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agency for Walter Baker & Co., of which firm the plaintiff was sole member, and that he was consulted by defendants in regard to the name to be put on their label; that defendant Guittard asked him what Walter Baker & Co. called their chocolate, and he replied “German Sweet Chocolate," when Guittard said: “We will reverse it, and call ours ·Sweet German Chocolate.?” This witness further testified:

“I had many conversations with Guittard about Baker's chocolate before the one I have mentioned. The object of those consultations was to get at Baker's customers, whom I knew, being connected with the house that was their New York agent. That was the beginning of the consultations about Baker. He asked me who were the largest customers we had for Baker's goods, in consultations we had, and I gave him the name of the large firms in Philadelphia, New York, Chicago, etc., to whom he sold his .Sweet Gerinan Chocolate.""

Upon this state of facts—which, as the case is presented, we must accept as true—we are of opinion that it is not necessary to decide whether the plaintiff's label, with the accompanying words and devices, constituted a trade-mark, and as such the exclusive property of the plaintiff, for the reason that it is a fraud on a person who has established a business for his goods and carries it on under a given name or with a particular mark, for some other person to assume the same name or mark, or the same with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name or mark. Lee v. Haley, 5 Ch. App. 155. Equity gives relief, said the supreme court of the United States in MIcLean v. Fleming, 96 U. S. 251, “upon the ground that one man is not allowed to offer his goods for sale, representing them to be the manufacture of another trader in the same commodity. Suppose the latter has obtained celebrity in his manufacture, he is entitled to all the advantages of that celebrity, whether resulting from the greater demand for his goods or from the higher price the public are willing to give for the article, rather than for the goods of the other manufacturer, whose reputation is not so high as a manufacturer. Where, therefore, a party has been in the habit of stamping his goods with a particular mark or brand, so that the purchasers of his goods having that mark or brand know them to be of his manufacture, no other manufacturer has a right to adopt the same stamp; because, by doing so, he would be substantially representing the goods to be the manufacture of the person who first adopted the stamp, and so would, or might be, depriving him of the profit he might make by the sale of goods which the purchaser intended to buy."

That the unlawful purpose was deliberately designed and effectuated clearly appears from the testimony given at the trial. The motion for nonsuit should therefore have been denied. Judgment and order reversed and cause remanded for a new trial.

We concur: MYRICK, J.; MORRISON, C. J.; McKEE, J.

(68 Cal. 98) MYRICK and others v. SUPERIOR COURT OF CONTRA Costa Co. (No.

11,029.)

Filed November 25, 1885. APPEAL FROM JUSTICES' COURTS-How TRIED.

The taking of an appeal from a justice's court on questions of law and fact does not, of itself, entitle the appeilant to a trial de novo, in the appellate court, unless a trial was already had upon the issues of fact raised in the justice's court; and therefore, where issue is joined in the justice's court, but the action is dismissed without trial by the justice, on the ground that the complaint, though actually filed, was not so indorsed, upon an appeal the superior court cannot try the issues of fact, but should reverse the judgment and remand the case for trial on the issues made by the pleadings. Commissioners' decision. In bank. Application for a writ of review. G. W. Bowie, for petitioners. Mills & Jones, for respondent.

Foote, C. Application for a writ of review. The case in hand originated in a justice's court to recover damages caused by the trespass of stock on plaintiff's land. A change of venue was obtained to another justice's court, but before such transfer of the cause an answer, demurrer, and motion to dismiss had been filed by the defendant. When the action came on for trial a second motion was made by the defendant to dismiss it, on the ground that the justice in whose court it was originally brought had failed to indorse on the complaint that it was "filed” as required by law. The motion was sustained, and the case dismissed, a judgment being rendered in favor of the defendant for costs. Thereupon the plaintiff appealed upon “law and facts” to the superior court. There the point was made that such court had only jurisdiction to affirm or reverse the judgment of the justice's court, but had no power to try the case on the issues raised by the pleadings. But the appellate court took a different view of the matter, and, trying the case upon the issues of law and fact, rendered a judgment for the plaintiff.

The taking of the appeal on “law and facts” would not give the right to have the action tried de novo, unless a trial upon the issues of fact as made in the justice's court had already been had in that tribunal. Such issues were there made up, and there is no objection urged in any quarter that jurisdiction did not there exist to try the cause. The justice refused to enter upon such trial upon the ground that the complaint, although actually filed, was not so indorsed, and dismissed the action. If the superior court in this instance had a right to try a case upon issues of fact, which was within the jurisdiction of a justice of the peace, who had never passed upon such issues as tendered, the former tribunal might be said to have original jurisdiction in such cases, which is contrary to the statute. It will not do to say that a justice of the peace, by declining to perform so plain a duty, even under a mistaken opinion of law, can enforce an appellate tribunal to assume his place. He must first proceed to do what

the law requires of him; then, if his judgment upon issues of fact be appealed from, a new trial of them can be had in the manner declared by law to be appropriate. In effect, he dismissed the case at the costs of the plaintiff. The superior court should have reversed that judgment and sent the case back for trial on the issues tendered by the pleadings. It could not have been contemplated by those who framed and passed the statute which controls this case, that an action which was within the jurisdiction of a justice of the peace, could be tried on issues of fact in the superior court which had never been passed on by the lower tribunal.

It is claimed that in the case of People v. Freelon, 8 Cal. 518, a different view of the law as to this matter was taken. We see nothing there which conflicts with the position we here assume. In the former case the issues raised were passed on by the lower court, and a trial de novo was possible, and it was simply held that where on appeal such trial was ordered the county court might entertain it without sending it back to the former court. In Curtis v. Superior Court, 63 Cal. 435, it was announced that an appeal would lie to the superior from a justice's court where issues of fact had been raised and passed on without any evidence being given on the trial. There a trial was had because the lower court passed upon the issues of fact raised by the pleadings, and exercised its jurisdictional functions by giving judgment thereon without any evidence to support its decision; and if error was thereby committed it was reviewable on appeal. And a new trial being proper, it was rightfully allowed to take place in the appellate court.

In the case now being considered the lower court did not pass upon the issues of facts raised by the pleadings, or render any judgment thereon, but expressly refused to do so. We conclude, therefore, that the action of the superior court of Contra Costa county in the premises was beyond its jurisdiction, the judgment rendered therein void, and should be annulled.

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BY THE COURT. For the reasons given in the foregoing opinion the judgment is annulled.

I do not concur: MYRICK, J.

(68 Cal. 95)

GANAHL and others v. SoHER and others. (No. 8,441.)

Filed November 25, 1885. PROBATE COURTS, VOID SALES BY-ACTIONS FOR RECOVERY OF PROPERTY SOLD

The requirement of the probate law that "no action for the recovery of any estate sold by an executor or administrator under the provisions of this chapter, shall be inaintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within three years next after the sale,” is applicable to all sales made by probate courts of real estate belonging to persons who have died since the passage of the probate act, whether such sales be void or voidable; and the rule applies though the invalidity of the sale resulted from an insufficiency in the notice for appointment of the administrator. In bank. Appeal from superior court, city and county of San Francisco.

Carter P. Pomeroy, for appellants.
H. J. Tilden, for respondents.

Ross, J. The plaintiffs claim title to the lot of land in controversy as the heirs at law of Henry Ganahl, who died intestate in the state of Georgia on the twelfth day of May, 1855. In 1867 one Andrew D. Smith filed in the probate court of the city and county of San Francisco, where the property is situate, a petition for letters of administration on the estate of said deceased, and an order was subsequently made by the court appointing him administrator. In the course of his administration of the estate, Smith presented to the probate court a petition for the sale of the property involved in the action, the court made an order directing its sale, and pursuant to that order it was sold, and afterwards confirmed, to one Leon Smith, to whose interest the defendants subsequently succeeded. At the time of sale the plaintiff Henry Gordon Ganahl was a minor, but he attained his majority more than three years before the commencement of this action. With respect to the other plaintiffs, it is not denied that the five-years statute of limitations barred whatever rights they acquired as heirs at law of the deceased Ganahl. But in addition to the five-years statute, the defendants, among other defenses, plead the three-years statute of the probate act. That statute, in force when the sale in question was made, provided that “no action for the recovery of any estate, sold by an executor or administrator under the provisions of this chapter, shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within three years next after the sale.” The succeeding section reserved to minors, and others under legal disability to sue, the right to commence such action at any time within three years after the removal of the disability.

If this provision of the probate act applies to the present case, the instruction of the court below was correct, and the verdict of the jury should not be disturbed. It is contended, however, on behalf of the appellant that it does not apply, because, as is claimed, the notice given of the application for the appointment of Andrew D. Smith as

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administrator did not conform to the statute, and that therefore his appointment was void. The regularity of the subsequent proceedings in the matter of the administration of the estate, in so far as mere matter of form is concerned, we do not understand to be questioned. In Harlan v. Peck, 33 Cal. 515, it was held that the provision in question “applies to all sales, void as well as voidable, made by probate courts, of real estate belonging to persons who have died since the passage of the probate act.

of the probate act.” Insufficiency of the petition for the sale was what rendered the sale in that case void, but there is no distinction in principle between the insufficiency in the petition for sale, or in the notice of sale, and insufficiency in the notice for the appointment of the administrator or other insufficiency in the progress of the administration. In the case of McNeil v. First Cong. Soc., 4 Pac. Rep. 1096, relied on by appellant, the court had no jurisdiction of the subject-matter, for the reason that the deceased died prior to the passage of our probate law. In Pryor v. Downey, 50 Cal. 388, the point here involved did not arise. There is nothing in that case inconsistent with what was decided in Harlan v. Peck, on the authority of which case the judgment is affirmed.

We concur: MYRICK, J.; MORRISON, C. J.

THORNTON, J., (concurring.) I concur in the judgment on the ground that the action is barred by the general statute of limitations.

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