Gambar halaman

tion of the county of trial being left to State officials ment had been altered so as to read thirteen instead of engaged in the prosecution, was unconstitutional. This "thirty-three" dollars. Kegg was held guilty of right of trial by jury is not described but is under- | forgery because the words were indorsed on the note stood, as it had existed before and had become known by Patterson by his direction, and the court say that in the previous jurisprudence of the State. By impli- “it is unnecessary to determine what would have been cation, at least, even a waiver of its advantages is for the effect of the indorsement is made by the payee bidden. Nothing is better settled on the authorities without the privity and knowledge of the maker." In than that the Legislature cannot take away a single the case at bar the indorsement may have been no one of its substantial and beneficial incidents. Opin- more than a mere private memorandum made by the ions of Judges, 41 N. Y. 550; Ward v. People, 30 Mich. payee, never delivered as a receipt, and not being 116; and even the accused cannot waive any one of the signed, he had the right to alter it. In the case cited essentials. Work v. State, 2 Ohio St. 296; Canceni it was the concurrent act of the parties, and was the v. People, 18 N. Y. 1:28; Hill v. People, 16 Mich. 351; means employed by them to preserve the evidence of Allen v. State, 54 Ind. 461. Now, that in jury trial it payment. The distinction is apparent. Iowa Sup. is implied that the jury shall be by vicinage, is familiar Ct., April 7, 1880. State of Iowa v. Davis. Opinion law. Blackstone says the jurors must be “of the issue by Rothrock, J. or neighborhood, which is interpreted to be of the

TRIAL — ACQUITTAL CANNOT BE SET ASIDE OR REcounty where the fact is committed." 4 Com. 350.

VIEWED. — It has always been a settled rule of the This is an old rule of the common law. Hawk. P. C.,

common law that after an acquittal of a party upon & b. 2, ch. 40; 2 Hale's P. C. 264; and the rule was so strict regular trial on an indictment for either a felony or a and imperative that if an offense was committed partly

misdemeanor, the verdict of acquittal cau never afterin one county and partly in another, the offender was

ward, on the application of the prosecutor, in any form not punished at all. Hawk. P. C., b. 2, ch. 25; 1 Chit. Cr. L. 177. This over nicety was long since dispensed and it matters not whether such verdict be the result

of proceeding, be set aside and a new trial granted, with, but the old rule has, in the main, been preserved

of a misdirection of the judge on a question of law, in its integrity to this day. It is true that Parliament,

or of a misconception of fact on the part of the jury. as the supreme power of the realm, made some excep- 2 Hale's P. C. 310; 2 Hawk. P. C., b. 2, ch. 47, S 12; 3 tions, which are enumerated by Mr. Chitty in 1 Crim. Law, 179, the chief of these being cases of supposed SS 992, 993. This cardinal rule has been clearly and

Whart. Am. Crim. Law, $ 3:221; 1 Bishop's Crim. Law, treason, or misprision of treason, examined before the definitely settled in England, and has never been Privy Council, and which, under a statute of Henry

modified by legislation there, nor in any other State VIII, might be tried in any county; and offeuses of

in this Union, nor indeed, so far as is known, in any the like character committed out of the realm, and

other country where trial by jury under the common which, by a statute of the same arbitrary reign, law prevails. Maryland Ct. of Appeals. State of Maryjwere authorized to be tried in any county in England. land v. Shields. Opinion by Miller, J. (Appearing 19 But it is well known that the existence of such stat

Maryland Reports.) utes, with a threat to enforce them, was one of the grievances which led to the separation of the American colonies from the British empire. If they were for

RECENT ENGLISH DECISIONS. bidden by the unwritten Constitution of England, they are certainly unauthorized by the written Con- AUCTIONEER - DUTY AS TO GOODS IN POSSESSIONstitution of the American States, in which the utmost BAILMENT. — - An auctioneer has not merely the cuspains have been taken to preserve all the securities of tody of goods intrusted to him for sale, but also an individual liberty. It has been doubted in some States interest in aud possession of them, whether the sale be whether it was competent even to permit a change of on the premises of the owner or iu public auction venue, on the application of the State, to escape local room. An auctioneer having been requested by A to passion, prejudice and interest (Kirk v. State, 1 Cold. sell certain goods, agreed to do so at a warehouse where 344; Osborn v. State, 24 Ark. 629; Wheeler v. State, they were stored by A. The day before the sale he 24 Wis. 52); but this may be pressing the principle too received notice that B claimed the goods, notwithfar (State v. Robinson, 14 Minn. 447; Gut v. State, 9 standing which he put them up for sale and returned Wall. 28); but no one doubts that the right to a trial to A those not sold. B having proved her right to the by a jury of the vicinage is as complete and certain goods, held, that the auctioneer was liable for the valne now as it ever was, and that in America it is indefeas- of the goods returned to A, as well as of those sold. ible. 1 Bish. Crim. Law (2d ed.), $ 552; Whart. Crim. Williams v. Millington (1 H. Bl. 81) followed. Chan. Law, $ 277; Paul v. Detroit, 32 Mich. 108; Ward v. Div., May 1, 1880. Davis v. Artingstall. Opinion by People, 30 Mich. 116. Michigan Sup. Ct., April 28, 1880. Fry, J., 42 L. T. Rep. (N. S.) 507. Swart v. Kimball. Opinion by Cooley, J.


On the trial of an indictment for an indecent assault BY HOLDER OF NOTE. — On the back of a promissory

upon a little girl only seven years of age, the child was note, made by L., defendant, who held the note, had

examined as a witness. The prisoner's counsel proindorsed, “Received from S. Lloyd the sum of $120. posed to address the jury on the consent of the child 24-8-74.” This was not signed by any one. Afterward

to the assault. The chairman refused to allow him to he altered the indorsement by changing the $120 to $20

do so, ruling that a child of seven years old might suband adding the words “as interest." Held, that in

mit, but could not give consent to the assault. The the absence of any allegation that the indorsement was

prisoner was convicted. Held, that the conviction intended as a receipt for the benefit of the maker of

must be quashed. Following Reg. v. Read (1 Den. C. the note, an indictment for forgery would not lie.

Cas. 377; 3 Cox's C. Cas. 266). Cr. Cas. Res., May 1, This does not conflict with Kegg v. State, 10 Ohio, 75.

1880. Regina v. Roadley. [Note.-Iu Reg. v. Read the In that case

one Patterson owed Kegg a note of jury returned a verdict of “Guilty; the child being an $100. Patterson made a payment of $33.25, and in the assenting party, but that from her tender years she did

not know what she was about." presence and with the concurrence and by the direc

An obviously impertion of Kegg, Patterson made this indorsement on the

fect verdict. See Reg. v. Lock, L. Rep. C. Cas. R. 10; note: “Rec'd May 4, 1839, on the within note, thirty- 12 Cox's C. Cas. 244.] 42 L. T. Rep. (N. S.) 515. three dollars and 25 cents." Kegg retained the note, DEED - FROM COMMITTEE OF LUNATIC- - EXECUTION. and when presented for final adjustment the indorse- A deed to which a lunatic is expressed to be a party

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by his committeesjis sufficiently executed by the com- of the word "annually" to the interest clause of a mittees merely affixing seals and signing their own note payable in less than two years is not a material Dames. Ct. of Appeal, April 8, 1880. Lawrie v. Lees. alteration, as it does not require the payment of interOpinions by James and Bramwell, L. JJ., 42 L. T. Rep. est at the end of the year. Johnston v. Kimball Town(V. S.) 485.

ship, p. 187.- A surety is not bound by an official bond WARRANTY - ON SALE OF HORSE

not signed by a principal named therein, but delivered

AT AUCTION. Where, at a sale by auction of a horse warranted a

without the surety's knowledge or consent, and the good worker, one of the conditions of sale was that

burden of proving such consent is on the plaintiff. To any horse not answering a warranty must be returned

the same effect is Hall v. Parker, p. 287. Fuulks v. by five o'clock on the day after the sale, to be tried by ing liquor to a minor, it is a good defense to show that

People, p. 200.- On a prosecution for selling intoxicata competent person appointed by the proprietors of the repository where the sale took place, whose decis

the seller reasonably believed him of age. To same efion should be final, held, that no action could, in the

fect, Furrell v. State, 32 Ohio St. 456; S. C., 30 Am. absence of fraud, be brought by the purchaser for Rep. 611; and see note, p. 617. Brown v. Barnes, p. breach of warranty, the horse not having been returned

211.- In an action of slander, the pecuniary standing on the day after sale. Ct. of Appeal, Feb. 26, 1880.

of the defendant may be shown to indicate the influHinchcliffe v. Barwick. Opinions by Bramwell, Bag

ence of his speech, but not in itself to enhance damgallay and Thesiger, L. JJ., 42 L. T. Rep. (N. S.) 492.

ages. People v. Cook, p. 236.-Homicide is not justified by the defendant's belief that the deceased bad

administered drugs to the defendant's sister in the NEW BOOKS AND NEW EDITIONS.

unaccomplished endeavor to effect her seduction.

Long v. Battle Creek, p. 323.- An oral proposition by a 39TH MICHIGAN REPORTS.

citizen to a city council, that if the city would build

one-half of a bridge across a certain river, he would THIS THIS volume contains decisions from June 11th to build the other half, or if the city would build the

November 22, 1878, thus closing up the gap left by whole he would pay for half, is binding on him if the the reporter, whose last volume is the 41st. The vol-city builds the bridge. Gregory v. Wendell, p. 337.-An ume contains 884 pages, is reported by Henry A. agreement for future delivery of stocks, where there Chaney, and is published by W. S. George & Co., of is no intention of delivering, but only of settling the Lansing. It is rich in interest. We briefly uote the difference between the agreed and the market price, is following decisions: Rindskopf v. De Ruyter, p. 1.-An invalid, and “margins” cannot be recovered back. oral order, in Michigan, to the agent of a Wisconsin Woods v. Ayres, p. 345.- Assumpsit cannot be based firm, for liquors to an amount exceeding fifty dollars, on a spontaneous and unasked service, rendered subject to acceptance or rejection on arrival in Mich- | through kindness or to be more probably accounted igan, followed by delivery to a carrier in Wisconsin, for than by the expectation of payment. Foster v. does not constitute a binding contract under the Wis- Schipps, p. 376.- A publication in a newspaper of a consin statute of frauds, and is void under the Mich- false statement that a city physician, who is appointed igan prohibitory law. This is in harmony with | by the common council and not publicly elected, has Hausman v. Nye, 62 Ind. 485; S. C., 30 Am. Rep. 199; caused the death of a patient by malpractice, is not Keiirert v. Meyer, 62 Ind. 587; S. C., 30 Am. Rep. 206. privileged, and is libellous. Mastus v. Houck, p. 431.People v. Bringard, p. 22. - It is embezzlement for a One party to a building contract cannot be compelled town treasurer to appropriate trust funds to private to accept work not performed according to the specifipurposes and refuse to account for them, although he cations, and to rely on recoupment for his indemnity. is not bound by law to pay over the identical money Campan v. Langley, p. 451.– A statute permitting the received. McFarlane v. Clark, p. 44. — A probate public sale by a public officer of animals found running judge named as legatee may lawfully make the orders at large in a public highway, and directing the payof hearing and notice for proof of the will. Brockway ment of the proceeds, less the expenses of sale and v. Innes, p. 47.- An assistant chief engineer of a rail- keeping, to the owner, with a certain time for redemproad company is not a "laborer” within the meaning tion, is constitutional. Kelly v. Reynolds, p. 464.- A of provisions rendering the stockholders of corpora- will provided, “To my wife the provision made for tions liable for labor debts. The same is held of a her by the statutes of this State I deem sufficient;”. contractor for building the road-bed. Peck v. Miller, and after giving sundry legacies, concluded by giving p. 594. See Stryker v. Cassidy, 76 N. Y. 50; also 21 to the testator's son, “all the residue of my estate Alb. L. J. 405. Gibson v. Cranage, p. 49.- A contract after paying the above bequests, legacies, and my for a portrait to be "satisfactory" to the customer, debts and the expenses of settling my estate;" held, gives him the option of refusing it at his pleasure. To that the wife took such a share as if the testator had the same effect, Zaleski v. Clark, 44 Conn. 218; S. C., 26 died intestate. School District v. Gage, p. 481. — A Am. Rep. 446; also 21 Alb. L. J. 465. Wheeler y. Con. school district cannot be garnished for teachers' wages, stantine, p. 62.- A note valid in Michigan is there pre- the statute prohibiting the garnishment of municipal sumed valid in Indiana; and if an Indiana woman corporations. Teachers' wages are not subject to depleads her disqualification to make a pote given by her ductions for recognized holidays. Lake Superior Iron for goods purchased by her in Michigan, she must Co. v. Erickson, p. 492. — Where a mining company support it by proof of the Indiana law. Bullock v. contracts for the removal of ore, but assumes the duty Taylor, p. 137.- A provision in a note for an attorney of making arrangements to protect the workmen, it is fee in case of proceedings to collect is void. Liddle liable to the contractor's employees for injury in conv. Needham, p. 147.- An oral agreeinent by A to B for sequence of neglect of that duty. Cordes v. Miller, p. land to be deeded by him to C is void, although B 581.- A lessee of wooden building, covenanting to redeeds the land accordingly. Keer v. Kingsbury, p. build in case of fire, is released by the enactment of a 150.- Erections made by a lessee on the leased prop- valid ordinance prohibiting the erection of wooden erty do not come within a subsequent mortgage of the buildings. Campau v. North, p. 606.-Uuder a statpremises, although the lessee neglects to remove them ute prohibiting the disclosure by a physician of informaduring the term and accepts a renewal of the leasetion acquired in professional attendance and necesfrom a new landlord. Bay County v. Bradley, p. 163. sary to enable him to prescribe, in an action for -A county cannot maintain ejectment to remove ob- damages for a personal injury by defendant's structions from land dedicated as a street, but held violence, a physician is not precluded from diadversely. Leonard v. Phillips, p. 182. — The addition | vulging the plaintiff's admission to him that the



injury existed before the defendant's act, unless old acquaintance of ours, namely, Short Studies of it appeared that the disclosure was necessary to Great Lawyers: “The author has brought together in enable him to prescribe. Marsh v. Colby, p. 626.- In this publication a series of biographical disquisitions the absence of notice against trespass, no action will originally appearing in the ALBANY LAW JOURNAL, lie for taking fish from a small lake nearly surrounded which he has conducted with so much ability since the by the plaintiff's land. Crittenden v. Schermerhorn, p. death of the regretted I. G. Thompson. He passes 661. - Where alimony in a wife's suit for divorce has successively in review the greatest jurists of England been tixed by the court and duly paid by the husband, and the Uuited States. * * Monotony, repetition, the husband is not liable for subsequently furnished tautology are the usual accompaniments of such works. necessaries. Russell v. People's Savings Bank, p. 671. Mr. Irving Browne has surmounted these difficulties, - A married woman is not liable on her indorsement and shows that the literary spirit can be united with of a note transferred by her to secure the debt of a the judicial tone in the happiest manner. The French corporation in which she is a stockholder. Bosman v. legal journals ought to follow the example which the Akerley, p. 710. – A guaranty of collection cannot be wise editor of the ALBANY LAW JOURNAL has given enforced until legal proceedings to collect have been them, and often present to their readers sketches as instituted and proved ineffectual.

interesting and instructive of the great characters who

have illustrated the bar and the magistracy." — Vol. ABBOTT'S JUDGE AND JURY.

ume 2 of the North-western Reporter has reached us.

It contains all the decisions from Iowa, Nebraska, Judge and Jury. A popular explanation of leading topics

Minnesota, Dakota, Wisconsin and Michigan, from in the Law of the Land. By Benjamin Vaughan Abbott.

Sept. 1 to Nov. 15, 1879, covering 1,178 pages, with an New York: Harper & Brothers, 1880. Pp. 432.

index and table of cases reported. This is a great and The following topics are treated in this volume:

growing enterprise. Constitutional government; birds-eye view of American courts; the American library of law; colonial The Southern Law Journal and Reporter gives the jurisprudence; citizens; civil rights; Indians; Chi- following description of some eminent lawyers who nese; National banks; commerce; trade-marks; met appeared in a recent important trial at the west: “Our ric system; admiralty jurisdiction; California land

readers will forgive us if we turn aside for a moment claims; polygamy; marriage; married women; di- to give the impression made on us by the few celevorce; insane persous; codification; civil damage brated men named above in the conduct of this cause, laws; cruelty to animals; lotteries; Sunday laws; cor- first of whom is the acknowledged head of the Ameriporations; driving and walking; finding and stealing; can bar,' Charles O'Conor, who looks something over tumble-downs; gas-explosions; house or house; pho- seventy years old, the little hair he has left being snow tographs; firearms or fireworks; doctors and drug- white, as well as the rim of short-cropped whiskers gists; public school punishments; drawing one's own encircling his face. He is about five feet eight or ten will; express companies; railroad companies; tele- inches high, has a well shaped, but not a very large graphs. On these topics the author comments in a head. The most remarkable feature about him, being popular way, with much good sense, in a pleasant style, his brilliant, penetrating eye, which his many years and with occasional gleams of humor, illustrating the have not dimmed, together with the grace and dignity subjects with cases new and old, including some that with which ho bears himself, makes him noticeable. do not find a place in books. The book is well designed Altogether he is a grand old man, and we could not to give the lay man a correct idea of such legal topics help but admire the simplicity and clearness of his as are the most apt to fall in the way of his reading in argument in this case. He appeared for the bondholdnewspapers. Mr. Abbott is well known to our pro- ers. C. F. Southmayd is a born lawyer, if there ever fession as a competent legal author and compiler, and was one; small in stature, with sharp, clear-cut feathas judged wisely in putting before the non-professional ures, a sharp, squeaky voice, round shoulders; he looks world some correct views on legal subjects of common as if he had spent his whole life in an office, and we interest. The lay reader will hardly find so much use- reckon he has, for we heard of his asking very confiful information on legal points in any other publica- dentially of a friend while in Nashville, 'if there were tion. The volume has references to the cases cited, and many secesh around here now.' He has attained great an index, and is published in an attractive form. For celebrity in New York, and for refined distinctions sale by S. R. Gray, Albany.

and close argument we have never seen his equal, and

yet he is no orator, delivering nine-tenths of his speech NOTES.

without looking at the judge, in fact with his back

turned to him part of the time, and in a voice scarcely E were in error in stating, ante, p. 41, that the

audible. He represents the railroads. Stanley Mat

thews, from his connection with the present chief referee's decision in Thorp v. Thorp was reversed

executive of the Nation, together with his prominence by the General Term. The court at Special Term, on

as a politician, is perhaps better known than either of the authority of the Marshall case, refused to adopt

the above. He is a splendid specimen of the genus the referee's views and enter judgment in conformity

homo, but perhaps having the appearance of being a with his report. We have added to our weekly in

little too well fed. He represented in tbese causes the dex, in compliance with a suggestion from several sub

substitution bondholders, that is, the holders of the scribers, a detailed index to the abstracts, which we

bouds issued by the railroads to liquidate the State's hope will save our readers some trouble in searching lien. He made a magnificent argument, and assisted for references. - The State Library will be closed to

by a magnificent voice, delivered it in a magnificent the public, from the fifth to the twentieth of August,

manner. Judge Hoadly, last, but by no means least, inclusive, for the purpose of cleaning and repairs.

is a handsome man, some six feet high, whose splendid

head and luminous eyes mark him as a great man, and The current number of the Journal du Droit Inter

this country is bound to hear more of him, for he is national Privé, has leading articles on the Power of yet young, but has reached a place among the dozen of French tribunals to take cognizance of suits between

our greatest lawyers. All in all he is the readiest man strangers, by M. Ferarid Giraud; the Effect and the

we ever saw at the bar; like a cat he always falls on his

feet, ready for a renewal of the combat. Taken altoexecution of foreigu decrees and judgments in Greece,

gether, we venture the assertion that a greater array by M. Saripolog, of Athens; and the Case of Bauffre

of legal talent never crossed swords thau met in this mont, by M. Renault. The Journal thus speaks of an trial."



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The Albany Law

they may be limited to particular purposes," " but Journal.

the extent of the right must always depend upon

the words of the instrument creating the right,” or ALBANY, AUGUST 7, 1880.

upon prescription. Now we should say, that as the nature of the way follows that of the grant, in the

case of an unrestricted and unconditional grant, not CURRENT TOPICS.

reserving a way over the grantor's surrounding land, TE have always remarked the disposition of the

the way by necessity would also be unrestricted. English judges to interrupt and argue with Certainly in the case under consideration, the grantee counsel in the argument of causes. The reports are

was not bound always to use the land for purely agfull of this sort of colloquy.

He must be a very

ricultural purposes. He had a right to mine, quarry,

or makc brick or lumber, and if so, why must he great judge who does not appear to disadvantage in this exercise, and it is hardly fair to the judges

not have a right to carry off his products? Does and not very useful to the bar to report all this

not a way by necessity fit itself to the lawful uses judicial talk and putting of questions. Nobody

of the grant? If it were not so, the grantor could cares much for the rough draft of a great author's accomplish indirectly what he has not chosen to work, filled with interlineations and erasures, and

guard himself against by restrictions in the grant. frequently far inferior in expression and in plan to the completed publication. These oral drafts of a In a notice of 38th Michigan Reports, the Southern judge's opinion are often as crude and subject to Law Review says: “The case of Grand Rapids & modification or rejection. The practice is also Indiana Railroad Co. v. Iluntley, p. 537, is calcuunfair to the lawyer, whose current of thought is

lated to arrest the attention. It denies two wellthus broken up, and who is sometimes put at a settled rules of American law relating to the seeming disadvantage without any substantial basis. responsibility of carriers for injuries to passengers. The London Law Times says: “Judicial thinking The first is, that the breaking down of the carrier's aloud is one of the vices of our modern judicial vehicle or the giving way of his road is prima facie system. The vigorous reporter who presents almost evidence of negligence; the other is, that a carrier verbatim in the columns of the Times the doings of of passengers is bound to more than ordinary care. the Court of Appeal at Westminster, shows very

On the last point the court cites three modern clearly to what arguments in courts of law have English cases and some previous cases in Michigan. been reduced. A running fire of questions from It is sufficient to say that the law as laid down by three astute judges is not an ordeal through which Lord Mansfield and Lord Ellenborough — and this any counsel ought to be expected to pass in advo- was merely stage-coach law - was that the carrier cating a client's cause, and we think that the judges

was bound to look out for the safety of his passenof half a century ago would open their eyes with gers as far as human care and foresight could go, amazement if they could peruse a faithful report of and that the breaking down of his means of transproceedings in any of our courts of law. The portation was prima facie evidence of negligence on minority of judges in the present day have the his part. But the modern English judges, with their faculty of listening. The majority utter their pockets full of railroad shares, have diminished the thoughts and their criticisms freely as they go along.

carrier's liability, even where he drives his carriage The consequence must be, that arguments become by steam at six times the speed of the old stagemuch inflated without any compensating advantage. coach, to that of ordinary care. We state with The only consolation is that the evil cannot increase confidence that the old English rule is the law as in magnitude.”

administered in the Supreme Court of the United

States, and the highest court of every State in the The decision of the Master of the Rolls, in Union, except Michigan, where the question has Mayor v. Riggs, will certainly startle the unpro- arisen.” The accident occurred from a broken axle. fessional mind, if it proves acceptable to the bar. The stress of the case lay on the charge of the trial The point held is, that where one grants to another court that “no diligence or care in the railroad land surrounded by the grantor's land, a right of company could exempt them from want of care in way for ingress and egress exists by necessity, but the manufacture of the cars and axles.” The aponly for the purpose of the enjoyment of the granted pellate court said: Passenger carriers “are liable land in the state and for the purpose for which it only when there has been actual negligence of themwas used at the time of the grant. So, such a right selves or their servants. If they exercise their of way to agricultural land will not enure for the functions in the same way with prudent railway purpose of using the land for building, for other companies generally, and furnish their road and run tban agricultural purposes. In other words, if a it in the customary manner which is generally found man buys a farm so situated, he cannot have a right and believed to be safe and prudent, they do all of way by necessity for mining on the land, nor for that is incumbent upon them.” The rest of the making brick from the clay, nor for carrying on a opinion is to the effect, that if the railway compaBaw-mill or a quarry.

Goddard says (Easements, nies buy their vehicles of reputable manufacturers, 77), of ways, “they may be general in their charac- and give them the usual and practicable examinater, or in other words, usuable for all purposes, or tion, they do all that is necessary, and are not re

Vol. 22.- No. 6.


sponsible for defects not discoverable on such exam- be calculated to deceive. This seems sailing very ination; that they have a right to rely on the care close to the wind. Indeed, the court said “he could and skill of the manufacturers and such examina- not approve of the mark," and "it was, in his opintion, and are not insurers of the safety of their vehi-ion, the duty of traders in taking a new mark to cles. The opinion is short and contains no exami- use such a distinctive device as could not possibly nation nor comparison of authorities, nor do any of deceive.” We think the public would be as apt to the previous Michigan cases referred to. The Re- be deceived in this case, as by the adoption of the view is substantially correct in its statement, but words “ Lone Jack," on parcels of tobacco, with the Supreme Court of Tennessee, in Nashville & De- distinctive surroundings. See 21 Alb. L. J. 503. catur Railroad v. Jones, 9 Heisk. 27, have held in accordance with the Michigan court. The ruling is The Canada Legal News reports the case of Bradadverse to that of our Court of Appeals in Hegeman ley v. Logan. The action was brought on a promisv. Railroad, 13 N. Y. 9. Only one of the English sory note, by a citizen of the United States. The cases cited is in point. It is unquestionable, in spite plaintiff described himself as “Esquire," the las of Alden v. N. Y. C. R. R. Co., 26 N. Y. 102, that requiring that the plaintiff shall state his occupaa passenger carrier cannot be held as an insurer of tion or quality. The defendant objected that the the safety of his vehicle, but both upon principle plaintiff gave himself no title. It was proved that and authority he is held in this country to warrant there is no such title in this country. But the due care and skill in the manufacture. Otherwise

court said: “The exception of the defendant is the passenger would be remediless, for he has no

wanting in this, that it does not say in what respect cause of action against the manufacturer, whereas the description is defective. It complains of the the carrier has. To adopt the conduct of other rail- total want of description; but the quality of esway companies as a criterion of prudence is very quire is sufficient in itself, and in our law has a sig. unsafe, for the most prudent are notoriously very nificance, and I see no proof that the plaintiff is not negligent. We quite agree with the Review. an esquire as we understand, though the title has no

significance in the United States. Vide Comyn's DiWe are inclined to believe that the solution of the inquiry, what constitutes such & resemblance

gest, vo. Dignity, p. 405. Stephen's Comm. 3, 15." e

Abbott (Law Dict.) says: " It is familiarly emtween trade-marks as is calculated to deceive the

ployed in the United States, but is a title of courtesy public, depends very much on the peculiar minds of

merely." Webster says it is “a general title of redifferent judges, and peculiar states of mind of the

spect in addressing letters.” The English judges, same judge. The chancellor's foot is now heavier, now lighter. Two recent English cases illustrate

it seems, are punctilious but not harmonious about

their titles. The Solicitors' Journal says: “A few this. In the case of Worthington's Trade-Mark, the applicants were refused leave to register a triangu- in the Exchequer Division, addressed one of the

days ago a Queen's counsel, while moving in a case lar mark, with a church in it, for beer, on the

learned judges as “Sir FitzJames Stephen,' whereground that if colored red, it might interfere with

upon his lordship corrected the title to Mr. Justice the red triangle of Messrs. Bass, which, as regis

Stephen. tered, appeared to be a mere triangular black blotch.

Counsel, in apologizing for the error,

mentioned that he had been led into it by the fact In connection with this decision, the Solicitors' Journal suggests that trade-marks should be registered Henry Hawkins; and he might have added that set

that another learned judge wished to be styled Sir in the color in which they are to be used. On the other hand, in Goodwin v. Venning, the plaintiffs Mr.,' and to share with a

another learned judge appears to desire to drop the

once eminent financier were the registered owners of a trade-mark in respect of tobacco, and consisting of a judge's head,

and many foreign potentates the title of ‘Baron.' with the words above “Old Judge sun-cured Vir

To any other learned judge who may be in search of ginia smoking tobacco," and the name of the plaint-brethren we would respectfully commend the title

some designation distinguishing him from his iffs underneath. The defendants had recently reg: by which the court is frequently addressed in petiistered a trade-mark consisting of the full figure of

tions drafted by native pleaders in India — “The a judge dancing with a pipe in his mouth, and an

Presence.'" interwoven scroll with the words “Young Judge tobacco and cigarettes," and the name of the de

NOTES OF CASES. fendants. The plaintiff's moved for an injunction

THE case of Davis adduced evidence showing that their tobacco was well known in the market as “Old Judge," or for personal injuries occasioned to the plaintiff while "Judge” tobacco, but there was no evidence that travelling on Sunday upon a highway which was any person had been actually deceived by the de- out of repair. The plaintiff, in company with a fendants' labels. Some of the witnesses deposed lady friend, drove from Boston to Cambridge, in that if they heard the word “Judge” applied to the afternoon of the above day, for the purpose of tobacco they should consider it meant the plaintiffs' attending a funeral; on leaving Mount Auburn Cemtobacco. Jessel, M. R., was of opinion on a com- etery, the lady asked the plaintiff to take her back parison of the two marks, that the defendants' mark by way of Charlestown, so that she could call upon did not so closely resemble that of the plaintiffs' as to her sister-in-law; the plaintiff assented, and while

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to restrain the infringement of their mark, and they Tsets Supreme Court, June,


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