for misappropriated assets. But how as to those who have taken payment on demands justly due them? This court cannot order those to be refunded, and charge the whole amount back on the indorsers, who are only contingently liable, when the indorsers knew nothing about the transaction. That seems to be the theory of this bill, and it goes further than any case I can discover, and further than the ordinary rules of law permit. These parties who held the paper-this corporation being the maker-have a right to what they have received. They have nothing to do with the alleged fraudulent scheme. But the underlying thought of the bill seems to be that they should refund, and make the indorsers pay the whole of the obligations. It is a novel theory. If I am an indorser on a gentleman's paper, and the maker pays pro tanto, any of his schemes of fraud as to others is nothing to me. Suppose he paid it in entirety, whereby I am relieved as indorser. The primary obligation was the maker's obligation, and mine contingent; and I cannot understand how it is that I, as indorser, am held liable, not only for my indorsement, but for the payment by the maker of his obligation.

There are matters disclosed here which might justify comment upon the manner in which the state law permits such corporations to operate, but the law of the state controls. In this case there seems to have been a sort of family arrangement, by which parties should indorse each other, and then at last confess judgment for everything on which they were indorsers, and leave the creditors at large unpaid. It so happens that the president of the company, Mr. Murphy, has filed no demurrer. The condition of the case at this time is such that the bill stands as against him. Jesse Arnot, the father-in-law, was an indorser and at the same time a director, thus falling under the provisions of the statute. He is personally liable for all misappropriated assets. Mr. Bradford, the brother-in-law, was an indorser on some of this paper, and it appears, suggestively, paid the balance due out of his own pocket, but he was not a director. His wife was a stockholder. The stock, however, is all gone, of course. Mr. Gill was a stockholder, and Mr. Murphy was indorser on his paper, and it was a contrivance by which Murphy, a son-in-law, might run a concern, and leave the creditors without any means of compensation except from corporate assets. If a man is guilty of the folly of dealing with such a concern he must take the consequences.

The opinion of the court is simply this. The demurrer interposed by Mr. Gill, who held some of this paper indorsed by Murphy, is sustained. He is not bound to refund, as he knew nothing about any fraudulent device, but simply received about 60 per cent. of what was due him. Obviously, he is remitted to Murphy, as indorser, for the balance, who appears from the allegations here to be utterly insolvent, and that is Mr. Gill's loss. Mr. Bradford is an unfortunate indorser. About 60 per cent. was paid on his claim, and he has paid the balance. The Continental Bank held some of this paper, and re

ceived only 60 per cent. pro tanto, and Mr. Bradford paid the other 40. Those three demurrers are sustained, viz., the demurrers of Gill, the Continental Bank, and Bradford. The demurrer of Jesse Arnot, the only one remaining, is overruled, because, under the corporate law of this state, as he chose to lend himself to this sort of arrangement, he has to take his liabilities, under the law, for a misappropriation of assets.

The supreme court of this state, and of a great many other states whose decisions I have examined, have reached this conclusion: that. where like statutes prevail concerning dissolved corporations, the insolvency of the concern, known to the president and directors, works a practical dissolution, and they must take the statutory consequences, and that is the only safety there is in regard to this peculiar class of corporations under the Missouri law.

1. TRADE-MARK-"ANTI-WASHBOARD" SOAP.

The words "anti-washboard," as applied to a manufacture of soap, are suggestive rather than descriptive, and may be lawfully claimed as a trade-mark. 2. SAME-APPROPRIATING MARK-TITLE-ABANDONMENT.

A person cannot appropriate a trade-mark belonging to another, without his consent, and afterwards acquire a good title by the abandonment thereof by the first proprietor.

3. SAME-DEFECT OF TITLE.

A third person may take advantage of this defect of title.

In Equity. On pleadings and proofs.

This was a bill in equity for the infringement of a trade-mark claimed by the plaintiff, in the use of the words "anti-washboard," as applied to a manufacture of soap.

The facts of the case were substantially as follows: In 1872 one Thornton R. Walker took out a patent for a composition of matter said to constitute soap, but which did not designate the compound by any name except an "improved soap." About that time, Walker and his partners, doing business under the name of "Anti-washboard Soap Company," at Cary, Ohio, made and sold a soap which they called "Anti-washboard Soap," and which was described as possessing such qualities as would make rubbing unnecessary in the process of washing clothes. Whether it was made according to the formula patented by Waiker did not appear. This firm ceased business about 1874, and in that year sold its kettles and apparatus to Clark & Benefiel, of Mattoon, Illinois, by whom soap was made and sold under the same name at Mattoon until August, 1875, when the business was sold by them to one Stephens, who, after carrying it on for three or

four months, died. With his death, the business, and the use of the name "Anti-washboard" by any one succeeding to the business, of the Anti-washboard Soap Company ceased. One of the members of the original firm doing business at Cary had in the mean time moved to Kansas, and on May 12, 1884, after this suit was begun, executed to the defendant an assignment of the right to use the words "Antiwashboard" as a trade-mark. This was the only right claimed by the defendant to the use of these words. The defendant was shown to be a manufacturer of soap in large quantities at Jackson, in this state, with the words "Anti-washboard" impressed upon the bar and wrapper.

The soap manufactured by the Anti-washboard Soap Company, at Cary, Ohio, was sold extensively throughout the country, and in January, 1875, one Winger, who it was shown had seen this soap, and knew of the trade-mark, began the manufacture of a soap at Sturgis, in this state, under the name of "Winger's Anti-washboard Soap." He claimed, however, to have been informed that the business of the Anti-washboard Soap Company had been discontinued. This was about the time that the Anti-washboard Soap Company had sold out to Clark & Benefiel, of Mattoon, and about a year before their business was discontinued, and the trade-mark abandoned by them. Winger carried on business at Sturgis in a very small way from 1874 to September, 1883, when he deposited his trade-mark, "Winger's Anti-washboard Soap," for registration in the patentoffice, and it was duly registered October 23, 1883. A few days thereafter he assigned to the plaintiff the "exclusive right to use, in the manufacture and sale of soap," this trade-mark. He also turned over to them his receipt for making soap, but no part or interest in his business. His kettles, staves, cutting boxes, and other apparatus used in making soap he removed to Kansas, where he took up his residence. Soon thereafter the plaintiff began an extensive manufacture of soap at Fort Wayne, Indiana, under the name of the "Summit City Soap Company," using the Winger trade-mark, and in 1885 began this suit for an injunction and an accounting. The defendant began the use of this trade-mark in July, 1880, but Winger was not informed of it until March, 1881.

R. S. Taylor, for plaintiffs.

R. Mason, for defendants.

BROWN, J. Two prominent objections are made in this case to the monopoly by the plaintiff of the words "anti-washboard" as applied to soap: First, that the words are descriptive of the quality of the article, and hence cannot be made the subject of a trade-mark; and, second, that they are not original with the plaintiff, but were unlawfully appropriated by him.

1. As a general rule, there is no doubt that, in order that mere words may be upheld as a trade-mark, they must be purely arbitrary, v.26F.no.8-37

576

ceived only 60 per cent. pro tanto, and Mr. Bradford paid the of 40. Those three demurrers are sustained, viz., the demurrers o the Continental Bank, and Bradford. The demurrer of Jesse the only one remaining, is overruled, because, under the corp of this state, as he chose to lend himself to this sort of arr he has to take his liabilities, under the law, for a misa of assets.

The supreme court of this state, and of a great ma whose decisions I have examined, have reached this where like statutes prevail concerning dissolved cor solvency of the concern, known to the president a a practical dissolution, and they must take the stat and that is the only safety there is in regard to corporations under the Missouri law.

O'ROURKE v. CENTRAL CIT

(Circuit Court, E. D. Michigan.

1. TRADE-MARK-"ANTI-WASHBOARD" SOAP.
The words "anti-washboard," as appl
gestive rather than descriptive, and ma-
2. SAME-APPROPRIATING MARK-TITLE-
A person cannot appropriate a tra
his consent, and afterwards acquire
by the first proprietor.

3. SAME-DEFECT OF TITLE.

A third person may take advant

In Equity. On pleadings an This was a bill in equity claimed by the plaintiff, in as applied to a manufacture The facts of the case w Thornton R. Walker tool: said to constitute soap, 1 any name except an "in his partners, doing bus Company," at Cary, ( "Anti-washboard So: qualities as would n ing clothes. Whe by Waiker did no and in that year of Mattoon, Illi same name at sold by them t

evidence in this case that his competition interfered with of Clark & Benefiel, or Stephens, their successor, or cause of the subsequent abandonment of the business be once conceded that a person may acquire a good k by appropriation, without the consent of the 'd enable a manufacturer, by the use of large rgy, to drive competitors out of business, by and using them for that very purpose, pronable or unwilling to assert his rights by ink that no court would hesitate to proed. We find it difficult to distinguish the one under consideration, as it the lawful owner was compelled petition.

+availing itself of this defense. ment the plaintiffs' are bound his trade-mark. If it apto designate the article se them was vested in

more entitled to an

ented. Wolfe v.

v. Wood, 14 O. G. Barb. 526.

of a plaintiff in eject

Jh of his own title, and not
Indeed, it is a good defense

at the right to the possession of Dermott v. Wallach, 1 Black, 96;

Wall. 44. The fact that defendant has

of the trade-mark than the plaintiff would

e latter to an injunction.

e have come to the conclusion that the plaintiffs exclusive right to the use of the words "anti-wash

at their bill should be dismissed.