Vol. I.] LEA v. Wolff. [No. 9. all the plaintiffs or all the defendants are non-residents and join in the petition. Bryant v. Scott, Dev. & B. Eq. 155; Hazard v. Durant, 9 R. I. 609; Waggener v. Cheek, 2 Dill. 565; Case v. Douglas, 1 Dill. 299; Bixby v. Course, 8 Blatch. 73; Ex parte Andrews and Mott, 40 Ala. 648; Peters v. Peters, 41 Geo. 242; Cooke v. State National Bank, 52 N. Y. 113. Two cases only, besides the opinion given in this same case in the circuit court, to wit, Johnson v. Monell, 1 Wool. 390; Sands v. Smith, 1 Dill. 290, are cited to support the assumed theory, neither of which necessarily involved any such question, and the reasons given for the conclusion by the learned circuit judge, on the motion to dismiss the case in the circuit court, are not satisfactory. Judgment affirmed. MILLER, J. I dissent from the opinion of the court in this case in reference to the construction of the act under consideration, and for this reason I dissent from the judgment. BRADLEY, J., concurred in the dissent. When it is apparent that there is an intention to deceive the public by the use of the name of a place and the word descriptive of an article, such deception will not be protected by the pretence that such words cannot be used as a trade-mark. Where words and the allocation of words have, by long use, become known as designating the article of a particular manufacturer, he acquires a right to them as a trade-mark, which competing dealers cannot lawfully invade. The essence of the wrong is the false representation and deceit, on proof of which an injunction will issue. APPEAL from so much of an order of special term as denied an application for an injunction pendente lite restraining defendants from employing the words "WORCESTERSHIRE SAUCE" as a trade-mark. FANCHER, J. The imitation of the plaintiffs' labels on the celebrated article of their preparation was so palpable that the learned judge at special term granted an injunction against the defendants, restraining such imitation. He, however, held that in regard to the name -" Worcestershire Sauce -"it contains nothing but the name of the place where it is manufactured, and the word 'sauce' as descriptive of the article sold," and that "neither of these words can be used in such a manner as to give the exclusive use of them as a trade-mark." The learned judge referred to several decisions as authority upon the point. Among them is a case decided by himself, Wolfe v. Goulard, 18 How. Pr. Rep. 64. That case has been cited with approbation in thirteen States of the Vol. I.] LEA v. WOLFF. [No. 9. Union. But we are not called upon to extend the principle to a case where it is The In the last-mentioned case the plaintiff had purchased from Fulton & Co., of Glenfield, near Paisley, the good-will and trade-mark of their business. They had for several years prior to 1847 manufactered powdered starch, principally from East India sago, which was called "Glenfield patent double refined powder starch," and commonly, "Glenfield starch." plaintiff had actually removed his manufactory from Glenfield to Maxwelton, where the starch was made and sold, when he applied for an injunction against John Currie, trading as Currie & Co. Currie had rented a small building from Fulton & Co., at Glenfield, where he manufactured starch, which was sold in packets similar in size and appearance to those of the plaintiff, and which he labelled "The royal palace double refined patent powder starch, manufactured by Currie & Co., Glenfield." The plaintiff's case was that the defendant had taken the small building at Glenfield, and adopted the mark or label containing the name of that place, for the express purpose of inducing people to believe that his starch Vol. I.] BRADY v. AMERICAN STEAMSHIP Co. [No. 9. was the article made by the plaintiff. The vice-chancellor granted an injunction, although the defendant was an actual resident at Glenfield and his manufactory was there. It was dissolved on appeal, but reinstated and affirmed by the house of lords. The vice-chancellor said, "that no man had a right to avail himself of a trade-mark, or to adopt any other means whereby he should induce people to purchase his goods under the belief that they were purchasing the goods of another man; " and he was of opinion that "the defendant had pursued that course with the deliberate and fraudulent intention of palming off his starch upon the public as the starch of the plaintiff, and acquiring a sale of his starch by means of the connection and reputation of the plaintiff. 66 In Newman v. Alvord, 49 Barb. 588, it appeared that the plaintiffs for thirteen years had carried on business at the village of Akron, in the county of Erie, where they manufactured and sold cement, or water-lime, which they designated as " Akron cement" and "Akron water-lime." The defendants manufactured an article in Onondaga County, which they labelled "Alvord's Onondaga Akron cement or water-lime, manufactured at Syracuse, New York." They were perpetually enjoined from using the word " Akron " on their bills and labels, or in any other way in connection with the manufacture or sale of their cement or lime. The judgment awarding the injunction was affirmed at the general term, and also by the commission of appeals. As a general rule geographical names cannot be appropriated as trademarks, but the rule has its exception where the intention in the adoption of the descriptive word is not so much to indicate the place of manufacture as to intrench upon the previous use and popularity of another's trade-mark. The order appealed from should be modified and the injunction extended so as to prohibit the use of the words "Worcestershire sauce" on the bills, labels, and wrappers of the defendants. BRADY, J., concurred. DISTRICT COURT OF THE UNITED STATES. - SALVAGE SERVICE BY PASSENGER. BRADY v. AMERICAN STEAMSHIP CO. The rule is that a passenger cannot be a salvor, and any exception to it is to be admitted with the greatest caution. Where a passenger, who was a master navigator, assumed command of a ship of great value during a violent storm and after the master and other officers had been lost, and rendered efficient service during the continuance of the storm: Held, that he was to be regarded as a salvor. But having acted as master after the subsidence of the storm such passenger was held to have thereby detracted materially from the merit of his services, and the compensation was reduced accordingly. Vol. I.] BRADY V. AMERICAN STEAMSHIP CO. THE facts are set forth in the opinion. Messrs. R. E. Shapley & C. M. Neal, for the libellant. [No. 9. CADWALLADER, J. A vessel manned and otherwise fitted for a voyage is often spoken of as having an organized representative or artificial personality. A public armed vessel represents the sovereignty of the nation to which she belongs. A merchant vessel represents a little private community. It is a definite organized portion of the social system of her nation. Judges, on both sides of the Atlantic, have assimilated such a vessel, when on the high sea, to a floating portion of this nation's territory, of which, though temporarily detached, it continues to be a part. Her internal relations are determined by its laws, and her external relations by the laws of the sea, which constitute a part of the system of universal jurisprudence. Under certain qualifications, her ex-territoriality is, through international comity, recognized, even when she is in foreign ter ritory. These observations, in part, explain the remark of Montesquieu, that mariners are citizens or inhabitants of the vessel. They cannot rightfully leave her, unless their association with her is legally at an end, through the conventional termination of their voyage, or otherwise. Till then they can be compulsorily detained in her. The relation of a passenger to the vessel is different. If a sailor has been rightly described as an inhabitant of the vessel, and as in subjection to her government, a passenger may be compared to a mere sojourner in her who is only in temporary subjection. A passenger, while on board, may, indeed, be considered as one of her company, but not in the same light as one of the crew. The passenger may leave her at his pleasure, if an opportunity occurs before the end of his conventional passage; and may do so even in time of danger, however great. For this reason, if the vessel is in distress, and a passenger who has an opportunity of leaving her chooses to remain on board, he may stand afterwards, upon a question of salvage service, nearly or quite in the same relation as if he were not associated with her at all. He may therefore entitle himself to compensation of the nature of salvage, by rendering even service of ordinary bodily labor, as in pumping, or otherwise. But where he has had no such opportunity of dissociating himself from the vessel, he is, in time of danger, compellable to render, to the utmost of his ability, like service with any other person of her company; and, as to such service, cannot have any claim of salvage. It by no means follows that a passenger peculiarly capable of rendering extraordinary service, far beyond that of one of a good crew, is, in all cases whatever, compellable to render it; or that, if he does render it with useful effects, he cannot, in any case, become entitled to compensation of the nature of salvage. We may suppose the case of a ship, or her cargo, partially on fire, the ship having on board a passenger who is a chemist, with a sort of travelling laboratory. He may have, in this laboratory, the probable means of checking the fire, but perhaps not without some risk to himself and others, of increasing the danger. If, by professional skill and judgment, under the authority of the navigator of the vessel, the chemist makes the experiment, and there is a successful result, is he to receive no Vol. I.] BRADY V. AMERICAN STEAMSHIP Co. [No. 9. compensation? If he should be compensated, is not the compensation for a service of the nature of salvage? The decision in the case of the steamer Great Eastern answers the question. When that vessel was three hundred miles from land, her paddle-wheels were disabled, so that she could be moved by the screw alone. While she was in this condition, the rudder shaft was broken, and was disconnected from the steering gear, so that she became quite unmanageable. Her officers in vain endeavored to substitute and secure some appliance by which to work the shaft. A passenger, who was a mechanician, then devised, and, with the consent of the master and the assistance of the crew, executed a plan for the purpose, which was successful. This was done by a skilful use and adaptation of fixtures, tackle, and apparel of the vessel herself. For the service $15,000 was decreed to the passenger as salvage. 11 Law Times, N. S. 516. The reason of the decision was that this highly beneficial service had been peculiar and extraordinary, and such as he was not compellable to perform. This decision is, I think, right in principle. But it establishes what must be considered as an exception from a rule. The rule is that a passenger cannot be a salvor. The exception, lest it should engender litigation, and promote insubordination, must not be admitted without the greatest caution. Especially must such caution be observed where the passenger is of the nautical profession. In the present case, a large steamer, worth perhaps half a million of dollars, with passengers and a cargo, having four officers, beside the master, encountered in mid-ocean a tempest of great violence. During the storm, when changing watches at midnight, she shipped a heavy sea which stove in the forward hatches, and swept away the house forward, carrying overboard the master and first and second officers, with two of the crew. So long as any officer of a vessel is on board, and not disabled, there can be no suspension of the executive authority of her internal government. Therefore, at this crisis, the command legally devolved, at once, upon the third officer. He, however, did not assume it, but was for some time fully and usefully engaged in securing the forward hatches, or in superintending the securing of them. The fourth officer had been previously disabled, and was not on duty. The wheel was fully and properly manned, and this was at no time otherwise. But there was no officer of the deck surviving, and there was urgent necessity for such an officer to give directions to the men at the wheel. It was a crisis of great peril. There was, at all events, great seeming danger; and it would now be mere idling to inquire speculatively how far actual danger may really have existed. The after-born supposed wisdom from such a retrospect might be arrogant folly. There certainly was also great alarm, with ample supposed cause; and a general panic, if not prevented, might have soon ensued; and this might, in its consequences, have been dangerous if not disastrous. At this crisis the libellant intervened meritoriously. He was on board simply as a passenger, who, as such, had paid his fare. He was a competent professional master navigator, with former experience in the command of sailing vessels and of steamers. He went to the wheel-house and promptly assumed command or direction there, doing whatever was nec |