts with the words "Ford's Eureka Shirts," and with a statement that such words were his trade-mark. He advertised the shirts, falsely calling himself the "patentee" of them, and he falsely described himself on his bill heads, &c., as pa tentee of the shirts. Shirts of the particular shape came to be commonly known in the trade as "Eureka" shirts. The defendants, of the same shape, and stamped them in wholesale shirt manufacturers, made shirts the same part of the shirts as "Eureka Shirts"-Held, that the plaintiff was entitled to an injunction to restrain the defendants from using the word "Eureka" as applied to shirts not of the plaintiffs manufacture, except that the defendants were to be at liberty to advertise their shirts "Eureka" in their trade lists.

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Having regard to the plaintiff's misrepresentations the account against the defendants was confined to the time from the filing of the bill.

This was an appeal from a decree made by BACON, V.C., dismissing the plaintiff's bill with costs. (L. J. Notes of Cases, 1872, p. 13.)

The plaintiff, who was a shirt maker, filed this bill to restrain the defendants from applying the term "Eureka" to any shirts manufactured by them, and from selling or disposing of any shirts marked with the mark or title "Eureka," unless such mark or title should have been applied by the plaintiff or with his

sanction, and from advertising shirts as "Eureka" shirts upon the ground that such a user of the term "Eureka" in connexion with shirts was an infringement of the plaintiff's trade-mark.

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The plaintiff in the year 1848 had invented a shirt of a particular shape to which he had given the name of the "Eureka shirt, and which was admittedly an improvement upon the former shapes of shirts. Since the year 1849 he had always sold all his shirts under the name of "Ford's Eureka Shirts," and he had been in the habit of stamping every shirt on the collar with the words "Ford's Eureka Shirt, London," enclosed in lines forming an octagonal lozenge-shaped figure, outside which were written the words "Trade Mark." The plaintiff had also for many years extensively advertised his shirts under the name of "Eureka " shirts in different newspapers circulating in England and the colonies. Thereby, as was not attempted to be denied, the plaintiff's shirts had acquired a considerable reputation in England and the colonies.

In the year 1857, and thenceforth down to the time of the filing of this bill, the plaintiff had all the bill heads used by him printed as follows: Bought of Richard Ford & Co., Shirt and Collar Manufacturers, Patentee of Ford's Eureka Shirts. None are genuine unless stamped

thus

R. Ford's Eureka Shirts, London.

During the same period he had also published advertisements in several newspapers and periodicals, such as the Observer, the Standard, and the Cornhill Magazine (but not to any very great extent), describing himself as patentee of these shirts. There was no evidence of his ever having used the word patentee as part of the trade-mark itself.

The defendants, who were wholesale dealers in shirts, in the year 1862 began to stamp their shirts as "The Eureka Shirt," which stamp they put on the same part of the shirt as that on which the

plaintiff was in the habit of placing his mark. Mr. Walton, their buyer, made an affidavit giving an account of the manner in which the defendants began to use the word "Eureka." He stated in effect that from the year 1862 and forward, the firm of Foster, Porter & Co., had sold shirts under the name of the Eureka shirt, and had issued price lists of shirts, in all of which the term "Eureka" and "Improved Eureka" had been used. As buyer for the firm he had made up the price lists; he had no particular reason for using the word "Eureka" except as a fancy name, which was "universal in the trade." He had at that time seen Ford's advertisements. MacIntyre, Hogg & Co. had then used the term," for they had made the shirts" for the defendants. The shirts were made to the defendants' order from samples submitted to Mac Intyre, Hogg & Co., by the defendants. Before they were delivered, stamps printed with the word "Eureka were attached to them. Subsequently in 1863 the defendants had altered their trade list by substituting for "Eureka shirts," the words "shirts of the Eureka shape." Mr. Hogg, a member of the firm of Mac Intyre, Hogg & Co., and the superintendent of their works at Londonderry, stated in effect that he first supplied the defendants with Eureka shirts about 1864, and that the first order for these shirts was accompanied by a sample shirt of the plaintiff's make.

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It appeared that in the years 1854 and 1855 a cousin of the plaintiff, with the same name, had been in the habit of stamping shirts with the title "Ford's Eureka Shirts," and that he had with the plaintiff's knowledge for nearly a year sold shirts stamped in this manner.

It was also proved that from the year 1866, a shirt maker, named Stroud, whose shop was distant only three doors from the plaintiff's shop in London, had placed a large board over his shop door, advertising for sale" Stroud's Eureka Shirts," and the plaintiff had never attempted to interfere with this advertisement.

The Vice-Chancellor was of opinion that the name "Eureka," as applied to shirts of this description, was known in the trade as early as 1849, and that the

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