Van Wyck agt. Horowitz. property of the plaintiff, as much his as any article bought with his money or manufactured by his hands; and because it is the plaintiff's exclusively, and not his, the defendant cannot be permitted to appropriate it to himself at the expense of the plaintiff by the mode of advertising he has adopted. The defendant's counsel, upon the argument of this motion, contended that the mode of advertising in use by the defendant cannot be restrained, because it only states a historical fact. The difficulty with the position is that it is untrue. The defendant in his advertisements does not tell the truth, as his counsel argued; and this fact makes another and further objection to the use of the plaintiff's name by the defendant. The advertisement is false and calculated to deceive, because it does not disclose the entire truth. The reader of the defendant's sign, card or advertisement, as he looks at the words, "late with James P. Van Wyck," will interpret them according to the notion which strikes his mind. He is not told that the defendant was the hired workman, the mere employe of the plaintiff, but that he was lately "with him,” and is thus left to guess what the "with" means. The expression is, therefore, just as liable to carry the thought to the individual reading it that the defendant was "with James P. Van Wyck" as a partner as an employe; and, because it is as liable and likely to deceive as to tell the truth, and must, in fact, as often deceive as it makes a true narration, its use cannot be justified. The case is not at all like that of Morgan agt. Schuyler (79 N. Y., 490), in which the parties had been partners under the firm name of " Morgan & Schuyler," and in which, speaking of the defendant, judge DANFORTH (page 495), said: “He may lawfully describe the rooms as formerly occupied by Morgan & Schuyler,' and himself as formerly' a 'late' of that firm." The difference between the two cases is that the defendant in the reported case had a property interest in the name and business reputation of the former firm, of which he was one, and the mode of advertisement suggested would Van Wyck agt. Horowitz. have told the whole and exact truth; while in this the defendant has no right of property in the name nor in the reputation of that business which he seeks to use with his own name and business, so as to give his own prominence at the expense of the other; and in its use he so tells what his counsel calls the history of his life as to carry an untruth and to deceive as often as it tells the truth and narrates actual history. If the defendant had been a stove blackener, or hostler, or an errand boy in the employ of the plaintiff, or a clerk discharged for want of fidelity or competency, he could with just as much truth advertise himself as "late with James P. Van Wyck." The extreme supposed cases are put to illustrate the danger of the counsel's position. It cannot be that a man who has sustained any position towards, or had any employment from a well-known individual, that thereby he obtains the right to use that name in connection with his own so as to advertise himself and his business at the expense of his former patron and employer, and to do it in a manner which is likely to, and often must, deceive as to the nature of the relations to him. The motion to continue the injunction must be granted, because: First. The defendant is without authority using the plaintiff's name, which is the use of another's property for his own benefit and to the injury of its owner. Second. He is attempting to transfer to himself a part of the reputation of the store and business of the plaintiff, which also belong to the plaintiff as really and as truly as his name, or the personal property of which he is the actual owner. Third. The mode and manner of the use by the defendant of the name of the plaintiff are such as oftentimes to deceive, and because liable to deceive, and thus benefit the defendant at the expense of the plaintiff, such use must be held to be unlawful. Matter of Lowell. N. Y. COMMON PLEAS. In the Matter of SAMUEL J. LOWELL, an imprisoned debtor. Judgment debtor-Discharge from imprisonment - Meaning of "just and fair" as used in statute - When discharge will be denied. A judgment debtor is not entitled to a discharge from imprisonment under execution, where he has knowingly and intentionally expended upon himself and family for the necessaries and luxuries of life the money which he obtained by fraud from his creditors. Held, also, that an investment by the debtor in real property in his wife's name, of other moneys subsequently acquired, is in fraud of the creditor, and will defeat a discharge on the ground that the proceedings are not just and fair. A pretended indebtedness to the wife for borrowed money, where no account thereof has been kept, is no consideration for such investment as against creditors. Special Term, August, 1885. APPLICATION by Samuel J. Lowell for discharge from imprisonment under execution against his person, at the instance of Jason S. Hoffman. Jacob Fromme, for petitioner. VAN HOESEN, J.- In the Matter of Fink (59 How. Pr., 145), judge VAN VORST decided that the proceedings of the imprisoned debtor had not been just and fair, because he had spent upon his family the proceeds of property that had, to his knowledge, been obtained by theft from the judgment creditor. The debtor himself had not committed the theft, but he had been informed of it before he used the avails of the property for the support of his family. The learned judge was of opinion that an imprisoned debtor who knowingly appropriates to his own use the property of which his Matter of Lowell. judgment creditor has been deprived by embezzlement, should be deemed guilty of disposing of that property with intent to injure and defraud the creditor, though the use that he makes of it would be perfectly innocent if the property were honestly his own. Judge VAN VORST in giving his opinion, referred with approval to the decision of judge J. F. DALY in the Roberts case (59 How. Pr., 136), in which judge DALY had given with great clearness and force his construction of the meaning of the words "if the proceedings of the debtor are just and fair.” In the Matter of Fowler (8 Daly), I followed the decision in the Roberts case, though I said that I thought judge DALY in the Roberts case had, in some obiter observations, misconceived the meaning of the statute. In my opinion, an imprisoned debtor, who had never received any part of the property that the judgment creditor had lost through larceny and fraud, could not be said to have disposed of that property with intent to defraud the creditor. The rule with respect to debtors who had actually received the property of the judgment creditor or its avails was, in my opinion, different; for a disposition of such property with intent to defraud the creditor might fairly be inferred when the debtor used it for his own purposes, and in such a way as to place it beyond the reach of the creditor. The fraudulent disposition of the property which the law was intended to punish must take place after the property has passed under the control of the fraudulent debtor. Though the demand upon which judgment was recovered were a debt fraudulently contracted or a claim for damages for deceit, the discharge of the debtor from imprisonment under an execution could not be denied, unless it were shown that he had at some time made away with his property with intent to benefit himself or his family in the future, or with intent to injure and defraud the creditor. The property may be disposed of before the judg ment creditor knows that he has been defrauded, and before he contemplates bringing an action, but in order to bar a dis Matter of Lowell. charge property must be disposed of by the debtor, and that property must be his own. In the curious case of Suydam agt. Belknap (20 Hun, 87), the general term of the supreme court held that if a trustee embezzled the trust estate, he acquired no title to it, and consequently it was not his own property that he disposed of when he appropriated the trust fund to his own. use; and for this reason they held that a discharge could not be denied to a trustee who had converted the trust estate to his own purposes. It may a question whether a thief should be permitted to escape punishment by alleging that he did not acquire a valid legal title to the goods he stole. And it may also be a question as to whether the trustee Belknap did not have a legal title to the estate he held in trust. But, waving those matters, it seems to follow from the reasoning of the supreme court in Suydam agt. Belknap, that if Belknap had acquired the title to the property he would not have been discharged, though he had lost the property or spent it before he was arrested, so that it was no longer in his power to surrender it to the judgment creditor. The difficulty in these cases is to discover the intent with which the debtor has disposed of his property. There is not in my opinion a conclusive presumption in all cases that the debtor who obtains property fraudulently has fraudulently disposed of it because he is not able at the time he applies for his discharge to surrender it to his creditor. If by inevitable accident, or without fault on his part, he has been deprived of the property, it cannot be said that he has disposed of it. But if it appears that he has disposed of the property, the question arises, with what intent? In answering that we apply the rule that a man intends the obvious consequences of his own acts; and the court must draw its conclusions as to the intent from the facts that are in evidence. If a debtor uses the money that he obtains by fraud in maintaining himself and his family, knowing that the creditor must be the loser, may not the courts infer that he disposed of that |