The Attorney-General, Selwyn, Q.C., and Eddis, for the plaintiffs, the appellants. The goodwill of a partnership carried on without articles survives, and is not partnership stock, Hammond v. Douglas, 5 Ves. 539; and the right to the goodwill follows the right to the possession of the premises where the business is carried on, Farr v. Pearce, 3 Mad. 74; Hall v. Hall, 20 Beav. 139; Wedderburn v. Wedderburn, 22 Beav. 84. The contract is simply that the stock and effects shall be taken at a valuation; the thing to be valued is merely the material property, the property and effects belonging to the business-not the business itself, or the right of carrying it on, which belongs to the surviving partner. [THE LORD CHANCELLOR. "property"?] Is not a trade-mark The intention of the articles of partnership is, that the representatives of the deceased partner shall receive the full value of his share, and the trade-mark forms an important part of the value of the concern. The mark "B. B. H.," surmounted by a crown, originally adopted by the firm of Bradley, Barrows & Hall, had devolved upon, and had continued to be used by, the subsequent firms of Bramah, Barrows & Hall, and Barrows & Hall; and ought to be valued and treated as if a purchaser were coming in to succeed to all the rights of Barrows & Hall, the continuity of the business not being broken; the trade-mark followed the business, and devolved with it; on the death of Bramah, it had been sold and assigned by the parties; probably the letters had originally reference to the persons then constituting the firm, but it is im- No. A trade-mark is not property; it is a personal material what was the origin of the mark, for as used right, a mere right to use, and to prevent user by by the later firms it had ceased to have reference to another whereby the public is deceived and the pos the persons, and had become a mere mark of a par-sessor of the right is damnified; the distinction be ticular class of iron; it is necessary merely to look at its history in connection with the business to see that it is the stamp of the goodwill of the business; the right to use the brand is part of the partnership assets, capable of creating profits for the partnership, and ought therefore to be taken into account in the valuation. The mark is a brand of quality, and identifies the product of a particular business or firm; but it is indifferent to the public who are the persons carrying on that business or constituting that firm. The goodwill cannot be separated from the business, and cannot be sold without it; and the trade-mark must necessarily go with the goodwill, of which it is part, or of which, at any rate, it is the stamp, the only object of the mark being to secure the goodwill. The case is analogous to the use of the name of a firm; and a sale of the business of "Coutts & Co." would carry with it the use of the name of the firm, and the purchasers would have the right to identify themselves with the house of business whom they succeeded. They referred to Motley v. Downman, 3 Myl, & Cr. 1; Hobhouse, Q.C., and Fischer, for the defendant. The rights of the parties are governed by the partnership articles, and the contract is that the surviving partner shall have an option to purchase, and that gives him the goodwill. The goodwill is nothing more than the chance that customers will resort to the premises of the old firm, Crutwell v. Lye, 17 Ves. 335; tween property and a right of user is as well settled as Collins Co. v. Brown, 3 K. & J. 419, 426; Company, 1 H. & M. 271, 285; Perry v. Truefitt, 6 Beav. 66; Millington v. Fox, 3 Myl. & Cr. 338.] The distinction between local and personal trademarks, adopted by the Master of the Rolls, is recog nised in, Motley v. Downman (loc. cit.); Ex parte Thomas, 2 M. D. & D. 292; Hopkins v. Hitchcock, 32 L. J. (N. s.) 154, C. P. The whole value of the mark lies in the nature of the assertion made by it. The mark in the present case is not local; for the business is carried on at other places besides the Bloomfield works, and the same mark is used at all the manufactories. On the contrary, the mark is essentially personal, and refers to the partners constituting the firm at the time when the mark was adopted, and whose business-the same business, without any solution of continuity-has been carried on by their successors, who, as such successors, are entitled to use the old mark. It is true that the mark has not latterly represented with accuracy the names of the persons manufacturing, and equally true that if the mark asserts a falsehood, the Court will not protect the enjoyment of it; but Cook v. Collingridge, Jac. 607; and see 27 Beav. the mark "B. B. H." was an honest assertion origi. 456. nally, and has not ceased to be so merely by reason of the death or resignation of one of the partners, so long as the same business is carried on in unbroken succession. The question, however, is not whether the defendant is entitled to use the mark, but whether the Court will be auxiliary to an imposition on the public by selling the mark, and thereby inducing the public to believe that the goods sold by the purchaser of the mark are goods manufactured by the old firm. In Pidding v. How, 8 Sim. 477, Flavel v. Harrison, 10 Hare, 467, and many other cases, the Court has refused injunctions to restrain the use of trade-marks on the ground of fraud upon the public. A surviving partner is entitled to continue the use of the name of a firm, and to restrain the executors of a deceased partner from using it, Webster v. Webster, 3 Sw. 490, n.; A trade-mark is very similar to the name of a firm, and the right of user equally survives to the continuing partners or partner. to value of the share of such deceased partner. It was clear that the word "stock" included all that the articles declared to constitute the capital of the partnership, which comprised the iron-works, with the houses, lands, mines, and premises adjoining and belonging to the partnership, and the machinery and apparatus attached thereto, and the stock-in-trade, implements, tools, and other property belonging to the business. The partnership expired by effluxion of time on the 7th of May, 1858, but the business was carried on by the defendant and Mr. Hall down to the death of the latter in January, 1862, on the same terms, and in the same manner as before, without any new articles or agreement. The bill in the present suit had been filed by the executors of Mr. Hall for an account of the partnership dealings and transactions, and it prayed that the partnership, business, and all the stock, goodwill, property, and effects thereof might be sold under the direction of the Court. The Master of the Rolls In the course of their argument, they referred also had directed a sale of the iron-works, business, good Clark v. Freeman, 11 Beav. 112; will, and property of the partnership as a going con- Craushay v. Thompson, 4 M. & G. 357; 5 Sco. conduct the business in the meantime. Cook v. Collingridge, 27 Beav. 456 (the decree); As to the goodwill of a professional business, And with reference to the dicta in The Collins Company v. Brown, and other cases, he argued that it was meant, not that a trader's interest in a trade-mark was a mere personal and inalienable right, and a thing in which there could be no property, but simply that, considered in the abstract, independently of the use made of it, and apart from the articles to which it was affixed, there was no property in the mark; and he submitted that there was property in a trade-mark in 'connection with and as applied to the particular article upon which the trader branded it, and which had become known in the market by that mark or brand. 21 DEC. 1863. THE LORD CHANCELLOR said.-By the articles of partnership between the defendant Barrows and the late Joseph Hall, dated the 3rd of May, 1847, it was, in effect, provided that in case either of the partners should die during the partnership, and should not nominate a son to succeed him, the surviving partner should have the option of taking to himself all the stock belonging to the partnership on paying to the personal representatives of the partner so dying the amount or It was stated at the bar that the sale was directed as the best mode of ascertaining the value of the property, and that it was not intended to deprive the surviving partner of his right to take the share of the deceased partner-a right which he was desirous of exercising; but he could not understand how a sale could be used merely for the purpose of ascertaining the value. If it was intended to make the surviving partner outbid every other offer, great and unjust exaction might be the result; and, on the other hand, if the object of the sale became known, bond fide bidders would not be likely to attend, and the purpose of the sale would be entirely frustrated. Inasmuch, therefore, as the plaintiffs were willing that the defendant should buy the stock at a valuation, and as the the Court that he would purchase all that the Court defendant by his counsel had given an undertaking to might find to be the stock of the partnership, at such prices as the Court should fix to be the value thereof, he must direct that the value of the property should be ascertained in Chambers in the usual manner. But the defendant objected that the goodwill of the business, and also a certain trade-mark used by the partnership, ought not to be included in the valuation. The Master of the Rolls was of opinion that the goodwill must be included in the sale, but that the trademark could not be sold. The circumstances attending the trade-mark were these :-The iron-works in question were in the year 1836 carried on by the testator Joseph Hall, the defendant Barrows, and one Richard Bradley, in partnership, under the firm of Bradley, Barrows, & Hall. In the year 1844 Bradley retired, and one John Joseph Bramah became a partner, and a new partnership was and "Crowley Millington." It appeared that the defendants had used the marks in ignorance of the existence of the plaintiffs' firm, and of the origin of the marks themselves, believing them to be marks used universally in the steel trade; but a perpetual injunction was granted on the ground that the plaintiffs were entitled to the exclusive use of the marks in question. That case not only showed how the name of the first maker might become a mere sign of quality, but was very important as establishing the principle that the jurisdiction of the Court in the protection of trade-marks rested on property, and that fraud in the defendant was not necessary for the exercise of that jurisdiction. formed under the style of Bramah, Barrows, & Hall. That partnership continued till the death of Mr. Bramah in 1847, when a new partnership was formed under the style of Barrows & Hall. The business of those several partnerships was extensive, and the firm of Bradley, Barrows, & Hall began by marking all or the greater part of the iron manufactured by them with a particular mark or brand, consisting of the letters B. B. H. and a crown, the letters being the initials of the partnership firm. The use of that trademark was continued by the two succeeding partnerships, and, as it would appear, was now used by the manager appointed by the Court. The iron being of superior quality, the mark or brand had become well known in the market, and the right to use it was In the present case it appeared clear to his Lordrepresented as being of considerable value. ship, that the brand introduced by the original part. The Master of the Rolls, in his judgment, had nership in 1836, and which had ever since been entered at some length upon the subject of trade-used, consisting of the three initial letters B. B. marks. If he understood him rightly, his Honour had divided trade-marks into local marks, i. e., marks which indicated that the articles branded were made at a particular place, and personal marks, i. e., marks which expressed that the articles branded were made by a particular person or firm. The Master of the Rolls was of opinion that the right to use local trade-marks might be sold with the manufactory or works to which such marks referred; but that the right to use personal trade-marks ought not to be sold, because the use of them by any other person than the person denoted by the trade-mark would be a false representation to the public. But it must be borne in mind that a name, although originally the name of the first maker, might in time become a mere trade-mark or sign of quality, and cease to denote, or to be current as indicating, that any particular person was the maker. In many cases a name once affixed to a manufactured article continued to be used for generations after the death of the individual who first affixed it. In such cases the name was either accepted in the market as a brand of quality, or it became the denomination of the commodity itself, and was no longer a representation that the article was the manufacture of any particular person. The case of Millington v. Fox afforded an example of the manner in which the name of the original manufacturer, being branded on the article made, became in time a mere indication of the quality. In that case the words "Crowley" and "Crowley Millington" had been used for a great many years—the first by a person named Crowley, who invented a particular mode of manufacturing steel more than a century ago, and the words "Crowley Millington" by a firm of Crowley and Millington who succeeded him-as brands or marks on steel manufactured by them respectively. The bill was filed by two persons of the name of Millington, who were descendants of the original Millington, and who used the same mode of manufacturing steel, and the same marks or brands of "Crowley" H., surmounted by a crown, had become a mere trade-mark or symbol, and was no longer recog nised or passed current in the market, if it ever did so, as a guarantee or representation that the goods so marked were the manufacture of the original partner ship of Bradley, Barrows, and Hall. If it were not so the firm of Hall and Barrows would not have been entitled to use those initials, which they had done as matter of right; and the present case must be determined on the assumption that their partnership was so entitled. The distinction between a name and a trade-mark must be observed. If a name impressed upon a vendible commodity passed current in the market, not as an indicium of quality, but simply as a statement or assurance that the commodity had been manufactured by a particular person, it might be true that the Court would not sell and transfer to another person the right to use the name simply and without addition; but if the Court sold the business or manufacture carried on by the owner of the name, it would give to the purchaser the right to represent himself as the successor in business of the first maker, and in that character to use the name. But in the case before his Lordship it was clear that the letters which formed the trademark in question had ceased to be the initials of the partnership firm since the beginning of the year 1847, when the new style of Barrows & Hall was adopted. How the new partnership of Barrows & Hall acquired the right of using the brand did not appear; but the mark must have been current in the market as a brand of quality, and not as indicating that the iron was manufactured by the original firm. In fact, there was no evidence that the mark was ever current or accepted in the market as a representation of the persons who manufactured, or of the place of manufacture, or in any other manner than as a brand of quality. It was easy to see how the name of a manufacturer might become merely a sign of good quality. No doubt when, at the opening of the Bloomfield Iron-Works by the original firm of Bradley, Barrows, & Hall, in the year 1836, the iron made at the works was sent into the market branded with their initials, its quality attracted attention, and gained credit and notoriety for the brand; the excellence of the iron and the brand being thus associated, buyers would inquire for the iron so branded, and would make purchases in the market, relying on the reputation of the brand without inquiring into its origin or its meaning. There was nothing in the answer or evidence to show that the iron marked with those initials had acquired its reputation in the market from the fact that it was believed to be the actual manufacture of one of the two original firms. If his Lordship were to adopt the distinction drawn by the Master of the Rolls between local and personal trade-marks, he should be more inclined to treat that mark as incident to the possession of the Bloomfield Iron Works; for it had been used by the successive owners of those works, and seemed to have been used by the last partnership in no other right. In that respect the present case resembled Motley v. Downman. But it was unnecessary to pursue that farther; for he was of opinion that those initial letters, surmounted by a crown, had become, and were, a trade-mark properly so called, i. e. a brand which had reputation and currency in the market as a sign of quality; and that, as such, the trademark was a valuable property of the partnership, or an addition to the Bloomfield Works, and might be properly sold with the works, and properly included as a distinct subject of value in the valuation to the surviving partner. It must be recollected that the question before his Lordship was simply, whether the right to use the trade-mark could be sold along with the business and iron-works, so as to deprive the surviving partner of any right to use the mark in case he should set up a similar business. Nothing that he had said was in tended to lead to the conclusion that the business and iron-works might be put up for sale by the Court in one lot, and the right to use the trade-mark as a separate lot, and that one lot might be sold and transferred to one person, and the other to another. required only that he should decide that the exclusive right to the trade-mark belonged to the partnership as part of its property, and might be sold with the business and works; and that, as it might be so sold, it must be included in the valuation to the surviving partner. The case It had been pressed upon his Lordship, on the part of the defendant, that there was no property in a trademark, and that the right to relief was merely personal, founded on the fraud that was committed when one man sold his own goods as the goods of another. It was true that the cases contained expressions by eminent Judges, that there was no property in a trademark, which must be understood to mean that there could be no right to the exclusive ownership of any symbol or mark universally in the abstract. Thus an iron-founder, who used a particular mark for his manufactures in iron, could not restrain the use of the same mark when impressed upon cotton or woollen goods; for the property in a trade-mark consisted in the exclusive right to the use of that mark as applied to some particular manufacture. Nor was it correct to say, that the right to relief was founded on the fraud of the defendant, as appeared by the case of Millington v. Fox already referred to. Imposition on the public was indeed necessary for the plaintiff's title, but in this way only, that it was the test of the invasion by the defendant of the plaintiff's right of property; for there was no injury done to the plaintiff if the mark used by the defendant was not such as might be mistaken, or was likely to be mistaken, by the public for the mark of the plaintiff. But the true ground of the Court's jurisdiction was property. The remaining question related to the goodwill of the business. He agreed with the Master of the Rolls that the goodwill ought to be included in any sale or valuation as a distinct subject of value, but he thought it necessary that the direction to value the goodwill should be accompanied by a declaration defining what was meant by the goodwill, at least negatively--that was to say, a declaration that the goodwill was to be valued upon the principle that the surviving partner, if he were not the purchaser, should not be restrained from setting up the same description of business. No such restriction could be placed on the surviving partner if the sale were made to a stranger; but, even without any such restriction, there might be a subject of value denoted by the term goodwill that ought to be taken into account in making the valuation. The result therefore was, that his Lordship would reverse the decree of the Master of the Rolls; and, inasmuch as the defendant, the surviving partner, had by his counsel submitted and agreed to accept and take all the stock belonging to the partnership, according to the construction which the Court should put upon the word "stock," his Lordship would direct as follows: --- Minute. The order for sale made by the Master of the Rolls to be reversed. Declare that the words "stock belonging to the partnership" include and denote the partnership business and the iron works, with all the houses, lands, mines, and premises adjoining and belonging to the partnership, together with the machinery and apparatus attached thereto, and all the stock-in-trade, implements, tools, and other property belonging to the business. Declare that the exclusive right to use the trade-mark of the partnership is part of the property of the partnership, and ought to be included in the valuation. Declare that the goodwill of the business of the partnership ought also to be valued, and that the same is to be valued on the footing of the surviving partner being at liberty to set up and carry on the same business as that of the partnership. Refer it to the Judge in Chambers to make the valuation accordingly, as of a Will, Construction-Qualifying Clause- A testator devised his R estate to D and the heirs of his body, subject to two annuities, and directed that his residuary real estate should be the primary fund for payment of debts and legacies; and that his R estate "hereinbefore devised subject as aforesaid to D and the heirs of his body," should not be liable to pay debts or legacies unless his residuary real estate should prove insufficient (which was the case) : cies, the legacy given by the codicil is not a charge on the Roscrea estate. For the testator having charged his estates in Ireland generally, must, according to the principle laid down in Conron v. Conron, 7 H. of L. Ca. 168, be considered as having excepted from the charge the estate which he had previously devised specifically, Creed v. Creed, 11 Cl. & Fin. 491. The Attorney-General, Wickens, Phear, and H. R. Young, for the various respondents, were not called on. 21 DEC. 1863. THE LORD CHANCELLOR said, that he had consi dered the arguments addressed to him on behalf of the appellants, but had no doubt that the decree of the Vice-Chancellor ought to be affirmed. The question arose upon the construction to be put Held, that only the interest which D took in the Rupon the words " my Roscrea estate hereinbefore estate was charged with debts and legacies, and that, therefore the annuities had priority over the legacies. The legacies with which the residuary real estate was expressly charged were those given by the will or by any codicil thereto, unless a contrary intention should appear by such codicil. A codicil charged an annuity upon the testator's "estates in Ireland." The testator had no real estate not in Ireland: Held (notwithstanding Conron v. Conron, 7 H. of L. Ca. 168), that there was no indication of intention that the R estate should not be charged with this annuity. 1st. In respect of their charges on the Roscrea estate, the annuitants and legatees take pari passu : (a) For the annuities, and the estate subject to the annuities, are both equally specific legacies. The case is the same as if the testator had given a part of the estate to A, and all but that part to B. In that case, if the whole estate were charged, A and B would have to contribute pari passu. The words "hereinbefore devised," &c., are merely words of narration, and do not qualify the substantive term "Roscrea estate," Hamilton v. Jackson, 2 Jo. & Lat. 295; 9 Ir. Eq. (b) The charge is a charge of debts and legacies; therefore, if the Vice-Chancellor's judgment is correct, the testator must have intended to exempt the annuities from the liability to contribute to the debts-an intention not to be imputed without necessity, Maskell v. Farrington, 1 N. R. 37. devised subject as aforesaid to George Damer and the heirs of his body." It had been argued that the words, "herein before devised, &c.," added to the substantive "Roscrea estate," were not to be taken as part of the description of the subject matter with which the testator was dealing, but as mere words of narration or reference added to a term already sufficient-in fact, that the will should be read as if the words were, "my Roscrea estate, which I have hereinbefore devised, &c." But such a construction, inasmuch as it made the added words superfluous and unnecessary, while the contrary con struction gave effect to every word, could not be adopted. Even if it were adopted, it would not get rid of the effect of the words, "subject as aforesaid.” What Colonel Damer took, and nothing else, was the thing charged, and as Colonel Damer took the Roscrea estate burdened with the annuities, it was only the estate so burdened that was liable to the debts and legacies. In other words, the annuitants had priority over the legatees. There In reference to the second point, his Lordship thought that the legacy given by the codicil ranked with the legacies given by the will, and was charged upon the Roscrea estate in like manner as they were. was no such expression of intention in the codicil as would be sufficient to limit the extent of the charge, which, in the absence of any such expression, this legacy would naturally carry. The decree of the Vice-Chancellor would, therefore be affirmed, and the appeal dismissed with costs. Lord Chancellor. THE LEATHER CLOTH, COMPANY (Limited) THE AMERICAN LEATHER CLOTH COMPANY (Limited). Trade-mark-False Representation. Where any label or symbol[claimed as a trade-mark 2nd. Whatever may be the case as to the other lega- is so worded or constructed as tomake or contain a material |