We think it evident that appellees have no right to have the property sold under the decree foreclosing the attachment lien which Thompson sought to acquire while the property was in custody of the law; and as it is conceded that such a sale would cloud appellant's title, the judgment of the court below will be reversed, and judgment here rendered enjoining the sale of the property described in plaintiff's petition under any process issued or to be issued on the judgment rendered in favor of Wolston and Vidor against the Texas Trunk Railway Company by the district court for Dallas County, on March 15, 1887, same described in plaintiff's petition.

It is so ordered.

ATTACHMENT OF PROPERTY IN CUSTODIA LEGIS: See note to Dunsmoor ▼. Furstenfeldt, 22 Am. St. Rep. 336.

RECEIVERS ATTACHMENT OF PROPERTY UNDER CONTROL of. - A fund in the hands of a receiver is not attachable, being subject to the order of the court and in custody of the law: Adams v. Haskell, 6 Cal. 113; 65 Am. Dec. 491, and note; Hagedon v. Bank of Wisconsin, 1 Pinney, 61; 39 Am. Deo. 275.

RADAM V. CAPITAL MICROBE DESTROYER COMPANY.

[81 TEXAS, 122.]

PLEADINGS - AMENDMENT. — It is not error for the court to grant leave to either party to amend his pleadings after exceptions thereto have been sustained, and after the parties have announced that they are ready for trial, if justice requires such amendment, even though, under the strict construction of a rule of court, the amendment could not be allowed. EXPERT EVIDENCE IS RESORTED TO for the purpose of informing the court or jury upon subjects not commonly understood, but where the nature of the inquiry appeals to the common understanding and ordinary intelli. gence of mankind, such evidence is not admissible.

TRADE-MARKS - EXPERT EVIDENCE. - Where, in an action involving the question of an infringement of a trade-mark, the marks, labels, jugs, and packages of the contestants, as presented for sale in the market, are before the court trying the case without a jury, it is within the province of the court to decide what impression would be made by them upon persons of ordinary intelligence and care, and expert evidence is inadmissible to decide the question.

TRADE-MARKS. WORDS "MICROBE KILLER," employed in their ordinary sense, do not constitute a trade-mark, nor does their employment by a manufacturer of a patent medicine give him any proprietary right to their exclusive use.

TRADE-MARKS — INFRINGEMENT. - When there is no intent to defraud, and the labels, trade-mark, and packages are not so similar as to make them, one and all, calculated to deceive purchasers of ordinary cau tion, there can be no infringement of a trade-mark by one manufacturing goods similar to those for which the trade-mark is claimed.

TRADE-MARKS. HEARSAY EVIDENCE is inadmissible to prove that purchasers have been deceived by an alleged infringement of a trade-mark. If they have been so deceived, they must be called to testify to that fact. TRADE-MARKS DAMAGES - EVIDENCE. — In an action for infringment of trade-mark, evidence of loss by sales of a rival medicine is inadmissible, in the absence of proof of an infringement.

TRADE-MARKS

INFRINGEMENT. — GENERAL CLAIM FOR DAMAGES is properly stricken out in an action for infringement of a trade-mark, especially when the proof shows that there was no infringement upon which damages, if specially alleged, could have been predicated.

TRADE-MARKS — Infringement.— EVIDENCE of the identity of medicines is inadmissible to prove an alleged infringement of trade-mark, unless it is also shown that the similarity in the trade-marks created the reputation of identity in the medicines.

John Dowell, and McLeary and King, for the appellant.

Robertson and Williams, and Sheeks and Sheeks, for the appellees.

COLLARD, J., Section A. This is a suit by William Radam, the appellant, against J. J. Tobin and others, partners doing business under the firm name of the Capital Microbe Destroyer Company. Plaintiff alleged that he had discovered a valuable medicine possessing great curative properties, was manufacturing and selling it at large profits, and had given it the name of "Microbe Killer," and as such, with the trade-mark, labels, devices, and symbols adopted by plaintiff, it had become widely known; that defendants, with intent to defraud plaintiff and to deceive the public, have prepared for sale a medicine inferior to plaintiff's, similar in appearance, and put up in similar packages, with label, devices, and trade-mark in imitation of plaintiff's, which are calculated to deceive and do deceive the public into the belief that the same is the medicine of plaintiff; that defendants are selling their medicine by such counterfeiting, to plaintiff's damage twenty-nine thousand dollars. Prayer for temporary injunction, to be perpetuated on final hearing, and for judgment for alleged damages.

The answer of defendants denied all the allegations of the petition, and set up that Tobin had prepared a medicine for sale which he called the "Microbe Destroyer," a superior and different medicine to that of plaintiff, was selling the same under the firm name of the "Microbe Destroyer Company," but that plaintiff had no right to the exclusive use of the words "microbe killer"; that defendants' trade-mark is not in imitation of plaintiff's, and that there was no infringement as alleged.

On final hearing, the trial judge, who tried the case without a jury, denied the injunction, and gave judgment for defendant.

The first assignment of error is, that "the court erred in permitting defendants to file an amended original answer in the case, and substituting the same for the answers in the case as it was called for trial, and exceptions of plaintiff to the answers had been sustained."

The second assignment is, that "the court erred in overruling the motion of plaintiff to strike out the amended original answer, as the same was not filed in due order of pleading."

The case was regularly called for trial on the seventh day of May, 1888, the day set for trial, when plaintiff's demurrers were presented to the court. A portion of them (we here adopt appellant's statement under these assignments) “were sustained and parts of the answer stricken out. The court then permitted appellees to file an amended original answer to these pleadings, over the objection of appellant."

The motion to strike out the amended answer was upon the following ground: "The same is not filed in the due order of pleading; the case being now called for trial, and the demurrers of plaintiff being sustained to the answers of defendants, the said defendants could be permitted to file only a trial amendment, and not a first original answer." This motion was filed on the 8th of May, and on the same day another motion was filed to strike out that part of the amended answer, denying the alleged partnership, and declaring that Tobin alone was the proprietor of the medicine and trade-mark set up by defendants, and that he alone constituted the Microbe Destroyer Company; and also to strike out that portion of Tobin's answer setting up that the two medical preparations of plaintiff and defendant were composed of different chemicals; that plaintiff's medicine was a well-known mixture, and had been used as a medicine long before plaintiff attempted to appropriate it; that he (defendant) used the words "microbe destroyer" to indicate the real character of his medicine, and not to imitate the name adopted by plaintiff; that he has used in the sale of his medicine jugs of all sizes and colors, because jugs are suited to the medicine and are cheaper than other vessels; that he has never represented to the public or any person that he was manufacturing or selling plaintiff's medicine, or a medicine in imitation of it, or authorized any other person to do so, but on the contrary, has always represented it

AM. ST. REP., VOL. XXVI. -50

to be different in all respects, and that he has carefully avoided any imitation of plaintiff's labels, devices, and methods of selling, and denies that he has encroached upon any privilege plaintiff may have. The grounds relied on in the motion to strike out the foregoing parts of the answer are that they set up new matter not before pleaded. The motion was overruled. After sustaining certain exceptions to the answer, a trial amendment was the proper technical pleading in order: Rule 27 for District Court. But the rule is not absolute where no injury is done the other side. The court has the power to relax the rule in the interest of justice. The Revised Statutes provide that pleadings may be amended under leave of the court before the parties announce ready for trial, “and not thereafter": Rev. Stats., art. 1192. Yet it has been held that after such announcement the court may allow amendments that may seem necessary to the ends of justice: Parker v. Spencer, 61 Tex. 164; Whitehead v. Foley, 28 Tex. 10. The due order of pleading indicated in the motion to strike out the amendment referred to the time and order of filing a trial amendment, and the objection to the amendment on the ground that it was not filed in due order went only to the power of the court to permit a general amendment of the answer after exceptions were sustained to parts of original answers. court had the power to grant leave to amend, and under the circumstances, plaintiff not being injured thereby, the failure to strictly enforce the rule was not error. If new matter had been set up that plaintiff was not prepared to meet by pleading or evidence, he could have amended also, and even continued the case if necessary. No such condition of things existed, no injury was done to plaintiff, and there was no reversible error in the action of the court.

The fourth, fifth, and nineteenth assignments of error are of the same character, and can be conveniently considered together. The fourth is, that the court erred in refusing to permit the plaintiff to testify that the labels attached as exhibit B to plaintiff's petition and the label attached as exhibit A were so alike that they were calculated to deceive a person of ordinary intelligence and care into taking one for the other. The fifth is to the effect that the same witness should have been permitted to testify that the jugs as filled and the labels as used thereon by each of the parties were, in the opinion of the witness, so alike as to be calculated to deceive a person of

ordinary care and intelligence. The nineteenth is to the same effect as the fourth assignment.

Plaintiff's trade-mark and label is described in the first part of the opinion in the case of Alf & Co. v. Radam, 77 Tex. 530; 19 Am. St. Rep. 792. Tobin's trade-mark is the words "Microbe Destroyer," and there is no symbol, picture, or illustration on the label. On the label used by Radam at the top are written the words: "Wm. Radam's Microbe Killer," in large letters, and under this the words "Germ, bacteria, or fungus destroyer." In the center of the label is the symbol or illustration, in the top of which is printed in capital letters "Wm. Radam's Microbe Killer," and in the lower part of it "Trade-mark." Under the picture are the words "Registered December 13, 1887," and below this a caution is printed: "The genuineness of every jug is secured by trade-mark as above, and my name must be written on each label in that form." The name "Wm. Radam" is then written or printed below. On the left of the symbol, in a column about the size of an ordinary newspaper column, is printed "This is the invention of Wm. Radam, Austin, Texas." "It is the only microbe killer in the world," all in capital letters. Then in the same column is further information about the medicine and its cures, and a warning to persons not to use the label or trade-mark. On the right side of the symbol, in a similar column, are printed instructions about how to use the medicine in different diseases, all signed by "Wm. Radam, Austin, Texas, U. S. A.," in printed capital letters.

Exhibit B attached to plaintiff's petition shows no device or picture on the label used by the Microbe Destroyer Company. The printed matter on the label is not divided into columns, but appears as follows:

MICROBE DESTROYER.

An unfailing remedy for consumption, catarrh, bronchitis. etc., etc., and all diseases arising from impurities of the blood. Dose: Wineglassful three times a day, before eating, in a tumblerful of

water. Price $2.50 per gallon.

PREPARED BY THE

CAPITAL MICROBE DESTROYER Co., AUSTIN, TEXAL Registered December 28, 1887.

[Signed]

DR. J. J. TOBIN, State Agent.

Another copy is given of the label on exhibit B as used by