trade, he must account for the value of what is called the good-will of it." Defendant was accordingly charged with the profits from testator's death. Attention to this decision in later cases would have corrected the erroneous idea that good-will was necessarily and in all cases local, an idea which, as we have seen, prevailed for no inconsiderable time.

This case practically decided that the name of a literary production was valuable and constituted part of the good-will. For, as was said by the Master of the Rolls, in Bradbury v. Dickens, 27 Beav. 53, the property in a literary periodical like this is confined purely to the mere title, and the title of this work is 'Household Words,' and that forms part of the partnership assets, and must be sold for the benefit of the partners, if it be of any value." This principle of the value of the mere name of a newspaper or periodical has been frequently recognised. See Hogg v. Kirby, 8 Ves. 215; Bell v. Locke, 8 Paige Ch. 75; Holden's Adm. v. McMakin, 1 Pars. Eq. 270.

Thus far we have considered the question of good-will principally as affecting but a single person. But the cases occur most frequently on disputes between partners. It has frequently been held that the firm name constitutes part of the good-will belonging to the partnership. In Churton v. Douglas, Johns. Ch. R. 174, the Vice-Chancellor says: "The name of a firm is a very important part of the good-will of the business carried on by the firm. A person says, I have always bought good articles at such a house of business; I know it by that name, and I send to the house of business identified by that name for that purpose. There are cases every day in this court with regard to the use of the name of a particular firm, connected generally, no doubt, with the question of trade-mark. But the question of trade-mark is in fact the same question. The firm stamps its name upon the articles. It stamps the name of the firm which is carrying on the business on each article as a proof that they emanate from that firm; and it becomes the known firm to which applications are made, just as much as when a man enters a shop in a particular locality. And when you are parting with the good-will of a business, you mean to part with all that good disposition which customers entertain towards the house of business identified by the particular name or firm, and which may induce them to continue giving their custom *That the name is an important part of the good-will of

a business is obvious, when we consider that there are at this moment large banking firms, and brewing firms, and others, in this metropolis which do not contain a single member of the individual name exposed in the firm." Accordingly where the defendant John Doulas, formerly a member of the firm of John Douglas & Co., had sold all his share in the "good-will" of the partnership to plaintiffs, who were his former partners, he was restrained from using the firm name of John Douglass & Co., although his own name was John Douglass and he was associated with others in partnership, and the Vice-Chancellor went on to say that if the old firm name had been merely "John Douglas," and there had been a sale by an individual of that name of all his share in the good-will of the firm, and "that he had secured the three managing men in the former business, and was going, as here, to set up the old firm of John Douglas' with these three men, I should hold then, as I hold now, that he was not at liberty to trade under such misrepresentation."

The same principle was held in Rodgers v. Nowill, 3 De G., M, & G. 614, and 6 Hare 325. Joseph Rodgers & Co. obtained an injunction against John & William Nowill and William Rogers from stamping the name or mark "J. Rodgers & Sons," with a crown and the royal initials, upon articles of cutlery. Soon after this, W. Rodgers entered into partnership with his father, John R., and with a brother, and the three then began again to use the forbidden trade-mark, "J. Rodgers & Sons," together with the crown and the royal initials, and an unimportant addition thereto. Upon the plaintiffs moving to commit W. Rodgers, they were held entitled to the order, although the designation of "J. Rodgers & Sons" accurately described defendants' firm.

The case of a firm name assimilates this branch of good-will so nearly to trade-marks that it can hardly be doubted that the same principles are applicable alike to both. While, therefore, the limits of an article must preclude us from venturing upon the broad subject of trade-marks, it may not be out of place to inquire what are the general principles governing this species of property.

It was formerly thought that the sole preventive jurisdiction of a Court of Equity in regard to the improper use of a trade-mark or a firm name, or any symbol which indicated that the goods to which it was affixed was the work of a particular firm, was founded on fraud and deceit. But it was decided in an early case (Mil

lington v. Foy, 3 Myl. & Cr. 338) that a perpetual injunction would be granted against the use by one tradesman of the trademarks of another, although those marks had been so used bonâ fide, in ignorance of their being any person's property and under the belief that they were merely technical ternis. Lord COTTENHAM, Chancellor, said that he had "come to the conclusion that there was sufficient in the case to show that the plaintiffs had a title to the marks in question, and they undoubtedly had a right to the assistance of a court of equity to enforce that title. At the same time, the case is very different from the cases of this kind which usually occur where there has been a fraudulent use by one person of the trade-mark or names used by another trader." Perpetual injunction was granted. This case was decided in 1838, and was followed in 1864 by Hall v. Barrows, 33 L. J. Ch. 204. This is the most masterly exposition of the whole subject to be met with in the reports, and the reader will therefore pardon a very full citation from the opinion of Lord WESTBURY, who was then Chancellor.

"But it must be borne in mind that a name, although originally the name of the first maker, may in time become a mere trademark or sign of quality and cease to denote, or to be current as indicating, that any particular person is the maker. In many cases a name once affixed to a manufactured article continues to be used for generations after the death of the individual who first affixed it. In such cases the name is either accepted in the market, as a brand of quality, or it becomes the denomination of the commodity itself, and is no longer a representation that the article is the manufacture of any particular person. The case of Millington v. Foy, 3 Myl. & Cr. 338, * is very important as establishing the principle that the jurisdiction of this court in the protection of trademarks rests on property, and that fraud in the defendant is not necessary for the exercise of that jurisdiction."

*

"This distinction between a name and a trade-mark must be observed. It may be true that if a name impressed upon a vendible commodity passes current in the market, not as an indicium of quality, but simply as a statement or assurance that the commodity has been manufactured by a particular person, 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."

"The remaining question relates to the good-will of the business. I agree that the good-will ought to be included in any sale or valuation as a distinct subject of value, but I think it necessary that the direction to value the good-will should be accompanied by a declaration defining what is meant by the "good-will," ** that is to say, a declaration that the good-will is to be valued upon the principle that the surviving partner, if he be not the purchaser, shall not be restrained from setting up the same description of busiNo such restriction could be placed on the surviving partner if the sale were made to a stranger, but, even without any such restriction, there may be a subject of value denoted by the term good-will,' that ought to be taken into account in making the valuation.

ness.

**Inasmuch as the defendant, the surviving partner has by his counsel submitted and agreed to accept and take all the stock belonging to the partnership, according to the construction which the court shall put upon the word stock,'** I declare that the words 'stock belonging to the partnership,' include and de: ote the partnership business,*** also 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; and that the good-will 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 the partnership."

This same view had been already entertained by Lord Chancellor CRANWORTH (1856), in the case of Farina v. Silverlock, 6 De G., M. & G. 214, and to the same effect, see 2 Dan. Ch. Pr. 1648, and Partridge v. Mench et al., 2 Barb. Ch. 101, where Chancellor WALWORTH says "the court proceeds upon the ground that the complainant has a valuable interest in the good-will of his trade or business; and that having appropriated to himself a particular label or sign, or trade-mark indicating to them who wish to give him their patronage that the article is manufactured or sold by him, or by his authority, or that he carries on his business at a particular place, he is entitled to protection against any other person. who attempts to pirate upon the good-will of the complainant's

friends or customers, or of the patrons of his trade or business, by sailing under his flag without his authority and consent."

The term 'good-will' has been sometimes applied to another case, "where a retiring partner contracts not to carry on the same trade or business at all, or not within a given distance. This is an interest, which may be valued between the parties and may therefore be assigned with the premises and the rest of the effects to the remaining partner as an accompaniment of the ordinary good-will of the establishment. Good-will in the former sense is therefore an advantage arising from the mere fact of sole ownership of the premises, stock, or establishment, without reference to other persons, as rivals; and in the latter sense, as an advantage arising from the fact of excluding the retiring partner from the same trade or business, as a rival:" Story on Partnership, § 99. So in Kennedy v. Lee, 3 Mer. 440, Lord ELDON says "there is another way in which the good-will of a trade may be rendered still more valuable; as by certain stipulations entered into between the parties at the time of the one relinquishing his share in the business, as by inserting a condition that the withdrawing partner shall not carry on the same trade any longer, or that he shall not carry it on within a certain distance of the place where the partnership trade was carried on, and where the continuing partner is to carry it on upon his own sole and separate account." It is unfortunate that the loose illustration made by so great a man as Lord ELDON, understood with literal accuracy by Judge STORY, should have been preserved to confuse the student in a subject already not free from difficulty. Good-will, as we have tried to show, is a species of incorporeal personalty, and, as we shall show shortly, subject with but few exceptions to the general laws which regulate that kind of property. But what Lord ELDON speaks of is nothing more than the advantage derived and derivable from a contract, which may or may not last beyond the life of the person contracting according to the terms of the stipulation. To call this advantage good-will is to confuse by the use of popular language the exact and scientific definition of a species of property, the nature of which is only beginning to be understood, and of which, therefore, it is extremely important to keep the outlines clearly in view. We shall presently see what a variety of decisions has been occasioned by the apparent ignorance of the judge of what good-will was exactly, as we have already seen the change which has ensued regarding the