Marshall and another vs. Pinkham.

There is still another view of this case deserving notice. There is no claim that old Samuel Marshall, much less Charles H., actually discovered or invented the mixture or compound. There is no pretense that either had the exclusive right, during the life of the father, to manufacture and sell it under the name of "Marshall's Rheumatic Liniment," or "Old Dr. S. Marshall's Celebrated Liniment." These facts being admitted, it would seem to be at least extremely doubtful whether Charles H. ever acquired the exclusive right to their use as a trade-mark; and if such exclusive right was doubtful, it would seem to be contrary to the practice in equity to grant an injunction in the first instance.

In Farina v. Silverlock, 6 De Gex, M. & G., 214, it was held, by Lord Chancellor CRANWORTH, that, "in a case where the mark consisted of a label in a certain form, and it was shown that in very many instances labels the same as or similar to it might be sold for a legitimate purpose, the court, in the absence of any proof of actual fraud, refused to restrain the printing and sale of such labels until the manufacturer, who alleged that they were used for a fraudulent purpose, had established his case by an action at law."

In Spottiswoode v. Clark, 10 Jurist, 1043, it was held by the Lord Chancellor, on a bill to restrain the defendant from selling a mark alleged to be a fraudulent imitation of the plaintiff's, "that, it not being perfectly clear that the plaintiff had a legal right, the injunction prayed by the bill ought not to be granted." This is especially the rule where the plaintiff is himself seeking to deceive the public. Pidding v. How, 8 Simons, 477; Motley v. Downman, 3 Mylne & Craig, 1; Clark v. Freeman, 11 Beavan, 112; Flavell v. Harrison, 19 Eng. L. & Eq., 15; Perry v. Truefitt, 6 Beavan, 66. Mr. Browne tersely states the true rule when he says: "The right to the use of the mark must be exclusive of all other persons. A trade-mark is an emblem of a man just as much as his written signature, and is used to denote that an article of mer

Marshall and another vs. Pinkham.

chandise has been made by a certain person, or that it has been sold or offered for sale by him. If the same mark were to be used by different persons for the same species of goods, it would lead to inextricable confusion; and its true and only legitimate purpose would be overturned, for then it would lack the essential element of an indication of origin or ownership." Section 303. From this it would seem that Charles H. never had in himself any such exclusive right in the words in question as would authorize a court of equity to restrain others from using the same bona fide in the sale of their own goods, and without any tendency to deceive. The only remaining question is, whether the wife of Charles II. got such exclusive right by way of the alleged purchase from the mother, and the discovery after her death of the existence of a lost will left by the father, and the establishment of it as such, and the admitting of it to probate. As suggested on the argument, neither the mother, Mary J., nor the plaintiff Mary W., could get any title to the personal property, business, and good-will of the business of old Samuel Marshall, except through an administration upon his estate, and an order of distribution; and as no order of distribution was ever made, nor administrator or administratrix was ever appointed, it follows that the plaintiff Mary W. got nothing through the alleged purchase. Murphy v. Hanrahan, 50 Wis., 485. To the same effect is Singleton v. Bolton, supra. As no exclusive right of either of the plaintiffs was invaded, they were not entitled to an injunction by reason of any mere absence of such right on the part of the defendant.

By the Court. The judgment of the circuit court is affirmed.

Will of Ebenezer W. Cole. [Motion.]

WILL OF EBENEZER W. COLE. [Motion.]

May 17-June 22, 1881.

(1) Correction of judgment at subsequent term. (2) Liability of executor and sole legatee, upon statutory bond.

1. The judgment directed in this case (reported in 49 Wis., 179) having been that the taxable costs be paid out of the estate, and the judgment actually entered failing to show that the costs thereby made so payable were the contestants' costs, this court, at a subsequent term, orders a correction of the judgment so as to show that fact.

2. The executrix and sole legatee named in the will having given the bond prescribed by sec. 3795, R. S. (to pay all debts and legacies of the testator), title to the whole estate passed to her, and the administration was terminated; but she is liable upon said bond for the costs awarded out of the estate to the contestants.

APPEAL from the Circuit Court for Jefferson County.

A motion by the contestants of the will to correct the judg ment entered on their appeal in this cause, and for execution on such amended judgment, was made on the 17th of May, 1881.

There was a brief in support of the motion by Hall & Skinner, and oral argument by Mr. Hall.

Harlow Pease, contra.

LYON, J. This case was determined at the January term, 1880, and is reported in 49 Wis., 179. The direction of the court was, that the taxable costs be paid out of the estate of the testator. The costs of the contestants were thereupon taxed, and judgment for the amount thereof, payable out of the estate, was entered. The judgment fails to state that the costs therein mentioned were the contestants' costs. The contestants now move that the judgment be corrected so that the same will show that the costs taxed are their costs; also that an execution de bonis testatoris issue upon the judgment.

1. We are inclined to think that the judgment in its present form may be enforced by the contestants, but instead of

Will of Ebenezer W. Cole. [Motion.]

so holding we have deemed it advisable to order the correction asked. There is no rule of law in the way of making the correction at a term subsequent to the rendition of the judgment. The omission sought to be supplied is not the omission of the court. The proper judgment was directed, and if not entered as directed the failure may be corrected by the court at a subsequent term. This is the rule of Etna Life Ins. Co. v. McCormick, 20 Wis., 265, and of several other cases in this court.

2. It was stated in the argument of the motion, and not denied (although the motion papers do not show the fact), that the proponent of the will, who is the executrix and sole legatee named therein, has given the bond provided for in section 3795, R. S., to pay all debts and legacies of the testator. Doubtless this bond covers the costs in question, or any other liability against the estate of the testator. The effect of the bond is to pass to the executrix and sole legatee the absolute title to the whole estate, and to terminate the administration. Claims against the estate became, by the execution of the bond, claims against such sole legatee, and the remedy of general creditors of the estate was thereafter upon the bond or against the legatee, and not against the estate. This is the doctrine of the Massachusetts cases arising under the statute of that state, of which our statute is a copy. Thompson v. Brown, 16 Mass., 172; Clarke v. Tufts, 5 Pick., 337.

Because there is probably no property remaining which an execution de bonis testatoris would reach, the motion for leave to issue execution must be denied; but without prejudice to the right to renew it, should it transpire that no bond has been given.

By the Court. The former judgment will be vacated, and a corrected judgment, as above indicated, will be entered as of the same date. No costs are awarded to either party.

Barnard vs. Backhaus, imp.

BARNARD VS. BACKHAUS, imp.

November 28, 1879-July 7, 1881.

Gaming grain contracts.

1. To uphold a contract in writing for the sale and delivery of grain at a future day, for a price certain, it must affirmatively and satisfactorily appear that it was made with an actual view to the delivery and receipt of the grain, and not as a cover for a gambling transaction.

2. Where some of the transactions between the parties which enter into the consideration of a note and mortgage, are mere gaming transactions, they render the whole security void.

3. A note given by a principal to his broker for services rendered and moneys advanced in making and settling gambling grain contracts, is void.

R. S. 1858, ch. 169, sec. 16; Laws of 1858, ch. 117, sec. 6; Tay. Stats., p. 1881, § 16, and p. 1892, § 70.

APPEAL from the County Court of Milwaukee County. The complaint alleged that the defendant Backhaus made and delivered his promissory note for the sum of $1,000 to the defendants Bartlett and Mohr, then being partners under the firm name of Zinkeisen, Bartlett & Co.; that said firm afterwards indorsed the note to one E. Seckel, for a valuable consideration; that said E. Seckel, for a valuable consideration, indorsed said note to the plaintiff, before the same became due, and plaintiff is now the owner and holder thereof; and that no part thereof has ever been paid, and there is now due from the defendants to the plaintiff the said sum of $1,000 and interest.

The answer of the defendant Backhaus denied that said Zinkeisen, Bartlett & Co., for a valuable consideration, indorsed said note to said Seckel, or said Seckel to the plaintiff, before maturity, and averred that such indorsements, if any, were merely colorable, in order to prevent this defendant from setting up a defense to said note. It further alleged that the said note, with three others, was given to said Zinkeisen, Bartlett & Co. upon the following and no other consideration, to wit, in settlement of balances stated by said firm against this

VOL. LII-38