by the testator. Terry's Appeal, 67 Conn. 181, | bated here. Courts of probate are empower186, 34 Atl. 1032. The will of Mr. Murdoch ed to "make any proper order providing for does not directly name his wife as an executrix. It, however, names two others who are asked to act as coexecutors with her, and "aid her in her business," but are exonerated from giving any bonds or qualifying as executors in any court. It also gives Mrs. Murdoch the entire use and management, without account, of all the estate during her life, with power of sale. Whether the ample authority thus bestowed upon her, coupled with the provision as to coexecutors, and that those asked to act in that capacity need not qualify before any court, justified the conclusion that the testator intended that bis wife should be an executrix of his will, and had used words which sufficiently expressed that intention, was a question of testamentary construction. It is for the

court of the domicile of a testator to construe

his will so far as respects any matters subject to their jurisdiction. Clark's Appeal, 70 Conn. 195, 209, 210, 39 Atl. 155, affirmed 178 U. S. 186, 20 Sup. Ct. 873, 44 L. Ed. 1028. Among such clearly are, after the probate of the will, the determination of the question

whether it designates executors, and, if there be such a designation, their approval or disapproval as such. The copies presented to the court of probate of the proceedings in the court of chancery, having been duly authenticated and exemplified, under the laws of the United States, were entitled to the same faith and credit here as that due to them in Mississippi. The paper there found to be the will of William B. Murdoch was consequently to be accepted here as his will, and accepted, so far as concerns his appointment of executors, as meaning what the Mississippi court adjudged it to mean. That this will was sufficient to convey all his property, real or personal, situated in this state, is clear, under Gen. St. 1902, § 293. It did not, however, follow that the court of probate was bound to issue letters testamentary to Mrs. Murdoch as executrix. It had the right to approve or disapprove that appointment. Overby v. Gordon, 177 U. S. 214, 215, 223, 20 Sup. Ct. 603, 44 L. Ed. 741. She might have been competent to manage and dispose of the Mississippi property, and incompetent to manage and dispose of that in Connecticut. It is therefore necessary to inquire whether the decree of probate, granting her letters testamentary, ought to have been revoked.

Gen. St. § 305, provides that in cases of this nature the will and the proceedings resulting in its probate by a court of another jurisdiction may be filed and recorded in the court of probate, “if upon due hearing had, after public notice and such citation as said court shall order, no sufficient objection be shown," and that the will shall thereupon have the same effect as to property in Con

the notice to be given to any person residing out of" the state of matters pending before them, "and the notice given under such order shall be a legal notice to such person," provided that any person "interested in any application that may be made to any court of probate for the probating of a will or the granting of administration may, in person or by attorney, file with said court a written request for special notice to be given to him or his attorney of any order passed by such court of probate thereon," in which case he shall be entitled to reasonable notice, personally, "of any hearing in said matter." Gen. St. 1902, §§ 208, 209. No such written request was ever filed in behalf of any of the appellants, who are the brothers and sisters of the testator, and his heirs at law, one residing in Louisiana, and the others in

Maryland. They had no actual notice of the until more than two years after they were proceedings in the court of probate in 1903,

closed.

in a newspaper, with nothing further in the If the publication of the order of notice way of a citation, satisfied the requirements of these statutes, the appellants received "legal notice," and the decree subsequently entered cannot be regarded as an ex parte one, within the meaning of Gen. St. 1902, § 203, but stands on the footing of any other de cree, as respects proceedings to set it aside. These in ordinary course are by appeal to the superior court, and the appeal must be taken by those who had legal notice to be present at the rendition of the decree, within one month, and by those who had no notice to be present, and were not present, within 12 months. Gen. St. 1902, § 407. The court of probate itself has no power, save in exceptional cases, of which this, on the assumption above made, would not be one, to revoke its own decrees. Gen. St. §§ 194, 203, 314. Delahanty v. Pitkin, 76 Conn. 412, 420, 56 Atl. 881, dismissed for want of jurisdiction 199 U. S. 602, 26 Sup. Ct. 748, 50 L. Ed. 328. No appeal was taken by any of the present appellants from the original decree of probate. If, on the other hand, the notice given of the original application of Mrs. Murdoch did not satisfy the requirements of Gen. St. §§ 305, 208, the defect was not jurisdictional, but a mere irregularity. The court of probate had unquestionable power to entertain and dispose of the original application, with respect both to its subject-matter and to the rights of all who were or might be interested in it. State v. Blake, 69 Conn. 64, 78, 36 Atl. 1019. Its fault, on the present assumption, would have been one of procedure, and the consequence of the fault, at most, so far as concerns the present case, would be to make the decree, as to the ap

77 Conn. 70, 77, 58 Atl. 460; Johnes v. Jack-ed which, as things are, need not be conson, 67 Conn. 81, 90, 34 Atl. 709. sidered.

By Gen. St. 1092, § 203, "any court of pro- There is no error. The other Judges bate may modify or revoke any order or de- concurred. cree made by it ex parte, before any appeal therefrom, and, if made in reference to the settlement of any estate, before the final set

CO.

March 1, 1909.)

(75 N. J. E. 257)

1. TRADE-MARKS AND TRADE-NAMES (§ 98*)— UNFAIR COMPETITION.

On a bill to enjoin unfair competition, a court of equity upon granting an injunction may also decree an account of the profits made by the defendant by means of the unfair competition.

[Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. $ 98.*]

tlement thereof, upon the written application L. MARTIN CO. v. L. MARTIN & WILCKES of any person interested therein, and after notice of the time and place of hearing on (Court of Errors and Appeals of New Jersey. such application appointed by the court, to be given in the manner prescribed by it, to the person having charge of such estate, anc to all other interested parties; and upor any modification, or revocation, there shall be the same right of, and time for, appeal, as in case of any other order or decree." The power of modification or revocation thus conferred is one that, on an application made in a prescribed manner, "may," not must, be exercised. The action to be taken by the court rests in its judicial discretion, subject to revision only by the superior court in the exercise of a like discretion, on appeal. In the application of the appellants to the court of probate it was not denied that Mr. Murdoch left a valid will. The allegations relied on, as the cause for setting aside the decrees in question, were that the will did not authorize the appointment of Mrs. Murdoch as executrix, and that she was, at the time of the testator's death, and

for years had been, to his knowledge, mentaily incapable to administer such an estate. These averments were found untrue, and there was therefore no sufficient ground shown for revoking the decrees appealed from.

2. TRADE-Marks and Trade-Names (§ 98*)—

UNFAIR COMPETITION-DECREE.

On a bill to enjoin unfair competition, it is not permissible for a court of equity upon granting an injunction to decree that the defendant shall account for damages suffered by the profits made by the defendant. the complainant in addition to accounting for

[Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. $ 98.*]

(Syllabus by the Court.)

Appeal from Court of Chancery.

the L. Martin & Wilckes Company. Decree Action by the L. Martin Company against for plaintiff (71 Atl. 409) and defendant appeals. Reversed.

Craig A. Marsh and Frank P. McDermott, for appellant. Robert H. McCarter and Charles L. Carrick, for appellee.

The appellants produced a witness who had seen Mrs. Murdoch in 1900, when she was at Saratoga without her husband, and asked him how much he had then seen of her, claiming that by this and other testimony they were prepared to show that, prior to the execution of the will, and down to the death of Mr. Murdoch continuously, she was insane and incompetent to carry on business affairs of any kind, all of which her husband knew when he signed his will. The purpose of introducing this evidence they stated to be to show the surrounding circumstances accompanying the drawing and execution of the will. If these circumstances could be of any importance in disposing of the present proceedings, it would be because they bore on the proper construction of the will, with respect to the designation of Mrs. Murdoch as an executor. As that was a matter to be decided by, and which has been decided by, the court of the testator's domicile, the evidence offered was properly excluded. Had it been offered for the purpose of showing that, when the court of probate in this state approved her appointment, she was mentally incapable of acting as executrix, a question would have been present

SWAYZE, J. We agree with the conclusion reached by the Vice Chancellor upon the facts of the case, and have nothing to add to his convincing opinion in that respect. The decree, after adjudging that the defendant refrain from carrying on the lampblack business under the name of L. Martin & Wilckes Company, or any other name in which the name "L. Martin" appears, unless words are incorporated in and made a part of such corporate name which shall clearly and unmistakably distinguish the corporate name so adopted by the defendant from the complainant's corporate name, proceeds to award an injunction forbidding the defendant from carrying on the lampblack business under the name of L. Martin & Wilckes Company or under any other name in which the name "L. Martin" appears. The terms of the injunction provided for are therefore broader than the restraint adjudged to the complainant, which permits the use of the name "L. Martin" if the corporate name of the defendant clearly and unmistakably distinguishes it from the complainant. The decree, however, rests upon the conclusion that

the defendants adopted the name L. Martin | Paterson, 60 N. J. Eq. 385, 45 Atl. 995, 48 as a part of their corporate name for the purpose of securing trade which properly belonged to the complainant. This brings the case within the rule of International Silver Co. v. Rogers, 67 N. J. Eq. 646, 60 Atl. 187, 110 Am. St. Rep. 506, and we think the broad terms of the injunction were warranted. Since the complainant does not appeal from that part of the decree which adjudges a more limited restraint, we see no cause for reversal on this account.

L. R. A. 717, 83 Am. St. Rep. 642, where the right to ascertain compensation was contingent upon the consent of the city. In Eggers v. Anderson, 63 N. J. Eq. 264, 49 Atl. 578, 55 L. R. A. 570, the jurisdiction of equity was sustained in a case of fraud, and it was held that the value of goods furnished might be ascertained by a master, but that case comes short of sustaining the jurisdiction to ascertain unliquidated damages for a tort. The difficulty of applying that rule to the present case arises out of the fact that the rule for ascertaining the compensation of the complainant in equity in cases of this kind is not the damages suffered by the complainant, but the profits realized by the defendant. The proper rule in such cases is the rule which has been adopted in cases for infringement of patents. That rule allows the complainant to recover the profits made by the defendant, including in profits the advantage derived by the defendant from the use of the invention. Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894, 31 L. Ed. 664, where Mr. Justice Gray said: "The general rule has been sometimes said to be based upon the theory that the infringer is converted into a trustee for the owner of the patent, as regards the profits made by the use of his invention. But, as has been recently declared by this court, upon an elaborate review of the cases in this country and in England, it is more strictly accurate to say that a court of equity, which has acquired upon some equitable ground the jurisdiction of a suit for the infringement of a patent, will not send plaintiff to a court of

The decree further orders a reference to a master to ascertain the profits diverted from the complainant which have been made by the defendant from the sales of lampblack in packages, and such other damages, if any, as the complainant has suffered by reason of the wrongful conduct of the defendant that is enjoined by the decree. It is the portion of the decree which directs the master to ascertain these damages that calls for comment. This goes beyond the prayer of the complainant's bill which, in this respect, asks only for an account of sales and profits. The Vice Chancellor ably argued in favor of the proposition that it would be unfortunate to remit the complainant to a court of law to ascertain its damages. We are not prepared to accede to his suggestion that we should so extend the jurisdiction of a court of equity, however desirable it may be that such extension should be brought about, either by legislation, or, if that is impossible in view of our constitutional limitations, by constitutional amendment. The general rule is that unliquidated damages for a tort cannot be recovered in equity. So well settled was this rule in England that an act of Par-law to recover damages, but will itself adliament was required to change it. 21 & 22 Vict. C. 27. The rule is stated in 2 Daniel, 1080 (5th Am. Ed.). It is equally well settled in this state. Trotter v. Heckscher, 40 N. J. Eq. 612, 4 Atl. 83; Alpaugh v. Wood, 45 N. J. Eq. 153, 16 Atl. 676; Norton v. Sinkhorn, 63 N. J. Eq. 313, 50 Atl. 506. There is a class of cases in which a court of equity will ascertain the amount of compensation, but these are cases where the ascertainment is necessary as a condition precedent to the equitable relief which the court of chancery is competent to afford. Illustrations are to be found in cases where equity requires that a landowner should be enjoined from maintaining ejectment against a corporation having the power to condemn lands, but at the same time requires that the injunction should be awarded upon terms that the corporation make compensation. The cases are collected by Vice Chancellor Pitney in Sparks Mfg. Co. v. Newton, 57 N. J. Eq. 367, 393, 41 Atl. 385. North Hudson R. R. Co. v. Booraem, 28 N. J. Eq. 450; N. Y. & Greenwood Lake R. R. v. Stanley's Heirs, 35 N. J. Eq. 283. Other cases are cases of compensation on a bill for specific performance, of which Melick v. Cross, 62 N. J. Eq. 545, 51 Atl. 16, is an in

minister full relief by awarding as an equivalent or substitute for legal damages, a compensation computed and measured by the same rule that courts of equity apply to the case of a trustee who has wrongfully used the trust property for his own advantage”— citing the case of Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975. The distinction be tween an account of profits made by the defendant and an ascertainment of the damages suffered by the complainant is well illustrated in the case of Elizabeth v. American Nicholson Pavement Co., 97 U. S. 126, 24 L. Ed. 1000, where the court held in an opinion by Mr. Justice Bradley that the city of Elizabeth, having made no profit, could not be held for compensation in the equity suit, although it had made itself liable for damages in an action at law. That case arose prior to the passage of the act of Congress of July S, 1870 (U. S. Rev. St. § 4921 [U. S. Comp. St. 1901, p. 3395]), which authorized a court of equity, upon rendering a decree in a suit for infringement, to ascertain the damages which complainant had sustained in addition to the profits to be accounted for by the defendant. In a recent case the Supreme Court of the United States has again been called upon to

ure of the recovery in equity and that appli- complainant, by reason of ability to sell or cable in an action at law. Coupe v. Royer, market his goods on more advantageous 155 U. S. 565, 582, 15 Sup. Ct. 199, 39 L. Ed. terms, could have realized a larger profit 263. The ground upon which the complain- than was actually realized by the defendant. ant is allowed to recover the profits made by This in itself is a sufficient reason for the the defendant or the value of the advantage rule which has been adopted by the courts. derived by him from the use of the patent No injustice is thereby done to the complainis that the defendant should not be allowed ant. He has his option to sue at law for the to profit by his own wrong, since it often damages, or to file his bill in equity for an happens that the advantage to the defendant | injunction and account of profits. Whether exceeds the damage suffered by the complain- he can in any case have both remedies is a ant. The principle which has been applied question not now before us. The decree in by the courts in suits for infringement of this case directs the master to ascertain the patent is equally applicable in bills to re- profits diverted from the complainant which strain unfair competition, and has been so had been made by the defendant and such applied by the courts. Lever v. Goodwin, L. other damages, if any, as the complainant R. 36 Chancery Division, 1, which was fol- has suffered. It fails to take into account lowed in the later case of Saxlehner v. Apol- the fact that some of the damages may be linaris Co., 1897, 1 Chancery, 893. In Sing- due to the prospective profits of which the er Mfg. Co. v. June Mfg. Co., 163 U. S. 169, defendant has been deprived, and may be, to 16 Sup. Ct. 1002, 41 L. Ed. 118, upon the re- that extent, embraced also within the deversal of the decree, it was ordered that a nomination of profits made by the defendant. decree be entered containing a direction for This of itself would require a reversal of an accounting by the defendant as to any the decree in this respect. We think it is profits which might have been realized by it better to follow the rule of the English because of the wrongful acts by it commit- courts and of the United States Supreme ted. In Ford v. Foster, L. R. 7 Chancery, Court and limit the accounting to the profits 611, the decree was that an account be tak- made by the defendant. en of the profits made by the defendants. 1 Seton on Decrees, 236. In Regis v. Jaynes (Mass.) 77 N. E. 774, the Supreme Judicial Court of Massachusetts in a trade-mark case said that the same rule was applied to cases of unfair competition merely as well as to cases of the infringement of a trade-mark properly so called. A different rule was adopted in Walter Baker Co. v. Slack, 130 Fed. 514, 65 C. C. A. 138, by the Circuit Court of Appeals, and in W. R. Lynn Shoe Co. v. Auburn Lynn Shoe Co. (by the Supreme Judicial Court of Maine) 100 Me. 461, 62 Atl. 499, 4 L. R. A. (N. S.) 960. the case cited from 130 Federal Reporter the court was influenced by the fact that the profits made by the infringer would not in all cases be compensation to the injured, for the (Court of Errors and Appeals of New Jersey. reason that his loss was in part due to a failure to acquire a just and deserved gain and to the injury to the reputation of his product by reason of the substitution of the spurious article. No doubt, there may be such elements of damage quite independent of any profits or advantage gained by the defendant, but the difficulty is that the two elements of damage may overlap. For example the damages of the complainant would include profits which he has lost, but to award him not only those profits by way of damages, but also the profits which the defendant actually gained by the sales, would permit of a double compensation. If the profits which the complainant might make on sales by himself were exactly the same as the profits actually made by the defendant, the compensation would be exactly double; and it might even be more than double, if the

In

For these reasons, the decree must be reversed, and as the complainant drew the decree in its present form, and in its answer to the petition of appeal asserts that it is agreeable to equity, we see no reason why the appellant, having been forced to come into this court, should not be entitled to the costs of the appeal. The record should be remitted to the Court of Chancery, with instructions to enter a decree in accordance with this opinion. The complainant is, of course, entitled to costs in the Court of Chancery.

(76 N. J. L. 473)

STATE v. FLYNN.

March 1, 1909.)

1. GAMING (§ 79*)—ASSISTING IN KEEPING

GAMING HOUSE.

Section 65, Crimes Act June 14, 1898 (P. L. p. 812), makes it a misdemeanor to aid, abet, or assist in the keeping of a place to which per sons may resort for gambling in any form. [Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 206-217; Dec. Dig. § 79.*] 2. CRIMINAL LAW (§ 59*)-"ABET."

The word "abet" is not synonymous with "aid" and "assist." It may import presence, commission of the criminal offense, but without with instigation or encouragement towards the aid or assistance therein.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74; Dec. Dig. § 59.* For other definitions, see Words and Phrases, vol. 1, p. 15.]

3. GAMING (8 79*)—ABETTING—-WHAT CONSTI

TUTES.

The furnishing by the defendant of a machine that happens afterwards, without his priv

[Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 206-217; Dec. Dig. § 79.*] 4. INDICTMENT AND INFORMATION (8 72*) CHARGING COMMISSION OF TWO OR MORE ACTS.

Where a statute makes punishable various acts, and mentions them disjunctively, an indictment charging the commission of two or more of such acts in one count must charge them conjunctively, unless the words of the statute when so employed are repugnant or

synonymous.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 195; Dec. Dig. § 72.*]

5. INDICTMENT AND INFORMATION (§ 120*)SURPLUSAGE.

Allegations which, although unnecessary, are descriptive of the identity of that which is legally essential to the charge cannot be rejected as surplusage.

ity, to be used for gambling does not consti- abetting or assisting therein, shall be guilty tute either an aiding, abetting, or assisting in of a misdemeanor, and punished," etc. the keeping of a gambling resort. Two matters only require mention. Counsel for plaintiff in error, conceding that this statute makes it a misdemeanor to keep a place to which persons may resort for gambling in any form, insists that the section does not make it a misdemeanor to aid, abet, or assist in the keeping of such a place. It is argued that by the literal reading of the section the words "aiding, abetting or assisting" are conjoined to the phrase "gambling in any form," so that the thing which is made a misdemeanor is the keeping a place to which persons may resort for bookmaking or pool selling, or for betting upon races, or for gambling in any form, or for aiding, abetting, or assisting in such gambling. We deem it clear, however, that the words "or aiding, abetting or assisting" are intended to be conjoined to the words "any person or corporation" at the beginning of the section, and that, although the language lacks something of grammatical nicety, it sufficiently expresses the legislative purpose to render any person or corporation that may aid, abet, or assist in doing any of the things that are by the section prohibited guilty of a misdemeanor; in fact, to make the alder and abettor a principal offender. The objection that the indictment is fatally defective because the offense is charged in the alternative, and not in the conjunctive, is The indictment contains a more serious. general averment, and a limitation of this by a specific averment. Both averments are in the disjunctive.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 315; Dec. Dig. & 120.*]

(Syllabus by the Court.)

Error to Supreme Court.

Wilbur J. Flynn was convicted of keeping a gaming house, and brings error. Reversed. Charles T. Cowenhoven, for plaintiff in error. George Berdine, Prosecutor of the

Pleas, for the State.

PITNEY, Ch.

This writ of error brings

under review a judgment of the Supreme Court affirming a conviction in the Middlesex quarter sessions for a violation of section 65 of the crimes act (P. L. 1898, p. 812). The indictment charges that Flynn "did aid, abet, or assist one C. W. in keeping at his It is charged generally that the defendant hotel, on Ferry street, in the borough of "did aid, abet or assist," etc. The words South river, in the township of East Bruns-"aid" and "assist" may be treated as synwick, in the county of Middlesex, a place onymous; they both import a contribution to which persons might resort for gambling of effort. But "abet" has a somewhat difin a certain form, namely, upon a slot maferent meaning, and may import presence, chine, in this: That the said Wilbur J. with instigation or encouragement towards Flynn did furnish, lease, or loan to the said the commission of the offense, but without C. W. the said slot machine so used, or to be aid or assistance therein. Therefore, if we used, for gambling by persons upon said could reject the specific averment as surpremises as aforesaid, against the form of plusage, the general averment is bad, bethe statute," etc. The section referred to cause it does not charge that the defendant provides that: "Any person or corporation both aided and abetted, nor that he aided, that shall habitually or otherwise buy or nor that he abetted. But the frame of the sell what is commonly known as a 'pool,' or indictment is such that in our opinion we any interest or share in any such pool, or may not properly reject the specific avershall make or take what is commonly known ment that follows; it being manifest, as we as a 'book,' upon the running, pacing or think, that the grand jury did not intend to trotting, either within or without this state, charge any other form of aiding, abetting, or of any horse, mare or gelding, or shall con- assisting than that which is thus specified, duct the practices commonly known as viz., that the defendant "did furnish, lease, 'bookmaking' and 'pool selling, or either of or loan to the said C. W. the said slot mathem, or shall keep a place to which per- chine so used, or to be used, for gambling." sons may resort for engaging in such prac- If we could treat the first of these latter distices or either of them, or for betting upon junctives as insignificant, the second is not the event of any horse race, or other race so easily disposed of. Not only does the inor contest, either within or without this dictment fail to specify whether the slot mastate, or for gambling in any form, or aiding, chine furnished by the defendant was mere