IZED USE-REMEDY. authorized use by a corporation of the name of The remedy usually available for the unanother corporation is injunction. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 137; Dec. Dig. § 49.*] 3. CORPORATIONS (§ 49*)-NAME-UNAUTHORIZED USE-NECESSITY OF FRAUD. [3] In doing this there can be no doubt | 2. CORPORATIONS (§ 49*)-NAME-UNAUTHORbut that the plaintiff was doing business in Alabama, became subject to its laws with respect thereto, and was not within the protection of the principles that render interstate commerce immune against local regulation. Certainly labor is not an article of commerce, nor is the agreement to supply Actual fraud need not be shown to obtain it, nor the execution of the agreement, an relief against the unauthorized use of a coract of commerce. The demurrer to this rep-porate name previously appropriated by anlication was therefore properly sustained. other corporation; fraud being presumed, even Ware v. H. B. Shoe Co., supra; Paul v. Vir- if essential, from knowingly adopting a name so similar to that of another corporation as to ginia, 8 Wall. 183, 19 L. Ed. 357. Viewed cause probable damage to it. solely from the standpoint of the individuals concerned, the apparent result of this conclusion is, it must be conceded, abhorrent | 4. CORPORATIONS (§ 49*)-NAME-UNAUTHORto the judicial conscience. But we cannot so view the case, and are bound by their settled policy to give full effect to these laws of the state, regardless of results to Individuals. A. W. R. Co. v. Talley-Bates Const. Co., 162 Ala. 402, 50 South. 341. [4] 3. The opinion of the defendant's attorney that the plaintiff need not file any papers in Alabama before doing the stipulated work, though expressed to the plaintiff's agent in the presence of the defendant's agent, could not estop the defendant from invoking the application of the laws here considered; nor could such an opinion, whether deceitfully or honestly expressed, though it were accepted and acted on in good faith, excuse the plaintiff from the performance of the public duties enjoined upon him by law. And it is equally true that the defendant's acceptance of the work, without complaint of the plaintiff's derelictions in the premises, could not avail to suspend the operation of the laws. The special replication setting up these matters in avoidance of the special plea was, therefore, subject to the demurrer interposed thereto by the defendant, as correctly ruled by the trial court. It results that there is no error shown by the record, and the judgment must be affirmed. Affirmed. All the Justices concur, except DOWDELL, C. J., not sitting. (174 Ala. 395) GRAND LODGE, K. P. OF NORTH AND (Supreme Court of Alabama. June 15, 1911. 1. CORPORATIONS (§ 49*) — NAME - USE OF SIMILAR NAME BY OTHERS. The right of a corporation to use its chosen name is protected by courts of equity in the same manner as a trade-mark, independent of statute, though Code 1907, § 3446, subd. 1, also recognizes the right of a corporation to the exclusive use of its name. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 137; Dec. Dig. § 49.*] [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 137; Dec. Dig. § 49.*] ̃ IZED ASSUMPTION RELIEF ALLEGATIONS A bill for an injunction filed by the "Grand Lodge, Knights of Pythias," against the "Grand Lodge, Knights of Pythias of North and South America," alleged that defendant was a purported fraternal organization, and had adopted and used a name so similar to complainant's as to interfere with its business by causing complainant's mail to be misdelivered, etc., and had also adopted insignia and paraphernalia so the public to believe that the two organizations similar to complainant's as to naturally lead were connected. Held, that the bill stated a cause of action as against demurrer. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 137; Dec. Dig. § 49.*] 5. EQUITY (8 241*)-PLEADING-DEMURRER— MATTERS RAISED. Matters not alleged in the bill cannot be considered on demurrer thereto, but should be raised by the answer. [Ed. Note.-For other cases, see Equity, Cent. Dig. § 515; Dec. Dig. § 241.*] 6. CORPORATIONS (§ 49*) - NAME - USE OF SIMILAR NAME BY OTHERS BENEVOLENT SOCIETIES. Equity will restrain the assumption of the name by a benevolent corporation so similar to that of another such corporation as to injure the corporation first assuming it. tions, Cent. Dig. § 137; Dec. Dig. § 49.*] Facts showing laches or barring the suit under the statute of limitations should be al leged by plea, and cannot be raised by demur rer where they do not appear in the bill. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 395, 502; Dec. Dig. §§ 158, 223.*] Appeal from Chancery Court, Montgomery County; J. M. Chilton, Special Chancellor. Suit by the Grand Lodge, Knights of Pythias, against the Grand Lodge, Knights of Pythias of North and South America. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed. John R. Tyson, for appellant. Ball & Samford, for appellee. MAYFIELD, J. This bill is filed by the appellee, a benevolent and secret corporation, against another organization of like kind and character. The relief sought by the bill is purely injunctive, to restrain the re spondent corporation from using the name are of a fraternal character, each seeking assumed by it in either its grand or its sub-business from one of two separate and disordinate lodges, and to prevent its using certain banners, ensigns, emblems, and mottoes, upon the ground that they are so like and similar to those adopted and used by the complainant as to lead to confusion and uncertainty. It is alleged in the bill that the name adopted, assumed, or used by the respondent corporation is the same as that of the complainant, or so nearly so as to interfere with the business of the complainant, and that it tends to confusion and uncertainty. The bill further alleged that both complainant and respondent had various offices scattered throughout Alabama, and that, by reason of the similarity of names of the two corporations or organizations, the mails of the one were liable to be delivered, and were frequently delivered, to the other, which tended to harass and annoy complainant, and interfere with its business, and that for this reason great confusion and uncertainty often arises as to the business transactions of the complainant. The respondent corporation demurred, assigning numerous grounds therefor. The trial court overruled this demurrer, and from that decree this appeal is prosecuted. The ground insisted upon is that subdivision 1 of section 3446 of the Code of 1907, which is intended to prevent the identity of names of two corporations, has no application to this case; that section being limited in its operation to corporations which have stockholders, and which are organized for individual profit. Appellant concedes that one business corporation cannot be allowed to assume the name of another, and by that means deceive the public as to the corporation with which it deals, and that if one corporation subsequently incorporates under or takes the name of another, or one so similar thereto as to be calculated to deceive the public, a court of equity will enjoin the use by the latter of such name, because it would be a fraud upon the public as well as upon the stockholders of the other corporation. tinct races of people who do not intermingle socially or fraternally, and therefore cannot be competitors-that they are not engaged in the same business. It is also insisted by appellant that it affirmatively appears in the allegations of the bill that the relief sought is barred by lapse of time, and that the complainant has been guilty of such laches in asserting its rights that the court will not now grant the relief prayed. [1] We are unable to agree with counsel for appellant that any one of these contentions is available on demurrer to the bill. It has been well said that: "The name is an indispensable part of the constitution of every corporation, the knot of its combination, as it has been called, without which it cannot perform its corporate functions." The name is usually selected by the incorporators, and by such name it takes, holds, conveys, and uses its property, and does all corporate acts. Its right to so use its chosen name is even recognized by the statutes of our state above referred to, and it has always been protected by the courts independently of statutes. The matter of so protecting the use of a corporate name is necessarily of equitable cognizance, because the remedy is usually incomplete or inadequate at law. [2] The relief usually granted is that of injunction against the offending corporation. As was said by the Supreme Court of New York, the courts interfere in such cases, not on the ground that the state may not affix such corporate names as it pleases to its creatures, but to prevent fraud, actual or constructive. But our statutes prevent, or are intended to prevent, the use of the name of one corporation by another, or the use of a name so similar to that of the prior cor poration as to tend to confusion. It has been said by the courts of many states that a corporate name legally acquired should be protected upon the same principle and to the same etxent that individuals are protected in the use of trade-marks. Holmes v. Holmes, 37 Conn. 278, 9 Am. Rep. 324. The name of a corporation is treated partly as a trade-mark, and for considerations of both private justice and public policy should be It is insisted by appellant that there is no such property right in a name as to entitle either a person or a corporation to its exclusive use; but it concedes that one corporation cannot assume the name of anoth-protected by a court of equity, for the same er, with a slight alteration, in such way as to induce persons to deal with it in the belief that they are dealing with another corporation. It is likewise conceded by appellant that an injunction lies to restrain the use by one corporation of the name of a prior corporation, or of a name so similar thereto as to tend to create confusion, and to enable the latter corporation to obtain business of the former, but appellant insists that the relief sought by this bill cannot be grant reason that a trade-mark is protected. It was said by the federal court in the case of Newby v. Oregon Co., 18 Fed. Cas. 38, and by the Supreme Court of the United States in the case of Goodyear's India Co. v. Good. year's Rubber Co., 128 U. S. 598, 9 Sup. Ct. 166, 32 L. Ed. 535, that the case of an encroachment as to the names of corporations is analogous to, if not stronger than, that of piracy upon an established trade-mark. It was ruled by the Supreme Court of New der the name of Benevolent and Protective Order of Elks of the United States, which admits only white persons, was entitled to an injunction restraining a corporation chartered for like purposes under the name of Improved Benevolent & Protective Order of Elks of the World, composed of negroes only, from using the emblems and other paraphenalia of the former order. B. P. O. E. v. I. B. P. O. E., 122 Tenn. 141, 118 S. W. 389. Byrne, 59 N. J. Eq. 26, 44 Atl. 716) that an | Court of Tennessee that a corporation uninjunction would lie at the instance of one corporation against another for using its name, for the reason that that name might be used for and stand as a part of a trademark. The Supreme Court of Michigan enjoined a domestic corporation from using the name, "Lamb Glove and Mitten Co.," where it interfered with the business of another corporation having the name, "Lamb KnitGoods Co." Lamb Co. v. Lamb Co., 120 Mich. 159, 78 N. W. 1072, 44 L. R. A. 841. It was likewise ruled by the Supreme Court of Illinois that a corporation having the name, "The Young Womens' Christian Association," might enjoin a new corporation from using the name, "International Committee of the Young Womens' Christian Association." International Com., etc., v. Y. W. C. A., 194 Ill. 194, 62 N. E. 551, 56 L. R. A. 888. [3] It is not necessary to allege or prove actual fraud on the part of the corporation which assumes the name of another, but, if such actual fraud be necessary to relief, in a case like the one under consideration, it may be presumed from knowingly adopting the name of another corporation, or a name so similar as to cause actual or probable loss or damages to the other; that is to say, if the adoption of such name would have the natural and necessary tendency to cause such loss or damage to the other party. [4] The bill in this case alleges that the names, though not the same, are nearly so; that the objects and purposes, as well as the insignia, banners, and other paraphernalia adopted by the latter organization, are so similar to those of the former; and that the use of such paraphernalia by the latter has the natural tendency to create in the public mind the idea that the two organizations are connected. If this were true, it would certainly tend to interfere with the free and uninterrupted use by the former corporation of its insignia, banners, mottoes, etc., to which it is entitled under the law. said by this court in the case of Kyle v. Perfection Mattress Co., 127 Ala. 39, 28 As was [6] While there may be some differences and distinctions in the law in regard to restraining the use of the same names between business corporations and those which are merely benevolent or fraternal in character, yet there is no doubt that courts of chancery will protect corporations which are purely fraternal or benevolent in character and purpose, where their names have been wrongfully assumed by other corporations for similar purposes, when the objects and results of such wrongful assumption of name lead to confusion and detriment to the older corporation and to the public. There is nothing in this bill to show that the complainant's right to protection is barred by the statute of limitations; nor to show that the complainant has been guilty of such laches, in instituting this proceeding, as would deter a court of chancery from awarding the relief prayed. [7] If there be facts such as would bar relief in this suit on account of the statute of limitations, or of laches, they must be shown by an answer or a plea, and not by demurrer, for the reason that they are not made to appear by any allegations contained in the bill. Finding no error, the decree of the chancellor must be affirmed. Affirmed. SIMPSON, ANDERSON, and MCCLELLAN, JJ., concur. (174 Ala. 322) HARDY v. KILLINGSWORTH. South. 545, 50 L. R. A. 628, 85 Am. St. Rep. (Supreme Court of Alabama. Dec. 19, 1911.) 78, touching piracy of trade-marks and the use of similar names in connection with goods sold, the use of similar names "is the usual artifice of the unfair trader." [5] It is argued by appellant that one of these fraternal organizations admits white persons only, while the other admits only negroes. A sufficient answer to this argument is that there is nothing in this bill to show that the appellant corporation admits negroes only. If the matters argued by appellant on this score are true, it would be matter for answer, and not for demurrer, because there are no such allegations in the bill. WITNESSES (§ 146*)-COMPETENCY-INTEREST. In a suit by a wife to perpetually enjoin a judgment in ejectment for the possession of land, mesne profits, and costs obtained by defendant in an action against the wife and her title, the husband is not disqualified to testify husband, and to invest the wife with the legal in the wife's behalf as to transactions with the decedent under whom she claims, by reason and by reason of his expectancy in his wife's of interest arising out of his liability for costs, property. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 644-649; Dec. Dig. § 146.*] Appeal from Shelby County Court; E. S. Lyman, Judge. Suit by Emma E. Killingsworth against Fred H. Hardy to perpetually enjoin a judg Moreover, it was decided by the Supreme ment in ejectment for the possession of 40 acres of land, and to invest complainant with legal title thereto. From a judgment granting relief, defendant appeals. Affirmed. Riddle, Ellis, Riddle & Pruett, for appellant. Sam Will John, for appellee. from the opinion expressed by the trial judge, we think the erasure and superscription of the figure 6 in the date of the contract called for explanation by the appellee. This the appellee (complainant) undertook to furnish by showing that the erasure and change had been done before delivery. The issue thus raised was an issue of fact. The evidence is in conflict. Without extending this opin evidence pro and con, we state our conclusion, reached upon the same considerations in general that influenced the judge below, that the paper writing in question was properly admitted in evidence as bearing the true date of its execution and delivery. We are also of opinion that J. T. Killingsworth, husband of the sole party complainant, was not disqualified to testify in her behalf as to transactions had with Randall. His interest is such as to suggest great caution in the consideration of his testimony, SAYRE, J. Appellant had recovered the land in controversy by a judgment of the circuit court of Shelby, in which Emma Kil-ion by an unprofitable recapitulation of the lingsworth and her husband, John T. Killingsworth, were parties defendant. The judgment was for mesne profits and costs, also. Thereafter Mrs. Killingsworth filed this bill, alleging a perfect equitable title in herself, and praying that the execution of the judgment at law be perpetually enjoined. Defendant claims in virtue of a deed from the trustee in bankruptcy of John B. Randall. Complainant claims to have purchased the property from Randall, and to have paid the purchase money in full prior to the commencement of proceedings in bank-but it is not such as to render his testimony ruptcy against said Randall. The averment of the bill is that Randall was prevented from executing a conveyance upon complainant's payment of the purchase money, as he had agreed, and as he was otherwise prepared to do, by the sickness of his wife, who was expected to join in the conveyance; that shortly thereafter the proceedings in bankruptcy were commenced; and that a little later Randall died. There is no question about notice. The case turns upon this question of fact: Whether complainant paid the agreed purchase price in full before the commencement of the proceedings in bankruptcy. Appellant holds that this question ought to be answered in the negative, and, incidentally, denies the legal competency of some evidence offered by the appellee. illegal. His disqualifying interest is supposed to arise out of the fact that the judgment of the circuit court, which this bill seeks to impeach, on the ground that her title was purely equitable and unavailable in the law court, was a judgment against the witness for costs. We have not the terms of that judgment before us. Assuming it to have been a judgment against the witness in extent and effect the same as that against the complainant in this bill, still it does not appear that the witness has a pecuniary interest in the result of this suit. He is not a party, and no relief for or against him can be decreed under the pleadings in this cause, nor will the decree to be rendered be legal evidence for or against him in some other action. "A case cannot arise for the application of the disqualifying exception of the statute, unless it involves a direct, certain, and immediate conflict of interests between the dead and the living, or unless the record thereof may be used as an instrument of evidence to support the claims of the witness, or to protect him from an admitted liability." Poe v. Dorrah, 20 Ala. 288, 56 Am. Dec. 196; Ala. Gold Life Ins. Co. v. Sledge, 62 Ala. 566; Manegold v. Massachusetts Life Ins Co., 131 Ala. 180, 31 South. 86; Oliver v. Williams, 163 Ala. 376, 50 South. 937. Such expectation of interest in his wife's property as the witness may have depends upon her prior death, and is analogous to that of an heir expectant, by which, as held in Harraway v. Harraway, 136 Ala. 499, 34 South. 836, a witness is not disqualified. Henderson v. Brunson, 141 Ala. 674, 37 South, 549. The purpose of the common-law rule of exclusion, and of the statute, so far as it preserves the rule of the common law, is to The judge of the county court found the complainant was entitled to relief, and we think the legal evidence in the record supports that finding. Complainant offered in evidence a paper writing, by the terms of which Randall agreed to make a good deed to the land upon the payment of $350; complainant having five years in which to pay. This paper bore date February 17, 1896. Proceedings in bankruptcy against Randall were commenced April 10, 1901. The last numeral in the date of the contract of sale was written over an erasure. The judge below states in his opinion, filed with his decree, that it is impossible to say what figure was erased. Appellant contends that the date as originally written was 1897; that complainant was guilty of an act of spoliation in making the change; and that, in consequence, the paper ought not to be received in evidence. When considered in connection with the date of Randall's bankruptcy and the time for payment stipulated in the con-remove the temptation to perjury. But aptract, the importance of this question is obvious, and if appellant's insistence is to prevail, then, in our judgment, appellee's case pellant's rule would exclude all witnesses from testifying as to transactions with deceased persons, for all witnesses may be ex directly offered by the result of the suit. The evidence of the witness J. T. Killingsworth was properly taken into consideration by the court below, and, in connection with the corroboration to be found in the record, justified the conclusion reached. Appeal from Law and Equity Court, Marengo County; Edward J. Gilder, Judge. Action by Laura E. Compton against A. Y. Sharpe and others. From a judgment for defendants, plaintiff appeals. Affirmed. J. M. Miller, for appellant. B. F. Elmore, Affirmed. All the Justices concur, except Reese & Reese, and C. K. Abrahams, for apDOWDELL, C. J., not sitting. (174 Ala. 149) COMPTON v. SHARPE et al. (Supreme Court of Alabama. Nov. 23, 1911.) 1. JUDGMENT (8 768*)-LIEN-REGISTRATION. Acts 1898-99, p. 34, provides that the owner of any judgment may file with the judge of probate a certificate of the register of the court rendering the judgment, showing the style of the court, the amount and date thereof, amount of costs, names of the parties, and name of plaintiff's attorney, which certificate shall be registered by the judge of probate, and that the register shall also show the date of filing the judgment, and that every judgment so filed shall be a lien. Held, that the registry need not show who was the owner of the judg ment in order to make it a lien. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1325, 1326; Dec. Dig. § 768.*] 2. JUDGMENT (§ 768*) — LIEN-RECORDINGNECESSITY. The recording in the probate office of the certificate of the clerk or register of the court rendering the judgment was not necessary under the statute in order to impose a lien by the judgment. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 768.*] 3. JUDGMENT (§ 770*)-FAILURE OF EXECUTION-EFFECT ON LIEN. Since the execution authorized by Acts 1890-91, p. 375, providing that, when any judgment has been legally registered in the office of the probate judge, execution may issue any time within 10 years from the rendition of the judgment, whether execution has previously issued thereon or not, was for the enforcement of a judgment lien already existing by proper certification and registration of the judgment, the fact that several executions were ineffective, or that a levy was dismissed, would not affect the judgment lien; it not depending upon the disposition of the unexecuted executions. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1328; Dec. Dig. § 770.*] 4. EXECUTION (8 75*) -TIME-APPLICATION OF STATUTES. Though Acts 1898-99, p. 34, providing that execution may be issued upon any judgment filed and registered as provided, so as to constitute a lien within one year from the date of its rendition at any time within ten years from the filing, Acts 1903, pp. 273-274, which omitted to prescribe any time for the filing and registration of the decree, would apply to authorize execution on a judgment, registered before its enactment, but more than one year after its rendition. [Ed. Note. For other cases, see Execution, Dec. Dig. § 75.*] 5. MORTGAGES (§ 151*) - LIEN-JUDGMENT PRIORITY. A duly registered judgment lien is superior to any rights acquired under a mortgage on the debtor's property executed thereafter. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 151.*] pellees. MCCLELLAN, J. Statutory ejectment by appellant against appellee. The history and results of other contests between these parties over related questions may be found in 138 Ala. 451, 35 South. 415, and 148 Ala. 217, 42 South. 441. Under the view of the record that prevails on this appeal, the controlling question is whether the certification and registration in the probate office of the judgment of Sharpe and Son against R. L. Simmons rendered by the circuit court of Marengo county effected to establish a lien for the satisfaction of the judgment superior to any right acquired by Mrs. Compton in virtue of her mortgage from Simmons. [1] The judgment was rendered July 9, 1895. Executions were promptly issued to enforce its satisfaction. A certificate of the clerk formed according to provisions of the act approved February 23, 1899 (Acts 189899, p. 34), fixing the requirements for the registration of money judgments and decrees of courts of record, was filed in the probate office on July 17, 1899. The mortgage to Mrs. Compton was executed December 30, 1901. It was expressly ruled in Bland v. Putman, 132 Ala. 613, 32 South. 616, that the act of 1899, before mentioned, did not require that the registry should show who was the owner of the judgment or decree. The certificate and registry there pronounced valid and efficacious to impose the judgment as a lien from the date of its filing in the probate office was, in form, identical with that shown by this record. This ruling in construction of the act of 1899 in Bland v. Putman has not, so far as we have been able to discover, been doubted or departed from. The ruling in Greenwood v. Trigg, 143 Ala. 617, 39 South. 361, was under the Code of 1896, the certification considered being made in 1896, before the act of 1899. It was held in Simmons v. Sharpe, 148 Ala. 217, 42 South. 441, that the judgment in question was not void. [2] It is contended for appellant, upon the authority of Edinburgh American, etc., Co. v. Grant, 152 Ala. 456, 44 South. 554, that no lien for the satisfaction of a judgment was created if the certificate of the clerk of the court rendering the judgment was not recorded. Apart from any other considerations that might suggest themselves as demonstrating the inapplication of that ruling to the cause at bar, it will suffice to note that there the act involved was that of 1889 |