sion serious and others but trifling dam- | lated unless the court should order their age"; and of Lord Halsbury in the Clydesbank case (1905) - it is no obstacle to the sum stipulated being a genuine pre-estimate of damage that the consequences of the breach are such as to make precise pre-estimation almost an impossibility; on the contrary, that is just the situation when it is probable that pre-estimated damages was the true bargain between the parties. In the case before the House the damage apprehended by the Tyre Company in the event of any breach of the agreement was an indirect and not a direct damage, and the mischief complained of was an indirect mischief, but there were no data on which it could be said that the indirect damage from doing one of the acts prohibited would differ in magnitude from the indirect damage from doing any of the others. "Such things," as Lord Dunedin said, cannot be weighed in a chemical balance," and it was just, therefore, to regard it as quite reasonable that the plaintiffs should have contracted to estimate the damage at a certain figure and not to treat that figure as a penalty. -London Law Journal. return. The court thereupon directed the return of such property as was not pertinent to the charge against defendant, but denied the petition as to any matter that might be considered pertinent. The Supreme Court holds that the fourth amendment of the United States Constitution was violated, and says: "If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the fourth amendment, declaring his right to be secured against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praise-worthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information, and describing with reasonable particularity the thing for which the Immunity From Unreasonable Search and search was to be made. * * * To sanc Seizure A question of a great deal of importance in the administration of criminal law is decided in Weeks v. United States, 34 Supreme Court Reporter, 341. Weeks was charged with violation of the postal laws, and arrested by a police officer while at his place of employment. Other police officers went to his house secured the key, searched his room, and took therefrom various papers and articles, which were turned over to the United States marshal, who came back later on and carried away certain additional papers, letters, etc. Neither the marshal nor police officers had any search warrant. Defendant filed in the trial court a petition for the return of his papers and property which he alleged had been unlawfully taken to be used in the trial of the prosecution against him, claiming that his rights, under both the state and federal Constitutions, would be vio tion such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." ----- do so for the best interest of my estate, LANCASTER LAW REVIEW. and it shall not be liable for any loss by Orphans' Court. reason of its failure to convert the said VOL. XXXII.] FRIDAY, NOV. 20, 1914. [No.3 securities into cash. All of the said estate herein bequeathed to the said Peoples Trust Company shall be held in trust by it and the principal thereof invested from time to time in some safe security and it shall collect the interest and profits thereof and, after deducting its reasonable expenses, charges and taxes, shall pay over the net income thereof, Estate of John C. Montgomery. Collateral inheritance tax - Devise to annually unto my brother, M. F. Mont cover commissions-Bequest for life. Where a testator directs that his brother, shall act as executor "without receiving any commissions other than the devise made to him" of a farm, the collateral inheritance tax on the farm so devised should be computed on its appraised value less the commissions he would otherwise have been entitled to. Where personalty has been bequeathed in trust for the use of collaterals for life with remainder to collaterals, it is subject to the collateral inheritance tax which should be paid at once. Adjudication. O. C. of Lancaster Co. September Term, 1914, No. 21. Frank S. Groff, for accountant. M. E. Musser, for Commonwealth. October 1, 1914. By SMITH, P. J. John C. Montgomery died testate on the twenty-third day of August, 1913. The following is a copy of the essential parts of his will: 2. I give and devise my farm in Salisbury Township, Lancaster County, Pa., which I purchased from M. P. Cooper, adjoining lands of John Sweigart, Deborah G. Dickinson, D. Edwin Mast and David Spence, containing fifty-nine acres and eighty-three perches, unto my brother, E. Coleman Montmery, his heirs and assigns. gomery, of South Bend, Indiana, dur- "5. I do hereby nominate, constitute It does not appear that the testator left any lineal descendants, if any, they would be descendants of his father and might become remaindermen. The in "3. All the rest, residue and remain-ference is that there is none and on this der of my estate, of whatsoever nature and wheresoever situate, I give and bequeath unto The Peoples Trust Company of Lancaster, Pa., and its successors. It shall take an assignment of my stocks and securities from my executor and shall not convert the same into cash unless in its discretion it is necessary to we act. To E. Coleman Montgomery, a brother of testator, has been devised a farm, which has been appraised for collateral, inheritance tax at six thousand dollars. As it was the testator's intention that this devise should include E. Coleman Montgomery's compensation as executor, to fix the amount of collateral tax owing by him, from the amount thus appraised must first be deducted the value of his services for administering the estate, which prima facie would be $1,065.73, Bayuk Bros. Co. v. Henry Heymann's Sons, and $246.71 is the collateral tax owing by him. Common Pleas--Equity. The personalty has been given in trust for the use of collaterals for life with remainder to collaterals and, therefore, under the first section of the Act of May 6, 1887, P. L. 79, it is subject to the tax and is payable now. If the life beneficiaries were not collaterals and the enjoyment of the interest by them was not subject. to the tax, the collateral remaindermen might postpone the payment of the tax as provided by the third section of the Act. Coxe's Estate, 181 Pa., 369. Section 6 provides that, "If the legacy subject to collateral inheritance tax be given to any person for life, or for a term of years, or for any other limted period, upon a condition or contingency, if the same be money, the tax thereon shall be retained upon the whole amount; but if not money, application shall be made to the Orphans' Court having jurisdiction of the accounts of the executors or administrators to make apportionment, if the case requires it, of the sum to be paid by such legatees, and for such further order relative thereto as equity shall require.” It is "as equity shall require" and it imposes no hardship upon any one if the tax is retained" upon the whole amount". Whether the tax is paid now or later the result will be substantially the same; if the five per cent is now deducted the life beneficiary's income will be the same as if annually he paid five per cent on it as tax, and the remaindermen will take the interest with five per cent paid instead of being obliged to pay it. **** Distribution was decreed accordingly. (Inc.) Unfair competition—Similarity in cigar bands. gaged in the business of manufacturing 1. The plaintiff is a corporation enand selling cigars. Its principal place of business is in the City of Philadelphia, Pa. 2. In 1901 business in Philadelphia, Pa., under the a co-partnership, doing firm name of Bayuk Bros., began the manufacture of a cigar called Havana Ribbon, upon which about seven years ago it commenced to and has since, used a paper band for the purpose of advertising and identifying it. All of the band which shows, when it encircles a cigar in a box, is the center. This center of the band is a rectangle with rounded corners with white background and a dark blue bar about one-sixth of an inch wide, extending from the lower left hand corner to the upper right hand corner, with the words, Havana Ribbon" printed thereon in white. A small heraldic design, or coat of arms, is printed in red and gold on the upper left hand triangle, and the monogram | fendant company was about to use the "B. B." in gold with a red wreath in the lower right hand corner. The colors used are red, white, gold and dark blue, so dark as to be hardly distinguishable from black. Around the whole band is a heavy gold border. 3. When the plaintiff corporation commenced business on July 22, 1912, the said co-partnership of Bayuk Bros. transferred to it its entire good will, and all brands, bands, and trade marks used in connection with cigars manufactured by it, including the band used on the cigar known as Havana Ribbon, and which is above described. The plaintiff corporation thus succeeded said copartnership in its right to the said band and in all its rights in said business, and has since continued to conduct it, and to use the said band upon the Havana Ribbon cigar. It has obtained a large market for the Havana Ribbon cigar, manufacturing and selling about 70,000,000 of them a year. 4. The defendant is a corporation engaged in the business of manufacturing and selling cigars, having its particular place of business at Bowmansville, Pa. 5. About seven years ago the defendant corporation commenced the manufacture of a cigar called, "Havana Counts". A few months before the date of filing this bill the said defendant company commenced to use a band on its Havana Counts cigar of the exact size and of a remarkable similarity of appearance to the one used by the plaintiff corporation on its Havana Ribbon cigars. It contains a white square, which is the only part visible when the cigars, upon which it is, are in the box. Running diagonally from the lower left hand corner to the upper right hand corner is a black bar, not straight as in the Havana Ribbon brand, but slightly curved, upon which in white letters are the words Havana Counts". Above the bar is the figure of a lion, and below it, in the corner, is the defendant's monogram made up on the letters H and S. The colors used are red and white and gold and black, which can easily be mistaken for the blue black on the Havana Ribbon band. : band on its cigar, the Havana Counts, it, through its secretary, sent a letter to the American Lithograph Company, enclosing a copy of the band used by the plaintiffs on its Havana Ribbon cigar, in which letter it requested the said Lithographing Company to make up for it a band something on the order of the Havana Ribbon band. To this the American Lithographing Company replied on March 11, 1914, "We would not consider it proper to make one for you with a ribbon running diagonally in the same way as the Havana Ribbon and with a white background, but if you would be satisfied to have yours made with the title Havana Counts in two lines in a straight brown panel through the center and with the other ornamentation changed accordingly, we would be glad to make it so." To this the defendant replied on March 24, 1914, "We are in receipt of your favor of the 11th, and note that you state it would be impossible for you to make up a band similar to the one previously sent to you." In' its first letter the defendant Company said to the American Lithographing Company that they had no desire to infringe upon the Havana Ribbon band. 7. Upon cigars in a box the Havana Ribbon and the Havana Counts bands are so nearly alike as to lead any one to mistake one for the other. A number of witnesses, experienced cigar men, testified that they had been deceived by the Havana Counts band and led to think it was a box of Havana Ribbon cigars. As the usual practice in selling cigars by retail is to expose the cigars and not the lid of the box, or the labels upon the box containing them, this similarity of labels is likely to be misleading to the injury of the plaintiffs, who have established a large business in the Havana Ribbon cigars. The fact that the defendant company sent a copy of the band used by the plaintiff upon its Havana Ribbon cigars to the American Lithographing Company, even though they disclaimed any intention of infringing upon it, actually shows that it was their desire to have a band similar to the one used by the plaintiffs. And the fact that 6. On March 6, 1914, when the de- they refused a band, nearly like it, but which would hardly be mistaken for it, when such a band was suggested by the American Lithographing Company, confirms our opinion that it was the intention of the defendants to imitate the band used by the plaintiffs upon its Havana Ribbon cigars. CONCLUSIONS OF LAW. to equitable relief. In Pratt's Appeal, 117 Pa. 401, the Supreme Court said, though the two devices constituting the trade marks, when placed side by side, present points of dissimilarity, and the distinctive name of each party appear upon the one he uses, yet if the distinguishing features of the plaintiff's trade mark have been appropriated in that of the defendant, the latter will be restrained by injunction." In the same case it is decided that there need not be an intent to deceive if the device actu That one has no right to use a trade mark, which another has been and is using to identify and advertise his goods, on the same kind of goods, is too well settled to need the citation of authorities. | ally does deceive. In Coats z. Merrick Thread Co., 149 U. S. 566, it is said, "That, irrespective of the technical question of trade mark, the defendants have no right to dress their goods up in such manner as to deceive an intending purchaser, and induce him to believe he is buying those of the plaintiffs. * * They have no right, by imitative devices, to beguile the public into buying their wares under the impression they are buying those of their rivals." In Morgan v. Whittier-Coburn | Co., 118 Fed. Rep. 657, it is decided that such an imitator is chargable with unfair competition, although he is careful himself to sell the goods as his own. In Heinz v. Lutz, 146 Pa. 592, it is said, that "It is not necessary to show that persons have actually been deceived, and led to buy the defendant's goods as the goods of the plaintiff." In Cantrell & Cochrane z. Butler, 124 Fed. Rep. 290, it is said, "Conformity of one label to another sufficient to attract and deceive is not excused by ability to analyze the offending label, and point out differences which if known and recognized would avoid confusion, where the ensemble is sufficient to mislead the ordinary purchaser." And in Williams v. Brook, 50 Conn. 258, and Fairbanks v. Bell Manufacturing Co., 77 Fed. Rep. 869, and McLinn v. Flemming, 6 U. S. 254, it is decided that if the form, marks, contents, words, or special arrangement of the same or the general appearance of the alleged infringer's device is such as to be likely to mislead one in the ordinary course of purchasing the goods, and induce him to suppose he is purchasing the genuine article, then the similitude is such as to entitle the injured party In this case the bands upon Havana Ribbon and the Havana Counts cigars have points of difference. We have pointed them out in our findings of fact. Their general appearance, however, when upon cigars in boxes, which is the way they are generally sold, is so nearly alike as to be likely to deceive intending purchasers and lead them to believe that they are buying Havana Ribbon cigars when they are actually buying Havana Counts. It is not material whether the defendant intended to imitate the band used on the Havana Ribbon cigars by the plaintiff. It cannot be permitted to use one, whether done intentionally or not, that is so nearly like it as to be likely to mislead purchasers into believing they are buying one cigar when they are actually buying another. The preliminary injunction is continued until final hearing. Common Pleas--Law. Tucker v. Russian Aid Society. Appeal - Nunc pro tunc - Conduct of At the close of the hearing the justice announced that he would reserve his decision Subsequently on January 5 he notified defendant's counsel that "judgment rendered against the defendant." On January 24, defendant's counsel tried to take an appeal, when the justice informed him that he was too late, judgment having been rendered on January 3. Held, that an appeal nunc pro tunc must be allowed. |