ment of the amount due and admitted to be, was overruled, and from that decision plaintiff due on said note, to accept such part payment appeals. and release the joint maker from the paymeut of the remainder due, such an agreement does not bind the owner of the note so that he can: not recover the remainder due from the same joint maker. See Otto v. Klauber, 23 Wis. 471; Ryan v. Ward, 48 N. Y. 204; White v. Jordan, 27 Me. 370; Daniel, Neg. Inst. 3d ed. § 1289; Myers v. Byington, 34 Iowa, 205; Works v. Hershey, 35 Iowa, 340; Ryan v. Brazil, 52 Iowa, 350; Early v. Burt, 68 Iowa, 716. It is a familiar rule of the law that a payment of a part of a promissory note, or of a debt existing in any different form, in discharge of the whole, will not bar recovery of the balance unpaid. The rule is based upon the principle that there is no consideration for the promise of discharge; the sum paid being in fact due from the payer on the debt, he renders no consideration to the payee for his promise to release the balance of the debt. This doctrine has been recognized in more than one décision of Messrs. R. F. Askren and Scott & Ev- this court. Myers v. Byington, 34 Iowa, 205; erett, for appellee: In our State seals have been abolished by statute, and by its terms all written contracts placed on the same footing as sealed instruments were treated at the date of the statute. See Stats. §§ 2112-2114. A holder of a note may release or estop himself from maintaining an action on a note by an instrument executed under seal. 2 Parsons, Bills and Notes, 2d ed. 237. Works v. Hershey, 35 Iowa, 340; Rea v. Owens, 37 Iowa, 262; Bryan v. Brazil, 52 Iowa, 350; Early v. Burt, 68 Iowa, 716. Under this rule the discharge pleaded by defendant is without consideration, and is therefore void. 3. But counsel for defendant make an ingenious argument to show that the rule of the common law applicable to sealed instruments, under which they import a consideration in A seal makes it as effective as if made for a this State, since the abolition of private seals, valid consideration. Ibid.; Daniel, Neg. Inst. p. 275, § 1287. Beck, J., delivered the opinion of the court: The promissory note in suit was jointly executed by defendant and four others. It called for $220, and, after certain payments were deducted, it is claimed in the petition that $150 remained due thereon, for which judgment is asked. The defendant alleged in his answer that a prior indorsee of the note, while holding it, did execute a writing, discharging defendant from all liability thereon, which is in the following words: is transferred to all writings which, like sealed instruments under the common law, import consideration. Without at all approving the position advocated by counsel, but regarding it as more than doubtful, it may be assumed for the purpose of showing that it cannot be applied to the case before us. It is not and cannot be claimed that a sealed instrument imports a valid consideration when it shows, by its own conditions and recitations, that it is in fact not founded upon a consideration. In other words the presumption of consideration arising from a seal will not overcome the express language and conditions of a sealed instrument, showing that it is without considMt. Ayr, Ia. 5-3, 1887. eration. We think this proposition need only Received of Chas. A. Been $40.00, and same to be stated to gain assent. It does not demand credited on note dated Mch. 2, 1882, given for in its support the citation of authorities. At$220.00, and signed by Calvin Stiles, Wm. A. tention to the release pleaded by defendant, and Been, J. S. Been, C. A. Been, and Wm. White, quoted above, discloses the fact that it shows, given to G. Bender. The consideration of pay- by positive and direct recitations, that the payment of above $40.00 is that said Chas. A. ment of a part of the debt was the alleged conBeen is to be released entirely from the above-sideration of the instrument for the release of named note. This is done by consent of G. Bender. the balance of the debt. The instrument, therefore, relied upon to show the release establishes the fact that it is entirely without consideration, and cannot therefore be enforced. It is our opinion that the district court erred in overruling plaintiff's demurrer to defendant's answer. Its judgment is therefore reversed. The case sufficiently appears in the opinion. | therefor as the court might direct. For the Mr. Samuel T. Neill, with Mr. H. J. Muse, for appellant: The policy of insurance purchased by the intestate in his lifetime was a chose in action and upon his death passed, together with all the rights and possibilities, present and future, incident to it to the appellee, as an asset of the es tate for distribution. Gourdon v. Insurance Co. of N. A. 1 Binn. 430, note; Rousset v. Insurance Co. of N. A. Id. 435; Comegys v. Vasse, 26 U. S. 1 Pet. 194 (7 L. ed. 108); Scott, Intestate Law, 151. The contract of insurance, being one of indemnity, is purely personal and does not run with the thing insured. Wood, Fire Ins. 535. The proceeds of this insurance policy, when realized, if considered as realty, passed to the administrator as an equitable asset of the estate, for the benefit of its creditors. Horner v. Hasbrouck, 41 Pa. 169; Scott, Intestate Law, 182; Smith v. Seaton, 10 Cent. Rep. 84, 117 Pa. 389; Jones' App. 99 Pa. 130; Wyman v. Wyman, 26 N. Y. 253. Mr. D. I. Ball, with Mr. C. C. Thompson, for appellees: When the contract of insurance is made with the assured, his executors, administrators and assigns, the right of action upon the policy at the death of the assured rests in his personal representative; but the insurance being on a building, which is real estate, the interest in the property insured belongs to the heirs at law. The executor or administrator is a trustee for the heirs, who alone are indemnified by the loss of the building, and whoalone are entitled to the indemnity. Flanders, Fire Ins. p. 582, § 5. See also Wood, Fire Ins. p. 302, § 121; Williams, Exrs. foot p. 944: Wyman v. Wyman, 26 N. Y. 253. Sterrett, J., delivered the opinion of the court: In March, 1886, J. F. Bartlett died intestate, seised of an equitable interest in a house and lot, held under articles of agreement, and leaving issue four daughters, two of whom were minors. The house, which was insured by him for three years from March, 1885, in the Hamburg-Bremen Insurance Company, for $1,200, payable "unto the said assured, his executors or administrators," was totally destroyed by fire about four months after his decease. A question having arisen, whether the insurance money should be paid to the administrator or to the children and heirs at law of the assured, it was agreed, in writing, by the two adult daughters and the guardian of the minors, that it should be paid to the administrator, John A. Day, and if it should thereafter be decided by the court that the money belonged to the children he would pay the same to them; otherwise he would account for it as administrator. The loss was promptly adjusted by the insurance company, and paid to the administrator. In due time he filed his account, but instead of charging himself with the net amount, $1,100, received from the company, he referred to it as having been paid to him in pursuance of the above-stated agreement, and declared his readiness to pay the same to the children of his intestate, or otherwise account purpose of presenting the matter to the orphans' court, the omission to charge himself as administrator with the insurance money was excepted to, and an auditor was appointed to pass upon the question, re-state the account, if necessary, and distribute the balance that might be found in the hands of accountant. The auditor found as a fact that even including the insurance money as an asset for distribution among the creditors, the estate was largely insolvent; but, notwithstanding this, he held that the children of the intestate were entitled to the insurance money. The court was of the same opinion and accordingly the decree from which this appeal is taken was entered. The question thus presented is whether, the estate being clearly insolvent, the creditors have any claim upon the insurance money. We think they have. The contract under which the money became due and payable to the personal representative of the intestate is one of indemnity against a possible loss which actually happened after his decease but during the life of the policy. If his estate, exclusive of the property insured, had been solvent, his children who succeeded to his interest in said property would undoubtedly have been entitled to the insurance money; but, inasmuch as his estate, including the realty and the sum realized from the insurance policy, is admittedly insolv ent, their right is subordinate to that of the creditors. In this State the lands of a decedent, as well as his goods and chattels, are assets for the payment of his debts. When the personal property is exhausted or clearly insufficient it is the duty of the personal representative, under the direction of the proper court, to resort to the realty, and thus, if possible, satisfy the claims of creditors. In Horner v. Hasbrouck, 41 Pa. 169, 179, it is said, it will be seen, from a brief glance at the history of our orphans' court, how we enforce the principle, never lost sight of in our jurisprudence, that the lands of a decedent, like his goods, are assets for the payment of his debts, and that the right of succession has respect only to so much of his estate as remains after his debts have been paid. When a man dies in Pennsylvania, his real and personal estate comes within the jurisdiction of the orphans' court, to be administered, first of all, for the benefit of creditors, and next for legatees, devisees and heirs. We usually define the heir to be one on whom the law casts the estate at the death of the ancestor; but with us the estate is cast subject to the jurisdiction of the orphans' court. Heirs are thus postponed to creditors. If it be said, as for some purposes it is correct to say, that the estate vests in the heirs directly the ancestor dies, it must be understood to be a contingent interest, defeasible in behalf of creditors. What really vests in the heir is the title to the residuum, or, in the language of the Act of 1834, the "surplusage" of the estate. This is what the law casts on the heir. It can be nothing else consistently with our system of administration and distribution. While, strictly speaking, the insurance money in question is not the proceeds of real estate bound by the lien of decedent's debts, it really represents, to that extent, the realty that was insured and destroyed by fire. If the insurance company had elected to restore the lost building, instead of paying the amount of risk in cash, the property would have been immediately subject to sale for the payment of debts. Whether we regard the insurance money as the proceeds of the contract of indemnity and a personal asset in the hands of the administrator, or as representing the building that was destroyed, in either case the claim of the heirs thereto is subordinate to that of the creditors. While we cannot assent to some of the conclusions reached by the learned court in Wyman V. Wyman, 26 N. Y. 253, the general principle, in relation to the right of heirs as against creditors of an insolvent estate, so ably maintained in that case, harmonizes with the views above expressed. It follows from what has been said that the court below erred in not holding that the insurance money was distributable among the creditors of the intestate. Decree reversed and record remitted with instructions to distribute the fund in accordance with the foregoing opinion. Costs of this appeal and expenses of distribution to be paid out of the fund. Daniel LAUGHMAN et al., Appts., v. William H. PIPER et al. (...... Pa...........) 1. The trade name of any natural product or other article of manufacture upon which a trademark cannot conveniently be affixed, though not strictly a trademark, is a species of property and will as a general rule be afforded the same protection as that given to trademarks. 2. All rights in trademarks possessed by one who has transferred to another the business in which such trademarks were used, will, in the absence of evidence to the contrary, be assumed by the court to have passed to the latter by the assignment. (October 7, 1889,) Reversed. APPEAL by defendants from a decree of the Mr. Rudolph M. Schick, for appellees: Sonman is not a geographical word. The few houses scattered near the railroad station cannot properly be said to make the name geographical. Wotherspoon v. Currie, L. R. 5 H. L. 512. The name of a private estate may be adopted as a trade name. See Pollock, Torts, 138; Du Boulay v. Du Boulay, L. R. 2 Pr. C. 441; Glendon Iron Co. v. Uhler, 75 Pa. 470; Lochgelly Iron Co. v. Christie (Lumphinnans Iron Company), 6 Ct. Sess. Cas. (Scotland), 4th Series, 482. A court of equity will protect the use of even a geographical name where it is made use of by another to perpetrate a fraud on the person first using it. Brooklyn White Lead Co. v. Masury, 25 Barb. 416; Boulnois v. Peake, L. R. 13 Ch. Div. 513, note; Hudson v. Osborne, 39 L. J. N. S. Ch. 79; Fullwood v. Fullwood, L. R. 9 Ch. Div. 176. Clark, J., delivered the opinion of the court: The plaintiffs, W. H. Piper & Co., are miners and shippers of bituminous coal in Cambria County. They are engaged in mining what is known on the geological maps of the State as the Miller Vein, at Ben's Creek, tains; their mines are located upon what was on the western slope of the Allegheny Mounsometimes called the Big Survey, containing an area of about ten square miles, or over six thousand acres. This large body of land, it is said, was conveyed by William Penn directly to one Aaron Sonman, and hence has been gen3. When the article to which a geo-the testimony of Mr. Westbrook, it appears erally known as the Sonman survey. From graphical name is applied is the product of the place named, the term cannot be used as a trade name by one to the exclusion of others, owners of like products of the same place; hence the term "Sonman," which has received a distinct geographical recognition from the public, it being the name of a large boundary of land containing a number of private estates owned by different persons, all of whom are engaged in the same business of mining and shipping coal, and having within its limits a village of the same name, cannot be appropriated by one of such persons as a trade name to the exclusion of the others, although the tract is not an independent region, and cannot be considered a separate coal basin or sub-basin. NOTE.-Trademarks under United States statutes. The United States Act of 1876, imposing penalties for infringement of trademarks, fell with the decision of the Supreme Court of the United States, that the Act of 1870, to which it referred, was unconstitutional. U. S. v. Koch (Mo.) ante, 130; U. S. v. Steffens, 100 U. S. 82 (25 L. ed. 550). The Act of 1876 was not revived, or given operative force by the Act of 1881, in reference to trademarks. U. S. v. Koch, supra. that in the Sonman tract there are several seams or veins of coal, one above another. Mr. Westbrook says: "The bottom vein is known as vein 'A; a short distance above this is a small vein known as 'A primal;' the next higher vein is known as vein 'B,' and a few feet above this is a smaller vein known as 'B primal;' the next is known as 'C,' and so on to E,' 'E' being the highest upper workable vein. These are the designations given in geological surveys. These several veins have other several local designations; they are known by miners in the neighborhood by the name of the person who owns them. The Lemon vein As to the use of names as trademarks, see Rum. ford Chemical Works v. Muth, 1 L. R. A. 44, note, 35 Fed. Rev. 524. See, as to trademarks generally, U. S. v. Koch, ante, 130, and references in note. The latest case on trademarks holds that a manufacturer who uses a trademark indicating that the article is manufactured at one city will be enjoined on the ground that he is deceiving and defrauding the public, where it is actually manufactured at another city, in a suit by a manufacturer of the latter city. Southern White Lead Co. v. Coit (Ill.) 39 Fed. Rep. 492. was so named because it was opened by John | mon Vein in 1852 or 1853, says: "We called it A. Lemon or his father. The Lemon vein is the Sonman coal in contradistinction to the vein 'E,' and the Miller vein, said to have been Lily Mill coal, which was mined east of it, befirst opened by a man of that name, is vein 'B.' | tween planes 3 and 4; this was a common apThe coal mined from the same vein in different pellation for it; we called the coal from that localities is not always of the same quality. survey Sonman coal." The Miller vein, or vein 'B,' at Gallitzin, ten miles east of Sonman, is very much softer; while at South Fork, which is eight or ten miles from Sonman west, it is very much harder. In some cases two or three miles makes a difference in the quality of the coal from the same vein." In December, 1872, the Cambria Mining and Manufacturing Company, the owner of the Sonman survey, by an instrument of writing in the form of a lease, granted to Dysart and Laughman, for a term of ten years, the right to mine, transport and sell coal out of the Miller Vein from a certain drift opened "nearly opposite a point on Ben's Creek known as Ben's Hole.' On the 1st of January, 1874, Piper became a partner; the business was conducted under the name of Dysart & Co. and the firm commenced to mine and ship coal in considerable quantities therefrom to market. On the 26th of July, 1879, the firm of Dysart & Co. dissolved, Dysart and Laughman transferring their interest to Piper. The lease was afterwards extended, and Lewars became associated with Piper as a partner under the name of W. H. Piper & Co., the complainants in the bill. Upon the dissolution of the firm of Dysart & Co., Dysart and Laughman began operations upon another portion of the Sonman tract, and were, and are now, engaged somewhat extensively in the mining and shipping of coal therefrom. Hon. John Dean testifies that there were about five thousand acres known to him as the Sonman lands; that the coal is called the Souman coal, and that he always heard it called by that name; and that it was a very common name as far back as 1854. Mr. Westbrook, who opened the Miller vein and sold coal to the Altoona Manufacturing Company, to the Logan Iron & Steel Works, to the Phoenix Iron Company, and to dealers, says: "I always called all coal mined and shipped Sonman coal, as designating the locality or region in which it was mined, sometimes, however, designating the coal by the name of the vein by which it is known.' But the plaintiffs have introduced evidence to show that a short time after the 1st of January, 1874, they formally adopted the term "Sonman" as a trademark or name for their coal, and they now seek an injunction to restrain the use of that term by the defendants to any of their coal, even though the same be mined from the Sonman lands. The ownership of a trademark has, in general, been considered as a right of property, and equity will protect that right from infringement; proof of fraud is not required; the mere violation of the right is sufficient to induce the exercise of the equity powers of the courts. The trade name of any natural product or other article of manufacture, upon which a trademark cannot conveniently be affixed, though The complainants in the bill allege that soon not strictly a trademark, is, nevertheless, a after the formation of the firm of Dysart & Co., species of property, and will, as a general rule, which was on the 1st of January, 1874, the be protected in like manner. Trademarks are firm sought to select and establish a trade name the proper subject of assignment, to the extent, for their coal; that "Ben's Creek" and "Eu- at least, that unless reserved they pass with an reka" were at first suggested, and, upon due assignment of business (Sebastian, Trademarks, consideration, the latter name was adopted; but 236); and the assignment by one partner of all when it was afterwards discovered that this his interest in a firm to his co-partners will was an infringement upon the trade name of carry with it the exclusive use of the tradeBerwind, White & Co., also miners and ship-mark of the firm. Menendez v. Holt, 128 U. S. pers of coal from the Clearfield region, the name "Sonman" was adopted as a trade name, "As a distinct property, separate from the and that name has ever since been used and ap- article created by the original producer or plied as the trade name of all the coal shipped manufacturer, it may not be the subject of sale: from their mines; that their coal is known and but when the trademark is affixed to articles recognized in the trade as "Sonman coal," and manufactured at a particular establishment, and is thus distinguished from other kinds and qual- acquires a special reputation in connection with ities of bituminous coal in the market. The the place of manufacture, and that establishplaintiffs complain that the defendants are in- ment is transferred, either by contract or operfringing their right, by wrongfully and fraud-ation of law, to others, the right to the use of ulently shipping an inferior coal under the trade name, and offering it for sale as''Sonman coal," thus inducing dealers and consumers to suppose that the coal which they buy from the defendants is the Sonman coal of the plaintiffs; whereby the public is deceived and the reputation of the plaintiffs' coal is injured, etc. 514 [32 L. ed. 526]. the trademark may be lawfully transferred with it. Its subsequent use by the person to whom the establishment is transferred is considered as only indicating that the goods to which it is affixed are manufactured at the same place and are of the same character as those to which the mark was attached by the original designer." It is clear from the evidence, and the fact is found by the master, that the coal taken from Such is the appropriate language of Lord these mines has heretofore been spoken of and Cransworth, in the case of Leather Cloth Co. v. sold as "Sonman coal." Prior to 1874, how American Leather Cloth Co. 11 Jur. N. S. 513; ever, the term "Sonman" would seem to have Kidd v. Johnson, 100 U. S. 617 [25 L. ed. 769]. been applied, not as a trade name, but merely We assume, therefore, that W. H. Piper, as as descriptive of the location of the mines. the assignee of Dysart and Laughman, posMr. Alexander M. White, who mined the Le-sessed the rights of the firm of Dysart & Co., in any trademark which that firm, at the time | Strong, "was not devised by the complainants. of its dissolution, may have acquired, and, They found it a settled and known appellative with his approval, the new firm of W. H. Piper of the district in which their coal deposits and & Co. were certainly entitled to exercise that those of others were situated. At the time right. they began to use it, it was a recognized description of a region and, of course, all the earths and minerals in the region. It must then be considered as sound doctrine,' says the learned Justice, "that no one can apply the name of a district of country to a wellknown article of commerce, and obtain thereby such an exclusive right to the appellation as to prevent others inhabiting the district, or dealing in similar articles coming from the district, from truthfully using the same designation. It is only when the adoption or imitation of what is claimed to be a trademark amounts to a false representation, expressed or implied, designed or incidental, that there is any title to relief against it." But we are not clear that either Dysart & Co., or W. H. Piper & Co., or any other parties operating the Sonman mines, had a right to appropriate the term "Sonman" to the exclusion of others similarly engaged. The object of a trademark is that the article to which it is attached or belongs may be distinguished from articles of a similar kind, and thus be known and identified in the market; its purpose is to indicate the personal origin of the article to which it is applied, or the source from which it comes. The office of a trademark is thus defined by Mr. Justice Field, in Amoskeag Mfg. Co. v. Trainer, 101 U. S. 53 [25 L. ed. 994]: "Everyone is at liberty to affix to the product of his In the case of Newman v. Alvord, 49 Barb. own manufacture any symbol or device, not 588, the plaintiffs manufactured a cement at previously appropriated, which will Jistin- Akron, N. Y., and sold it under the name of guish it from articles of the same general nat- "Akron Cement." The defendants made the ure manufactured or sold by others, and thus same sort of cement at Syracuse, and labeled secure to himself the benefits of increased sale it "Onondaga Akron Cement." The court by reason of any peculiar excellencies he may held that "though all the world had a right have given to it. The symbol or device thus to manufacture cement at Akron and call it becomes a sign to the public of the origin of Akron Cement', yet the action of the defendthe goods to which it is attached, and the as-ants, in calling their cement made at Syracuse, surance that they are the genuine article of the original producer." But in the exercise of the right to establish a trademark, there are certain limitations which must be observed. No property can be acquired in any word, mark or device, which denotes merely the nature, kind or quality of an article. Thus, in Raggett v. Findlater, L. R. 17 Eq. 29, an injunction to restrain the use of the words "Nourishing Stout," which the plaintiff had previously used, was refused upon the ground that "nourishing" was a mere English word denoting quality. The owner of an original trademark has an undoubted right to be protected in the exclusive use of all the marks, forms or symbols that are appropriated as designating the true origin or ownership of the article or fabric to which they are affixed; but he has no right to an exclusive use of any words, letters, figures or symbols which have no relation to the origin or ownership of the goods, but are only meant to indicate their name or quality. He has no right to appropriate a sign or symbol which, from the nature of the fact it is used to signify others may employ with equal truth, and therefore have an equal right to employ, for the same purpose." Amoskeag Mfg. Co. v. Spear, 2 Sandf. 599. And whilst the office of a trademark is to indicate the personal origin or ownership of an article, yet a merely geographical name cannot be so used. Bispham, Eq. § 457; Delaware & H. Canal Co. v. Clark, 80 U. S. 13 Wall. 311 [20 L. ed. 581]. In the case last cited it was held that the word "Lackawanna," which is the name of a region of country in Pennsylvania, could not, by combination with the word "coal," constitute a trademark, because everyone who mined coal in the Valley of the Lackawanna had a right to represent his coal as Lackawanna coal. "The word 'Lackawanna,' says Mr. Justice 'Akron Cement', was a fraud on the plaintiffs and on the public, and should accordingly be restrained.". To the same effect is our own case of Glendon Iron Co. v. Uhler, 75 Pa. 467, where a corporation adopted the trademark "Glendon" upon their iron; the place where their furnaces were located was afterwards erected into a borough by the name of Glendon. Another company, engaged in business in the same place, afterwards used the word "Glendon" on their iron, and it was held that the second company was justified in so doing. "The appellees," said this court in the case cited, "put upon their pigs the initials of their firm and the name of their town. That name was Glendon to the whole world. It cannot be that the previous appropriation by the appellants of the word which now is the name of the town prevents any other manufacturer of pig iron within its limits from using the same word. If it be so now, it may continue through all coming time. The boundaries of the town may be enlarged; the borough may grow into a city; the manufacturers of pig iron may be multiplied, and the word most expressive to indicate their location must be denied to all save one. So far as the authorities go to restrain a manufacturer from the adoption of a truthful trademark, we will endeavor to enforce them; when asked to go further we must decline. If the effect of the incorporation of the appellants' district of country into a town by the name of Glendon has been to deprive them of some of their former rights, they must submit to the consequences." It is upon the same principle that every person may put his own name upon his own goods, notwithstanding another person of the same name may, in that name, manufacture and sell the same or a similar article. Burgess v. Burgess, 17 Eng. L. & Eq. 257. Applying these principles to the case now |