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mode of dealing with the subject in the practical administration of the law. But in each of these cases the judge was careful to instruct the jury that the rule of law in criminal cases, with respect to the quantum of proof, was not to be applied.
A judge may make such comments on the evidence as he deems proper, and may advise and instruct the jury with respect to the degree of proof they should require to decide the issue under the circumstances of the particular case. But a charge that, as a question of law, proof beyond a reasonable doubt is required, is quite a different thing. While it is impracticable to frame a satisfactory definition of the expression "reasonable doubt," yet the effect of a charge, in this language, is a matter of almost every day's observation. Every one familiar with administration of justice can recall instances in which defendants, under such an instruction, have been pronounced not guilty, when the evidence of guilt was quite convincing.
The importance of preserving the distinction between civil and criminal cases increases with the growth of the criminal law. Almost every tortious act is by statute made indictable, if done willfully or maliciously, and the courts should be reluctant to adopt, in civil cases, the rules peculiar to criminal law, lest wrong-doers be enabled to avoid civil liability, as well as escape criminal responsibility, under cover of the rules of criminal prosecution, the object of which is punishment only.
The judgment should be reversed.
INFRINGEMENT OF TRADE-MARKS.
NEW YORK SUPREME COURT, SPECIAL TERM, JANUARY, 1878.
ENOCH MORGAN SONS' Co. v. SCHWACHHOFER. Plaintiff had for many years made and sold a soap named by him " Sapolia." Each cake sold was inclosed in two wrappers, a tin-foil and a blue one, the wrappers containing the name of the soap and certain printed words and cuts. Defendant offered for sale a soap he called "Saphia." Each cake was inclosed in a tin-foil and a blue wrapper, containing printed words and figures differing entirely from those on plaintiff's wrappers, but having a general resemblance and calculated to deceive the public into a belief that the soap was that manufactured by plaintiff. Held, that plaintiff was entitled to an injunction restraining defendant from vending his soap in the tinfoil and blue wrapper.
For the accomplishment of a fraud in such cases as this, two circumstances are required: First, to mislead the public, and, next, for defendant to preserve his own individuality.
CTION to defendants from infringing
A plaintiff's trade-marks. Plaintiff had for many
years previous to the commencement of the action manufactured a soap designed for cleaning and polishing, which was named "Sapolia." It had extensively advertised this preparation, and it became known in the market and by numerous consumers under the name mentioned. The soap was sold in cakes of a convenient size. Each cake was inclosed in two wrappers, one a square sheet of paper covered with tinfoil, and the other a strip of paper about an inch and a half wide, which was blue outside. Each wrapper contained the name "Sapolia," and cuts and printThe devices ing referring to the article and its use. on the wrappers were registered as trade-marks. Defendant, after plaintiff's article became well known, began the manufacture of a similar article, which he named "Saphia Transparent." He offered it for sale in cakes similar in size to those made by plaintiff,
inclosed in two wrappers (tin-foil and blue) of the same size and shape of plaintiff's, but containing different cuts and printed words. The general appearance of the packages made by defendant and plaintiff was the same, and the general public would be easily led into purchasing one for the other. Such other facts as are material will appear in the opinion.
John Henry Hull and C. A. Seward, for plaintiffs. Kugelman & Starrsbrough, for defendant.
LAWRENCE, J. It is quite difficult in actions of this character, to precisely draw the line between those cases in which the plaintiff is entitled to relief and those in which relief should be denied. The decisions are conflicting, and many of them irreconcilable, but in this case, after fully considering the evidence, I am of the opinion that the plaintiffs are entitled to a portion at least of the relief which the complaint demands.
Upon principle no man should be allowed to sell his goods as the goods of another, nor should he be permitted so to dress his goods as to enable him to induce purchasers to believe that they are the goods of another. In the consideration of this case, I shall lay out of view the United States statute in relation to trade-marks, because that provides that "nothing in this chapter shall lessen, impeach, or avoid any remedy at law or in equity which any party aggrieved by any wrongful use of any trade-mark might have had, if the provisions of this chapter had not been enacted."
I do not therefore regard the plaintiffs as being 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 the patent office.
It would seem that the true blue is laid down in the case of Edelston v. Vick, 23 English Law and Equity Reports, pp. 51 and 53, where Vice-Chancellor Wood, adopting the language of Lord Langdale, in Groft v. Day, 7 Beavan, pp. 84 and 87, says: That what is proper to be done in cases of this kind depends on the circumstances of each case. * That for the accomplishment of a fraud in each case, two circumstances are required, first to mislead the public, and next to preserve his own individuality. Commenting further upon the language of Lord Langdale in Groft v. Day, the vice-chancellor proceeds: "Now in that case of Groft v. Day, there was, as Lord Langdale said, many distinctions between the two labels, and in this case before me just as in that of Groft v. Day, any one who takes upon himself to study the two labels, will find even more marks of distinction than were noticed in argument. But in this case as in that, there is the same general resemblance in color. Here there is the same combination of colors, pink and green. There is the same heading, Her Majesty's Letter Patent" and Solid Headed Pins" and the name D. F. Taylor, with the words "exclusively manufactured upon the two labels, which are of precisely the same size, and the scrolls in the same form, "and exclusive patentee" in an exactly similar curved line, nor does it rest only with the general resemblance of the outer wrappers: The papers in which the defendant's pins are stuck bear also a very great similarity; they are as like as can be to the papers in which the plaintiff's pins are stuck."
Then, after stating that he agrees that there must be an intent to deceive the public, the vice-chancellor
It appears that the plaintiffs have been for many years engaged in manufacturing sapolio, that the article has acquired a great reputation, and that the plaintiffs have expended very large sums of money in advertising. The evidence shows that the defendant, after analyzing a cake of sapolio, and ascertaining how it was made, set about making an article similar in character, color and appearance to that of the plaintiffs. This he may possibly have a right to do, but when the court finds that the defendant, after having possessed himself of the secret of the manufacture of the plaintiffs, has in addition coined a name much re
holds, that the defendants, both in the outer and inner wrappers, made a palpable imitation, with the intent to deceive the public, and he accordingly restrained them. I have referred to this case at length because it seems to me to be peculiarly in point, but there are several authorities in our own courts which uphold the same doctrine. In Williams v. Spence, 25 How. Pr. Rep. 307, Monell, J., says: "The only question to be determined therefore in this case is whether the labels, devices and hand-bills used by the defendants, as set forth in the complaint, are calculated to, and do deceive the public into the belief that the soap that they 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. It is claimed that the plaintiffs cannot have an exclusive right to use tin foil or ultra marine blue colored paper, in putting up their article, as such paper is much used for ordinary commercial purposes. This is true, but the cases cited show that the courts will interfere where it is apparent that there is an imitation of the plaintiff label, whether as to color, shape or inscription, which imitation is calculated and intended to deceive the general public. The evidence satisfies me that the blue wrapper as used by the defendant is calculated to deceive purchasers, and I think that it is very clearly proven that the ordinary purchaser is deceived by the similarity of the dresses in which the soaps are put upon the market.
In Lea v. Wolf, 13 Abbott (N. S.), 391, Mr. Justice Ingraham says: "The color of the paper, the words used, and the general appearance of the words when used, show an evidence designed to give a representution of those used by the plaintiffs. It is impossible to adopt any conclusion other than that the intent was to leave purchasers, from the general appearance of the article, to suppose that it was the original Worcestershire sauce which they were buying." See also Cook v. Starkweather, 18 Abbott (N. S.), 292. And in Lockwood v. Bostwick, 2 Daly, 521, it was held, "that a party will be restrained by injunction from using a label as a trade-mark, resembling an existing one in size, form, color, words and symbols, though in many respects different, if it is apparent that the design of the imitation was to depart from the other sufficiently to constitute a difference when compared, and yet not so much so that the difference would be detected by an ordinary purchaser unless his attention was particularly called to it, and he had a very perfect recollection of the other trade-mark." And in Kinney v. Busch, 16 Am. L. Reg. (N. S.) 597, Mr. Justice Van Brunt says: "A careful inspection of the labels in question shows beyond a doubt that those of the defendant were adopted in order to deceive the public into supposing when they purchased the cigarettes of the defendant's manufacture they were purchasing those of the plaintifts. I am satisfied from the evidence in this case that the intention of the defendant has been from the first to make an article, as nearly as possible resembling that manufactured by the plaintiffs, and to put it off upon the public as the same article."
A critical and careful examination of the two packages will undoubtedly reveal distinctions and differences between the labels, and the devices thereon are different; but there is such a general resemblance, that, to borrow the language of the vice-chancellor in Edleston v. Vick, supra, “the court or jury would be bound to presume that it was not a fortuitous concurrence of events which has produced this similarity; it would be irrational not to rest convinced that this remarkable coincidence of appearance, external and internal, is the result of design."
I am also satisfied that it was the intention of the defendant, in adopting the blue and tin foil wrappers, and in printing them on the directions for use in language so closely resembling that employed by the plaintiffs, to impose upon the public and to lead purchasers to believe that in purchasing the defendant's article they were in fact obtaining the sapolio of the plaintiffs. In this connection the wonderful similarity of the color of the inside of the tin foil wrapper, used by the defendant, with that used by the plaintiffs, should not be forgotten. The whole case, to my. mind, shows an intention on the part of the defendant to avail himself of the reputation which the plaintiffs had acquired in the market for their sapolio, by their enterprise and ability and by the large expenditures which they had made in bringing the sapolio to the attention of the public.
In the case of Abbott v. Bakers and Confectioners' Tea Association, Weekly Notes, 1872, p. 31, au injunction has been issued restraining the defendants from issuing wrappers which were in imitation of those of the plaintiffs. On appeal the Lord Chancellor said, "that though no one particular mark was exactly imitated, the combination was very similar, and likely to deceive; that it was true that there was no proof that any one had been deceived, or that the plaintiffs had incurred any loss, but where the similarity is obvious, that was not of importance." The appeal was therefore dismissed. See case reported below. Weekly Notes, 1871, p. 207. This last case seems to be decisive of the question now under consideration. See, also, Lockwood v. Bostwick, 2 Daly, 521; Godillot v. Hazard, 49 How. 10.
I am, therefore, of the opinion that the plaintiffs are entitled to an injunction restraining the defendant from vending saphia in the blue packages in which it is now sold. By this I do not mean to be understood as holding that the defendant has not the right to manufacture and also to sell saphia, nor to restrain him from the use of that name, or of the figure or device upon the label; but I do intend that he shall abstain
When proceedings of court ordering imprisonment will not be reviewed on. — - An action was brought in the Superior Court against William Gorman, the petitioner, upon a bond signed "W. P. Gorman." Petitioner told the officer serving the process that he was not the party who signed the bond, but he made no defense and judgment was taken by default. An action was then commenced in the Municipal Court against the petitioner, founded upon the judgment obtained in the Superior Court. The petitioner appeared and offered to prove at the trial that he did not sign the bond, and was not the defendant, W. P. Gorman. The judge declined to hear such evidence, and ordered judgment to be entered for the plaintiff. Upon this judgment an execution was issued against "W. P. Gorman, otherwise known as William Gorman," and the petitioner was arrested. A petition for habeas corpus was then brought in this court. At a hearing before a single justice the petitioner proved that he was not the defendant, W. P. Gorman; that he never signed the bond, and owed the plaintiff in the actions nothing, and so notified the plaintiff's attorney and the officer making the arrest. The court found as a fact that the petitioner was not the person who signed the bond, and the case was reserved upon report for the consideration of the full court. This court remanded the prisoner, holding as follows: The judgments of the Superior Court in the original suit, and of the Municipal Court, were rendered by tribunals having jurisdiction in the premises, and stand good until reversed or annulled by a course of proceedings proper for the purpose, and the regularity of them will not be examined into on habeas corpus. The petitioner's defense that he did not execute the bond should have been made by him in the original suit. By making default he admitted the allegations in the declaration. Petition of Gorman.
For keeping horse: valid notwithstanding horse is used for racing. Action of replevin to recover a mare, etc., tried in the Superior Court, which found that the plaintiff was entitled to recover, unless the defendant had a lien upon the property replevied, on the ground that the mare was placed by her owner in the hands of the defendant to be kept, handled, improved and trained; and, further, that up to the time the mare was taken on the replevin writ she had remained in the defendant's possession for that purpose, which, if nothing else appeared, would entitle him to a lien. But the court further found as a fact, upon the whole evidence, that the mare was placed in the hands of the defendant to be kept, trained and improved, so that she might be used for running races for bets and wagers in this Commonwealth, and also that she was so used
while in the defendant's possession. The court therefore ruled that the defendant had no lien on the property replevied, and found for the plaintiff. The defendant alleged exceptions, which were sustained by the Supreme Court, which held that "even if the contract between these parties was illegal (which is not meant to be intimated), the law will not assist the plaintiff to regain possession of the mare, without paying the defendant for his services." Harris v. Woodruff.
Dealing of creditor with collateral securities. - Plaintiff had a judgment which he was restrained by injunction from enforcing. Defendants were principal and surety on the bond given to procure such injunction. The bill upon which the injunction was issued was dismissed and this action was brought. It appeared that after the bond had been filed the plaintiff received from the principal on the bond two notes, with the understanding and agreement, as found by the court, that if they should not be paid at maturity, he, the plaintiff, would then discharge the said judgment. These notes were not paid. One of these notes were given by the plaintiff to Elisha Atkins & Co. as collateral, but not being paid at maturity was put in suit by the plaintiff in the name of Elisha Atkins, and judgment was obtained and execution issued, but was in no part satisfied. The other note was deposited by the plaintiff at the Elliot Bank, where, not being paid at maturity, it was taken up and paid by him. It was contended on behalf of the surety that he had a defense to the action by reason of the negotiation of the notes; but the court below ruled that the negotiation of the notes did not prevent plaintiff from recovering. That court found that the condition of the bond had been broken, and that judgment should be entered for the plaintiff. The defendant alleged exceptions, which were overruled, this court holding as follows: "The notes delivered to the plaintiff were not collateral security, but were received as a conditional payment. The plaintiff had a right to attempt to collect them, and he is not precluded, by having had one of them discounted with the help of his own credit, and by having another prosecuted to final judgment in the name of a friend, but for his own benefit, from relying upon his original cause of action, the notes having never been paid. His offer to return the notes that had been discounted, and to assign the judgment to the defendant, was sufficient to restore him to his original cause of action." Lord v. Bigelow.
Injuries done to property in operating mortgaged railroad a part of running expenses. — In an action against a railroad company and its trustee for injury done by said company to plaintiff's property after said company had mortgaged its road, it appeared that there were funds arising from the earnings of the road in the hauds of the trustee. The question in the case was whether the mortgage so changed the relation of the corporation to its earnings that they could not be attached on trustee process. The Superior Court charged the trustee upon the answer, and an appeal was taken by the trustee to the Supreme Court, which affirmed the judgment, holding that the claim of the plaintiff for injury done to her property by negligence of the defendant after September 1, 1876, would, when paid, be properly included in the operating 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.
RECENT ENGLISH DECISIONS.
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 Baldwin and of Bell and others as directors, and containing statements as to the condition and prospects of the company, on the faith of which 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 contained 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 England 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 knowledge of the fraud. As to Baldwin the jury found 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 company. 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 upon 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 statements in the prospectus; that
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.
Extradition Act, 1870 (33 & 34 Vict., c. 52), ss. 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), s. 2, where au 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 may 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 between this 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), s. 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 department was left by them entirely to an editor whom they had appointed, named G. The libel in question was inserted in the paper by G. without the express authority, consent, or knowledge of the defendants. The judge having directed a verdict of guilty against the defendants: Held, by Cockburn, C.J., and Lush, J., that there must be a new 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 defendants, having for their own benefit employed an editor to manage a particular department of the newspaper, and given him full discretion as to the articles to be inserted in it, must be taken to have consented to the publication of the 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, OCTOBER TERM, 1877.
1. When statements by agents made before policy issued do not affect conditions of policy.- By the conditions of a life insurance policy the liability of the company was released upon the failure of the insured to pay the annual premium when due. And it was declared that no agent of the company could waive such forfeiture or alter any condition of the policy. In an action upon the policy, held, that this condition would not be overcome by proof that before the policy was issued an agent of defendant had informed insured that he would always be notified in season to pay the premium; that insured depended upon that notification, which was not given, and for that reason did not pay a premium when due. Judgment of Circuit Court, Rhode Island, reversed. Union Mut. Life Ins. Co., plaintiff in error, v. Mowrey. Opinion by Field, J.
2. Estoppel: promise of agent as to payment of premium on life insurance.-The previous representation of the agent could in no respect operate as an estoppel against the company. An estoppel from the representations of a party can seldom arise, except where the representation relates to a matter of fact; to a present or past state of things. If the representation relate to something to be afterward brought into existence, it will amount only to a declaration of intention or of opinion, liable to modification or abandonment upon a change of circumstances, of which neither party can have any certain knowledge. The only case in which a representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have been induced to act. An estoppel cannot arise from a promise as to future action with respect to a right to be acquired upon an agreement not yet made. (White v. Ashton, 51 N. Y. 280; White v. Walker, 31 Ill. 437; Faxton v. Faxton, 28 Mich. 159.) Ib.
1. Collision: defense in case of: rate of compensation. -Freedom from fault is a good defense in a cause of collision, even when the suit is promoted to recover compensation for injuries received by an unoffending party, but the innocent party, if the collision was occasioned by the fault of the other vessel or vessels, is always entitled to full compensation for the injuries received, unless the loss exceeds the amount of the interest which the owners have in the offending ship or ships and the freight pending at the time of the collision. 9 Stat. at Large, 765. The Atlas, 3 Otto, 307. Decree of Circuit Court, S. D., New York, in one case affirmed, and in others modified and affirmed. Steamboat City of Hartford v. Rideout, and two other cases. Opinion by Clifford, J.
2. Appeal: on question of fact: burden of proof.Where the appeal involves a question of fact, the burden in such a case is on the appellant to show that the decree in the subordinate court is erroneous, and this court will re-examine the whole testimony in the case, as the express requirement of the act of Congress is that the Supreme Court shall hear and determine such appeals, and it is as much the duty of the court to reverse the decree from which the appeal is taken, for error of fact, if clearly established, as for error of law. (The Baltimore, 8 Wall. 382; Maria Martin, 12 id. 40; The Lady Pike, 21 id. 8.) Ib.
3. Rule governing liability of owners of ships in case of collision.-Owners of ships and vessels are not liable, under existing laws, for any loss, damage or injury by collision, if occasioned without their privity or knowledge, beyond the amount of their interest in such ship or vessel and her freight pending at the time the collision occurred; but the decree in a proceeding in rem against the vessel is not a decree against the owner, nor will it render the owner liable in such a case for any greater amount than what the act of Congress limiting the liability of such owners allows. Such a decree in such a case is merely the ascertainment of the damage, interest, and cost which the libelant has sustained by the collision, and which he is entitled to recover, provided the interest of the owners in the colliding vessel or vessels is sufficient to pay it, and not otherwise. Ib.
1. Payment of less than claimed on unliquidated debt if accepted as satisfaction discharges debt.—While the payment by a debtor of a part of his liquidated debt is not a satisfaction of the whole, unless made and accepted upon some new consideration, where the debt is unliquidated and the amount is uncertain, this rule does not apply. In such cases, the question is whether the payment was in fact made and accepted in satisfaction. Judgment of Court of Claims affirmed. Baird, appellant, v. United States. Opinion by Waite, C. J.
2. Claim on government audited and paid for at less than sum claimed.-A government contractor made a claim upon the government for an account of uncertain amount, which he stated to be $151,588.17. The government allowed $97,507.75, stating the principles upon which the adjustment was made, and gave to the contractor a draft for the amount found due which was received and collected without objection. More than five years thereafter the contractor brought action against the government to recover the residue claimed by him. Held, that the adjustment by the government was an offer to pay the balance stated in satisfaction of the claim. The acceptance of the money afterward without objection was equivalent to an acceptance of the payment in satisfaction. Ib.
3. Action for part only of indivisible demand.Where a party brings an action for a part only of an entire indivisible demand and recovers judgment, he cannot subsequently maintain an action for another part of the same demand. (Warren v. Comings, 6 Cush. 104.) Ib.
Statute of Tennessee adding territory to city: debts previously contracted.-By an act of the legislature of the State of Tennessee, adding to the city of Memphis certain adjoining territory, it was provided that such territory should not be taxed to pay any part of the debt of the city contracted prior to the passage of the said act. Before the act was passed, the city had entered into a contract with a firm for the paving of certain streets, and work was done and materials furnished, but the greater part of the work was done and materials furnished after the passage of the act. Held, that the debt for the pavements was contracted before the passage of the act, and the added territory was not liable to taxation for its payment. Judgment of Circuit Court, W. D. Tennessee, affirmed. United States ex rel. Brown, plaintiff in error, v. City of Memphis. Opinion by Strong, J.