so conducts as to mislead such creditors, and induce them to believe the trustee is the owner. For this purpose it is not sufficient that the cestui que trust, where he supposes there is a purpose of ascertaining the nature of his title, for the purpose of levying upon it for his own debts, represents that it is the property of the trustee. In order to bind the owner by such representation, he should be fully informed of the purpose for which the inquiry is made.

And if the trustee, at the time the copy of the attachment is left with him, although a copy had been left with the town clerk before that time, informs the officer and the creditors' agent that he holds the land merely in trust, it would seem to be a timely notice of the state of the title.

KEYES v. PRESCOTT.

Joinder of counts in trespass and case — - Penal action. This was an action of trespass on the freehold claiming treble damages under the statute, for cutting trees. In the County Court the plaintiff was allowed to amend his declaration under the statute, allowing counts in trespass, and trespass on the case, to be joined by adding a count in trover, with a view to recover the value of the timber cut.

Held, that the statute, allowing counts in trespass and trespass on the case, to be joined, does not extend to penal actions, and that it is not competent to join the ordinary counts of the same form of action with the count for the penalty.

Judgment reversed, count in trover dismissed, and case remanded for trial, upon the original declaration.

ROOT v. REYNOLDS.

Sale in fraud of creditors -Knowledge and participation of vendee. Held, that where the vendor of personal property, liable to be taken upon execution, is in failing circumstances, and desires to dispose of his property to prevent it being levied upon by his creditors, and this is known to the vendee, he may nevertheless purchase the same, if his motive in the purchase is to rid himself of a ruinous competition in business, and in no sense to aid the vendor in his illegal purpose, although he may know that by the purchase he does aid the vendor in effecting an unlawful purpose, prohibited by the statute against fraudulent conveyances, when participated in, both by the vendor and the vendee.

Where the surety takes a bond of indemnity from his principal, with additional security for its performance, he may nevertheless maintain an action to recover the money paid in consequence of his so becoming surety by endorsing bills and notes for his principal. The question, how far such bond of indemnity is to be regarded as a merger of the implied duty on the part of the principal to indemnify the surety, depends chiefly upon the intention of the parties. But where there is additional security taken, it may be regarded as evidence of an intention to have the security collateral to the implied promise of indemnity.

New York Superior Court. Special Term, April, 1859.

JOSEPH BURNETT ET AL. v. EDWARD PHALON AND HENRY L. PHALON.

Plaintiffs invented the name of " Cocoaine," for a preparation for the hair, and advertised that he had adopted the same as his "trade mark." Held, that after the article had attained a successful sale, the adoption by the defendants of the name "Cocoine," for a mixture of their own, was a pirating of plaintiffs' trade mark, which would be restrained by injunction.

The facts in this case will appear in the opinion of the court, delivered by

PIERREPONT, J. It appeared before me, upon the trial of this cause, that the plaintiffs, in Nov., 1856, compounded from cocoanut oil and other ingredients a mixture, to be used upon the human hair; that he devised a name never before used, by which to mark his said compound, to wit: the name or word "Cocoaine;" that he forthwith published, in all his circulars, and in all the principal newspapers in the country, and especially in the city of New York, where the defendants reside, that he had adopted the above mentioned name or title as a "trade mark," to secure the public and the proprietors against imposition, and that all unauthorized. use of this trade mark would be promptly prosecuted.

The plaintiff introduced the article upon the market, and spent, between November, 1856 and November, 1858, some ten thousand dollars in advertising the same. The demand for the article rapidly increased, the sale became large, and the profits were by no means inconsiderable. Each bottle containing the mixture had upon it the following label:—

About two years after the first introduction of this arti cle by the plaintiffs, Phalon & Son, the defendants, residents of the city of New York, commenced the sale of a somewhat similar preparation, put up in bottles not very unlike those of the plaintiffs, and each bottle having upon it a label as follows:

This mixture has also had a very large sale, with much profit to the defendants. The plaintiff claims that the defendants have pirated his trade mark, and asks that damage may be awarded, and that an injunction may issue against them.

The defendants contend that the plaintiffs' compound is an imposition; that their mixture is superior; that the plaintiffs can have no property in the name "Cocoaine," and that "Cocoine" is not the same but a different name, and not calculated to mislead the public, and, furthermore, that it is correctly compounded from the French. There is no evidence that the plaintiffs have committed any fraud upon the public, and which is the superior of the two mixtures. the court will not consider. If the plaintiff cannot acquire any property or exclusive right in this name, word or device thus contrived and adopted as his trade mark, then there is no ground for this action; and if the defendants have adopted a device or name so differing from that adopted by the plaintiff as in no wise to deceive the public or do injury to the plaintiff, then the defendants are not liable in this suit. By the statute of this State it is a misdemeanor, punishable by imprisonment, "to forge or counterfeit, or cause or procure to be forged or counterfeited, any representation, likeness, similitude, copy or imitation of the private stamp, wrapper or label usually affixed by any me chanic or manufacturer to, and used by such mechanic or manufacturer on or in the sale of any goods, wares or merchandise with intent to deceive or defraud the purchaser or

manufacturer of any goods, wares or merchandise whatso(Rev. Sts., part iv., title 6, c. 1, §49). Thus our legislature has declared in strongest terms its reprobation of all infringements by one citizen upon another's trade mark; and long prior to any statutes upon the subject, it was settled law, that a manufacturer by priority of appropriation of names, marks or symbols to distinguish his manufactures, acquires a property therein as a trade mark, for the invasion of which an action would lie, and in the exclusive use of which he might be protected by injunction. This rule of law was recognized so long ago as the case of Southern v. How (in Popham's Reports, p. 43), and in the case of Croft v. Day (7 Beav., 84), Lord Langdale said: "No man has a right to dress himself in colors or adopt and bear symbols to which he has no peculiar or exclusive right, and thereby personate another person for the purpose of inducing the public to suppose either that he is that other person or that he is connected with and selling the manufacture of such other person, while he is really selling his own. This was the somewhat noted case of the "Day & Martin Blacking." The defendants made and sold the genuine blacking, their names were Day & Martin; their label had the No. 90 Holborn Hill, and their device was the royal arms of England; whereas the plaintiff, who was the surviving partner of the original "Day & Martin," had upon his label No. 97 High Holborn and the arms of Day & Martin, quite different from the royal arms, and yet the court directed an injunction to issue. Lord Langdale said: "The defendants' contrivances were calculated to mislead the bulk of the unwary public into the impression that the new concern was connected with the old manufactory; and thus to benefit the defendants to the injury of the plaintiffs and to deceive the public.

In the case of Redding v. How (8 Simon's Reports, 477), the vice chancellor said: "The defendant was not at liberty to make and sell a mixture of his own under the same designation as the plaintiff had appropriated."

In the case before us the plaintiff, Burnett, contrived a name unknown to any language, and sold his mixture under that appropriated designation for two years; advertising during the entire time and in nearly every important journal in the city, that he had adopted that word or name as his "trade mark."

The "Cocoaine," as he called it, had a great sale, and after its reputation was established through the energy, skill, and money of the plaintiff, the defendants then commenced the sale of their mixture under the designation of Phalon & Son's "Cocoine."

Was this "contrivance calculated to mislead the bulk of the unwary purchasers, and thus to benefit the defendants, to injure the plaintiff, and to deceive the public?"

I have no doubt that an honest answer from the defendants would be affirmative. If Burnett's "Cocoaine" had proved destructive to the human hair, Phalon's "Cocoine" would not have been introduced under that designation. It was the success of the former that introduced the latter; and when one intentionally, as in this case, so closely imitates the trade mark of another, the law presumes it to have been done for the purpose of inducing the public to believe that the article is that of him whose trade mark is imitated, and for the purpose of supplanting him in the good-will of his trade or business. Taylor v. Carpenter, (2 Sandf., c. Rep. 603.) Affirmed in the Court of Errors. Every man has a right to the reward of his skill, his energy, and his honest enterprise; and when he has appropriated, as his trade mark, letters combined into a word, before unknown, and has used that word, and long published it to the world as his adopted "trade mark," he has acquired rights in it which the courts will protect.

The proof is clear that the plaintiff had for nearly two years advertised his mixture in nearly every newspaper in this city, and had published in the same papers that he had adopted the word "Cocoaine" as his trade mark. The defendant was himself a witness, and he did not suggest that these notices had not been brought home to his knowledge; the conclusion is irresistible that he was aware of their publication, and that he intentionally adopted " Cocoine" as a close imitation of "Cocoaine," and for the purpose of deriving profit from the simulated trade mark.

No one can appropriate a word in general use as his trade mark, and restrain others from using that word. Burnett cannot acquire property in the word gin, wine, brandy or ale, or in any other word known to the language, and in common use, to designate things or the qualities of things. But the word appropriated by the plaintiff is not of that character, and it is no hardship to the defendants to be re