statutes like ours, partition is had only because the land was the property of the decedent, not because it is the land of heirs. The fact that jurisdiction of all undivided interests of a decedent is given does not evince a purpose to intrust the court with the power to make partition or allotment of property in which strangers have an interest. Snyder's Appeal, 36 Pa. St. 168. See, also, In re Walker, 136 N. Y. 28, 32 N. E. 633; Romig's Appeal, 8 Watts, 415. The cotenants not before the court could not be affected by the partition. Section 1686, Code Civ. Proc., makes the decree binding only "on all parties interested in the estate." The court may recognize the interests of grantees of the heirs or devisees, and the simple fact that the Code (section 1678) makes special provision for such grantees indicates that it was not intended to extend the rule any further. Sections 1676 and 1683 require that notice be given to all parties interested residing in the state before the commissioners are appointed, or partition is ordered, stating the time and place where the commissioners will proceed to make the partition; but the probate court can inquire only as to who are parties in interest claiming under the decedent, and whether the proper notice has been given to them. As it has no jurisdiction of any one except those interested in the estate, it is clear that it cannot determine whether proper notice has been given to the latter, or bring them within its jurisdiction. The authorities cited by counsel for respondent, we think, do not sustain his contention. Brennan v. Hill, which is reported in Gates v. Irick, 2 Rich. Law, 599, note, was decided upon the provisions of the acts of 1824 and 1833, referred to in the opinion, and the court said that these acts were intended "to save the delay and expense to these proceedings in equity by giving to the judges of the courts of ordinary jurisdiction to make partition of the real estates of deceased persons, by sale or division, in certain cases. * When a judge of the court of equity was required incidentally to decide upon questions of title, he, according to his discretion, determined for himself, or sent an issue to be tried at law. The act of 1824 transferred cases of a limited amount, within this branch of equity jurisdiction, to the courts of ordinary, thus making them, as to such matters, inferior courts of equity; and, by the right of appeal to the court of common pleas, a trial by jury was saved to any party who desired it." No such intention on the part of the legislature is manifested in our statutes. In Earl v. Rowe, 35 Me. 421, it appears that the statute authorized partition after settlement. The parties were all heirs or devisees.

2. Section 1666, Code Civ. Proc., provides that in the decree of distribution the court must name the persons, and the proportions or parts to which each shall be entitled, and

that such decree is conclusive; subject only to be reversed, set aside, or modified on appeal. Ordinarily, after the entry of this decree the court has no power over the property or the rights of the distributees (Wheeler v. Bolton, 54 Cal. 302), and courts of equity alone can afford relief. Estate of Hudson, 63 Cal. 454. Sections 1675 and 1676, Code Civ. Proc., however, provide for an exception, viz.: that when the estate assigned by the decree to two or more heirs, devisees, or legatees is common, and the respective shares are not separated, partition may be made by three disinterested persons. The partition can be ordered on the petition of any person interested in the estate, but said petition must be filed, and the attorneys, guardians, and agents representing absent parties must be appointed, and notice given, before the order or decree of distribution is made. It is claimed by counsel for respondent that the section as to time is merely permissive. It says the petition may be filed and notice given at any time before the decree, but we think the intention was that it must be filed before the decree of distribution. There is every reason for so holding. As stated before, ordinarily the court loses jurisdiction over the property after the entry of the decree of distribution, except to compel delivery. The section gives to the court the power to reserve its jurisdiction to proceed beyond the making of the decree. For this purpose the parties in interest must be kept before the court, and must be given an opportunity to protect themselves in the proceedings looking to a division of their property. If a petition may be filed at any time after the decree of distribution is entered, how are the parties to have notice of the intended proceedings? Must they watch the record for years at their peril? The notice required by section 1676 is confined to "all persons interested who reside in this state, or to their guardians, and to the agents, attorneys or guardians if any, in this state, of such as reside out of this state." Every one interested in the settlement of an estate is supposed to be before the court, and to take notice its proceedings, but, when the estate has been settled and the interests of all parties have been ascertained by the decree of distribution, and the property has been set over to them absolutely and unconditionally, without any previous proceedings indicating an intention to divide the property, the jurisdiction of the court is exhausted. We think that the court below ought not to proceed any further towards the partitioning of the undivided interests described in the affidavit filed herein. The rights of the parties should be settled by a suit for partition, in which all persons having any interest in the lands may be made parties, and in which the commissioners will not be required to divide the property in each county separately, as they would have

1. Though the words "Kidney and Liver Bitters" are not the subject of a trade-mark, being merely descriptive, yet the name of the maker, and every device in the form and contents of a label and wrapper to denote that the goods are made by him, are proper subjects.

2. The label issued by L. & Co., manufacturers of a medicine, and filed with the secretary of state, indicated that the firm was the manufacturer and seller of the medicine, and stated that "none was genuine without the fac simile signature, L. & Co." L. transferred all his rights to his partner, and afterwards formed a partnership with his wife under the same name as the former firm, for the purpose of selling similar medicine. Held, that he might be enjoined from the use of any label indicating that such medicine was prepared and sold by L. & Co., or that L. was the original compounder of it.

3. Where a partnership, manufacturer of a medicine, is not a patentee thereof, one partner, who sells his interest to the other, cannot be restrained from manufacturing and selling similar medicine.

Commissioners' decision.

Department 2. Appeal from superior court, Sacramento county; W. C. Van Fleet, Judge.

Action by J. J. Spieker against T. M. Lash and others. From a judgment for plaintiff, defendants appeal. Judgment modified.

A. L. Hart and C. H. Oatman, for appellants. Johnson, Johnson & Johnson, for respondent.

VANCLIEF, C. Suit in equity to enjoin the infringement of a trade-mark and the diversion of the trade or custom of the plaintiff, to whom was transferred the good will of the business in which the trade-mark had been acquired and used. The complaint contains two counts, the first alleging an infringement of plaintiff's trade-mark and proprietary name, "Lash's Kidney and Liver Bitters," and the second, a cause of action for breach of warranty implied in a sale of the good will of the business, which included the manufacture and sale of said bitters. In the year 1884 the plaintiff and defendant formed a partnership at Sacramento under the firm name of T. M. Lash & Co., in the purchase and sale of drugs and medicines, and the manufacture and sale of medicinal preparations. In 1886 they made up a formula for a medicinal preparation of bitters, principally intended to benefit the kidneys and liver, and gave it the name "Lash's Kidney and Liver Bitters," and thereafter the partnership of T. M. Lash & Co. built up a large and profitable business in the manufacture and sale of that preparation. The

preparation was not patented, but the firm registered a trade-mark thereof in the office of the secretary of state. In carrying on the business of the firm, Spieker remained at the store and attended to the business of manufacturing and filling orders for the bitters, while Lash traveled over the country, advertising the bitters and securing orders therefor. On November 9, 1889, the firm of T. M. Lash & Co. was dissolved by consent of the partners, and all the interest of Lash in the property of the firm was transferred by him to Spieker. It is alleged in the complaint and admitted by the answer, and found as a fact by the court, that this transfer included the good will of the business. On October 31, 1889, T. M. Lash and his wife, Jennie Lash, transferred to Spieker the trade-mark of "Lash's Kidney and Liver Bitters," together with the right to use the same, and covenanted to warrant and defend the same. In July, 1890, T. M. Lash commenced, at Sacramento, to manufacture a preparation similar to Lash's Kidney and Liver Bitters, which he called "Dr. Web's Liver and Kidney Bitters," and soon afterwards formed a partnership with his wife under the name "T. M. Lash & Co." for the purpose of manufacturing and selling the same. On the back label of this preparation he thereafter described himself as "T. M. Lash, Manufacturer of Dr. Web's, the Only Genuine Liver and Kidney Bitters," and notified the public to address all orders, "T. M. Lash & Co., Proprietors, 923 K Street, Sacramento, Cal." The court found, substantially, that the defendant began the manufacture and sale of Web's Bitters with intent to injure the plaintiff's business, and to detract from the reputation of Lash's Kidney and Liver Bitters; that the preparations are very similar, and composed mainly of the same ingredients, and that Web's Bitters, sold in the name of T. M. Lash & Co., were put up in bottles closely resembling the bottles in which plaintiff was accustomed to put up Lash's Kidney and Liver Bitters, and that defendant placed upon the bottles containing Web's Bitters labels which, in size and general appearance, very nearly resemble the labels placed by plaintiff on the bottles containing said Lash's Bitters; that by these acts the defendants intentionally deceived the general public into the belief that the manufacture of the original Lash's Kidney and Liver Bitters had been superseded by the same preparation under the name of "Web's, the Only Genuine Liver and Kidney Bitters," manufactured by T. M. Lash and sold by T. M. Lash & Co.; that defendants, with intent to injure the good will of plaintiff's business, and to prevent the sale of Lash's Kidney and Liver Bitters, as manufactured and sold by plaintiff, and to induce the customers of plaintiff and of the former firm of T. M. Lash & Co. to patronize them under the same firm name, formed a pretended partnership under that name, and

sought to supplant the Lash Bitters manufactured by plaintiff with the Web's Bitters manufactured by T. M. Lash, and sold in the firm name of T. M. Lash & Co. to the patrons and customers of plaintiff, and sought to exchange Web's Bitters for Lash's Bitters, and to induce the public to believe that Web's Bitters was the only genuine Kidney and Liver Bitters, and have thereby intentionally drawn off from plaintiff to themselves a large number of plaintiff's patrons and customers.

The judgment of the court was in favor of plaintiff, enjoining the defendants as prayed for in the complaint; and defendants have appealed from the judgment, and from an order denying their motion for a new trial. While it is true that the words "Kidney and Liver Bitters" are merely descriptive of the thing manufactured, and therefore not the proper subject of a trade-mark, yet the name of the maker, and every device in the form and contents of a label or wrapper affixed to denote that goods are manufactured, produced, compounded, or sold by him, other than a name, word, or expression denoting that the goods are of some particular class or description, are proper subjects of a trade-mark; and any person may secure the exclusive right to the use of such trade mark or name by filing with the secretary of state his claim to the same, and otherwise complying with section 3197 of the Political Code; and, when the claimant has thus secured a trade mark or name, he may transfer the same, and the right to the exclusive use thereof, to another, and the property right so transferred will be protected from infringement by injunction. Id. § 3199.

The label filed with the secretary of state by the original firm of T. M. Lash & Co. clearly indicated that that firm was the proprietor, manufacturer, and seller of a medicinal preparation named "Lash's Kidney and Liver Bitters," which was described as compounded from the bark rhamnus purshianus, for use as a mild cathartic and regulator of the stomach, bowels, and liver, and as "helpful in all affections of kidneys and liver," and as sold by them for the price of $1 per bottle, and stated that "none is genuine without the fac simile signature, 'T. M. Lash & Co.'" Both the front and the back labels, while containing words which could not have been exclusively appropriated as a trade-mark, yet contained characteristics and devices indicative of original manufacture, compounding, and sale of the preparation by T. M. Lash & Co. The exclusive use of these labels, in so far as thus indicative, became the property of the original firm of T. M. Lash & Co., subject to transfer as personal property by the express terms of the statute; and the defendants, T. M. Lash and wife, expressly transferred all their rights in that trade-mark to the plaintiff, and, therefore, may properly be enjoined from the use of any label which indicates that medicine

Mc

of the same nature is prepared and compounded or sold by T. M. Lash & Co., or that Lash is the original author or compounder of it. Schmidt v. Brieg (Cal.) 35 Pac. 623. And, apart from the infringement of a valid trade-mark, as said by this court in Schmidt v. Brieg: "A competing business firm is bound to deal fairly in placing its rival article upon the market; and if it clearly appears that the defendant has closely imitated the plaintiff's labels and style, and has done obvious damage to the latter's business through the unlawful business methods employed, the plaintiff is entitled to relief upon the ground of fraud. Sperry v. Milling Co., 81 Cal. 258, 22 Pac. 651; Pierce v. Guittard, 68 Cal. 68, 8 Pac. 645. Cases are not wanting of injunctions issued to restrain the use even of one's own name, where such use is made with such additions as to intentionally deceive the public, and make them believe he is selling the goods of another. Lean v. Fleming, 96 U. S. 251; Chemical Co. v. Meyer, 139 U. S. 542, 11 Sup. Ct. 625. See, also, Food Co. v. Baumbach, 32 Fed. 212; California Fig Syrup Co. v. Improved Fig Syrup Co., 51 Fed. 297; Stone Co. v. Wallace, 52 Fed. 438." It would seem, a fortiori, that the improper use of one's own name may be enjoined where, for a valuable consideration, he has voluntarily sold a trademark of which his name forms an essential part, and the good will of a partnership business wherein his own name was the leading and characteristic designation of the firm, as in this case. The evidence shows that the defendants' labels, while differing in some respects from those of the plaintiff, are a colorable imitation of them, the resemblance being such as to justify the conclusion that they were intended and adapted to lead the public generally to the belief that the manufacture of the original Lash's Kidney and Liver Bitters had been superseded by the same preparation under the name of "Web's, the Only Genuine Liver and Kidney Bitters," manufactured by T. M. Lash, and sold by T. M. Lash & Co. The evidence fully sustains the finding to the effect that defendants intended and endeavored to injure the plaintiff's business, and had effected that purpose by drawing off from plaintiff to themselves a large number of plaintiff's patrons and customers, and the facts found warrant equitable relief.

But the injunction as granted is too broad. The plaintiff is not a patentee of the preparation manufactured and sold by him, and defendants cannot be enjoined from the manufacture and sale of that or any similar preparation.

I think the order denying a new trial should be aflirmed, but that the perpetual injunction granted by the judgment should be modified by striking out the words, "and from manufacturing and selling the said 'Dr. Web's, the Only Genuine Liver and Kidney Bitters,'" and inserting in lieu there

of the following: "And from using the name "T. M. Lash,' or 'T. M. Lash & Co.,' to designate the business of manufacturing or selling any liver and kidney, or kidney and liver, bitters, and from any infringement of the trade-mark of 'Lash's Kidney and Liver Bitters,' and from any imitation of the form or appearance of the labels used by the plaintiff upon bottles in which he stores or sells Lash's Kidney and Liver Bitters"-and that in all other respects the judgment should be affirmed. Costs of appeal to be taxed to respondent.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order denying a new trial is affirmed; the judgment is modified as indicated in the opinion, and, as so modified, is affirmed. Costs of appeal taxed to respondent.

(102 Cal. 50)

GREGORY et al. v. GREGORY et al. (No. 18,154.)

(Supreme Court of California. March 28, 1894.) ADVERSE POSSESSION TENANTS IN COMMON AGREED CASE-APPEAL- EFFECT-MOTION FOR NEW TRIAL-JUDGMENT ROLL.

1. Where one tenant in common enters into possession of the property under color of title, and remains in possession, exercising acts of ownership, openly and notoriously, claiming the same adversely to all the world, and paying all the taxes, his possession is sufficient notice to the other tenants to put the statute of limitation in motion. In re Grider, 22 Pac. 908, 81 Cal. 571, distinguished.

2. An appeal from an unappealable order does not stay proceedings, and deprive the court of power to hear other motions.

3. Where a case is submitted on an agreed statement, a finding of facts by the court is unnecessary.

4. An order denying a motion for a new trial cannot be reviewed on appeal, where the case was submitted under an agreed statement of facts, as a new trial is an examination of an issue of fact.

5. Where the agreed statement of facts is set out in the record, and the judgment recites that a statement of facts was submitted by the parties, and that the court files its decision based thereon, the statement may be considered a part of the judgment roll.

6. Where the judgment roll does not show when the action was commenced, but the brief of one of the parties states, without contradiction by the other, that it was commenced at a certain time, the statement will be considered as true.

Department 2. Appeal from superior court, Placer county; W. H. Grant, Judge.

Action by James W. Gregory and others against John H. Gregory and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

James Gartlan, for appellants. Tuttle & Tuttle, for respondents.

PER CURIAM. This is an action to quiet the plaintiffs' title to an undivided four-fifths interest in certain real property situate in

the county of Placer. The case was submitted to the court below for decision upon an agreed statement of facts, from which the court drew certain conclusions of law, and, in accordance therewith, rendered judgment in favor of the defendants. From this judgment, and an order denying their motion for a new trial, the plaintiffs appeal.

1. After the judgment was entered the plaintiffs moved the court to set it aside, upon the ground that findings had not been waived, and there were no findings of fact to support it. This motion was denied, and the plaintiffs appealed from the order. Ap pellants now contend that, after that appeal was perfected, it stayed all further proceedings in the court below, and, therefore, that court had no power to hear and deny the plaintiffs' motion for new trial. A sufficient answer to this contention is that on March 9, 1893, the appeal referred to was dismissed by this court upon the ground that the order appealed from was not an appealable order. 32 Pac. 531.

2. Appellants also contend that the judg ment should be reversed because findings of fact were not waived, and none were filed by the court below. This contention cannot be sustained. The agreed statement covered all the facts of the case, and, if findings had been made, they would have been simply a restatement of facts already agreed upon, and about which there was no controversy. But it is well settled that findings are never necessary upon questions about which there is no dispute. For example, findings are not necessary where the allegations of the complaint are not denied, or as to facts admitted by the pleadings. Pomeroy v. Gregory, 66 Cal. 572, 6 Pac. 492, 493; Taylor v. Railroad Co., 67 Cal. 615, 8 Pac. 436. And, where a finding made is conclusive against the right of the plaintiff to recover, findings upon other issues are unnecessary to support the judg ment against him. Dyer v. Brogan, 70 Cal. 136, 11 Pac. 589. So a judgment will not be reversed, for want of a finding upon a particular issue, where it is apparent that the omission in no way prejudiced the appellant. Murphy v. Bennett, 68 Cal. 528, 9 Pac. 738. So an issue raised by a defense upon which no evidence is offered at the trial, and no finding made, is deemed immaterial, and the judgment will not be reversed for want of a finding. Senter v. Senter, 70 Cal. 619, 11 Pac. 782; Himmelman v. Henry, 84 Cal. 104, 23 Pac. 1098; Rogers v. Duff, 97 Cal. 66, 31 Pac. 836.

3. The order denying the plaintiffs' motion for new trial cannot be reviewed here on appeal, for two reasons: (1) A new trial is a re-examination of an issue of fact in the same court. Code Civ. Proc. § 656. In this case, as all the facts were agreed upon, there was no issue of fact to be re-examined, the only question being as to what was the law applicable to those facts. (2) The statement contains no specifications of the par

ticulars in which the evidence was insufficient to justify the decision, or of any errors in law occurring at the trial.

4. The only remaining question to be considered is, does the agreed statement of facts support the judgment? Objection is made that the statement does not constitute a part of the judgment roll; but it is set out in full in the record, and the judgment recites that: "This cause came on regularly to be heard.

And the respective parties thereto having stipulated that an agreed statement of all the facts of the said action would be by them submitted to the court for its decision, and the same having been thereafter

** regularly filed, and submitted to the court for consideration and its decision, and after due deliberation thereon, the court files its decision and conclusions of law, based upon said agreed statement, in writing, and orders that judgment be entered herein in favor of defendants, in accordance therewith." Under these circumstances, we think the statement may be considered, whether it in fact constitutes a part of the judgment roll or not.

One of the defenses interposed by the answer is that the cause of action was barred by the statute of limitations; and as to this the court found, as a conclusion of law: "That defendants have acquired full and perfect title to said land, and to the respective portions thereof herein before mentioned, under and by virtue of the statute of limitations." The record does not show when this action was commenced, but a second amended complaint was filed May 22, 1891, and it is stated in the brief for respondents that the original complaint was filed in 1891. This statement is not denied in the reply brief for appellants, and we shall therefore accept it as true. It would subserve no useful purpose to set out the facts agreed upon at length. It appears therefrom that as early as 1877 the appellants were all of age, and were then, and ever since have been, residents of this state. It also appears that the respondents and their predecessors in interest entered into the actual possession of the parcels of land respectively claimed by them under claim and color of title, and thereafter continued to maintain such possession, and to exercise acts of ownership over the said parcels, openly and notoriously, claiming the same adversely to the plaintiffs and all the world, and paying all taxes assessed thereon, for more than five years before this action was commenced. Under the circumstances shown, we think the possession so taken and held was sufficient to give the appellants notice of respondents' adverse claims, and to put the statute of limitations in motion in their favor, though appellants were owners of interests in the said lands as tenants in common with respondents. In support of their contention that their rights were not barred by the statute, appellants rely mainly upon the case of In re Grider, 81 Cal. 571,

22 Pac. 908. That case is clearly distinguishable from this. In that case the proceeding was inaugurated in the superior court, sitting in probate, for the distribution of an estate, the administration of which had never been closed. It was held that, so long as the administration of an estate remains unclosed, the successor in interest of one of the distributees, who enters into possession of land under a decree of partial distribution, cannot acquire title by limitation or adverse possession, as against those who are legally entitled to claim an interest in the land as tenants in common, though he claims title to the whole of the land, and pays all taxes thereon, and also that a tenant in common cannot show title by adverse possession against his cotenant, in a case where such title is possible, without bringing himself within the rule that notice of his adverse claim must be brought home, actually or constructively, to the cotenant. And it was said that the party claiming adversely in that case had not brought himself within the rule declared. In this case, under orders of the probate court, a part of the land in controversy was sold, the sale approved, and a deed therefor executed to the purchaser. The deed was thereupon recorded, and under it the purchaser took possession of the property, and thereafter held and claimed the same adversely. The balance of the land was distributed by the court, by decrees regular on their face, to two of the respondents, who, under the decrees, entered into the possession of the same, and there. after they and their grantees held and claimed it adversely; and here the facts were quite sufficient to bring the case within the rule declared in the Grider Case as to adverse possession by one tenant in common against his cotenant. It results that the court below did not err in its conclusion of law, and that the judgment and order must be affirmed. So ordered.

(4 Cal. Unrep. 554) HOLBROOKE v. HARRINGTON. (No.

18,198.)

(Supreme Court of California. March 28, 1894.) MINING CLAIMS-TENANTS IN COMMON-ACCOUNTING APPEAL-HARMLESS ERROR.

1. One tenant in common of a mining claim is bound to contribute his proportion of the value of the yearly work required to be done thereon to perfect title, and performed by his cotenant, unless he abandons his interest in the unpatented claim, or offers to perform the work.

2. Where, in partition by one tenant in common of a mining claim, on an accounting for money spent upon the land in excess of her share, no personal judgment is rendered against the other tenant, but the property is ordered to be sold, plaintiff should be allowed the full amount of the sums properly paid out, instead of only one-half, before the residue is divided.

3. Where, in such an action, the amount allowed is less than plaintiff is entitled to, being for one-half the amount paid out, error in allowing improper credits is harmless.