mark to be entitled to protection by injunction, | quality and make from the Wamsutta muslin that even in the absence of any actual intention to they could not possibly mistake one for the other. simulate it. The only question is whether the resemblance of "Wamyesta" to "Wamsutta" is so great as to be misleading. Amoskeag Co. v. Spear, 2 Sandf. S. C. 599. Colladay v. Baird, 4 Phila. 139. Witthaus v. Wallace, 2 WEEKLY NOTES, 610. It must be obvious, however, that the question is not whether experts would be deceived, but rather whether persons who buy would probably be deceived by the name which the defendants have adopted. Upon this point we are of opinion that the resemblance between the two words is of a character to deceive and mislead a certain class of purchasers—those who are acquainted with the reputation of the Wamsutta muslin, but who have little knowledge of the fabric itself. Such persons might readily confuse the two names and purchase the defendants' shirts for shirts made of the plaintiffs' muslin. "Wamyesta" might well be mistaken by many people for "Wamsutta," in view of the fact that, as appears by the proofs, there is only one muslin manufactured which is known by a name resembling that which the defendants use. It is difficult Wamyesta to conceive that the defendants have adopted this name innocently or by accident. The resemblance is strongly suggestive of the hypothesis that the defendants have adopted it because of the facility with which the two words may be confused in the minds of a certain class of purchasers. I need not cite authorities to show that a man may acquire property in a trade-mark, or that having acquired it he is entitled to the restraining process of a Court of Equity to prevent the injury he will experience by its being unlawfully appropriated or imitated by others. October 22, 1878. THE COURT, The defendants, as appears by the bill and affidavits filed, are selling shirts which are stamped "Wamyesta," and which are advertised by them as "made from Wamyesta muslin." It is proved, and indeed admitted, that there is no muslin manufactured which is known as 66 muslin." The plaintiffs are engaged in manufacturing a muslin of excellent quality, which has obtained an extensive reputation, and which is well known in the market as "Wamsutta muslin." The plaintiffs charge that the defendants have selected the name "Wamyesta" because of its resemblance in sound and appearance to the name "Wamsutta," and with intent to deceive purchasers and to pass off their shirts as shirts made of "Wamsutta" muslin; that the imitation is a fraudulent appropriation of the plaintiffs' trade-mark, and is injurious to them, being calculated to impair the reputation of their manufacture and to injure them seriously in their business, because the muslin of which the defendants' shirts are made, and which they sell as shirts made of "Wamyesta" muslin, is of a quality much inferior to the muslin manufactured by the plaintiffs, and known as "Wamsutta muslin." The defendants, in their answer and affidavits, do not give any satisfactory explanation of their selection of a name so much resembling the plaintiffs' trade-mark in general appearance and sound, nor have they assigned any satisfactory reason for advertising their shirts as shirts "made from Wamyesta muslin," when no muslin exists which is known by that name. They content themselves with alleging that there is no such resemblance between the two words as would be calculated to mislead the public, and that the muslin of which their shirts are made is of such a different description from the plaintiffs' muslin that no one having knowledge of the kind of muslin made by the plaintiffs, and exercising ordinary caution, could mistake one for the other. They have also produced affidavits of numerous shirt-makers and of persons engaged in the sale of muslins, declaring that the muslin used by the defendants in these shirts is of such different As to the point made by the defendants that the plaintiffs are manufacturers of muslins and the defendants are manufacturers of shirts, and therefore the plaintiffs cannot complain of the use of their trade-mark, or a servile imitation of it by defendants when affixed to their shirts, we do not see the force of such reasoning. It is too plain to require any demonstration that if the defendants manufacture shirts of a muslin greatly inferior in quality to the plaintiffs' muslin, and pass them off upon the public as shirts made of the plaintiffs' muslin, the plaintiffs may suffer greatly thereby in their reputation as manufacturers, and consequently in their sales of the muslin which they manufacture. Against this injury the plaintiffs are entitled to be protected by the writ of injunction, for the acts of defendants are, in the language of the act conferring this jurisdiction, "contrary to law and prejudicial to the rights of individuals.” Motion refused, and it is ordered that the preliminary injunction heretofore awarded be continued until further order. Opinion by THAYER, P. J. pered by a special plea. The plea does not aver that the defendant has ever paid or tendered to the plaintiff his dividend under the composition, hence his right of action on the debt is not barred by virtue of the fact set forth. Debts created by the fraud of the bankrupt are not discharged by proceedings in bankruptcy. U. S. Stat. March 2, 1867, 8 33; U. S. Rev. Stats. (2d ed.) 5117. Nor are such debts discharged by a composition in bankruptcy under the Act of 1874. Under these circumstances, plaintiff should not be obliged to demur to this plea, or move the Court to strike it off. Rule absolute. June 10, 1878. Commonwealth v. Naile. Escheat-Tenant in possession—Limitation— Trust estate-The State is barred from asserting an escheat unless proceedings have been begun within 21 years after the death of the intestate who was seized or possessed— Where the intestate is only entitled to an interest after the expiration of a life estate, no escheat takes place-The intestate must be actually seized or possessed at the time of death-Property in the hands of a trustee is not subject to escheat-Act of September 29, 1787-Act of April 8, 1833 -Act of Dec. 16, 1869. This was an action of deceit with a count in trover. The defendants, having pleaded the C. P. No. I. general issue "Not guilty," asked leave to file a special plea setting forth that proceedings in involuntary bankruptcy had been commenced against them in the Southern District of Ohio; that a petition for composition of the defendants' indebtedness was afterwards filed, and, under the direction of the Court, a meeting of creditors was called at which a resolution was adopted accepting the composition proposed, the same having been signed by the required number of creditors; that the indebtedness to plaintiff set forth in the declaration in this case with the name and address of plaintiff was included in the statement presented at said meeting; that the composition was approved and confirmed by the Court, and that the defendants have complied with the terms of said resolution in composition, and are thereby discharged of the cause of action complained of by plaintiff. G. H. Van Zandt, for the rule. The bankruptcy of the defendant cannot be given in evidence under the general issue, and must be specially pleaded. 2 Tr. & H. Pr. (4th ed.) 47. I Chit. Prec. (1st Am. ed.) 246 n. (n). Stephen on Pleading (Tyler's ed.), 176 n. (v). [PEIRCE, J. The validity of this plea depends upon whether or not the action is brought for a debt.] The cause of action was a provable debt; and the composition under the approval of Court and compliance therewith discharged the plaintiff's debt. In re Bechet, 12 N. B. R. 201. Wells v. Lamprey, 16 N. B. R. 205. Every possible defence to the action is admissible under the general issue, and unless there is good reason shown, the case should not be ham Rule for a new trial, and motion for judgment for defendant, on point reserved. This was a proceeding in escheat, instituted by the Commonwealth of Pennsylvania to recover the estate of Cecilia Erben, deceased. On May 9, 1877, an information was filed with the Auditor-General, alleging that one Cecilia Erben had died intestate, without known heirs or kindred, seized and possessed, and being the owner, at the time of her death, of certain real and personal property. On March 13, 1878, a jury of inquest was summoned, before whom the testimony showed the following facts: Henry Sell, being seized in fee of certain real November 2, 1841, with two codicils, dated reestate, died May 18, 1842, leaving a will dated spectively November 2, 1841, and April 29, 1842. By the will he devised certain real estate in trust to pay the income to certain persons, for life, and upon their death to sell the property and divide the proceeds among his surviving brothers and sisters, and the issue of any who might be deceased. By the second codicil the testator revoked so much of his will as gave his brother Charles a share in the proceeds of his estate, and gave the same to his "adopted daughter," Cecilia Erben. The decedent's brothers and sisters are all still living, but the said Cecilia Erben died in 1852, a minor, aged 15, intestate, unmarried, or possession in the intestate at the time of death and without known issue or kindred. The last as a necessary prerequisite to the enforcement of life tenant under the testator's will died in Octo- an escheat. West's Appeal, 14 Sm. 186. West v. Penna. Co., 14 Ibid. 195. Cecilia Erben never having had possession, this proceeding is, therefore, without warrant. True, The jury of inquest found as follows: "That the inquest found that Cecilia Erben "died posCecilia Erben died in 1852, intestate, without sessed of an interest in remainder." This is, howheirs or any known kindred, and that she was ever, an inconsistent and impossible proposition, possessed at the time of her decease of the follow-being a contradiction in terms. If logical, howing personal estate, to wit, a vested interest in re-ever, it would be fatal to the escheat, for if Cemainder in the one-seventh part of the residue of cilia Erben died possessed, the case is brought the estate of Henry Sell, which interest became directly within the Statute of Limitation, which vested in possession about the month of June, 1876, and that said personal estate is in the possession or custody of William E. Naile, trustee, under the will of the said Henry Sell, deceased." To this inquisition a traverse was filed by the trustee. On the trial the only evidence was the inquisition, and the testimony taken at the inquest. Verdict for the Commonwealth, subject to the point reserved, Whether the interest of Cecilia Erben was the subject of an escheat, and further whether the Commonwealth was not barred by the statute of limitations. R. C. Dale (Henry C. Olmsted with him), for the Commonwealth. The Commonwealth claims under section 12 of the Intestate Act of 8 April, 1833 (Purd. Dig. 611, pl. 2; P. L. 319), which provides for an escheat of real and personal property. This act covers estates in expectancy. Cote's Appeal, 29 Sm. 235. Olmsted's Appeal, 5 WEEKLY NOTES, 258. Alfred I. Phillips (E. Coppée Mitchell with him), contra. Cecilia Erben had no interest in the real estate, but only in the proceeds arising from its conversion after the death of the life tenants, as directed by the testator. It was, therefore, personal property. Leiper v. Thomson & Castner, 10 Sm. 177. It was not reduced to possession in her lifetime, and she, therefore, merely owned a chose in action at the time of her death. The Act of September 29, 1787 (Purd. Dig. 611, pl. 1; 2 Smith's Laws, 425), under which the Commonwealth must claim, requires seisin applies wherever the intestate died, having either seisin or possession. But the inquest found that the interest "vested in possession" after her death. This is another impossible proposition. With such premises we are naturally led to a reductio ad absurdum; the Commonwealth claims the escheat by reason of an alleged possession, and then denies the possession to prevent the running of the statute. The proceeding is further invalid, as it is brought against a trustee to recover an interest held in trust. Such an interest can never escheat. West's Appeal, and West v. Penna. Co., supra. C. A. V. June 29, 1878. THE COURT (after stating the facts). The Statute of Limitation of 1869 re quires the Commonwealth to assert her right to an of the intestate who last died seized or possessed. escheat within twenty-one years after the death If, therefore, Cecilia Erben died seized or possessed of an interest in this property, the case is brought within the operation of the statute, and the Commonwealth is barred by lapse of time. It is contended, however, that the statute does not run because Cecilia Erben was not seized or possessed, but was entitled to an interest in remainder only, which did not vest in possession until 1876. This raises another difficulty. The law has been settled by the Supreme Court in West's Appeal (14 Sm. 186), and West v. Penna. Co. (Ibid. 195), that an escheat must be enforced under the Act of 1787, which requires a seisin or possession in the intestate at the time of death to warrant any proceedings whatever, and if Cecilia Erben died without such seisin or possession the escheat cannot be enforced. Still another difficulty is met with in the trust, which has not yet entirely come to an end, and, as held in West's cases (supra), property in the hands of a trustee cannot be escheated. We think altogether that there has been no sufficient legislation to sustain a recovery by the Commonwealth, and, therefore, enter judgment for defendant on the reserved point. Oral opinion by ALLISON, P. J. [See Naile v. Olmsted, 4 WEEKLY NOTES, 558: Olmsted's Appeal, 5 Ibid. 258.] WEEKLY NOTES OF CASES. VOL. VI.] THURSDAY, NOV. 21, 1878. [No. 15. Supreme Court. July '77, 12, 28 & 32. Jan. 30, 1878. him for his outlay Burton had assigned to him all his interest in the contract, "except the item of superstructure;" that the plaintiff had notified Smedley of the assignment prior to June 8, 1874, but that on that date Smedley, in fraud of the plaintiff's rights, issued to Burton a warrant on the city treasurer for the whole amount of the above-mentioned appropriation; that the payment of this warrant by the city treasurer would be a mispayment, and would not discharge the debt due the plaintiff from the city by virtue of the assignment; and that the plaintiff apprehended that Widener would pay the warrant on its presentation; and praying that Widener be enjoined from receiving or paying the warrant, Contract with a municipal corporation-Partial and all other persons from selling, negotiating, or assignment of Not binding on the corporation Pledging it, or otherwise intermeddling therewithout its express consent- What constitutes with; that the warrant might be cancelled; that interest of an official of the city of Philadelphia in a contract with the city-Acts of February 2, 1854, §§ 12 and 51, and February 26, 1856. Appeal of the City of Philadelphia. Smedley's Appeal. Hancock's Appeal. A. contracted with the city of Philadelphia to build a certain bridge, and afterwards assigned his interest in the contract, "except the item of superstructure," to B. to secure him for materials furnished and work done in the erection of the bridge. A. was paid various sums while the work was progressing, and after its completion a city ordinance was passed authorizing the payment of the amount still due him. C., the chief engineer of the city, issued a warrant to A. for the sum thus appropriated. This was countersigned by D., the city controller, who immediately had it endorsed by A., and cashed by the city treasurer. D. had advanced various sums of money to A. to enable him to fulfil his contract, which sums he retained from the proceeds of the warrant, handing over the balance to A.: Held, that a partial assignment of a contract with a municipal corporation is not binding upon the corporation without its express consent, although an assignment of the entire contract would be binding. Held, further, that the city officials, therefore, acted properly in disregarding a notice from B. to them of this assignment, and issuing the warrant to A. Held, further, that D.'s interest in the sum due from the city to A. was not of such a nature as made it illegal for him to countersign the warrant, by bringing him within the Acts of February 2, 1854, ¿? 12 and 51, and February 26, 1856. Appeals from the Common Pleas No. 3, of Philadelphia County. On June 12, 1874, P. H. Quinn filed a bill in equity against the City of Philadelphia, P. A. B. Widener, city treasurer, S. L. Smedley, chief engineer, and A. B. Burton, setting forth that on June 8, 1874, an ordinance was passed by the City Councils of Philadelphia appropriating $6881.45 to pay for the completion of the bridge over the West Chester Railroad, at Darby Avenue; that Burton was the contractor for the building of this bridge, the plaintiff being his surety; that the plaintiff had expended $4800 for Burton on its erection, and that to secure VOL. VI.-13 Burton and all persons claiming title to the warthe plaintiff, be decreed the sum of $4800 out of rant might interplead with the plaintiff; and that the said appropiation. By two amendments to this bill S. P. Hancock, the city controller, was added as a defendant, and averments were made that before the issuing of the warrant he was personally interested therein contrary to law; that he countersigned it, and received the amount therein in cash, under circumstances unknown to the plaintiff; and that the money so received was to be treated as still in his hands, even if he had spent the same. Discovery was prayed of all the circumstances of these transactions. On July 25, 1874, Burton filed his answer, alleging that he was indebted to the plaintiff in the sum of $1975.85, and not $4800, for work, etc., done in the erection of the bridge; that the assignment set forth in the bill from Burton to Quinn was executed without the advice of counsel, in order to avoid attachment executions by creditors, and that the plaintiff never claimed that it operated to transfer to him the contract for building until about June, 1874; and admitting the other material facts of the bill. Ön October 10, 1874, the city filed an answer, setting forth that the alleged assignment of the contract to the plaintiff was colorable, made merely as a shield to protect the money which should be due to Burton thereon from attachment by his creditors; that four warrants for sums amounting to $10,000 were delivered to Burton under this contract without objection from the plaintiff, or notice of the assignment; that about a week before the passage of the ordinance of June 8, 1874, the plaintiff notified Smedley of the existence of the assignment, but did not request Smedley to issue any warrant in his favor, or in any other manner than that in which other warrants based upon the contract had been issued; that thereupon upon the passage of the ordinance, Smedley issued the warrant for $6881.45 in favor of Burton, believing it his duty to do so; that this warrant was countersigned by Hancock, and paid by Widener, before the bill in this case was filed, and without notice to either of them of the assignment; and moreover that the assignment was not binding on the city, because it was made without its consent, and covered only a portion of the contract. The answer of Smedley, filed September 26, 1874, was substantially to the same effect, except that he denied knowledge of the assignment at the time of his issuing the warrant. Mandeville v. Welch, 5 Wheat. 277. The conduct of this appellant, in issuing the warrant of June 8th to Burton, was entirely within the line of his duty. The ordinance of Councils fully authorized him to do so, and notice of the partial assignment to Quinn would not have justified him in refusing. D. W. Sellers, for Hancock. This appellant had no such interest in the proceeds of the warrant as was contemplated by the statutes of February 2, 1854, §§ 12 and 51, and February 26, 1856. He was in no wise con due, but was simply a creditor of Burton for vari- Hancock also filed an answer on October 10, 1874, alleging that he was not interested in Burton's claim by pledge or purchase thereof; that he lent him money at various times, after the original appropriation for the payment of the work which he was doing was exhausted, to en-cerned in the contract under which it became able him to go on and finish it; that due-bills were given him by Burton for about $6000, the amount of these several loans; that he expected and was assured that he would be repaid the amount which he had lent, when Burton should receive from the city what would finally be coming to him in payment for the work; that when the warrant for $6881.45 was taken to him, finding it in due form, and accompanied by the proper certificates, he countersigned it, and delivered it to Burton; that Burton endorsed it and returned it to him; and that he had it cashed by the city treasurer, retained the amount due him, and gave the balance to Burton. The case was referred to a Master (Hampton L. Carson), before whom testimony was taken. On June 24, 1876, he filed his report, finding that the assignment of the contract to Quinn was made in good faith, and was binding upon the city; that both Smedley and Hancock knew of its existence before the drawing of the warrant of June 8; that Hancock was illegally interested in the proceeds of that warrant; and that the amount due Quinn was $4601.22; and submitted a decree, dismissing the bill as to Widener with costs, and charging each of the other defendants with the sum mentioned and costs. All the defendants except Widener filed exceptions to this report, but they were dismissed, and the report was confirmed, FINLETTER, J., delivering the opinion. (Reported 4 WEEKLY NOTES, 69.) Thereupon the City of Philadelphia, Smedley, and Hancock each took an appeal, assigning for error this action of the Court. C. E. Morgan, Jr., and W. N. West, City Solicitor, for the City of Philadelphia. The assignment to Quinn was not binding on the city without the express consent of its officials, because it embraced only a portion of Burton's interest in the contract. Jermyn v. Moffitt, 25 Sm. 400. A partial assignment of a debt is binding on the debtor in equity. Iron Co. v. City, Leg. Int., May 12, '76. Moreover the conduct of the city officials in receiving notice of the assignment without objection, amounted to a ratification thereof. May 6, 1878. THE COURT. Peter H. Quinn. filed this bill against the City of Philadelphia, Peter A. B. Widener, city treasurer, Samuel L. Smedley, chief engineer and surveyor, and A. B. Burton. Three days thereafter the bill was so amended as to make Samuel P. Hancock a party defendant. On the final hearing the bill as to Widener was dismissed with costs; but it was adjudged and decreed that the City of Philadelphia, Smedley, Burton, and Hancock should each pay to Quinn the sum of $4601.22, together with costs of suit. From that decree the city, Smedley, and Hancock severally appealed, and the appeals were argued together. On the 30th of June, 1873, Burton entered into a contract with the city of Philadelphia to furnish the materials and construct a bridge over the Philadelphia and West Chester Railroad at Darby Road. Payments were made by the city on the monthly estimates as the work progressed, in all to the amount of $10,000. This left due on the final estimate the sum of $6881.45. The contention arises in regard to the claim of Quinn to this money paid by the city on the final estimate. It appears that Quinn was surety for the fulfilment of Burton's contract, and by writing bearing date the first of July, 1873, Burton assigned |