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tion of the county of trial being left to State officials engaged in the prosecution, was unconstitutional. This right of trial by jury is not described but is understood, as it had existed before and had become known in the previous jurisprudence of the State. By implication, at least, even a waiver of its advantages is forbidden. Nothing is better settled on the authorities than that the Legislature cannot take away a single one of its substantial and beneficial incidents. Opinions of Judges, 41 N. Y. 550; Ward v. People, 30 Mich. 116; and even the accused cannot waive any one of the essentials. Work v. State, 2 Ohio St. 296; Cancemi v. People, 18 N. Y. 128; Hill v. People, 16 Mich. 351; Allen v. State, 54 Ind. 461. Now, that in jury trial it is implied that the jury shall be by vicinage, is familiar law. Blackstone says the jurors must be "of the issue or neighborhood, which is interpreted to be of the county where the fact is committed." 4 Com. 350. This is an old rule of the common law. Hawk. P. C., b. 2, ch. 40; 2 Hale's P. C. 264; and the rule was so strict and imperative that if an offense was committed partly in one county and partly in another, the offender was not punished at all. Hawk. P. C., b. 2, ch. 25; 1 Chit. Cr. L. 177. This over nicety was long since dispensed with, but the old rule has, in the main, been preserved in its integrity to this day. It is true that Parliament, as the supreme power of the realm, made some exceptions, which are enumerated by Mr. Chitty in 1 Crim. Law, 179, the chief of these being cases of supposed treason, or misprision of treason, examined before the Privy Council, and which, under a statute of Henry VIII, might be tried in any county; and offenses of the like character committed out of the realm, and which, by a statute of the same arbitrary reign, were authorized to be tried in any county in England.

But it is well known that the existence of such statutes, 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 forbidden by the unwritten Constitution of England, they are certainly unauthorized by the written Constitution of the American States, in which the utmost pains have been taken to preserve all the securities of individual liberty. It has been doubted in some States whether it was competent even to permit a change of venue, on the application of the State, to escape local passion, prejudice and interest (Kirk v. State, 1 Cold. 344; Osborn v. State, 24 Ark. 629; Wheeler v. State, 24 Wis. 52); but this may be pressing the principle too far (State v. Robinson, 14 Minn. 447; Gut v. State, 9 Wall. 28); but no one doubts that the right to a trial by a jury of the vicinage is as complete and certain now as it ever was, and that in America it is indefeasible. 1 Bish. Crim. Law (2d ed.), § 552; Whart. Crim. Law, § 277; Paul v. Detroit, 32 Mich. 108; Ward v. People, 30 Mich. 116. Michigan Sup. Ct., April 28, 1880.| Swart v. Kimball. Opinion by Cooley, J.

FORGERY-ALTERATION OF MEMORANDUM INDORSED BY HOLDER OF NOTE. - On the back of a promissory note, made by L., defendant, who held the note, had indorsed, "Received from S. Lloyd the sum of $120. 24-8-74." This was not signed by any one. Afterward he altered the indorsement by changing the $120 to $20 and adding the words "as interest." Held, that in the absence of any allegation that the indorsement was intended as a receipt for the benefit of the maker of the note, an indictment for forgery would not lie. This does not conflict with Kegg v. State, 10 Ohio, 75. In that case one Patterson owed Kegg a note of $100. Patterson made a payment of $33.25, and in the presence and with the concurrence and by the direction of Kegg, Patterson made this indorsement on the note: "Rec'd May 4, 1839, on the within note, thirtythree dollars and 25 cents." Kegg retained the note, and when presented for final adjustment the indorse

ment had been altered so as to read thirteen instead of thirty-three" dollars. Kegg was held guilty of forgery because the words were indorsed on the note by Patterson by his direction, and the court say that "it is unnecessary to determine what would have been the effect of the indorsement if made by the payee without the privity and knowledge of the maker." In the case at bar the indorsement may have been no more than a mere private memorandum made by the payee, never delivered as a receipt, and not being signed, he had the right to alter it. In the case cited it was the concurrent act of the parties, and was the means employed by them to preserve the evidence of payment. The distinction is apparent. Iowa Sup. Ct., April 7, 1880. State of Iowa v. Davis. Opinion by Rothrock, J.

TRIAL-ACQUITTAL CANNOT BE SET ASIDE OR REVIEWED. It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury. 2 Hale's P. C. 310; 2 Hawk. P. C., b. 2, ch. 47, § 12; 3 Whart. Am. Crim. Law, § 3221; 1 Bishop's Crim. Law, §§ 992, 993. This cardinal rule has been clearly and definitely settled in England, and has never been modified by legislation there, nor in any other State in this Union, nor indeed, so far as is known, in any other country where trial by jury under the common law prevails. Maryland Ct. of Appeals. State of Maryland v. Shields. Opinion by Miller, J. (Appearing 49 Maryland Reports.)

RECENT ENGLISH DECISIONS.

AUCTIONEER-DUTY AS TO GOODS IN POSSESSIONBAILMENT.-. An auctioneer has not merely the custody of goods intrusted to him for sale, but also an interest in and possession of them, whether the sale be on the premises of the owner or in public auction room. An auctioneer having been requested by A to sell certain goods, agreed to do so at a warehouse where they were stored by A. The day before the sale he received notice that B claimed the goods, notwithstanding which he put them up for sale and returned to A those not sold. B having proved her right to the goods, held, that the auctioneer was liable for the value of the goods returned to A, as well as of those sold. Williams v. Millington (1 H. Bl. 81) followed. Chan. Div., May 1, 1880. Davis v. Artingstall. Opinion by Fry, J., 42 L. T. Rep. (N. S.) 507.

CRIMINAL LAW-INDECENT ASSAULT ON CHILD. — On the trial of an indictment for an indecent assault upon a little girl only seven years of age, the child was examined as a witness. The prisoner's counsel proposed to address the jury on the consent of the child to the assault. The chairman refused to allow him to do so, ruling that a child of seven years old might submit, but could not give consent to the assault. The prisoner was convicted. Held, that the conviction must be quashed. Following Reg. v. Read (1 Den. C. Cas. 377; 3 Cox's C. Cas. 266). Cr. Cas. Res., May 1, 1880. Regina v. Roadley. [Note.-In Reg. v. Read the jury returned a verdict of "Guilty; the child being an assenting party, but that from her tender years she did not know what she was about." An obviously imperfect verdict. See Reg. v. Lock, L. Rep. C. Cas. R. 10; 12 Cox's C. Cas. 244.] 42 L. T. Rep. (N. S.) 515.

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Where, at a sale by auction of a horse warranted a good worker, one of the conditions of sale was that any horse not answering a warranty must be returned by five o'clock on the day after the sale, to be tried by a competent person appointed by the proprietors of the repository where the sale took place, whose decision should be final, held, that no action could, in the absence of fraud, be brought by the purchaser for breach of warranty, the horse not having been returned on the day after sale. Ct. of Appeal, Feb. 26, 1880. Hinchcliffe v. Barwick. Opinions by Bramwell, Baggallay and Thesiger, L. JJ., 42 L. T. Rep. (N. S.) 492.

THIS

NEW BOOKS AND NEW EDITIONS.

39TH MICHIGAN REPORTS.

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of the word "annually" to the interest clause of a note payable in less than two years is not a material alteration, as it does not require the payment of interest at the end of the year. Johnston v. Kimball Township, p. 187.-A surety is not bound by an official bond not signed by a principal named therein, but delivered without the surety's knowledge or consent, and the burden of proving such consent is on the plaintiff. To the same effect is Hall v. Parker, p. 287. Faulks v. People, p. 200.- On a prosecution for selling intoxicating liquor to a minor, it is a good defense to show that the seller reasonably believed him of age. To same effect, Farrell v. State, 32 Ohio St. 456; S. C., 30 Am. Rep. 614; and see note, p. 617. Brown v. Barnes, p. 211. In an action of slander, the pecuniary standing of the defendant may be shown to indicate the influence of his speech, but not in itself to enhance damages. People v. Cook, p. 236.-Homicide is not justified by the defendant's belief that the deceased had administered drugs to the defendant's sister in the unaccomplished endeavor to effect her seduction. Long v. Battle Creek, p. 323.- An oral proposition by a citizen to a city council, that if the city would build one-half of a bridge across a certain river, he would build the other half, or if the city would build the whole he would pay for half, is binding on him if the city builds the bridge. Gregory v. Wendell, p. 337.—An agreement for future delivery of stocks, where there is no intention of delivering, but only of settling the difference between the agreed and the market price, is invalid, and "margins" cannot be recovered back. Woods v. Ayres, p. 345.- Assumpsit cannot be based on a spontaneous and unasked service, rendered through kindness or to be more probably accounted for than by the expectation of payment. Foster v.

false statement that a city physician, who is appointed by the common council and not publicly elected, has caused the death of a patient by malpractice, is not privileged, and is libellous. Mastus v. Houck, p. 431.One party to a building contract cannot be compelled to accept work not performed according to the specifications, and to rely on recoupment for his indemnity. Campan v. Langley, p. 451.-A statute permitting the public sale by a public officer of animals found running at large in a public highway, and directing the payment of the proceeds, less the expenses of sale and

IIS volume contains decisions from June 11th to November 22, 1878, thus closing up the gap left by the reporter, whose last volume is the 41st. The volume contains 884 pages, is reported by Henry A. Chaney, and is published by W. S. George & Co., of Lansing. It is rich in interest. We briefly uote the following decisions: Rindskopf v. De Ruyter, p. 1.-An oral order, in Michigan, to the agent of a Wisconsin firm, for liquors to an amount exceeding fifty dollars, subject to acceptance or rejection on arrival in Michigan, followed by delivery to a carrier in Wisconsin, 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 Michigan prohibitory law. This is in harmony with Hausman v. Nye, 62 Ind. 485; S. C., 30 Am. Rep. 199; Keiwert v. Meyer, 62 Ind. 587; S. C., 30 Am. Rep. 206. People v. Bringard, p. 22. It is embezzlement for a town treasurer to appropriate trust funds to private purposes and refuse to account for them, although he is not bound by law to pay over the identical money received. McFarlane v. Clark, p. 44. A probate judge named as legatee may lawfully make the orders of hearing and notice for proof of the will. Brockway 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 of provisions rendering the stockholders of corporations liable for labor debts. The same is held of a contractor for building the road-bed. Peck v. Miller, p. 594. See Stryker v. Cassidy, 76 N. Y. 50; also 21 Alb. L. J. 405. Gibson v. Cranage, p. 49.- A contract for a portrait to be "satisfactory "to the customer, gives him the option of refusing it at his pleasure. To the same effect, Zaleski v. Clark, 44 Conn. 218; S. C., 26 Am. Rep. 446; also 21 Alb. L. J. 465. Wheeler v. Constantine, p. 62.- A note valid in Michigan is there presumed valid in Indiana; and if an Indiana woman pleads her disqualification to make a note given by her for goods purchased by her in Michigan, she must support it by proof of the Indiana law. Bullock v. Taylor, p. 137.- A provision in a note for an attorney fee in case of proceedings to collect is void. Liddle v. Needham, p. 147.- An oral agreement by A to B for land to be deeded by him to C is void, although B deeds the land accordingly. Keer v. Kingsbury, p. 150.-Erections made by a lessee on the leased property do not come within a subsequent mortgage of the premises, although the lessee neglects to remove them during the term and accepts a renewal of the lease from a new landlord. Bay County v. Bradley, p. 163. -A county cannot maintain ejectment to remove obstructions from land dedicated as a street, but held adversely. Leonard v. Phillips, p. 182. -The addition

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tion, is constitutional. Kelly v. Reynolds, p. 464.- A will provided, "To my wife the provision made for her by the statutes of this State I deem sufficient;" and after giving sundry legacies, concluded by giving to the testator's son, "all the residue of my estate after paying the above bequests, legacies, and my debts and the expenses of settling my estate;" held, that the wife took such a share as if the testator had died intestate. School District v. Gage, p. 484. — A school district cannot be garnished for teachers' wages, the statute prohibiting the garnishment of municipal corporations. Teachers' wages are not subject to deductions for recognized holidays. Lake Superior Iron Co. v. Erickson, p. 492. Where a mining company contracts for the removal of ore, but assumes the duty of making arrangements to protect the workmen, it is liable to the contractor's employees for injury in consequence of neglect of that duty. Cordes v. Miller, p. 581.-A lessee of wooden building, covenanting to rebuild in case of fire, is released by the enactment of a valid ordinance prohibiting the erection of wooden buildings. Campau v. North, p. 606.- Under a statute prohibiting the disclosure by a physician of information acquired in professional attendance and necessary to enable him to prescribe, in an action for damages for a personal injury by defendant's violence, a physician is not precluded from divulging the plaintiff's admission to him that the

injury existed before the defendant's act, unless it appeared that the disclosure was necessary to enable him to prescribe. Marsh v. Colby, p. 626.- In the absence of notice against trespass, no action will lie for taking fish from a small lake nearly surrounded by the plaintiff's land. Crittenden v. Schermerhorn, p. 661.- Where alimony in a wife's suit for divorce has been fixed by the court and duly paid by the husband, the husband is not liable for subsequently furnished necessaries. Russell v. People's Savings Bank, p. 671. -A married woman is not liable on her indorsement of a note transferred by her to secure the debt of a corporation in which she is a stockholder. Bosman v. Akerley, p. 710. - A guaranty of collection cannot be enforced until legal proceedings to collect have been instituted and proved ineffectual.

ABBOTT'S JUDGE AND JURY.

old acquaintance of ours, namely, Short Studies of Great Lawyers: "The author has brought together in this publication a series of biographical disquisitions originally appearing in the ALBANY LAW JOURNAL, which he has conducted with so much ability since the death of the regretted I. G. Thompson. He passes successively in review the greatest jurists of England and the United States. * ** Monotony, repetition, tautology are the usual accompaniments of such works. Mr. Irving Browne has surmounted these difficulties, and shows that the literary spirit can be united with the judicial tone in the happiest manner. The French legal journals ought to follow the example which the wise editor of the ALBANY LAW JOURNAL has given them, and often present to their readers sketches as interesting and instructive of the great characters who have illustrated the bar and the magistracy."-Volume 2 of the North-western Reporter has reached us. It contains all the decisions from Iowa, Nebraska, Minnesota, Dakota, Wisconsin and Michigan, from Sept. 1 to Nov. 15, 1879, covering 1,178 pages, with an index and table of cases reported. This is a great and growing enterprise.

The Southern Law Journal and Reporter gives the following description of some eminent lawyers who appeared in a recent important trial at the west: "Our readers will forgive us if we turn aside for a moment to give the impression made on us by the few celebrated men named above in the conduct of this cause, first of whom is the acknowledged head of the American bar,' Charles O'Conor, who looks something over seventy years old, the little hair he has left being snow

Judge and Jury. A popular explanation of leading topics in the Law of the Land. By Benjamin Vaughan Abbott. New York: Harper & Brothers, 1880. Pp. 432. The following topics are treated in this volume: Constitutional government; birds-eye view of American courts; the American library of law; colonial jurisprudence; citizens; civil rights; Indians; Chinese; National banks; commerce; trade-marks; met- | ric system; admiralty jurisdiction; California land claims; polygamy; marriage; married women; divorce; insane persons; codification; civil damage laws; cruelty to animals; lotteries; Sunday laws; corporations; driving and walking; finding and stealing; tumble-downs; gas-explosions; house or house; photographs; firearms or fireworks; doctors and drug-white, as well as the rim of short-cropped whiskers gists; public school punishments; drawing one's own will; express companies; railroad companies; telegraphs. On these topics the author comments in a popular way, with much good sense, in a pleasant style, and with occasional gleams of humor, illustrating the subjects with cases new and old, including some that do not find a place in books. The book is well designed to give the layman a correct idea of such legal topics as are the most apt to fall in the way of his reading in newspapers. Mr. Abbott is well known to our profession as a competent legal author and compiler, and has judged wisely in putting before the non-professional world some correct views on legal subjects of common interest. The lay reader will hardly find so much useful information on legal points in any other publication. The volume has references to the cases cited, and an index, and is published in an attractive form. For sale by S. R. Gray, Albany.

WE

NOTES.

E were in error in stating, ante, p. 41, that the referee's decision in Thorp v. Thorp was reversed by the General Term. The court at Special Term, on the authority of the Marshall case, refused to adopt the referee's views and enter judgment in conformity with his report. We have added to our weekly index, in compliance with a suggestion from several subscribers, a detailed index to the abstracts, which we hope will save our readers some trouble in searching for references. The State Library will be closed to the public, from the fifth to the twentieth of August, inclusive, for the purpose of cleaning and repairs.

The current number of the Journal du Droit International Privé, has leading articles on the Power of French tribunals to take cognizance of suits between strangers, by M. Ferand Giraud; the Effect and the execution of foreign decrees and judgments in Greece, by M. Saripolos, of Athens; and the Case of Bauffremont, by M. Renault. The Journal thus speaks of an

ers.

encircling his face. He is about five feet eight or ten inches high, has a well shaped, but not a very large head. The most remarkable feature about him, being his brilliant, penetrating eye, which his many years have not dimmed, together with the grace and dignity with which he bears himself, makes him noticeable. Altogether he is a grand old man, and we could not help but admire the simplicity and clearness of his argument in this case. He appeared for the bondholdC. F. Southmayd is a born lawyer, if there ever was one; small in stature, with sharp, clear-cut features, a sharp, squeaky voice, round shoulders; he looks as if he had spent his whole life in an office, and we reckon he has, for we heard of his asking very confidentially of a friend while in Nashville, ‘if there were many secesh around here now.' He has attained great celebrity in New York, and for refined distinctions and close argument we have never seen his equal, and yet he is no orator, delivering nine-tenths of his speech without looking at the judge, in fact with his back turned to him part of the time, and in a voice scarcely audible. He represents the railroads. Stanley Matthews, from his connection with the present chief executive of the Nation, together with his prominence as a politician, is perhaps better known than either of the above. He is a splendid specimen of the genus homo, but perhaps having the appearance of being a little too well fed. He represented in these causes the substitution bondholders, that is, the holders of the bonds issued by the railroads to liquidate the State's lien. He made a magnificent argument, and assisted by a magnificent voice, delivered it in a magnificent manner. Judge Hoadly, last, but by no means least, is a handsome man, some six feet high, whose splendid head and luminous eyes mark him as a great man, and this country is bound to hear more of him, for he is yet young, but has reached a place among the dozen of our greatest lawyers. All in all he is the readiest man we ever saw at the bar; like a cat he always falls on his feet, ready for a renewal of the combat. Taken altogether, we venture the assertion that a greater array of legal talent never crossed swords than met in this

trial."

The Albany Law Journal.

W

ALBANY, AUGUST 7, 1880.

CURRENT TOPICS.

E have always remarked the disposition of the
English judges to interrupt and argue with

counsel in the argument of causes.

The reports are full of this sort of colloquy. He must be a very great judge who does not appear to disadvantage in this exercise, and it is hardly fair to the judges and not very useful to the bar to report all this judicial talk and putting of questions. Nobody cares much for the rough draft of a great author's work, filled with interlineations and erasures, and frequently far inferior in expression and in plan to the completed publication. These oral drafts of a judge's opinion are often as crude and subject to modification or rejection. The practice is also unfair to the lawyer, whose current of thought is thus broken up, and who is sometimes put at a seeming disadvantage without any substantial basis. The London Law Times says: "Judicial thinking aloud is one of the vices of our modern judicial system. The vigorous reporter who presents almost verbatim in the columns of the Times the doings of the Court of Appeal at Westminster, shows very clearly to what arguments in courts of law have been reduced. A running fire of questions from three astute judges is not an ordeal through which any counsel ought to be expected to pass in advocating a client's cause, and we think that the judges of half a century ago would open their eyes with amazement if they could peruse a faithful report of proceedings in any of our courts of law. The minority of judges in the present day have the faculty of listening. The majority utter their thoughts and their criticisms freely as they go along. The consequence must be, that arguments become much inflated without any compensating advantage. The only consolation is that the evil cannot increase in magnitude."

The decision of the Master of the Rolls, in Mayor v. Riggs, will certainly startle the unprofessional mind, if it proves acceptable to the bar. The point held is, that where one grants to another land surrounded by the grantor's land, a right of way for ingress and egress exists by necessity, but only for the purpose of the enjoyment of the granted land in the state and for the purpose for which it was used at the time of the grant. So, such a right of way to agricultural land will not enure for the purpose of using the land for building, for other than agricultural purposes. In other words, if a man buys a farm so situated, he cannot have a right of way by necessity for mining on the land, nor for making brick from the clay, nor for carrying on a saw-mill or a quarry. Goddard says (Easements, 77), of ways, "they may be general in their character, or in other words, usuable for all purposes, or VOL. 22.- No. 6.

they may be limited to particular purposes," "but the extent of the right must always depend upon the words of the instrument creating the right," or 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 reserving a way over the grantor's surrounding land, the way by necessity would also be unrestricted. Certainly in the case under consideration, the grantee was not bound always to use the land for purely agricultural purposes. He had a right to mine, quarry, or make brick or lumber, and if so, why must he not have a right to carry off his products? Does not a way by necessity fit itself to the lawful uses of the grant? If it were not so, the grantor could accomplish indirectly what he has not chosen to guard himself against by restrictions in the grant.

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In a notice of 38th Michigan Reports, the Southern Law Review says: "The case of Grand Rapids & Indiana Railroad Co. v. Huntley, p. 537, is calculated to arrest the attention. It denies two wellsettled rules of American law relating to the responsibility of carriers for injuries to passengers. The first is, that the breaking down of the carrier's vehicle or the giving way of his road is prima facie evidence of negligence; the other is, that a carrier of passengers is bound to more than ordinary care. On the last point the court cites three modern English cases and some previous cases in Michigan. It is sufficient to say that the law as laid down by Lord Mansfield and Lord Ellenborough - and this was merely stage-coach law was that the carrier was bound to look out for the safety of his passengers as far as human care and foresight could go, and that the breaking down of his means of transportation was prima facie evidence of negligence on his part. But the modern English judges, with their pockets full of railroad shares, have diminished the carrier's liability, even where he drives his carriage by steam at six times the speed of the old stagecoach, to that of ordinary care. We state with confidence that the old English rule is the law as administered in the Supreme Court of the United States, and the highest court of every State in the Union, except Michigan, where the question has arisen." The accident occurred from a broken axle. The stress of the case lay on the charge of the trial court that "no diligence or care in the railroad company could exempt them from want of care in the manufacture of the cars and axles." The appellate court said: Passenger carriers "are liable only when there has been actual negligence of themselves or their servants. If they exercise their functions in the same way with prudent railway companies generally, and furnish their road and run it in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them." The rest of the opinion is to the effect, that if the railway companies buy their vehicles of reputable manufacturers, and give them the usual and practicable examination, they do all that is necessary, and are not re

be calculated to deceive. This seems sailing very close to the wind. Indeed, the court said "he could not approve of the mark," and "it was, in his opin

use such a distinctive device as could not possibly deceive." We think the public would be as apt to be deceived in this case, as by the adoption of the words "Lone Jack," on parcels of tobacco, with distinctive surroundings. See 21 Alb. L. J. 503.

sponsible for defects not discoverable on such examination; that they have a right to rely on the care and skill of the manufacturers and such examination, 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 examination nor comparison of authorities, nor do any of the previous Michigan cases referred to. The Review is substantially correct in its statement, but the Supreme Court of Tennessee, in Nashville & Decatur Railroad v. Jones, 9 Heisk. 27, have held in accordance with the Michigan court. The ruling is adverse to that of our Court of Appeals in Hegeman v. Railroad, 13 N. Y. 9. Only one of the English cases cited is in point. It is unquestionable, in spite of Alden v. N. Y. C. R. R. Co., 26 N. Y. 102, that a passenger carrier cannot be held as an insurer of the safety of his vehicle, but both upon principle and authority he is held in this country to warrant due care and skill in the manufacture. Otherwise the passenger would be remediless, for he has no cause of action against the manufacturer, whereas the carrier has. To adopt the conduct of other railway companies as a criterion of prudence is very unsafe, for the most prudent are notoriously very negligent. We quite agree with the Review.

We are inclined to believe that the solution of the inquiry, what constitutes such a resemblance between trade-marks as is calculated to deceive the

public, depends very much on the peculiar minds of different judges, and peculiar states of mind of the same judge. The chancellor's foot is now heavier, now lighter. Two recent English cases illustrate this. In the case of Worthington's Trade-Mark, the applicants were refused leave to register a triangular mark, with a church in it, for beer, on the ground that if colored red, it might interfere with the red triangle of Messrs. Bass, which, as registered, appeared to be a mere triangular black blotch. In connection with this decision, the Solicitors' Jour

nal suggests that trade-marks should be registered in the color in which they are to be used. On the other hand, in Goodwin v. Venning, the plaintiffs were the registered owners of a trade-mark in respect of tobacco, and consisting of a judge's head, with the words above "Old Judge sun-cured Virginia smoking tobacco," and the name of the plaintiffs underneath. The defendants had recently registered a trade-mark consisting of the full figure of a judge dancing with a pipe in his mouth, and an interwoven scroll with the words "Young Judge tobacco and cigarettes," and the name of the defendants. The plaintiff's moved for an injunction

The Canada Legal News reports the case of Brudley v. Logan. The action was brought on a promissory note, by a citizen of the United States. The plaintiff described himself as "Esquire," the law requiring that the plaintiff shall state his occupation or quality. The defendant objected that the plaintiff gave himself no title. It was proved that there is no such title in this country. But the court said: "The exception of the defendant is wanting in this, that it does not say in what respect the description is defective. It complains of the total want of description; but the quality of esquire is sufficient in itself, and in our law has a significance, and I see no proof that the plaintiff is not an esquire as we understand, though the title has no significance in the United States. Vide Comyn's Digest, vo. Dignity, p. 405. Stephen's Comm. 3, 15." Abbott (Law Dict.) says: "It is familiarly employed in the United States, but is a title of courtesy merely." Webster says it is "a general title of respect in addressing letters." The English judges, it seems, are punctilious but not harmonious about

their titles.

days ago a Queen's counsel, while moving in a case The Solicitors' Journal says: "A few in the Exchequer Division, addressed one of the learned judges as 'Sir FitzJames Stephen,' whereStephen. Counsel, in apologizing for the error, upon his lordship corrected the title to Mr. Justice mentioned that he had been led into it by the fact Henry Hawkins; and he might have added that yet that another learned judge wished to be styled Sir Mr.,' and to share with a once eminent financier another learned judge appears to desire to drop the and many foreign potentates the title of Baron.' To any other learned judge who may be in search of brethren we would respectfully commend the title some designation distinguishing him from his by which the court is frequently addressed in petitions drafted by native pleaders in India - 'The Presence.'"

NOTES OF CASES.

THE case of Davis v. City of Somerville, Massachu

to restrain the infringement of their mark, and they Betts Supreme Court, June, 1880, was an action

adduced evidence showing that their tobacco was well known in the market as "Old Judge," or "Judge❞ tobacco, but there was no evidence that any person had been actually deceived by the defendants' labels. Some of the witnesses deposed that if they heard the word "Judge " applied to tobacco they should consider it meant the plaintiffs' tobacco. Jessel, M. R., was of opinion on a comparison of the two marks, that the defendants' mark did not so closely resemble that of the plaintiffs' as to

for personal injuries occasioned to the plaintiff while travelling on Sunday upon a highway which was out of repair. The plaintiff, in company with a lady friend, drove from Boston to Cambridge, in the afternoon of the above day, for the purpose of attending a funeral; on leaving Mount Auburn Cemetery, the lady asked the plaintiff to take her back by way of Charlestown, so that she could call upon her sister-in-law; the plaintiff assented, and while

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