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mode of dealing with the subject in the practical ad- inclosed in two wrappers (tin-foil and blue) of the ministration of the law. But in each of these cases same size and shape of plaintiff's, but containing differthe judge was careful to instruct the jury that the ent cuts and printed words. The general appearance rule of law in criminal cases, with respect to the quun
of the packages made by defendant and plaintiff was tum of proof, was not to be applied.
the same, and the general publio would be easily led A judge may make such comments on the evidence into purchasing one for the other. Such other facts as he deems proper, and may advise and instruct the as are material will appear in the opinion. jury with respect to the degree of proof they should John Henry Hull and C. A. Seward, for plaintiffs. require to decide the issue under the circumstances of the particular case. But a charge that, as a ques
Kugelman & Starrsbrough, for defendant. tion of law, proof beyond a reasonable doubt
LAWRENCE, J. It is quite difficult in actions of this quired, is quite a different thing. While it is imprac
character, to precisely draw the line between those ticable to frame a satisfactory definition of the expres
cases in which the plaintiff is entitled to relief and sion “reasonable doubt,'' yet the effect of a charge, in
those in which relief should be denied. The decisions this language, is a matter of almost every day's obser
are conflicting, and many of them irreconcilable, but vation. Every one familiar with administration of
in this case, after fully considering the evidence, I am justice can recall instances in which defendants, under
of the opinion that the plaintiffs are entitled to a porsuch an instruction, have been pronounced not guilty,
tion at least of the relief which the complaint dewhen the evidence of guilt was quite convincing.
mands. The importance of preserving the distinction be
Upon principle no man should be allowed to sell his tween civil and criminal cases increases with the
goods as the goods of another, nor should he be pergrowth of the criminal law. Almost every tortious
mitted so to dress his goods as to enable him to inact is by statute made indictable, if done willfully or
duce purchasers to believe that they are the goods of maliciously, and the courts should be reluctant to
another. Iu the consideration of this case, I sball lay adopt, in civil cases, the rules peculiar to criminal law,
out of view the United States statute in relation to lest wrong-doers be enabled to avoid civil liability, as
trade-marks, because that provides that “nothing in well as escape criminal responsibility, under cover of
this chapter shall lessen, impeach, or avoid any remthe rules of criminal prosecution, the object of which
edy at law or in equity which any party aggrieved by is punishment only.
any wrongful use of any trade-mark might have had, The judgment should be reversed.
if the provisions of this chapter had not been en
acted." Judgment reversed.
I do not therefore regard the plaintiffs as being INFRINGEMENT OF TRADE-MARKS.
compelled, in order to obtain the relief they seek in this action, to show that there has been an imitation
of the trade-mark, which the plaintiffs have filed in NEW YORK SUPREME COURT, SPECIAL TERM, JANUARY, 1878.
the patent office.
It would seem that the true blue is laid down in the ENOCH MORGAN Sons' Co. V. SCHWACH HOFER. case of Edelston v. Vick, 23 English Law and Equity Plaintiff had for many years made and sold a soap named
Reports, pp. 51 and 53, where Vice-Chancellor Wood, by him “Sapolia.” Each cake sold was inclosed in two adopting the language of Lord Langdale, in Groft v. wrappers, a tin-foil and a blue one, the wrappers contain
Day, 7 Beavan, pp. 84 and 87, says: • That what is ing the name of the soap and certain printed words and cuts. Defendant offered for sale a soap he called proper to be done in cases of this kind depends on the "Saphia." Each cake was inclosed in a tin-foil and a blue wrapper, containing printed words and figures differ
circumstances of each case.
* That for the ing entirely from those on plaintiff's wrappers, but having accomplishment of a fraud in each case, two circuma general resemblance and calculated to deceive the pube lic into a belief that the soap was that manufactured by
stances are required, first to mislead the public, and plaintiff. Held, that plaintiff was entitled to an injunction next to preserve his own individuality. Commenting restraining defendant from vending his soap in the tinfoil and blue wrapper.
further upon the language of Lord Langdale in Groft For the accomplishment of a fraud in such cases as this, v. Day, the vice-chancellor proceeds: “Now in that
two circumstances are required : First, to mislead the public, and, next, for defendant to preserve his own in
case of Groft v. Day, there was, as Lord Langdale dividuality.
said, many distinctions between the two labels, and in CTION to restrain defendants from infringing
this case before me just as in that of Groft v. Day, any
one who takes upon himself to study the two labels, years previous to the commencement of the action will find even more marks of distinction than were manufactured a soap designed for cleaning and polish- noticed in argument. But in this case as in that, ing, which was named “Sapolia.” It had extensively there is the same general resemblance in color. Here advertised this preparation, and it became known in there is the same combination of colors, pink and green. the market and by numerous consumers under the There is the same heading, • Her Majesty's Letter name mentioned. The soap was sold in cakes of a Patent” and “ Solid Headed Pius" and the name D. convenient size. Each cake was inclosed in two wrap- F. Taylor, with the words “ exclusively manufacpers, one a square sheet of paper covered with tin- tured” upon the two labels, which are of precisely the foil, and the other a strip of paper about an inch same size, and the scrolls in the same form, “and exand a balf wide, which was blue outside. Each wrap- clusive patentee” in an exactly similar curved line, per contained the name “Sapolia,” and cuts and print- nor does it rest only with the general resemblance of ing referring to the article and its use. The devices the outer wrappers: The papers in which the defendant's on the wrappers were registered as trade-marks. De
pins are stuck bear also a very great similarity; they are fendant, after plaintiff's article became well known, as like as can be to the papers in which the plaintiff's began the manufacture of a similar article, which he
pins are stuck." named “Saphia Transparent.” He offered it for sale
Then, after stating that he agrees that there must be in cakes similar in size to those made by plaintiff, au intent to deceive the public, the vice-chancellor
holds, that the defendants, both in the outer and inner It appears that the plaintiffs have been for many wrappers, made a palpable imitation, with the intent years engaged in manufacturing sapolio, that the artito deceive the public, and he accordingly restrained cle has acquired a great reputation, and that the plainthem. I have referred to this case at length because tiffs have expended very large sums of money in adit seems to me to be peculiarly in point, but there are vertising. The evidence shows that the defendant, several authorities in our own courts which uphold after analyzing a cake of sapolio, and ascertaining how the same doctrine. In Williams v. Spence, 25 How. it was made, set about making an article similar ju Pr. Rep. 307, Monell, J., says: “The only question character, color and appearance to that of the plainto be determined therefore in this case is whether the tiffs. This he may possibly have a right to do, but labels, devices and hand-bills used by the defendants, when the court finds that the defendant, after having as set forth in the complaint, are calculated to, and do possessed himself of the secret of the manufacture of deceive the public into the belief that the soap that the plaintiffs, has in addition coined a name much rethey are selling is the soap made and sold by the plain- sembling sapolio, in appearance, and which he admits tiffs. * * The oral evidence, that the labels, is a fancy name, having no particular derivation or devices and hand-bills used by the defendants are signification, and has then proceeded to encase his calculated to deceive the public also preponderates, cakes of saphia in wrappers also closely resembling the and an inspection of the respective labels, devices and plaintiffs' both in their external and internal appearhand-bills satisfies me that the public would be readily ance, as to color, size and partially as to inscription deceived and purchase the defendant's soap under the and directions for use, the court has in my judgment belief that they were purchasing the plaintiff's.” the power to interfere, and should exercise its power.
In Lea v. Wolf, 13 Abbott (N. S.), 391, Mr. Jus- It is claimed that the plaintiffs cannot bave an exclutice Ingraham says:
The color of the paper, the sive right to use tin foil or ultra marine blue colored words used, and the general appearance of the words paper, in putting up their article, as such paper is much when used, show an evidence designed to give a represen. used for ordinary commercial purposes. This is true, tution of those used by the plaintiffs. It is impossible to but the cases cited show that the courts will interfere adopt auy conclusion other than that the intent was where it is apparent that there is an imitation of the to leave purchasers, from the general appearance of plaiutiff label, whether as to color, shape or inscription, the article, to suppose that it was the original Worces- which imitation is calculated and intended to deceive tershire sauce which they were buying." See also the general public. The evidence satisfies me that the Cook v. Starkweather, 18 Abbott (N. S.), 292. And in blue wrapper as used by the defendant is calculated to Lockwood v. Bostwick, 2 Daly, 521, it was held, "that a deceive purchasers, and I think that it is very clearly party will be restrained by injunction from using a proven that the ordinary purchaser is deceived by the label as a trade-mark, resembling an existing one in similarity of the dresses in which the soaps are put size, form, color, words aud symbols, though in many upon the market. respects different, if it is apparent that the design of A critical and careful examination of the two packthe imitation wus to depart from the other sufficiently ages will undoubtedly reveal distinctions and differto constitute a difference when compared, and yet not 80 ences between the labels, and the devices thereon are much so that the difference would be detected by un different; but there is such a general resemblance, ordinary purchaser unless his attention was particularly that, to borrow the language of the vice-chancellor in called to it, and he hud a very perfect recollection of the Edleston v. Vick, supra, “the court or jury would be other trade-mark." And in Kinney v. Busch, 16 Am. bound to presume that it was not a fortuitous concurL. Reg. (N. S.) 597, Mr. Justice Van Bruut says: "A rence of events which has produced this similarity; it careful inspection of the labels in question shows would be irrational not to rest convinced that this rebeyond a doubt that those of the defendant were markable coincidence of appearance, external and inadopted in order to deceive the public into supposing ternal, is the result of design." when they purchased the cigarettes of the defendant's In the case of Abbott v. Bakers and Confectioners' manufacture they were purchasing those of the plain- Tea Association, Weekly Notes, 1872, p. 31, au injunctifts. I am satisfied from the evidence in this case tion has been issued restraining the defendants from that the intention of the defendant has been from issuing wruppers which were in imitation of those of the the first to make an article, as nearly as possible plaintiffs. On appeal the Lord Chancellor said, "that resembling that manufactured by the plaintiffs, and to though no one particular mark was exactly imitated, put it off upon the public as the same article."
the combination was very similar, and likely to deI am also satisfied that it was the intention of the ceive; that it was true that there was no proof that defendant, in adopting the blue and tin foil wrappers, any one had been deceived, or that the plaintiffs had aud in printing them on the directions for use in lan- incurred any loss, but where the similarity is obvious, guage so closely resembling that employed by the that was not of importance." The appeal was thereplaintiffs, to impose upon the public and to lead pur- fore dismissed. See case reported below. Weekly chasers to believe that in purchasing the defendant's Notes, 1871, p. 207. This last case seems to be decisive article they were in fact obtaining the sapolio of the of the question now under consideration. See, also, plaintiffs. In this counection the wouderful similar- Lockwood v. Bostwick, 2 Daly, 521; Godillot v. Hazard, ity of the color of the inside of the tin foil wrapper, 49 How. 10. used by the defendant, with that used by the plaiu- I am, therefore, of the opinion that the plaintiffs are tiffs, should not be forgotten. The whole case, to my. entitled to an injunction restraining the defendant mind, shows an intention on the part of the defend- from vending saphia in the blue packages in which it aut to avail himself of the reputation which the is now sold. By this I do not mean to be understood plaintiffs had acquired in the market for their sapolio, as holding that the defendant has not the right to by their enterprise and ability and by the large ex- manufacture and also to sell saphia, nor to restrain him penditures which they had made in bringing the from the use of that name, or of the figure or device sapolio to the attention of the public.
upon the label; but I do iutend that he shall abstain from dressing his goods in wrappers so closely resem- while in the defendant's possession. The court therebling tbe plaintiffs', as to enable him to deceive the fore ruled that the defendant had no lien on the proppublic and perpetrate a fraud; that he shall not sell erty replevied, and found for the plaintiff. The desaphia as and for sapolio. In other words, he must sell fendant alleged exceptions, which were sustained by under his own colors and not under those of the the Supreme Court, which held that “even if the conplaintiffs.
tract between these parties was illegal (which is not Judgment accordingly.
meant to be intimated), the law will not assist the plaintiff to regain possession of the mare, without pay
ing the defendant for his services." Harris v. WoodRECENT AMERICAN DECISIONS.
Dealing of creditor with collateral securities. — Plain
tiff had a judgment which he was restrained by inHABEAS CORPUS.
junction from enforcing. Defendants were principal
and surety on the bond given to procure such inWhen proceedings of court ordering imprisonment will not be reviewed on. — - An action was brought in
junction. The bill upon which the injunction was
issued was dismissed and this action was brought. It the Superior Court against William Gorman, the petitioner, upon a bond signed “W. P. Gorman."
appeared that after the bond bad been filed the plainPetitioner told the officer serving the process that
tiff received from the principal on the bond two notes,
with the understanding and agreement, as found by he was not the party who sigued the bond, but he
the court, that if they should not be paid at maturity, made no defense and judgment was taken by default. An action was then commenced in the Municipal
he, the plaintiff, would then discharge the said judg
ment. These notes were not paid. One of these notes Court against the petitioner, founded upon the judgment obtained in the Superior Court. The petitioner
were given by the plaintiff to Elisha Atkins & Co. as
collateral, but not being paid at maturity was put in appeared and offered to prove at the trial that he
suit by the plaintiff in the name of Elisha Atkins, and did not sign the bond, and was not the defendant,
judgment was obtained and execution issued, but was W. P. Gorman. The judge declined to hear such
in no part satisfied. The other note was deposited by evidence, and ordered judgment to be entered for
the plaintiff at the Elliot Bank, where, not being paid the plaintiff. Upon this judgment an execution was issued against “ W. P. Gorman, otherwise known as
at maturity, it was taken up and paid by him. It was William Gorman," and the petitioner was arrested.
contended on behalf of the surety that he had a de
fense to the action by reason of the negotiation of the A petition for habeas corpus was then brought in this court. At a hearing before a single justice the peti
notes; but the court below ruled that the negotiation tioner proved that he was not the defendant, W. P.
of the notes did not prevent plaintiff from recovering. Gorman; that he never signed the bond, and owed the
That court found that the condition of the bond had
been broken, and that judgment should be entered for plaintiff in the actions nothing, and so notified the plaintiff's attorney and the officer making the arrest.
the plaintiff. The defendant alleged exceptions, which The court found as a fact that the petitioner was not
were overruled, this court holding as follows: "The the person who signed the bond, and the case was re
notes delivered to the plaintiff were not collateral
security, but were received as a conditional payment. served upon report for the consideration of the full
The plaintiff had a right to attempt to collect them, court. This court remanded the prisoner, holding as follows: The judgments of the Superior Court in the
and he is not precluded, by having had one of them
discounted with the help of his own credit, and by original suit, and of the Municipal Court, were ren
having another prosecuted to final judgment in the dered by tribunals having jurisdiction in the premises, and stand good until reversed or annulled by a course
name of a friend, but for his own benefit, from relying of proceedings proper for the purpose, and the regu
upon his original cause of action, the notes having larity of them will not be examined into on habeas
never been paid. His offer to return the notes that
had been discounted, and to assign the judgment to corpus. The petitioner's defense that he did not execute the bond should have been made by him in the
the defendant, was sufficient to restore him to his original suit. By making default he admitted the original cause of action.” Lord v. Bigelow. allegations in the declaration. Petition of Gorman.
Injuries done to property in operating mortgaged railFor keeping horse: valid notwithstanding horse is used roud a part of running expenses. - In an action against for racing. — Action of replevin to recover a mare, etc., a railroad company and its trustee for injury done tried in the Superior Court, which found that the plain- by said company to plaintiff's property after said tiff was entitled to recover, unless the defendant had a company had mortgaged its road, it appeared that lien upon the property replevied, on the ground that there were funds arising from the earnings of the the mare was placed by her owner in the hands of the road in the hauds of the trustee. The question in defendant to be kept, handled, improved and trained; the case was whether the mortgage so changed the and, further, that up to the time the mare was taken relation of the corporation to its earnings that they on the replevin writ she had remained in the defend- could not be attached on trustee process. The Supeant's possession for that purpose, which, if nothing rior Court charged the trustee upon the answer, and else appeared, would entitle him to a lien. But the an appeal was taken by the trustee to the Supreme court further found as a fact, upon the whole evidence, Court, which affirmed the judgment, holding that the that the mare was placed in the hands of the defend- claim of the plaintiff for injury done to ber property ant to be kept, trained aud improved, so that she by negligence of the defendant after September 1, 1876, might be used for running races for bets aud wagers in would, when paid, be properly included in the operatthis Commonwealth, and also that she was so used ing expenses of the road, and, while the corporation
continued in the use, management and control of the mortgaged property, the income of the road was liable to attachment by trustee process to secure such claim. Smith v. Eastern Railroad Co.
Barnett and Baldwin were not the principals of the brokers so as to bring the former within the rule that a principal is answerable where he has received a benefit from the fraud of an agent acting within the scope of his authority; and that judgment must, therefore, be entered as well for Barnett and Baldwin as for Bell. Weir v. Barnett, L. R., 3 Ex. D. 32.
RECENT ENGLISH DECISIONS.
CORPORATION. Fraudulent prospectus : liability of directors for fraudulent statement of agent: principal and agent.-A company which had been formed to work a mine having been compelled to cease working for want of funds, money was advanced to the company by some of the directors, and among them by Barnett and Baldwin. Afterward at a general meeting of the company held in order, inter alia, to provide for the existing deficit and for working expenses, the directors were authorized by the meeting to issue debentures on such terms and for such amount as they in their discretion might think fit. The directors accordingly authorized the secretary to employ a firm of brokers to place the debentures. The brokers prepared and issued a prospectus, bearing the names of Barnett and Baldwiu aud of Bell and others as directors, and containing statements as to the condition and prospects of the company, on the faith of wbi the plaintiff and others subscribed and paid for debentures. The money thus raised was paid to the company's bankers, and part of it was applied by the directors on behalf of the company to repay the advances made by Barnett and Baldwin. The debentures having become worthless, the plaintiff brought an action for damages against Barnett, Baldwin and Bell, in respect of the statements in the prospectus, some of which were alleged to be fraudulent. The jury found as to all three defendants that the prospectus contaived statements of facts which were false to the knowledge of the brokers, and by which the plaintiff was induced to part with his money; that none of the false statements were made by Barnett or Baldwin or Bell personally, or by the authority of either, but that the statements were within the authority of the brokers as agents. As to Barnett (who had been absent from Eugland while the debentures were being issued) the jury found that he had left authority to the directors to cause a prospectus to be issued to raise money on debentures, but not to make any false statements; that it was within the scope of their authority to issue a prospectus, but such only as the draft which Barnett had prepared before he left England, and which contained no false statements; that Barnett received benefit from the fraud of the brokers, viz., the repayment of the money advanced by him to the company, but without kuowledge of the fraud. As to Baldwin the jury fouud that he received benefit from the fraud; which the court took to mean that, though he was not aware of the false statements contained in the prospectus before it was issued, he became aware of them before he was repaid the money which he had advanced to the compauy.
. As to Bell the jury found that he received no benefit. Upon these findings, held, that the brokers were really the agents not of the directors but of the company, the directors being intervening agents, and that the finding of the jury upou this point was contrary to the evidence; that the repayment of the moneys to Barnett and Baldwin, though in some sense consequent upon, had no necessary connection with the fraudulent statemeuts in the prospectus; that
EXTRADITION. Extradition Act, 1870 (33 & 34 Vict., c. 52), 88. 2, 6. treaty incorporated with and limiting operation of act no British subject to be surrendered : treaty with Switzerland.- By the Extradition Act, 1870 (33 and 34 Vict. c. 52), 8. 2, where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may by Order in Council direct that this act shall apply in the case of such foreign state, and may, by the same or any subsequent order, limit the operation of the orderand render the operation thereof subject to such conditions, exceptions, and qualifications as mar be deemed expedient. By s. 6, where the act applies in the case of any foreign state, every fugitive criminal of that state who is in, or is suspected of being in, any part of Her Majesty's dominions, shall be liable to be apprehended and surrendered in manner provided by this act. A treaty having been made betweeu tbis country and the Swiss government under the above act, which provided that no Swiss should be delivered up by Switzerland to the government of the United Kingdom, and no subject of the United Kingdom should be delivered up by the government thereof to Switzerland; and an Order in Council having been made, which directed that the act should apply in the case of the treaty: Held, that the treaty must be taken to be incorporated with, and to limit the operation of the act, and that no British subject in this country could be surrendered to the Swiss government. The Queen v. Wilson, L. R., 3 Q. B. D. 42.
Criminal information: publication by editor of newspaper without knowledge of proprietors : Lord Campbell's Act (6 & 7 Vict., c. 96), 8. 7.-At the trial of a criminal information against the defendants for a libel published in a newspaper of which they were proprietors, it appeared that each of them managed a different department of the newspaper, but that the duty of editing what was called the literary departmeut was left by them eutirely to an editor whom they had appointed, named G. The libel in question was inserted in the paper by G. without the express authority, cousent, or knowledge of the defendants. The judge having directed a verdict of guilty against the defeudants: Held, by Cockburu, C.J., and Lush, J., that there must be a uew trial, for upon the true construction of 6 & 7 Vict., c. 96, s. 7, the libel was published without the defeudauts' authority, consent, or knowledge, and it was a question for the jury whether the publication arose from any want of due care and caution on their part. By Mellor, J., dissenting, that the defeudants, having for their own benefit employed au editor to manage a particular department of the newspaper, aud giveu him full discretion as to the articles to be inserted in it, must be taken to have consented to the publicatiou of tbe libel by him, that 6 & 7 Vict., c. 96, s. 7, had no application to the facts proved, and that the case was properly withdrawn from the jury. The Queen v. Holbrook, L. R., 3 Q. B. D. 60.
UNITED STATES SUPREME COURT ABSTRACT, 3. Rule governing liability of owners of ships in case OCTOBER TERM, 1877.
of collision.-Owners of ships and vessels are not liable, under existing laws, for any loss, damage or in
jury by collision, if occasioned without their privity 1. When statements by agents made before policy issued or knowledge, beyond the amount of their interest in do not affect conditions of policy.- By the conditions such ship or vessel and her freight pending at the time of a life insurance policy the liability of the company the collision occurred; but the decree in a proceeding was released upon the failure of the insured to pay the in rem against the vessel is not a decree against the annual premium when due. And it was declared that owner, nor will it render the owner liable in such a no agent of the company could waive such forfeiture case for any greater amount than what the act of or alter any condition of the polioy. In an action Congress limiting the liability of such owners allows. upon the policy, held, that this condition would not be such a decree in such a case is merely the ascertainovercome by proof that before the policy was issued ment of the damage, interest, and cost which the an agent of defendant had informed insured that he libelant has sustained by the collision, and which he would always be notified in season to pay the premium; is entitled to recover, provided the interest of the that insured depended upon that notification, which owners in the colliding vessel or vessels is sufficient to was not given, and for that reason did not pay a pre- pay it, and not otherwise. Ib. mium when due. Judgment of Circuit Court, Rhode Island, reversed. Union Mut. Life Ins. Co., plaintiff
PAYMENT. in error, v. Mowrey. Opinion by Field, J.
1. Payment of less than claimed on unliquidated debt 2. Estoppel : promise of agent as to payment of premium if accepted as satisfaction discharges debt.-While the on life insurance.—The previous representation of the payment by a debtor of a part of his liquidated debt agent could in no respect operate as au estoppel is not a satisfaction of the whole, unless made and acagainst the company. An estoppel from the represen- cepted upon some new consideration, where the debt tations of a party can seldom arise, except where the is unliquidated and the amount is uncertain, this rule representation relates to a matter of fact; to a present does not apply. In such cases, the question is whether or past state of things. If the representation relate to the payment was in fact made and accepted in satissomething to be afterward brought into existence, it faction. Judgment of Court of Claims affirmed. Bairdo will amount only to a declaration of intention or of appellant, v. United States. Opinion by Waite, C. J. opinion, liable to modification or abandoument upon 2. Claim on government audited and paid for at less a change of circumstances, of which neither party can than sum claimed.-A government contractor made a have any certain knowledge. The only case in which claim upon the government for an account of uncera representation as to the future can be held to operato tain amount, which he stated to be $151,588.17. The as an estoppel is where it relates to an intended aban- government allowed $97,507.75, stating the principles donment of an existing right, and is made to influence upon which the adjustment was made, and gave to the others, and by which they have been induced to act. contractor a draft for the amount found due which An estoppel cannot arise from a promise as to future was received and collected without objection. More action with respect to a right to be acquired upon an than five years thereafter the contractor brought acagreement not yet made. (White v. Ashton, 51 N. Y. tion against the government to recover the residue 280; White v. Walker, 31 Ill. 437; Faxton v. Faxton, claimed by him. Held, that the adjustment by the 28 Mich. 159.) Ib.
government was an offer to pay the balance stated in MARITIME LAW.
satisfaction of the claim. The acceptance of the money 1. Collision : defense in case of : rate of compensation. afterward without objection was equivalent to an ac-Freedom from fault is a good defense in a cause of ceptance of the payment in satisfaction. Ib. collision, even when the suit is promoted to recover 3. Action for part only of indivisible demand.-compensation for injuries received by an unoffending Where a party brings an action for a part only of an party, but the innocent party, if the collision was oc- entire indivisible demand and recovers judgment, he casioned by the fault of the other vessel or vessels, is cannot subsequently maintain an action for another always entitled to full compensation for the injuries part of the same demand. (Warren v. Comings, 6 Cush. received, unless the loss exceeds the amount of the 104.) Ib. interest which the owners have in the offending ship
STATUTORY CONSTRUCTION. or ships and the freight pending at the time of the collision. 9 Stat. at Large, 765. The Atlas, 3 Otto, 307.
Statute of Tennessee adding territory to city: debts Decree of Circuit Court, S. D., New York, in one case
previously contracted.-By an act of the legislature of affirmed, and in others modified and affirmed. Steam- the State of Tennessee, adding to the city of Memphis boat City of Hartford v. Rideout, and two other cases.
certain adjoining territory, it was provided that such Opinion by Clifford, J.
territory should not be taxed to pay any part of the 2. Appeal: on question of fact: burden of proof.- debt of the city contracted prior to the passage of the Where the appeal involves a question of fact, the bur
said act. Before the act was passed, the city had enden in such a case is on the appellant to show that the
tered into a contract with a firm for the paving of decree in the subordinate court is erroneous, and this
certain streets, and work was done and materials furcourt will re-examine the whole testimony in the case,
nished, but the greater part of the work was done and as the express requirement of the act of Congress is
materials furnished after the passage of the act. that the Supreme Court shall hear and determine such
Held, that the debt for the pavements was contracted appeals, and it is as much the duty of the court to re
before the passage of the act, and the added territory verse the decree from which the appeal is taken, for
was not liable to taxation for its payment. Judgment error of fact, if clearly established, as for error of law.
of Circuit Court, W. D, Tennessee, affirmed. United (The Baltimore, 8 Wall. 382; Maria Martin, 12 id. 40;
States ex rel. Brown, plaintiff in error, v. City of MemThe Lady Pike, 2 id. 8.) Ib.
phie. Opinion by Strong, J.