ligence. Had there been, the case would have doubtless been submitted to the jury, and, if not, at least another question would have been involved on the hearing in this court. The Anderson Case upon examination will be found not to be an authority for respondent's contention. The case at bar is more nearly like that of Brooks v. Consolidated Gas Co., 70 N. J. Law, at page 215, 57 Atl. at page 398, in which this court held: "There was evidence from which the contributory negligence of deceased might perhaps be inferred, but none so conclusive as would justify an instruction for the defendant. It was shown that deceased had been warned by an employé of the defendant company of the danger in coming in contact with the wires. There was also evidence that a person warned deceased on the morning of his death, and, upon learning that he was going to work on the balcony, that the wires were dangerous, and that deceased replied that he was not afraid of them. When first found, the left hand of deceased was firmly clasped upon the wire. If it may be inferred therefrom that deceased deliberately took hold of the wire, either to show that he was not afraid of it or for some other reason, his conduct was negligent, and, if such was the only inference possible, a direction of a verdict would have been proper. Anderson v. Jersey City Electric Light Co., 64 N. J. Law, 664 [46 Atl. 593]. But that inference was not a necessary one. Considering the warnings he had received, his declaration that he was not afraid of the wires may be intended to indicate that the work he was about to do would not put him in danger. And a reasonable inference from the circumstances may be drawn that when deceased leaned over the balustrade, engaged in painting the gutter, his left hand may have been placed upon the corner of the house, and by an unexpected slip have been caught in the loop of the wire. Whether, upon such an inference, he was guilty of negligence in thus placing his left hand was a fair question for the jury." [6-8] Now on the other question, that of inevitable accident owing to the storm: There was testimony tending to show that the wire in question was improperly strung, passing through a tree and touching the branches; that it had been insulated, and that the insulation was worn and broken that the insulation was worn and broken from friction with the tree; that, at the point where the wire was thus worn and bare, it broke on the night of the accident. True, the respondent denied these facts and introduced evidence to show that the wire was properly inspected, and that it did not break in the tree top at the point claimed by the appellant's witnesses, but broke at an entirely different place, namely, at a corner pole some distance away. This raised a question of fact for the jury to decide. The accident happened in the month of June, when there was no ice or snow to weigh down the wire and help cause it to break. Its breaking, if due to the storm, could only have been occasioned by the velocity of the wind. The testimony showed that, at about the time of the accident, the wind was blowing 70 miles per hour. Such storms, however, were shown not to be entirely infrequent; there being records in the preceding 10 years of wind velocities of 76, 74, 80, 83, 72, 78, and 96 miles an hour, and that it would take a wind velocity of 135 miles an hour to break the particular wire if it were in good condition. It cannot therefore be said, as matter of law, that the storm in question, happening when it did, was one of such severity and unlikelihood that it could not have been anticipated or guarded against. There was certainly a question as to whether or not negligence of the respondent in the maintenance of this wire (including inspection of insulation) did not, in combination with the storm, cause the injury resulting in the death of the appellant's intestate. If the injury so resulted, it may be presumed that the damage was caused by a defective wire. New Brunswick Steamboat Co. v. Tiers, 24 N. J. Law, 697, 64 Am. Dec. 394. True, that was a suit against a common carrier who is an insurer against loss of goods carried, and is not excused from liability when the loss is occasioned by an act of God, unless that act is the proximate cause of the injury, nor where the negligence of the carrier or any other person concurs with the act of God in producing the loss. In the case at bar the respondent, not being an insurer, would not be liable for damage occasioned exclusively by inevitable accident, but only from its own negligence. The rule as to damages for injury resulting from negligence concurrent with inevitable accident is thus stated in 29 Cyc. at page 504: "Nevertheless the rule imposing liability on defendant, although another efficient cause concurs with' defendant's negligence, applies where an accident or act of God is the concurring cause. And the same is true where the primary cause was an accident for which defendresulted but for his negligence, or where, by ant was not liable if the injury would not have the exercise of ordinary care, the result might have been essentially mitigated." Upon this whole matter we are of opinion that the respondent's liability or nonliability for the accident resulting in the death of appellant's intestate was a question of fact which should have been submitted to the jury, and therefore the judgment should be reversed, and a venire de novo awarded. (83 N. J. Eq. 309) (Syllabus by the Court.) 1. TRADE-MARKS AND TRADE-NAMES (§ 78*)INJUNCTION-GROUNDS. The basis of suits to enjoin the use of the complainant's name is the damage or possibility of damage to the complainant, not the damage or probability of damage to the public; fraudulent conduct on the part of the defendant is a necessary element, but fraudulent conduct without damage to the complainant does not suffice. [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 88; Dec. Dig. § 78.*] 2. EQUITY (8 65*)-MAXIMS. Since it is the complainant who is to be protected in suits to enjoin the use of his name, he must come into court with clean hands. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. § 65.*] 3. TRADE-MARKS AND TRADE-NAMES (§ 87*)INJUNCTION. Where the complainant and defendant agreed that an encyclopedia should be represented to the public as the work of the complainant in order to avail themselves of its reputation to attract subscribers for the book, the complainant cannot be heard to complain of conduct in which it joined and by which it profited. [Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 96; Dec. Dig. $ 87.*1 Robert H. McCarter and Conover English, both of Newark, for appellants. J. Franklin Fort and Franklin W. Fort, both of Newark (Arthur H. Masten and Sinclair Hamilton, both of New York City, on the brief), for respondent. SWAYZE, J. [1] The basis of suits of this ' character is the damage or possibility of damage to the complainant, not the damage or probability of damage to the public. The question sometimes discussed is whether relief may be rested on a personal basis alone, or whether damage to property rights is necessary-a question left undecided in this court in Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 926, 67 Atl. 97, 14 L. R. A. (N. S.) 304. In an early English case the court refused an injunction to restrain the sale of a quack medicine under the name of the complainant, an eminent physician. Clark v. Freeman, 11 Beav. 112. And although the case is not of great authority, the criticism upon it was not due to the fact that the court refused at the suit of an individual to restrain a fraud upon the public, but to the fact that it overlooked the property right of a man in his own name. Maxwell v. Hogg, L. R. 2 Ch. 307. The Court of Chancery has held that there is such a right. Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136, 67 Atl. 392. Although damage is the basis of the suit, the mere fact of damage or possibility of damage is not enough, since damage may result from law 4. TRADE-MARKS AND TRADE-NAMES (§ 87*)-ful acts, such as legitimate competition. INJUNCTION-DEFENSE-PLEADING. Where complainant and defendant agreed that an encyclopedia should be represented to the public as the work of the complainant in order to avail themselves of its reputation to attract subscribers for the book, and subsequently the complainant terminated the agreement and sought to enjoin the use of its name, the court denied relief because the complainant did not come into court with clean hands, although the point was not raised by the defendant in their answer. [Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 96; Dec. Dig. § 87.*] 5. EQUITY (§ 65*)-RIGHT TO EQUITABLE RE LIEF. Where a complainant's conduct has been such that he does not come into court with clean hands, the disqualification applies only to the particular matter or transaction with which the wrongful conduct has to do, and he may have relief in other respects. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. § 65.*] White, J., dissenting. Appeal from Court of Chancery. Bill by Munn & Company, a corporation, against the Americana Company and others, to restrain defendants from using the words "Scientific American" in connection with the sale of defendants' publication. Injunction granted in part (88 Atl. 330), and defendants appeal. Modified and affirmed. See, also, 89 Atl. 529. Fraudulent conduct on the part of the defendant is a necessary element. International Silver Co. v. Rogers, 71 N. J. Eq. 560, 563, 63 Atl. 977. But fraudulent conduct without damage to the complainant does not suffice. The case upon which the complainant relied was expressly put upon the ground of the liability of the complainant to loss. Walter v. Ashton (1902) 2 Ch. 282. [2] The very discussion suffices to show that, although fraudulent conduct which may deceive the public is a necessary element, it is the private loss of the complainant that is to be prevented, not the public injury arising to others from the fraudulent use of the This is in consonance complainant's name. with general principles. It is unnecessary to dwell upon the point. Its importance in the present case is due to its bearing upon the standing of the complainant to maintain its bill. If it were the public that is to be protected, the conduct of the complainant ought not to prevent relief. Since it is the complainant that is to be protected, the well-established maxim of equity is applicable; the complainant must come into court with clean hands. [3] The facts found by the learned Vice Chancellor establish an agreement on the part of the complainant and the Americana Company to make money out of the public *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [4] The failure of the defendants to question in their answer the standing of the complainants is not material. This very point was made and overruled by this court in Minzesheimer v. Doolittle, 60 N. J. Eq. 394, 397, 45 Atl. 611. As we there said, the court will not for any delinquency of the defendant, lend its assistance to a violation of law; and so it will not assist one who has joined in an effort to deceive the public to prevent his associate from continuing to do the very thing to which he has previously assented. [5] We think therefore that the decree must be reversed; but it does not follow that the complainant is not entitled to some of the relief granted. The disqualification applies only to the particular matter or transaction with which the wrongful conduct had to do. Woodward v. Woodward, 41 N. J. Eq. 224, 4 Atl. 424. In this case the complainant's wrongful conduct had to do with the exploiting of the encyclopedia under the name of Scientific American Compiling Department. The complainant is not shown to have assented to the use of the name Scientific American for any other purpose. So far as the decree enjoins the Scientific American Compiling Department from using its corporate name, it must be reversed; so far as it enjoins the use of the name Scientific American in other ways, it must be affirmed. The defendants are entitled to costs in this court. by representing the encyclopedia as the work | 627, 34 Atl. 1070, 55 Am. St. Rep. 614, and of the Scientific American, and thereby avail- Wyckoff v. Weaver, 66 N. J. Law, 648, 52 ing themselves of the reputation of that Atl. 356, is in effect the same. journal to attract subscribers for the book. The adoption of the name Scientific American Compiling Department cannot be otherwise explained. The word "Department" in that expression can hardly convey to the ordinary mind any other meaning than Department of the Scientific American; and the language of the letter addressed by Munn & Co., to the American People under date of May, 1906, is carefully chosen to convey the same impression without saying so in express words. The encyclopedia is therein said to be issued under the direct editorship and personal supervision of the editor of the Scientific American, although his actual connection with the work was slight; he is said to be assisted by a board of eminent Department Editors; the natural impression conveyed is that they were editors of departments of the Scientific American, since nothing else is mentioned that could have departments; in fact, so far as appears, no editor of the Scientific American except Mr. Beach was connected with the encyclopedia. The book is said to be a great work "published by the Scientific American Compiling Department," with the full co-operation of Munn & Co., who add that they are certain that it will be found standard in its information and fully equal to the reputation of the Scientific American for accuracy and reliability. The gravamen of the complainant's bill is that Munn & Co. will be injured in their good business reputation by the fraud of the defendants in palming off the book upon the public as a work connected with the Scientific American. Yet that is the very scheme in which the parties joined for years prior to 1911. We think the complainant cannot now be heard to complain of conduct in which they formerly joined and by which they profited. It makes no difference whether the encyclopedia is valuable or not, nor whether purchasers thereof have been damaged; it is enough that they have been or may have been beguiled of their money because the complainant's representations and the representations of the defendant, to which the complainant assented, persuaded them that they were buying a work which was made better by the co-operation of the Scientific American. We think that the complainant, when it tires of its bargain and seeks to enjoin the defendant from further profiting by the supposed connection, does not come into court with clean hands. Fraudulent conduct which the law would enjoin but for the agreement of the parties to exploit the public is as inimical to public policy as gambling in cotton, which is condemned by statute, and the rule applied in Minzesheimer v. Doolittle, 60 N. J. Eq. 394, 45 Atl. 611, is applicable to the present case. The principle applied in the law courts in Hope v. Linden Park Ass'n, 58 N. J. Law, WHITE, J. (dissenting). I concur in the legal principles enunciated in the foregoing opinion, but dissent from a finding of fact by this court the existence of which, besides seeming to me quite doubtful, was not raised by the pleadings, nor tried as an issue, nor considered nor found as a fact by the Vice Chancellor who tried the cause. Under such circumstances, it may well be that the record discloses scant proof in denial of what no one has seen fit to assert. This court's finding of fact is that the publication of the Encyclopedia Americana under the published name of "Scientific American Compiling Department," and other representations to the effect that the work was edited and issued under the direct editorship and supervision of the editor and editorial organization of the Scientific American, was a fraud upon the public. This finding obviously depends upon whether or not these representations were in fact false or true, and that question was not put at issue, tried, nor decided in the court from the decree of which this appeal is taken. It is true the Vice Chancellor found that, as between the business organizations of the complainants and of the defendants below, the former had contributed toward the co-operative enterprise (1) the reduction of the regular yearly subscription price of the Scientific American magazine, and (2) the get, and I cannot see where there was any fraud upon the public either practiced or attempted. Certainly, as I view it, the fraud is not so apparent that, in a case where it was not in issue and no one thought of either proving or disproving it, a court of appeal should lay hold of it on its own motion, not only to deprive complainants of what I think would otherwise be their clear right to protect their property right in their business name, but also to perpetuate, in the contin ued use of the name Scientific American in connection with future editions of the encyclopedia, what, now that the Scientific American editorship and co-operation has been withdrawn, will hereafter certainly be, as I think it was not before, a fraud upon the public. exclusive right during the period of the con- | ly what complainants undertook they should tract to the use of the name "Scientific American Compiling Department," and had received in return an assurance of at least 10,000 new subscriptions per year to the Scientific American magazine and the payment of the special price therefor; but these findings were in connection with the discussion of the question of an accounting and of the nature of the privilege for the use of the name. They did not pretend to relate to the question of a fraud upon the public, and that question was not considered. The evidence showed that in fact the editor in chief of the Scientific American, Mr. Beach, was made editor in chief of the new work, the encyclopedia, and that he helped select the authors of the treatises going into the work, and that the reference bureau and the plates of the Scientific American were largely, or at least to an extent, used in getting up and printing the encyclopedia. From this it would seem, and doubtless if (83 N. J. Eq. 318) CLEMENT et al. v. CREVELING et al. (No. 44.) the question of a fraud upon the public had (Court of Errors and Appeals of New Jersey. June 15, 1914.) (Syllabus by the Court.) TION OF ESTATE. income from 600 shares of the capital stock of Testator's will gave to his wife for life the a railroad company. It directed that out of such income she should pay to her niece, Emma Chambers, during the life of the niece, $600 per the decease of my wife before that of Emma annum. It further provided that, "in case of Chambers, I direct and require my executors to retain sixty shares of the said stock and to pay the interest thereon to the said Emma Chambers during her natural life." The sixth paragraph provided that. "after the decease of my said wife and niece, I give my estate to my lawful heirs, to be divided equally among them, dren of any of them who may have died to take share and share alike, the lawful child or chilthe share of their deceased parent." The testator was survived by his three brothers and his heirs at law at the time of his death. Held: his sister, and these, now all deceased, were (1) That upon the, death of the wife, though the niece is still living, the testator's residuary estate, excepting the 60 shares of stock held for the benefit of the niece, is distributable in accordance with the sixth paragraph of the will. been raised or considered it would have otherwise appeared, that the complainants took ample means to see that the encyclopedia 1. WILLS ($ 733*)-CONSTRUCTION-DISTRIBUwas of the high character which the representations that it was edited by the editor in chief of and issued in connection with the Scientific American gave the public the right to expect (in this connection it is significant that no subscriber has appeared to allege that the work was in fact otherwise than of this high character), and, if this was true, I think there was no fraud upon the public. The representations amounted to nothing except in so far as they were a guaranty of the care on the part of the Scientific American people that the work would accord in high character with what their reputation gave the public the right to expect from them. Purchasers of the work were not interested in the typesetters nor in the bookbinders or other mechanics whose labor went into the production of the encyclopedia, except in so far as the result of their labor was concerned; nor were they otherwise interested in the individuality of the authors who wrote the articles comprising the work, nor in how the profits from its sale were divided up. Every one would, of course, know that the encyclopedia is not written by the editor in chief, nor by the assistant editors of the Scientific American, but that necessarily a large number of authorities would be employed to write about subjects upon which they were specialists. The artistic success of the encyclopedia would, of course, therefore depend, more than upon anything else, upon the judicious selection of these specialist authors. That selection is what stamped the character of the work, and that selection was one of the important things to which the editor in chief of the Scientific American gave his attention. Apparently therefore the public got exact*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1819-1846; Dec. Dig. § 733.*1 2. WILLS (§ 630*)-CONSTRUCTION-DISTRIBUTION OF ESTATE. the will the testator's residuary estate vested Held: (2) That by the sixth paragraph of in his brothers and his sister at the time of the testator's death, subject to the life interest therein of his wife, and the interest of her niece; and upon the death of the wife such part of such estate as is not required to be retained for the benefit of the niece is distributable in equal parts to the respective personal representatives of the testator's brothers and sister. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1464-1480, 1486, 1487; Dec. Dig. § 630.*] Appeal from Court of Chancery. Bill by Cornelia E. Clement and others against Anna M. E. Creveling and others. From a decree of the court of chancery dis- | without issue; the testator's niece, Emma missing the bill (88 Atl. 189), complainants Chambers; and the trustee under the will. and the defendant named appeal. Reversed. Aaron V. Dawes, of Heightstown, for appellants Clement and others. Collins & Corbin, of Jersey City, for appellant Anna M. E. Creveling. Alfred Reed, of Trenton, for respondents Josephine Ellison, George H. Ellison, Mary Camp, and Fred Camp. Peter Backes, of Trenton, for respondents Mary Anna Whittaker, personally and as executor, etc., and Gardner Cain, executor, etc. Bayard Stockton, of Trenton, for respondent Mercer Hospital. All parties consent in the pleadings that immediate distribution be made of the entire residuary estate, excepting only the 60 shares of the railroad stock, necessary to be reserved for the benefit of Emma Chambers. The defendants, whilst consenting to such immediate distribution, make varying claims as to the manner of distribution. The Chancellor properly considered himself bound by an earlier adjudication of Chancellor Runyon in which the construction of the same will was involved (Whittaker v. Whittaker, 40 N. J. Eq. 33), and following Chancellor Runyon's adjudication held that the estate was not distributable until after the death both of the testator's wife and of Emma Chambers; and that, this being so, it would be premature to determine who would be entitled to share in the distribution. (Ch.) 88 Atl. 189. The complainants and the defendant Anna M. E. Creveling appeal. TRENCHARD, J. Albert J. Whittaker died March 28, 1884, leaving a last will and testament by which he gave to his wife for her natural life, without power to sell or transfer the same, 600 shares of the capital stock of the United New Jersey Railroad & Canal Company, with power to collect and receive the dividends therefrom for her own use and benefit. He directed that the stock should not be sold or transferred by his ex-struction put upon this will by Chancellor ecutors, or by anybody else, during the life of his wife. He further provided that, out of the dividends collected on this stock, his wife should pay to her niece, Emma Chambers, for and during the natural life of the niece, $600 per annum. He then provided as follows: "In case of the decease of my wife before that of Emma Chambers, I direct and require my executors to retain sixty shares of the said_stock and to pay the interest thereon to said Emma Chambers during her natural life.' After giving certain specific legacies to persons named in the will, and authorizing his executors to sell and convey his real estate, he provided that: "Sixth. After the decease of my said wife and niece, I give my estate to my lawful heirs, to be divided equally among them, share and share alike, the lawful child or children of any of them who may have died to take the share of their deceased parent." The present bill is filed for the purpose of obtaining a decree directing the immediate distribution of testator's residuary estate, with the exception of 60 shares of this railroad stock, and to have it declared who is entitled to share in this distribution. It appears that the testator was survived by his three brothers and his sister. These were his heirs at law at the time of his death. They are all now dead; the last dying in 1912. The testator's widow died in 1908. The niece, Emma Chambers, is still living. The complainants are the children of George R. Whittaker, one of the testator's brothers. The defendant, Anna M. E. Creveling, is the daughter of Ann W. Ellison, the testator's sister. The other defendants are children of a deceased daughter of George R. Whittaker; children of deceased sons of Ann W. Ellison; the personal representatives and legatees of the testator's other brothers who died [1, 2] We are of the opinion that the con Runyon was erroneous. We think it was not the testator's intent that the distribution of the whole of his residuary estate should be postponed until the death both of his wife and her niece. Standing alone that would be the natural effect of the sixth paragraph of the will. But to so construe it is to disregard the provision made for Emma Chambers after the death of the testator's wife. She died in 1908. Upon her death, the will, as will appear from the above citation, imposed a present duty upon the executors, namely, "to retain sixty shares of the said stock." The retention of the 60 shares involves a disposition of the other 540 shares, and those shares are to be disposed of in accordance with the direction of the testator contained in the sixth paragraph of his will. That brings us to the question of the manner of distribution. The primary question is as to when, under the sixth paragraph of the will, the testator's residuary estate vested. The solution of this question will determine to whom, and in what portion, the estate is to go, whether to the personal representatives of those who were the heirs of the testator at the time of his death, or to such persons as answer the description of the testator's lawful heirs at this time. In our opinion, by the sixth paragraph of the will the testator's estate vested in his brothers and sister at the time of the testator's death, subject to the life interest therein of his wife, and the interest of her niece; and upon the death of the wife such part of such estate as is not required to be retained for the benefit of the niece is distributable in equal parts to the respective personal representatives of the testator's brothers and sister. This case is much like that of Howell, Ex'r, |