entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement a distinction is to be made between different kinds of mail matter; between what is intended to be kept free from inspection, such as letters and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution.

Nor can any regulations be enforced against the transportation of printed matter in the mail, which is open to examination, so as to interfere in any manner with the freedom of the press. Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation the publication would be of little value. If, therefore, printed matter be excluded from the mails, its transportation in any other way cannot be forbidden by Congress.

In 1836, the question as to the power of Congress to exclude publications from the mail was discussed in the Senate and the prevailing opinion of its members, as expressed in debate, was against the existence of the power. President Jackson, in his annual message of the previous year, had referred to the attempted circulation through the mail of inflammatory appeals, addressed to the passions of the slaves, in prints, and in various publications, tending to stimulate them to insurrection, and suggested to Congress the propriety of passing a law prohibiting, under severe penalties, such circulation of "incendiary publications" in the Southern States. In the Senate, that portion of the message was referred to a select committee, of which Mr. Calhoun was chairman; and he made an elaborate report on the subject, in which he contended that it belonged to the States, and not to Congress, to determine what is and what is not calculated to disturb their security, and that to hold otherwise would be fatal to the States; for if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation. Whilst, therefore, condemning in the strongest terms the circulation of the publications, he insist

ed that Congress had not the power to pass a law prohibiting their transmission through the mail, on the ground that it would abridge the liberty of the press. "To understand," he said, "more fully the extent of the control which the right of prohibiting circulation through the mail would give to the government over the press, it must be borne in mind that the power of Congress over the post-office and the mail is an exclusive power. It must also be remembered that Congress, in the exercise of this power, may declare any road or navigable water to be a post-road; and that, by the act of 1825, it is provided that no stage, or other vehicle which regularly performs trips on a post-road, or on a road parallel to it, shall carry letters.' The same provision extends to packets, boats, or other vessels on navigable waters. Like provision may be extended to newspapers and pamphlets, which, if it be admitted that Congress has the right to discriminate in reference to their character, what papers shall or what shall not be transmitted by the mail, would subject the freedom of the press, on all subjects, political, moral, aud religious, completely to its will and pleasure. It would, in fact, in some respects, more effectually control the freedom of the press than any sedition law, however severe its penalties." Mr. Calhoun, at the same time, contended that when a State had pronounced certain publications to be dangerous to its peace and prohibited their circulation, it was the duty of Congress to respect its laws and co-operate in their enforcement; and whilst, therefore, Congress could not prohibit the transmission of the incendiary documents through the mails, it could prevent their delivery by the postmasters in the States where their circulation was forbidden. In the discussion upon the bill reported by him, similar views against the power of Congress were expressed by other senators, who did not concur in the opinion that the delivery of papers could be prevented when their transmission was permitted.

Great reliance is placed by the petitioner upon these views, coming as they did, in many instances, from men alike distinguished as jurists and statesmen. But it is evident that they were founded upon the assumption that it was competent for Congress to prohibit the transportation of newspapers and pamphlets over postal routes in any other way than by mail; and of course it would follow that if, with such a prohibition, the transportation in the mail could also be forbidden, the circulation of the documents would be destroyed and a fatal blow given to the freedom of the press. But we do not think that Congress possesses the power to prevent the transportation in other ways as merchandise, of matter which it excludes from the mails. To give efficiency to its regulations and prevent rival postal systems, it may perhaps prohibit the carriage by others for hire over postal routes of articles which legitimately constitute mail matter, in the sense in which those terms were used when the Constitution was adopted-consisting of letters, and of newspapers and pamphlets when not sent as merchandise - but further than this its power of prohibition cannot extend.

Whilst regulations excluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters or sealed packages subject to letter postage, without warrant issued upon oath or affirmation, in the search for prohibited matter, they may be enforced upon competent evidence of their violation obtained in other ways, as from the

parties receiving the letters or packages, or from agents depositing them in the post-office, or others cognizant of the facts. And as to objectionable printed matter, which is open to examination, the regulations may be enforced in a similar way, by the imposition of penalties for their violation through the courts; and in some cases, by the direct action of the officers of the postal service. In many instances those officers can act upon their own inspection, and from the nature of the case must act without other proof, as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases, no difficulty arises, and no principle is violated, in excluding the prohibited articles or refusing to forward them. The evidence respecting them is seen by every one and is in its nature conclusive.

In excluding various articles from the mail the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals. Thus, by the act of March 3, 1873, Congress declared, "that no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail, and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the herein before mentioned articles or things, * * * shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offense, be fined not less than one hundred dollars nor more than five thousand dollars, or imprisonment at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge."

All that Congress meant by this act was, that the mail should not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished. The same inhibition has been extended to circulars concerning lotteries, institutions which are supposed to have a demoralizing influence upon the people. There is no question before us as to the evidence upon which the conviction of the petitioner was had; nor does it appear whether the envelope in which the prohibited circular was deposited in the mail was sealed or left open for examination. The only question for our determination relates to the constitutionality of the act, and of that we have no doubt.

The commitment of the petitioner to the county jail until his fine is paid was within the discretion of the court under the statute.

As there is an exemplified copy of the record of the petitioner's indictment and conviction accompanying the petition, the merits of his case have been considered at his request upon this application, and as we

are of opinion that his imprisonment is legal, no object would be subserved by issuing the writs; they are, therefore, denied.

ISSUING CIRCULATING NOTES FOR FRACTIONS OF A DOLLAR.

SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1877.

UNITED STATES V. VAN AUKEN.

The act of Congress of July 17, 1872, section 2 (12 Stat. 592; Rev. Stat. 711, § 3583) declares that "no private corporation, banking association, firm, or individual, sball make, issue, circulate, or pay out any note, check, memorandum, token, or other obligation, for a less sum than one dollar, intended to circulate as money, or to be received, or used in lieu of lawful money of the United States," and provides a penalty for a violation of the act. Defendant was indicted for circulating an instrument reading as follows: "The Bangor Furnace Company will pay the bearer on demand fifty cents, in goods at their store in Bangor, Mich." Held, that the instru ment not being payable in lawful money, the issue and circulation thereof was not in violation of the act in question.

The act of Congress of July 17, 1872, § 2 (12 Stat. 592; Rev. Stat. 711, § 3583), declares that "no private corporation, banking association, firm, or individual shall make, issue, circulate, or pay out any note, check, memorandum, token, or other obligation, for a less sum than one dollar, intended to circulate as money, or to be received or used in lieu of the lawful money of the United States," and announces as a penalty for the offense fine or imprisonment, or both.

Van Auken was indicted under this act for circulating the "obligations" of the Bangor Furnace Company, a corporation created by and under the laws of the State of Michigau, which obligations are alleged to be in hæc verba.

"BANGOR, MICH., August 15, 1874. "The Bangor Furnace Company will pay the bearer on demand fifty cents, in goods, at their store in Bangor, Mich. (Signed) "A. B. HOUGH, Pres. CHAS. D. RHODER, Treas." "Each of which said obligations was for a less sum than one dollar, and was intended by the said Aarou Van Auken to circulate as money, and to be received in lieu of the lawful money of the United States, contrary," etc.

Van Auken demurred to the indictment. The opinions of the judges of the Circuit Court were divided and opposed upon two questions, which were thereupon certified to this court for final determination.

1. Where the obligation set forth in the indictment is within any valid statute of the United States. 2. Whether the statute under which the indictment was found is constitutional.

The solution of the first question depends upon the construction to be given to the words "for a less sum than one dollar." The object of the provision was obviously to secure as far as possible the field for the circulation of stamps, as provided in the preceding section, without competition from any quarter. (This currency was superseded by the fractional notes authorized to be issued by the act of March 3, 1863, § 4, 12 Stat. 711.) Small notes payable in any specific articles, if issued, could have only a neighborhood circulation, and but a limited one there. It could be but

little in the way of the stamps or small notes issued for the purposes of circulating change by the United States. Congress could, therefore, have had little or no motive to interfere with respect to the former. This must be borne in mind in the examination of the question in hand.

A dollar is the unit of our currency. It always means money or what is regarded as money. In this case the statute makes it the standard of measure with reference to the forbidden notes and obligations. If one of them be for a larger "sum than one dollar," it is not within the prohibition and is not affected by the law. It is a fair, if not a necessary inference, that the

VALIDITY OF UTAH DIVORCES.

SUPREME COURT OF MINNESOTA, APRIL 25, 1878.

STATE OF MINNESOTA V. ARMINGTON, appellant. A divorce granted by a Utah court where neither of the parties ever acquired a bona fide residence in Utah, and were both, during the conduct of the divorce proceedings, residents of Minnesota, held, not valid in Minnesota and not a protection against the consequences of a second marriage, and a belief in its validity not a defense to an indictment for bigamy.

applied only to things ejusdem generis, in other words, to notes for money and to nothing else.

It is certainly inapplicable to any thing not measurable by the pecuniary standard. It could not be applied where the measurement was to be, ex gratia, by the pound, the gallon, the yard, or any other standard than money. This view is supported by the statutory requirement that the forbidden thing must be "intended to circulate as money, or to be received or used in lieu of the lawful money of the United States." One of the lexical definitions of the word "sum,"and the sense in which it is most commonly used, is " money." Sum. (2) A quantity of money or currency; any amount indefinitely, as a sum of money, a small sum, or a large sum."-Webster's Dic. "For a less sum than one dollar" means exactly the same thing as, for a less sum of money than one dollar. In the former case there is an ellipsis. In the latter it is supplied. The implication where the omission occurs is as clear and effectual as the expression where the latter is added. The grammatical construction and the obvious meaning are the same. The statute makes the offense to consist of two ingredients: (1) The token or obligation must be for a less sum than a dollar. (2) It must be intended to circulate as money, or in lieu of the money of the United States. Here the note is for "goods," to be paid at the store of the Furnace Company. It is not payable in money, but in goods, and in goods only. No money could be demanded upon it. It is not solvable in that medium. Watson v. McNairy, 1 Bibb, 356. The sum of "fifty cents " is named, but merely as the limit of the value in goods demandable and to be paid upon the presentment of the note. Its mention was for no other purpose and has no other effect. In the view of the law the note is as if it called for so many pounds, yards, or quarts of a specific article. The limit of value, there being none other, gave the holder a range of choice as to the articles to be received in payment-limited only by the contents of the store.

But it is said the indictment avers that the note was intended to circulate as money, and that the demurrer admits the truth of the averment.

To this there are two answers:

1. The demurrer admits only what is well pleaded. 2. The offense, as we have shown, consists of two elements: the thing circulated, and the intent of the party circulating it.

The demurrer, at most, admits only the latter. As to the former, the judgment of the court is left unfettered, just as if the question before us had been raised by a motion to quash instead of a demurrer.

The first question certified must be answered in the negative. The second one it is, therefore, unnecessary to consider.

trial of an indictment for bigamy. Sufficient facts appear in the opinion.

CORNELL, J. [after discussing questions of minor importance relating to practice and evidence]. The remaining question for consideration relates to the decision of the court excluding what purports to be an authenticated copy of a decree of divorce of the "Probate Court in and for Box Elder county, in the Territory of Utah, entered in that court at a Special Term, on the 18th December, 1876, in an action between John L. Armington, plaintiff, v. Martha F. Armington, defendant, dissolving the marriage contract between them. Among the objections made to this evidence was the one that, at the time the decree purports to have been rendered, both parties thereto were residents of this State, and had been for several years prior. When this evidence was offered, it incontestably appeared, from the testimony already given, that both the defendant and his said wife, Mrs. Martha F. Armington, had been resident citizens of this State, and domiciled therein for over nine years prior to the date of the decree, and that they were both actually living in this State at the time of its entry. It did not appear, nor was any offer made to show the fact that either had ever been domiciled, even temporarily, within the Territory of Utah; and as to Mrs. Armington, it is quite clear that she never, at any time during the progress of the proceedings in said court, was outside the limits of this State, or within the Territorial limits of Utah. As to Mr. Armington, the most that can be claimed, from the evidence, is that he temporarily left his residence in Northfield, in this State, sometime in the summer of 1876, and returned in August or September of that year. Where he was during that period, does not affirmatively appear; but it does affirmatively appear that he has resided and practiced medicine in Northfield ever since November in that year. Upon this evidence the court was warranted in assuming that neither of the parties ever acquired a bona fide domicile or residence in Utah, and that both were, during the conduct of these divorce proceedings, domiciled residents of this State and subject to its laws. Upon this state of facts, the Probate Court of Utah, whatever may have been the extent of its jurisdiction over the subject of divorce under the local laws of that Territory as respects its citizens, had no jurisdiction to adjudicate upon the marriage relation existing be tween these parties. To each State belongs the exclusive right and power of determining upon the status of its resident and domiciled citizens and subjects, in respect to the question of marriage and divorce, and no other State, nor its judicial tribunals, can acquire any lawful jurisdiction to interfere in such matters between any such subjects, when neither of them has become bona fide domiciled within its limits, and

any judgment rendered by any such tribunal, under such circumstances, is an absolute nullity. Ditson v. Ditson, 4 R. J. 93; Cooley on Const. Lim. 400, and notes there cited; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; Hanover v. Turner, 14 Mass. 227. It does not appear upon the face of the judgment or decree, or in any of its recitals, that either of the parties were ever residents of said Territory of Utah, or domiciled therein. This is a jurisdictional matter which should appear to entitle the judgment to any respect whatever; for though it be conceded that the probate court that rendered the judgment was in the legal sense a court of record, "its jurisdiction," if any, under the local laws of the Territory "over the subject of divorce, was a special authority not recognized by the common law, and its proceedings in relation to it stand upon the samne footing with those of courts of limited and inferior jurisdiction," unaided by any legal presumptions in their favor. Comm. v. Blood, 97 Mass. 38. The evidence was properly excluded. To disprove any criminal intent, the record was also offered in evidence, coupled with an offer to show that the defendant, acting under the advice of counsel, believed in the validity of such alleged divorce, and that he contracted his second marriage in that belief. In defining the offense of polygamy, the statute declares that "If any person who has a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife, he or she shall, except in the cases therein specified, be deemed guilty of the crime of polygamy." The excepted cases refer to a marriage after a legal divorce by one not the guilty cause thereof, and to one innocently contracted under a belief that the former wife or husband is dead when such wife or husband has been continuously absent, either beyond the sea or after a voluntary withdrawal, and without being heard from alive, for the period of seven years. It will be observed from these provisions, that in a case like the one at bar, the existence of a criminal intent in fact, on the part of the accused, is not an essential ingredient of the statutory crime charged. If the facts specified in the statute are shown to exist, the law presumes the guilty knowledge and intent. Hamilton v. People, 57 Barb. S. C. 625. If the pretended decree of divorce upon which he relied was in fact illegal and void because made by a court having no jurisdiction, it afforded him no protection against the consequence of a second marriage, whatever may have been his motive or his belief, in respect to the validity of the decree. His mistake or ignorance, if any, was one of law and not of fact. His case, therefore, is one to which the maxim "ignorantia juris non excusat" applies. Being, together with his lawful wife, a resident citizen domiciled in this State and subject to its laws, he was bound to know that the tribunals of no other State or Territory could rightfully take cognizance and jurisdiction over their marital relations for the purpose of decreeing their dissolution; neither could they acquire such jurisdiction through any act of the plaintiff in temporarily changing his domicile when done with no bona fide intention, but for the sole purpose of procuring a divorce in fraud of the laws of the State to which he owed allegiance.

NOTE -In Litowich v. Litowich, decided by the Supreme Court of Kansas at the March (1878) term, it is held that a judgment rendered by a probate court of Utah Territory, attempting to dissolve the marriage relation existing be

tween a husband and wife, who had neither of them ever resided there or been within the Territory, and being rendered without any actual notice to the wife, is void absolutely and entirely for want of jurisdiction in the court to render such a judgment. It is also held that where the judgment in such a case does not appear to be void upon its face, it may be shown to be void, in Kansas, by evidence aliunde.

RECENT AMERICAN DECISIONS.

SUPREME JUDICIAL COURT OF MAINE.

DOMICILE.

Wife cannot change domicile of absent husband.The wife cannot change the domicile of the husband against his will. Where a ship-master sailed from his home in Brooklyn, December, 1866, and his wife shortly after came on a visit with her children and trunks to Augusta, and there lived with her mother till summoned by her husband to meet him at Brooklyn, whither he had returned July, 1867. Held, that he was not meanwhile taxable in Augusta. Porterfield v. City of Augusta.

LIFE INSURANCE.

Non-forfeiting policy: rights of insured under: cancellation.-A policy indorsed by the company, "Nonforfeiting life policy," contained these terms: "It being understood and agreed that if after the receipt by this company of not less than two or more annual premiums this policy should cease, in consequence of the non-payment of premiums, then upon a surrender of the same, provided such surrender is made to the company within twelve months from the time of such ceasing, a new policy will be issued for such sum as is proportionate with the annual payments which have been made." Held, that the right of the assured in the policy did not depend upon the surrender of the policy and the taking out of a new paid up policy. The provision that the policy shall cease and determine upon the non-payment of any of the annual premiums, on or before the date specified, cannot be construed as defeating the right to recover thereon such proportionate part of the amount insured, while there is an express stipulation in the same condition that upon such failure of payment, the company will not be liable for the whole sum insured, but only for such proportionate part. Cancellation of the policy upon the books of the company without the knowledge and consent of the assured cannot affect his rights. Upon a policy, like this, distinctly made non-forfeitable in part, by partial non-payment of premiums, nothing in the application looking to an avoidance of the policy and a forfeiture of premiums by such non-payment, can be received to work such forfeiture. Chase v. Phonix Mutual Life Insurance Co.

RESPONDEAT SUPERIOR.

Liability of city for negligence of company constructing public water-works.-If one is injured by driving or falling into an excavation in one of the public streets of a city, which is left at night without being sufficiently lighted or guarded, a recovery may be had against the city, although the excavation was made by a company engaged in constructing the public waterworks of the city. Butler v. City of Bangor.

SET-OFF.

Loss by lender of bond given as collateral to loan.The plaintiffs lent the defendant money and took his

* To appear in 67 Maine Reports.

note therefor with a United States bond as collateral security. After the note was payable and before it was paid, the bond was stolen from the bank. Held, that the defendant could not legally file his claim for the value of the bond in an action against him upon the note, nor could he avail himself of the claim as a defense by way of recoupment. Winthrop Savings Bank v. Jackson.

STATUTE OF LIMITATIONS.

Procuring surrender of note without payment by

fraud: runs from time of discovery of fraud: waiving tort.-The defendant procured the surrender of his note by fraud without payment. Held, (1) the plaintiff can maintain an action of tort for the fraud, and the statute of limitations commences to run from the discovery of the fraud or the time when the plaintiff may discover it in the use of due diligence. (2) If the defendant by the fraud procured money or its equivalent, the plaintiff may waive the tort and maintain an action for money had and received, and the same rule of limitation applies that is applicable to an action of tort. (3) Procuring the surrender of his note for money then overdue without payment was procuring the equivalent of money. Penobscot Railroad Co. v. Mayo.

RECENT ENGLISH DECISIONS.
CONTRACT.

For sale of real estate: parol addition to terms: rescission of original contract.-Defendant wrote to plaintiff saying she would accept £37,500 for the M. estate, and plaintiff's agent replied agreeing to give that sum. There was an understanding between plaintiff and defendant that the purchase-money should be paid by installments. Defendant afterward wrote to plaintiff's agent to meet her at her solicitor's office to discuss the terms of payment," etc. Defendant did not attend at the office, and her solicitor, not knowing of the understanding, said that the whole purchase-money must be paid down in a few months. Plaintiff's solicitors then wrote to defendant's solicitor saying that plaintiff had no "alternative but to decline the matter," but that, as soon as the defendant was prepared to treat on the footing of payment by installments extending over three years, they would be prepared to "negotiate again on plaintiff's behalf." Defendant did not repudiate the understanding, and instructed her solicitors to accept these terms. Plaintiff's solicitors then submitted to defendant's solicitor written terms headed "Proposals by H. (the plaintiff) for the purchase of the freehold property known as the M. estate." These terms were verbally agreed to by defendant's solicitor. Held, that the original contract contained in the first two letters had not been rescinded by the subsequent negotiations. Ch. Div., April 2, 1878. Hussey v. Payne, 38 L. T. Rep. (N. S.) 341.

INFANCY.

Voluntary settlement: defense: post-nuptial settlement by vendor: ante-nuptial agreement by him when an infant statute 27 Eliz., c. 4.-The defense raised by the vendor and his wife to an action for specific performance of contract was that the vendor, when an infant, wrote a letter to the lady he was about to marry, saying that as he should come into his property when he became of age, and they were to be married shortly after, he would make her a present of (inter alia) the

houses which were the subject of the action; that the vendor after attaining twenty-one was married to the lady, and that subsequently he executed a settlement assigning the houses in question to trustees in trust for the separate use of his wife for life with remainders over. The settlement did not refer to the ante-nuptial agreement. Upon a demurrer by the plaintiff to this defense, held (reversing the decision of Hall, V. C.), that there being no ratification in writing of the ante-nuptial agreement, the post

nuptial settlement was voluntary, and was therefore

impeachable under the statute 27 Eliz., c. 4. Ct. App., Mar. 13, 1878. Trowell v. Shenton, 37 L. T. Rep. (N. S.) 368.

TRADE-MARK.

Name of place: name given by the public: fraudulent imitation: injunction.-In 1830 S. manufactured certain bitters at Angostura, a town in Venezuela, which he called "Aromatic Bitters." In 1876 he adopted the name "Augostura Bitters." In 1863 these bitters were introduced into England, and obtained the popular name of "Angostura" bitters, which they always retained. M. was also a manufacturer of bitters. He commenced to manufacture them at Upata, about 200 miles from Angostura, in 1860. In 1870 he removed to Ciudad Bolivar (formerly called Angostura). About the year 1874 S. brought an action in Trinidad to restrain M. from using the word "Aromatic" to describe his bitters, which was successful. M. then adopted the name Angostura," " and on the 16th August, 1874, registered that name at Stationers' Hall. S. now brought this action to restrain M. from using the name “Angostura,” and from using bottles and wrappers resembling those used by him. Held, that, as the bitters made by the plaintiff were known in the market as Angostura" bitters, and as the bitters made by the defendant were not identical with those of the plaintiff, the defendant must be restrained from using the name Angostura" in such a way as to induce the public to believe that they were purchasing the plaintiff's bitters. Ch. Div., Jan. 14, 1878. Siegert v. Findlater, 38 L. T. Rep. (N. S.) 349.

66

66

UNITED STATES SUPREME COURT ABSTRACT.

BAILMENT.

1. Possession essence of pledge in common and civil law.- Possession is of the essence of a pledge; and without it, no privilege can exist as against third persons. This is in accordance with both the common and civil law, and is enforced by the express text of the Code Napoleon (art. 2076) and the Civil Code of Louisiana (art. 3162). Decree of U. S. Circuit Court, Louisiana, reversed. Casey, receiver, appellant, v. Cavaroc. Opinion by Bradley, J.

2. Rights of pledgor and pledgee and third persons.— The pledgor may have the temporary possession of the pledge, as special bailee, without defeating the legal possession of the pledgee; but where the thing pledged has never been out of the pledgor's actual possession, but has always been subject to his disposal by way of collection, sale, substitution or exchange, no pledge, or privilege, exists as to third persons. Ib.

3. Law of Louisiana: bank receiver: bankruptcy.— Though, in such case, the pledgee might, by the law of Louisiana, have a real action against the pledgor, or his heirs, to recover possession of the thing, he cannot sustain a privilege thereon as against creditors, or