FEDERAL

51.

Al"\llscould from, WitjIl appaaffecting the functions of the in ,wedge arltts dOi'more. Theyserv&) thelpurposeof g .... . it.,9kerSi.ri POB.· itio.n;. bil t 't.,.h.ey.alS. 0 a.idi!1+.' . . ·. .... · . , i.rt.'.in . th.,.e casIt matte! of nosmll.\l moment whent'fl:e',welghtof a long simpg"Q(i)eavy iron pipe is In the presad, firmly Palm's we!ige become;.'iwbeq.ded., 'r4at .a most valuable one is alsoshciwofby' the fact that lire 110w constructed on this using the a palm i, <lnced.ing that It must stIll be admItted. he m#cluU)ical of Gordori:s dev'ice, that he haa. botrdwed the basis idea of t4e wedge arms an,dthe cone. that source:' .'Pbisviewis strengthenediby fact, ,testified to, .' The mechanism of G6rdb6' 'is simpl,freversed inPalfu's device. In the 'former the upper sharpened, edges of the cleats on the wedge arms' arid the lifting of the ca:,S1bg,'dduse tbewed'ge'ftrmsto catcl1 the well wall/and thus secure the Pl>int in. a ViZ.,1l stationary blUitej in the lat1!er;tbe ol"jarring,cause the same result, though from an opposite point. 1n' both; increased ptessure On the wedge ddn""ll:ids andfinishesthetwork. . That the ttdditionalfunction of the helping appears in: the Palm. devi".e does not less an inJring:¢ment. ' lit Inverted, plus the added function of sustaining aid of the arms. As such t it is; (i)urduty to decree,it an infringement. Let decree be drawn accordingly.
BD',

f,qr

a

'Circuit Judge, concuQ.

AJm1UCAK·Tun

& b.ON 'Co. v. KENTUCKY SOU'l'BERN OIL & GAS Co. et ale

(C£rcuUOouTt; D. Kmtuckl/. AprU 19, 1892.)'

No. 8,168.

1..

.,

a

SAME.

Wben a mort:gage is made to a trustee to secure coupon bond&,'tbe rigbt to bring suit ot foreelollure is in the trustee, whlob. right, however, ill. not exclusive ot the bondhol!lllra made 110 by tbe terms of the deed. . , '
.· . . . ','

AND BONDHOLDERS.

"

.·

: Where :atrtl'Bteein a mortgage seeurinp;, coupon bonda' accepts the position of trustee in a subsequent deed of general assignment made by thll mortgagor for the benefitot'all bls oreditor!!, whloh embraces the property covered by tbe mortgage, the ·reepectiVll i!lteresta to be represented by the trustee ,unqer tbe deed are confiicting' a.ud and sucb aoceptallce oau.ses a forfeiture ofllony preference the otberwise had, 81J' against the bondbolders, to .bring suit to ,toreeloee the mortgage. . , '

AMERICAN TUBE & IRON

co. v.

SOUTHER'N OIL &

00.

827

8. SAME-POWERS OF BONbaOLDERS. ' , A made to, atrus,tell secure coupon bonds pl'Pvided that, in case .of

no.npaymeot of anyone' hf Mnlls or coupons for ao days'after maturity and paymentdemanded, It,wouldbe lawful for one fifth or more of the bolders of the bonds to cause the principal tp ,be once matured, and to callan the trusteo to foreclose ,the mortgage. Helq, that the bondholders alone were' to exercise thA option, aod the trustee need not join with them therein.

In Equity. Bill by the American Tube & Iron Company against the Kentucky Southern Oil & Gas Company and others to foreclose a mortgage. Demurrer to the bill ovenuled. C!ha8. a. Dickey, JeLmes S. Pirtle, and Walter Evans,fo.r complajnant. Stone &- Sudduth, for defendants.
BARR, District J The counsel for defendants insist that their demurrer to the bill should he sustained because, under the mortgage, complainant has no right to such a foreclosure of the mortlZage, but the trustee must bring such suit. The demurrer is filed by all of the defendants, and, while someof these have no interest in the question pre-' sented by counsel in support of the demurrer, others of them have, and it should therefore be considered. That question is whether or not the complainant, as bondholder, can sue for itself and other bondholders who may come in. This question may be determined by u reference to the mortgage deed. Where a is made to a trustee to secure coupons bonds to be issued, the right to foreclose the mortgage is in the trustee; but this right to have a foreclosure is not exc1l1sive of the bondunless made so by the terms of the mortgage or deed of trust. The trustee, however I has the preference unless there is some reason why the hondholders should sue rather than the trustee. This mortgage provides that"In casethe said oil company sb"l1 fail to pay anyone of said bonds for thirty days after the same shall have matured and its paylDlmt been demanded all t.be place of payment. or in case t.he said oil company slmll fail to pay an)' one of the coupons upon any of the said bonds for thirty days afwr lhe same shall bave matured and been demanded at the place of payment, then it shall be lawful for the holder or holdefs of one fifth or more of said honds to cause tbe principal thereof 't.o be at once matUred. and to call npon the said to furecl08e this deod of trust and have' the property sold by due and proper legal proceedings, for the benefit of the holders of the said bonds and coupons. first. however. indemnifying t.he trustee for its costs and expllnses to be hereby incurred." Another provision of the deed of trust is that"The said trustee shall not be compelled to do anything undPr thlH deed of trust unlil satisfactorily indemnified from all costs and expenses or Iiahility therefor. and shall not be liable for any acts of or servants employed by it in the necessary conduct of its trust, but shall only be liable for its own acts." There is no provision in this deed which excludes in terms the bondholders from foreclosing this mortgage, but it is said that the provision in regard to maturing the bonds upon the default of the mortgaKor in the payment of the coupons is so connected that the bondholders cannot

828

REPORTER,

vol. 51.

mature the bonds. and foreclose the mortgage· without the aid of the itwiU be observed that holders of one fifth of the bonds are,glventbe rigbtto.mature the bonds in certain events, and the trtistt'ehij:fiiQthing to do with this. 1.t is the exercise Of. their option, and not his, which matures the bonds. It is true they may call upon the trustee to foreclose the deed of trust, and this privilege is connected the conjunction "and,"out I apprehend the bonds with would still'·;be 'nlatured if there was no trustee to call upon, or if the trustee should refuse to bring suit to foreclose. These provisions of the think, give the trustee the exclusive right to f(lreclose the mortgage, but do show that the parties contemplated the foreclosure to be by the trustee. These provisions, and others, should gi ve the trusteeitHe preference as between it and the bondholders in foreclosing the unless there is some reason why the,tr·ustee should not, ha\Te subh·.:preference. This brings: us· to consider whether the allegations of the complainanVs bill'sbopld,iftrue, deprive the Germania Trust & Vault Company of the brdnging a foreclosure suit in this case. The bill alleges that the mortgagor is insolvent, and has made to said company a generalassignmentfor the benefit of all of its creditors, of all its property, including . the property covered by the mortgage to secure the coupon!.bonds; belonging to complainant and others. The deed of trust to secure, thesEl coupon, hondsdoes not pass the legal title under the Kentucky le.w j butthedeed of assignment does pass the legal title. This lattetneed does not p;ive the right to sell real estate without the concur·renee of the grantor, .or .by a decree of a court, This is not because;tbe :title dOes not pass; but that it is prohibitedbya statute of thestate, which bas existed since 1820. The trustee in a deed of assignmay sell and pass title,t9 personal estate 01 the grantor or an order This differwithout ence as to:the!:titlil'whibh: the 'Germania Trust &, Vault'Company hasunder' 'the the' 'second deed' would not nlake'afiy' material di fferericEl' if in, the 'interest of the under the tlYo 14e ..thefirst deEld. preferred creuitprs, duty: ,o( sijobtrusteeto see thit all 01 the bonds legally issued::ul'lderthis deed have a preference over the general creditors oil company. It is the duty oNhe trustee, unof der the second trust deed, (the deed of general assignment,) to prevent, if it can be legally done, tbe coupon bonds;under the first deed of trnst getting !1-' preferencEl" ., there is an antagonistic and conflicting interest toberepreli1ented under: ·these deedS. This conflicting interest is sufficient to' deprive the trustee, under the first deed, of the preference it "Would 6therwil3e ha.ve, a.s 'against some of the bondholders, in bringing a suit to foreclose the mortgage. The ofa trustee,in ;tbe absence of a contract givinga preferenc.6. the trustee is, presumed to represent all of in ..practice; but, if the trustee has the bondholders, position antagonistic to his duty as such trustee. then he for-

HUTCHINSON fl. BLUMBERG.

829

felts this prefereIfce as against a bondholder. It may be the complainant has some right to cOrne into this court by reason of its citizenship, but I have not considered that question. The demurrershould be overruled, and it is 80 .ordered.

HUTCHINSON

it at' t7.

Bt.UMBERG.

(O&rcUit

D.nZinaw. June 8, 18119.)

L

'rBADBc],{ARXl!-WJlAT WILL BB PROTBOTBD-STAR.

The word "Star," and the sYmbol of a star, adopted and used durfng many years . by matiuf8Cturers of shirts, waists, underwear, and furnishing goods, to mark and designatll their goods, in cOlD-bination with the words "Star Shirts," and other words describing the articles, so that the goods become well known by such mark, and by the desi/tnation of "Star Goods, "constitute a valid trade-mark. . Such trade-mark is infringed by marking similar goods with a star and crescent, making the star so prominent that such goods may also be designated as "Star Goods, " and purchasers may be readily deceived into the belief that the goods were J!:\,8de by the proprietors of the trade-mark, even though the star so used is not of the oolor'usually employed' for the trade-mark, and is a Ave-pointed star, while that in the is uniformly six-pointed·

lL

SMltB-Il!iFRINGEMBNT.

...

infringer of a trade-mark, on being notified of hiB infrfn/t8JXH!nt,' told his·customers to erase the trade-marks from their goods, and,hl/d since . gone out of bU!iiness, are not ground for denying an to the true owner 01 the where every step of the suit for an inJunction and accounting haa by·the and De hlils put the coliQplainants to the expense of ,.Pl.'O!+pg, every fact necelilsary to establish their right and his infringement..

Cole, '4pd

'()f

by G#dlner S. Hutchinson, Henry B. Pierce, Ira
Morison against Jacob J. Blumberg for praying an injunction and an accounting.... Decree

{or coqlplainants'.

· "," . f" '

B:'F. CorneliUs V. Smith, for complainants· ..Elliert, 0. Ferg'UBlYiL, for defendant·
". ,

.. The complainants in this case, who were cOpartners .doing business under the style and firm name of" Hutchin,&;90.," having their principal place of business in the city ofNew York, charge that the armor T. A. Morieon & Hoyt, in or about the year i859,was engaged in the manufacture of shirts, 'Waists, underwear. and goods, and, to designate the goods of their manufiwture,'ad8pted and employed as their device alid trade-mark the word "Star," and with the form and symbol of a star to represent the word the words, "Star Shirts," and thedevice or figure of a star. in combi.nation with the words "Star Shirts," and other words describing "* shirt" and ,,*i\vaistj" that 'complainants, through a series .()f mesne assignments, have become and now are the' successors of said firm of T. A. Morison & Hoyt, and have also become the owners of said and of tbeexclusive right to use the same; that the goods I¥nufactured by complainants and their predl'cessors have been sold, and have become well known by said trade-mark and
";. 'H ','. · . · ·