assert against the heirs her right under the v. Prater, 87 Tenn. 78, and in Odiorne's Apstatute to the estate of the deceased hus-peal, 54 Pa. 175, 93 Am. Dec. 683. And a like band, as his widow. The case at bar rule is to be found in the cases of Stephens v. presents more cogent reasons for the ap- Stephens, 51 Ind. 542; Yorston v. Yorston, 32 plication of the doctrine of estoppel. In this N. J. Eq. 495; Richeson v. Simmons, 47 Mo. case the wife was not ignorant of the applica 20; Baily v. Baily, 44 Pa. 274; Bourne v. tion for divorce, when it was made. She Simpson, 9 B. Mon. 454. was made a party, and appeared in the action; and after the decree was entered she accepted the alimony which she agreed to receive, and procured a license, and married her paramour, long before the death of Anthony,Shank. She accepted all the benefits of the decree, without reserve, and recognized its validity by contracting and consummating a marriage with Mohler. There could have been no more complete acceptance of the benefit of the decree. In the cited case, the court said: "We discover, upon principle, no sufficient reason why peti tioner's conduct in the premises should not pro- | duce just as effective an estoppel as if she had received the proceeds of a void judgment for money. By her subsequent marriage with Isra- | el during Arthur's lifetime, she accepted so far as was within her power the benefits or privileges of the divorce decreed. The fact that she did not then know that those decrees were void is a matter of no more consequence than is the ignorance, in this respect, of one who, knowingly in all other particulars receives the fruits of an ordinary void judgment at law. That at the time of her marriage with Israel she understood the decrees to be valid, is, if true, only an additional earnest of her acquiescence in the result, and sincerity in accepting and taking advantage of the benefits supposed to follow. Besides, had she believed them void, her obliquity would be even deeper than it is; because to her other alleged offenses would be added that of intentional fraud upon Israel, who may have thought that he was contract ing a valid marriage." In Ellis v. White, 61 The decree in the suit in equity, and the Iowa, 644, where plaintiff procured a divorce order sustaining the claim for a distributive and alimony upon a petition which she after-share in the estate, are reversed. wards claimed did not give the court jurisdiction, it was held that, whether the court had or had not jurisdiction, she, having accepted the benefits of the decree, could not be heard to question the jurisdiction of the court to render it. The same principle is announced in Prater↓

This exception to the doctrine that a judg ment or decree entered without jurisdiction is absolutely void is founded upon the plainest principles of justice. As applied to the case at bar, it is but the enforcement of the legal maxim that the law will not permit a person to take advantage of his own wrong. We can discover no reason why Mrs. Mohler should be allowed to masquerade in a court of justice as the widow of Anthony Shank, and at the same time claim that she was the wife of Mohler for about eight years before Shank died. Both the law and good morals forbid it. Having accepted the divorce as valid, in the way she did, she should be held to be estopped from maintaining any claim to any part of the estate of her former husband. The conclusion we have reached in this case on the question of estoppel is not directly supported by decisions of this court, but it appears to us that it is in harmony with modern legisla tion upon the relation of husband and wife. See chap. 2, title 15, of the Code. The rights of a wife in her property, and her capacity to contract with reference thereto, are plainly conferred upon her. Section 2213 is as follows: "Contracts may be made by a wife, and liabilities incurred, and the same enforced by or against her to the same extent and in the same manner as if she were unmarried." She cannot enter into a contract to divorce herself from her husband. But we discover no reason why the law of estoppel may not be applied to her acts in a case like this.

Deemer, J., took no part in the decision of this case.

Rehearing denied.

PENNSYLVANIA SUPREME COURT.

members of an independent congregation of the "Disciples of Christ," which was presided over by a clergyman of another congregation and held under a call directed by a tribunal of the elders of sister congregations to whom the majority appealed, and which was held in front of the church because the elders belonging to the minority had closed and locked its doors, when the laws or rules of the church do not provide for such proceeding, was wholly without authority to depose the old officers or elect new ones, but their remedy is by assertion of their rights as members of the congregation.

(October 5, 1896.)

PPEAL by defendants from a judgment of | congregation can express itself is by congregaA CT by defendanton Pleas for Centre tional meetings regularly held.

Where a charter of a society provides for an offense it directs the mode of proceeding and authorizes the society on conviction of a mem The power of the majority, as well as ber to expel him; this expulsion if the proceedthat of the minority, is bound by the disci-ings are not irregular is conclusive and cannot pline. be inquired into collaterally by mandamus action or other mode.

The right of possession of church property court: is joint only.

Liederkranz Singing Soc. v. Germania Turn- | lows: In 1832 a religious association or conVerein, 163 Pa. 265.

Mr. Wilbur F. Reeder, for appellees: In a church or other unincorporated associa-ples of Christ." At the commencement of tion where a meeting is duly announced for a certain purpose, and the congregation assembled in their associate capacity in pursuance of such an announcement, a majority of those present may act and the action or decision of those present by a majority vote shall be binding and conclusive on the society or association.

Our power of adjudication in disputes between warring church parties is limited. In such cases we can look into the rules of a church organization only to ascertain the church law, and, if that be not in conflict with the law of the land, all we can do is to protect the rights of parties under the law they have made for themselves. Our Brother Williams has so fully discussed this subject, and so clearly stated the rules that must govern courts in such litigation, in the late case of Krecker v. Shirley, 163 Pa. 551, 29 L. R. A. 476, that we need not repeat them.

theretofore and then a trustee, and one of master to report facts and suggest a decree. plaintiffs, was approved, as was also A. J. He took much testimony, and heard full arguGardner, one of defendants. A. J. Gardner, ment by counsel, but died before reporting to and R. C. Leathers were deposed as elders, and the court. Clement Dale, Esq., was appointed the congregation, for the time being, was in his stead, who, without hearing the arguplaced under the supervision and jurisdiction ment, made report. He suggested for decree of the elders at Eagleville and Lock Haven. that defendants be enjoined from acting as of Notwithstanding their deposition, the old ficers, or otherwise interfering with the occuboard of trustees continued to act, and the old pation of the church, and that some person be board of elders persisted in holding on to their appointed to give two weeks' notice of a conoffices, and by force and violent demeanor, gregational meeting of the members now in prevented the elders of Eagleville and Lock good standing, for the purpose of electing two Haven churches from assuming and exercis elders, three deacons, and three trustees, to ing the jurisdiction and supervision conferred serve for two years, and thereafter the elec upon them by the 25th of June meeting, and tions to be conducted according to the usages persisted, by force and threats, to debar a ma- of the church; the same person appointed to jority of the congregation from engaging in give notice to preside at the election, after worship in the church. That the 25th of June the election, the terms of present incumbents' meeting was constituted and held by compe- office to end. The president judge approved tent authority of the denomination, and all the report of the master, made in substance its proceedings were regular under the usages the decree suggested by him, and appointed of the church, and that the exercise of author-one A. M. De Haas, one who sided with plainity by defendants was wrongful. The prayers tiffs, to give notice and preside at the meeting for relief were that Harvey, the two Gardners, of the congregation. The two associate judges and Leathers be enjoined from acting as trus-filed a dissenting opinion, dismissing the bill, tees or elders, and from preventing Long and at the costs of plaintiffs. We have before Pletcher from assuming the offices to which us now the appeal from the decree of the presithey had been elected, and that they be further dent judge awarding the injunction. enjoined from preventing the elders of Eagleville and Lock Haven from assuming supervision of the congregation; and, further, that they and each of them be enjoined from excluding a majority of the congregation from worshiping in the church. The answer of defendants denies that those who appealed, called on the elders of the Eagleville and Lock Haven churches, and held the meeting of 25th of June, are a majority of the congregation; on the contrary, they aver that they compose but a small minority; that O. T. Noble and A. M. De Haas, neither of them members of the congregation, but acting as a committee for the meeting, attempted to take possession of the church property, and turn it over to the minority composing the meeting thus ousting the regular organization, and putting a wholly irregular one in control. They admit they resisted this unauthorized interference. They further aver that one Rev. W. L. Hayden, of Bellefonte, came with the sheriff at the hour of public worship, on the 10th of August following the meeting, and read a lecture or proclamation to them, commanding them to surrender possession of the church to the minority, which they refused to do. They further aver that the action of the 25th of June meeting, with the elders of the churches of Eagleville and Lock Haven, and clergymen from other congregations, was wholly unau thorized, and unknown to the rules and discipline of the church: that there exists no other power to adjust differences in a Disciples congregation than the elders and the congregation. and the congregation alone can depose officers duly elected; that this was a regular and fully organized congregation, with a duly elected pastor. Rev. G. W. Headley; that the defendants, the duly elected officers, representing a majority of the congregation, do not exclude any, but invite all the members to worship in said church. They therefore pray that the bill be dismissed, at plaintiff's costs. The court appointed the late D. S. Keller, Esq.,

Each party here claims to be a majority. When this trouble arose, the defendants were in office. Presumably, they were put there by a majority, and there is no evidence even offered to rebut this presumption. It is admitted that their term of office was indefinite, and they could only be deposed by a majority of the members. Assuming that a majority of the members demand the removal of these of ficers, what method should they legally adopt to effect their purpose? The law is settled that it must be done in compliance with the rules and discipline of the church. "A majority of the church organization may direct and control church matters consistently with the particular and general laws of the organism or denomination to which it belongs, but not in violation of them." Sutter v. First Re formed Dutch Church, 42 Pa. 503. The master finds as a fact that every Disciples congregation is practically independent. Other congregations of the same denomination may advise, but there is no superior tribunal of appeal. Both parties concede that they recognize no rule of conduct in cases of dispute except the New Testament. Alexander Campbell, the Disciples' greatest preacher, if not their founder, says: "It [the church] knows nothing of superior or inferior church judicatures, and acknowledges no laws, no canons or gov ernment, other than that of the Monarch of the universe and its laws." Daniel Sommer,

P. C. WIEST COMPANY

D.

William H. WEEKS et al., Appts.

(177 Pa. 412.)

1. The letters "W. H. W.," printed in script, in white, in a horizontal line, upon a red background, on boxes of confectionery, do not infringe a trademark which, as registered in the United States patent office, is described as the letters "P. C. W." generally arranged to appear as script printed in a horizontal line'upon a background of "any suitable color," distinctly stating that other forms of letters may be employed or that they may be differently arranged, and that the essential features are the letters "P. C. W."

an authority in the church, discusses the whole | lawlessness; but, if peace among members of a subject; and while he favors an appeal to other Christian church be impossible, then the courts churches for advice and aid in allaying church are open to the wronged members, as memdissensions, he comes to this conclusion: "The bers, and such remedy as the law warrants will question is often asked, Have we no right to be afforded. But the courts cannot sustain appeal from the decision of a church?" Cer- wholly unlawful attempts to right even wrongs. tainly the right of appeal is as free as the air The decree of the court below is reversed and we breathe. For our own justification, we may set aside, and the bill is dismissed, at costs of appeal to one church or a dozen, to one man plaintiffs. or a hundred. But among religious people who are strictly congregational in their church government, there is no authority in any tribunal that may be thus selected, especially a tribunal chosen by only one party. The decision of such a tribunal may have a moral weight, but it has no legal authority. There is nothing official about committees, even if mutually chosen. As each family is a separate government by itself, so is each congregation. No other family on earth has a right to come in and dictate to me and my family, and no other congregation on earth has the right to come in and dictate with reference to the affairs of the congregation where I hold my membership." Many other authorities were put in evidence before the master. decided weight of them tends to establish the rule in this particular denomination that each congregation is absolutely independent of any legal control by any other congregation, or by the clergy or officers of such other congregation. What are the admitted facts here? Against the protests of defendants, delegations from the Eagleville and Lock Haven churches, two ministers, one from Bellefonte and one from Williamsport, met with members of this congregation outside the church, and, by a vote, deposed these defendants, and elected in their places part of these plaintiffs, and approved and continued in office part of them. Where, in the rules of the church organization, exists the semblance of authority for this proceeding? The master does not point it out, and we have failed to find it in the evidence. It is said that Leathers and one of the Gard

The

2. Similarity in the size and shape of boxes for confectionery, which are obtained from box manufacturers and are sold to the trade without discrimination and known as "stock boxes," will not justify a finding in a trademark case that they were selected for an improper or fraudulent purpose.

3. The use of the same names for varieties of candy, by one who is charged with infringing a trademark, on the boxes of which such names do not form a part, does not sustain a charge of infringement of such trademark, but it can be complained of only as an attempt to represent the goods as those of the other party.

(Mitchell, Dean, and Fell, JJ., dissent.)

(October 5, 1896.)

ners were present at one of the hearings be-Court of Common Pleas for Luzerne County PPEAL by defendants from a decree of the fore the 25th of June, and had notice of the in favor of complainant in a suit brought to meeting. This is denied. But assume it to be true; both objected to the meeting when held, of a trademark alleged to belong to plaintiff. enjoin defendants from alleged infringement and refused to take part. We decline to consider the arguments bearing on the fairness and desire for peace displayed by the respective parties. Discussion of this subject would neither determine the existence of authority in the

meeting, nor the want of it. In the exercise of such a high authority as was attempted here, parties must point us to a clear, "Thus saith our church law." We are of opinion that the meeting of 25th of June was wholly without authority to depose the old officers, or to elect

new ones.

Reversed.

The facts are stated in the opinion.

Messrs. G. L. Halsey, Alexander Farnham, and Strawbridge & Taylor for appellants.

Messrs. H. W. Palmer and Niles & Neff, for appellee:

The facts found by the master are briefly: (a) The labels were calculated to deceive; (b) people were in fact deceived; (c) the defendant's design was to deceive buyers and purchasers, and to enable them to sell their manufactures on the strength of the popularity of the goods of the plaintiffs.

must be such that an ordinary purchaser of The resemblance between two trademarks the goods would be deceived by the similarity

between them.

But it is asked: "If the members represented by these plaintiffs be in a majority, how shall they obtain the rights of a majority?" We reply: "By exercising them as members of the congregation, and as the majority for more than sixty years has exercised them." The reply to this, perhaps, is: "Those in possession will exclude us from lawful participation in mond's Appeal, 103 Pa. 126, 49 Am. Rep. 118; congregational government." We are adverse to assuming that any of the members of this congregation, now that their lawful course of etion is pointed out to them, will act with

Gilman v. Hunnewell, 122 Mass. 139; Des

NOTE. For infringement of trademarks by similarity of the names of articles, see note to Munro v. Tousey (N. Y.) 14 L. R. A. 245.

It is no answer to a suit on a label of this description to assert that the individual parts of the design when separately considered are old or of common right to use.

McLean v. Fleming, 96 U. S. 245, 24 L. ed. | tion." Nothing short of the "omnipotence of 828; Tallcot v. Moore, 6 Hun, 106; Popham v. Parliament" is able to exclude a subject from Cole, 66 N. Y. 69, 23 Am. Rep. 22; Merrimack trade in England. 7 Bacon, Abr. p. 23. Two Mfg. Co. v. Garner, 4 E. D. Smith, 387; Dixon exceptions to this general rule were given by Crucible Co. v. Guggenheim, 7 Phila. 408; the early text-writers: First. "It seemeth clear Heinz v. Brueckmann, 134 Pa. 495; Morse v. that the King may, for a reasonable time, make Worrell, 10 Phila. 168. a good grant to anyone of the sole use of any art invented or first brought into the realm by the grantee." Second. The King may grant to particular persons the sole use of some particular employments, as "of printing the Holy Mc Lean v. Fleming, supra; Sawyer v. Horn, Scriptures and law books," etc. The some1 Fed. Rep. 24: Dixon Crucible Co. v. Guggen- what curious reason given for the second exheim, 7 Phila. 408, 2 Brewst. (Pa.) 321; Carbolic | ception is that an unrestrained liberty to print Soap Co. v. Thompson, 25 Fed. Rep. 625; the books to which it relates might be "of danLeclanche Battery Co. v. Western Electric Co.¦gerous consequences to the public." To these 23 Fed. Rep. 276; Frese v. Bachof, 14 Blatchf. exceptions a third must now be added, viz., 432, Price & S. Trademark Cas. 31; Landreth the right of a tradesman to the exclusive use v. Landreth, 22 Fed. Rep. 41; Wellman & D. of such signs, words, or symbols as he may Tobacco Co. v. Ware Tobacco Works, 46 Fed. have adopted and used in his business to disRep. 289: Shaw Stocking Co. v. Mack, 21 tinguish articles of his own production from Blatchf. 1; American Solid Leather Button all similar articles produced by other persons. Co. v. Anthony, 15 R. I. 338. These exceptions do not impair the force of the general rule, Erceptio probat regulam de rebus non exceptis. The rule is unrestricted lib

The test of infringement is similarity in general appearance such as would be likely to mislead one in the ordinary course of purchas-erty in the practice of all arts and trades, and ing the goods.

McLean v. Fleming, supra; Atlantic Mill Co. v. Robinson, 20 Fed. Rep. 217; Gillott v. Esterbrook, 48 N. Y. 374, 8 Am. Rep. 553; Dixon Crucible Co. v. Guggenheim, supra; Liggett & M. Tobacco Co. v. Hynes, 20 Fed. Rep.

883.

|

in the use of the methods by which they are conducted. He who asserts the right to an exclusive privilege in any department of business must bring himself under the protection of some recognized exception to the rule. The plaintiff in this case claims an exclusive privilege under the third exception, viz., the right A defendant cannot avoid infringement by to the sole use of a certain trademark adopted, using different words and names (Dixon Cru-used, and registered by them; and they allege cible Co. v. Guggenheim, and Sawyer v. Horn, | that the defendants have adopted and are now supra; Hegeman v. O'Byrne, 9 Daly, 264); or by using a trademark which is an imitation of, substituting his own name for that of the plain and an infringement upon, their own. It betiff. comes important, therefore, to learn just what the plaintiffs' trademark is, and then to determine whether it has been improperly imitated by the defendants.

Pratt's Appeal, 117 Pa. 401; Menendez v. Holt, 128 U. S. 521, 32 L. ed. 528; Leonard v. White's Golden Lubricator Co. 38 Fed. Rep. 922.

Defendant will be adjudged an infringer if the general effect has been copied, even though the particular trade symbol or trademark be omitted and the defendant's own mark or symbol be substituted.

Royal Baking Powder Co. v. Davis, 26 Fed. Rep. 293; Morie Nerce Food Co. v. Beach, 33 Fed. Rep. 248; Heinz v. Brueckmann, 134 Pa. 495; Conrad v. Joseph Uhrig Brewing Co. 8 Mo, App. 277; Southern White Lead Co. v. Cary, 25 Fed. Rep. 125; Wellman & D. Tobacco Co. v. Ware Tobacco Works, supra.

It need not be shown that there has been any actual intent to deceive (McLean v. Fle ming, supra); or that there has been any actual deception.

Dizon Crucible Co. v. Guggenheim, supra; Johnston v. Orr Ewing, L. R. 7 App. Cas.

219.

Williams, J., delivered the opinion of the

court:

Monopolies of any sort have never been favor. ites with the law. They were held by the common law to be against public policy because against common right. The grants, charters, letters-patent, or other form of device or assurance by the sovereign for their creation were declared by the act of Parliament of 21 Jac. I., chap. 3, to be "utterly void and of none effect, and in no wise to be put in use and opera

In the bill tiled in this case the plaintiffs' trademark is fully described, and the precise form in which it is registered in the United States patent office is given as follows: "Our trademark consists of the letters 'P. C. W.' These letters have generally been arranged as shown in the accompanying fac simile, in which they appear as script, printed in a hori zontal line, upon a background of any suitable color; but other forms of letters may be employed, or they may be differently arranged, without materially altering the character of our trademark, the essential features of which are the letters 'P. C. W.'" The business of the plaintiffs was the manufacture of confectionery goods, and particularly of that kind of confec tionery known as "caramels." The caramels, when finished, were put up in boxes of various sizes and forms, which are manufactured by box makers and sold to the public generally. The plaintiffs had no exclusive right to their use. They were what is known as "stock boxes.' When the boxes were filled the particular kind of caramel they contained was indicated by printed slips or labels pasted upon them in some suitable position, and another slip or label was placed on each box having the trademark “P. C. W.,” which indicated that the caramels were the genuine production of the plaintiffs' factory. These letters were the initials of the name of P. C. Wiest, and no one but the owner