appears to have. been induced by the plausible and eager anticipations-generally entertained by debtors in failing circuillstancesthat by indulgence and good management in making sales of their goods at fair prices, and collecting the debts due them, they would be able in a short time to relieve themselves from financial embarrassments. The evidence further shows that their property was overestimated in value, and they did not have the means and resources from which enough could be realized to pay all their debts uuder forced sa,les by execution, and that their purpose in gaining time to dispose of their goods without ruinous sacrifice was for the primary benefit of creditors, and not for their personal advantage. Upon a careful review of all the facts and circumstances developed by the evidence, I am of opinion that the plaintiff by his proofs has failed to sustain the allegations of fraud against the defendants, as stated in his bill. I deem it unnecessary to consider the motion of the defendants' counsel to dismiss the bill for the defects and irregularities specified in the brief and argument. Let the bill be dismissed. BOND, J., concurs.
STAOHELBERG and others v. PONOE.
(Oircuit Court, D. Maine. February 23, 1885.)
TRADE-MAnit-USE BY ASSIGNEE OR PURCHASER-DECEPTION-INFRTNGEUENTINJUNCTION.
An assignee or purchaser of a trade-mark from the original proprietor must in the use thereof indicate that he is assignee or purchaser, or he will not be entitled to protection in the use of the murk so assigned.
In Eqnity. Clarence Hale, for complainants. William Henry Clifford, for defendant. COLT, J. In this suit the complainants claim the exclusive right to the use of the trade-mark "La Normandi," or "Normandi," which is applied to a brand of cigars, and charge the defendant with infringement in using the words "E. P. Normanda," or "Normanda," or "Normandie," upon a brand of cigars made and sold by him. The complainant Stachelberg obtained, by assignment from one Asher Bijur, of New York, the exclusive right to use this trade-mark, and he subsequently conveyed the right to t.he firm of Stachelberg & Co., the complainants. It appears that Bijur was the originator of the trade-mark, and had used it for some years, building up quite an extensive sale for this brand of cigars by reason of their good quality. The originaltrade.mark bore the name of the maker, "A. Bijur," and
STACHELBERG V. PONCE.
also the initials Cl A. B." Upon the assignment of the trade·mark to Stachelberg, he substituted his own name, "M; Stachelberg," and the initials "M. S." In this form the trade-mark was registered by, Stachelberg & Co. in 1876, under the United States law, which has since been declared unconstitutional. Trade-mark Cases, 100 U. S. 82. In this case, therefore, the complainants stand on their common.law rights. The defendant denies the charge of infringement, and rests his defense on various grounds. Whatever may be thought of the remaining defenses, there is one point which we think is well taken, and therefore fatal to any relief prayed for in the bill. In the use of the trade-mark the complainants do not state that it was obtained by assignment or purchase from A. Bijur. Bijur originated the trademark, and it thus became a sign of the quality of the article he Bold, and an assurance to the public that it was the genuine product of his manufacture. A trade-mark must, either by itself or by association, point distinctively to the origin or ownership of the article to which it is applied. Canal Co. v. Clark, 13 Wall. 311. It imports that the article is made by the original proprietor, and therefore genuine, and the law protects the original proprietor, not only as a matter of justice, but to prevent imposition on the public. Mcmhattan Medicine Co. v. Wood, 108 U. S. 218; S. C. 2 Sup. Ct. Rep. 436. Now, in order thltt the public may not be deceived, it is essential that an assignee or purchaser of the original proprietor should indicate in the use of the trade-mark that he is assignee or purchaser,Sherwood v. Andrews, 5 Amer. Law Reg. (N. S.) 588,-otherwise the public are misled into purchasing the goods of another manufacturer or vendor as those of the original proprietor. If these complainants have any right of action against the defendant, it is upon the ground that, by copying the trade-mark "La Normandi" in substanee, he is misleading the public by false representations into the purchase of his cigars as those made by A. Bijur, the original proprietor of the trade-mark. Canal Co. v. Clark, supra. And so these complainants, in failing to give notice that they are the purchasers and assignees of the trade-mark from A. Bijur, are practicing the same deception towards the public which they charge against the defendant. The fact that the name "M. Stachelberg" is attached to the trade-mark can no more relieve the complainants of the charge of misrepresentation as to the public than the use of the name "E. Ponce" or "E. P." can relieve the defendant of such a charge. It is the use of the fanciful words "La Normandi," or words of substantial similarity, that is calculated to mislead. The supreme court, in illanhattan 11Jeclicine Co. v. Wooel, declare that the object of a trade-mark being to indicate by its meaning and association the origin or ownership of the article, it would seem that when a right to its use is transferred to others, either by act of the original manufacturer or by operation of law, the fact of transfer should be stated in connection with its use, otherwise a de·
ception would be practiced upon the public, and the very fraud accomplished, to prevent which courts of equity interfere to protect the exclusive right of the original manufacturer. Under the rule laid down in Manhattan Medicine Co. v. Wood, the complainants have no standing in a court of equity, and the bill must be dismissed.
HU.LS and others v. STOOKWELL & DARRAGH FURNITURE Co.
(Oircuit Oourt, W. D·.Michigan, S. D.
Jlrlarch 4, 1885.)
FRAUD ON CREDITORS-CHATTEL MORTGAGE-PREFERRDfG CREDITORS.
In Michigan an insolvent debtor has a legal right to secure one or more bona jidecreditors in preference to others, where no fraud is intended; and the mere fact that a chattIe mortgage given for that purpose operates incidentally to hinder and delay other creditors in collecting their deLJts does not affect the security. The Michigan statutc declares that the question of fraudulent intent· is one of fact and not of law.
SAME-FRAUDULENT INTENT-QUESTION OF FACT.
SAME-RE'fENTION OF POSSESSION WITH POWER OF SALE.
Provisious in a chattel mortgage that the mortgagor shall continue In possession of t,he property, and continue sales thereof at wholesale and retail, with an omission of a stipnlation to apply the proceeds of sales to )lay the secured debts, do not make out constructive fraud or fraud in law.
SAME-CONVEYANCE WHEN VOID IN LAW.
When a court says the law declares a conveyance void for fraud, or imputes to it fraud, what is meant is that the law will not sanction a conveyance, against the claims of creditors, when its p,rovisions are illegal or are not reconcilable with an honest purpose, and then declares it void upon its face because no evidence could change its character; as, in case of a dced made hya debtor for his own support or benefit, or for the benefit of those dependent upon him for support, or without consideration, and the like.
Chattel mortgage executed by a manufacturing corporation to secure indorsers of its paper, most of whom were its directors, containing a provision that the mortgagor should retain possession of the property and sell it at wholesale retail, construed, and !Leld not fraudulent as matter of law, flnd ground for an attachment.
Assumpsit. Order nisi for the dissolution of an attachment. Smiley If Earle, for plaintiffs. R. W. Butterfield, for defendant. WITHEY, J. On the twenty-second of December last the plaintiffs sued out a writ of attachment against the property of the defendant, based on an affidavit that the latter had disposed of its property with intent to defraud its creditors, and seized part of the personal property which, in August previous, the defendant had chattel mortgaged to Wilder D. Stevens, in trust to secure five persons. indorsers of its paper, aggregating about $87,000, and also to secure its employes for labor debts, due and to come due. The mortgage covered the entire 3tock in trade of the company, including lumber, furniture, and per-