would entitle him to hold the mortgagee liable as indorser. 7th. That the fund should be distributed between the administratrix of the mortgagee and the assignee of the mortgagee, ratably. Dixon v. Clayville, administratrix.

TRADE-MARK.

1. Assignment of.-Where a trade-mark is used to designate the place and person by whom the goods are made, the right to such trade-mark passes to the purchaser upon the sale and transfer of the business and manufactory at which the goods are made. The mere sale of a trade-mark, apart from the article to which it is affixed, confers no right of ownership, because no one can claim the right to sell his goods as goods manufactured by another. To permit this to be done would be a fraud upon the public. But where a trade-mark is assigned to the person who manufactured the article to which the trade-mark is affixed, there is no false representation to the public, because the article is still manufactured at the same place and by the same person. Witthaus v. Braun.

2. When a court of equity should not restrain the use of.-A court of equity ought not to interfere by injunction to restrain the use of a trade-mark where the testimony in regard to the right to the ownership of such trade-mark is conflicting and contradictory, so that it is no easy matter to determine on which side the weight of evidence predominates. Ib.

USAGE.

Admissibility of evidence of a usage, in the absence of a special contract, in respect to services rendered: presumption in respect of such usage as to the services rendered in accordance therewith: presumption as to the knowledge of the existence of the usage.- In the absence of evidence of a special contract, where services are rendered, and a uniform usage is shown to exist in regard to such services, it will be presumed that they are rendered in accordance with the usage; and in an action to recover for such services, evidence of the existence of the usage is admissible. The party claiming under the usage is under no legal obligation to offer proof that the usage was known to the other party. The knowledge of the usage on his part at the time the contract of employment was made will be presumed in law. Lyon v. George.

BOOK NOTICES.

OTTO'S REPORTS - VOLUME 3.

United States Reports-Supreme Court. Vol. 93. Cases Argued and Adjudged in the Supreme Court of the United States, October Term, 1876. Reported by William T. Otto. Vol. III. Boston: Little, Brown & Company, 1876.

THIS

HIS volume contains cases decided during the early part of the October Term, 1876. These cases were sometime since given in the LAW JOURNAL, the more important ones in full. Among those of more than ordinary importance appearing in this volume, we notice New York Life Ins. Co. v. Statham, p. 24, where a failure to pay life insurance premiums, caused by the war, is held to abrogate the policy. Home Ins. Co. v. City Council of Augusta, p. 116, where an ordinance of the city of Augusta, Georgia, taxing an insurance company, is held to be constitutional; Claflin v. Housman, p. 130, where the jurisdiction of State courts in actions by an assignee in bankruptcy is upheld; Bank of Kentucky v. Adams Express Co., p. 174, where the liability of an express company for loss of goods transported

by it, caused by negligence of railroad company, over which the goods are carried, is asserted; Bigelow v. Berkshire Life Ins. Co., p. 284, where a condition avoiding a policy of life insurance "sane or insane," is declared to avoid a policy where the one whose life was insured committed suicide while of unsound mind; Indianapolis & St. Louis R. R. Co. v. Horst, p. 291, where it is held that it is the duty of a railway company to exercise the higest diligence and care in transporting passengers who ride in a cattle train in charge of cattle, and that it is liable if injury happens from a failure to use such care and diligence; The Atlas, p. 303, where the duties and liabilities of the owners of vessels coming in collision are considered and determined; Cockle v. Flack, p. 344, where an advance made by a commission merchant in Baltimore, to a pork packer in Illinois, under an agreement that ten per cent interest should be paid, was held not usurious, it being not so by the law of Illinois although it would have been so by the law of Maryland; Donaldson v. Farwell, p. 631, where the right of a vendor of goods sold to a party, fraudulently concealing his insolvency, to disaffirm the contract and retake the goods from the assignee in bankruptcy of the vendee, is maintained. The reporting in this volume is well done, the head notes and statements of fact being concise, clear and accurate. The index is fair, but there is no table of cases cited, which is an unpardonable omission. The mechanical execution of the book is of the best character.

The Notaries and Commissioners' Hand-Book, containing full Instructions as to the Appointment, Rights and Duties under Federal and New York laws, together with the necessary Forms, Fees Allowed, etc. Also Practical Suggestions and References. Compiled by a member of the New York Bar. New York: Baker, Voorhis & Co., 1877, pp. 56.

This is a convenient handy volume for Notaries and Commissioners of Deeds, and one which they will find it useful to consult. It contains, in a brief compass, practical information as to the discharge of all those duties which devolve upon the officers named. We are inclined to think that the compiler has over stated, on page 15, the effect of the decision in Commercial Bank of Kentucky v. Varnum, 49 N. Y. 269, as to the presentment of bills and notes by notaries' clerks. That decision applies only to foreign bills.

MESSES. GOULD & SON have nearly ready for

publication the second volume of Wait's Actions and Defenses, a work which is meeting with a generous welcome from the profession, and more especially from the younger members of it who cannot well afford to buy many books. Mr. John D. Parsons, Jr., has in press the twentieth volume of "The American Reports," a series which is unusually popular with the profession, if we may judge from the expressions of lawyers who have used them, contained in a pamphlet of some one hundred pages which the publisher has

recently issued. The Catalogue of Law Books issued by John Evans, 21 Park Row, New York, will be found interesting reading by any one who has a liking for the rare and the curious in legal literature.

The English bar are to be put in charge of a council, that is, if the bill just introduced into Parliament by Lord Cairns becomes a law, as it probably will. This bill, which is entitled "The Bar Education and Discipline Bill," provides for a council of thirty, twenty-four to be appointed by the four Inns of Court and six by the government. This council is to superintend the education of the bar, to the expenses of which each Inn is to contribute a fixed sum annually, and one guinea for each student. This council is to have jurisdiction over barristers, so as to disbench and disbar, subject to appeal to the Supreme Court of Judicature. The Inns are still to retain their control over their own internal affairs, and, consequently, over their members, so far as those affairs are concerned. The Law Times remarks: "There is a great deal to be said in favor of this bill, and, so far as we can see, nothing to be said against it."

The business of prosecuting claims against the Federal government has afforded in time past considerable emolument to those who followed it, but it will be found hereafter a dangerous calling if the agent is compelled to guaranty the validity of the claims he prosecutes. The government seems to believe that he should, for it on the 30th ult. instituted a suit in the United States District Court of Oregon against W. C. Griswold, claim agent, for $40,000, upon the theory that the defendant collected $20,000 in a fraudulent claim against the United States, knowing the same to be unjust, and that under the law a suit may be brought for double the amount of which the government has been defrauded. The claim purported to be for money due Capt. Jesse Walker's company, which participated in the Rogue river campaign in 1854.

The General Term of the Supreme Court in the First Department decided, on the 21st ult., a point of considerable interest to the holders of policies in insolvent life insurance companies. Rebecca L. Miller's husband, whose life was insured in the Security Life Insurance and Annuity Company for $6,000, died November 26, 1876. On December 14, 1876, the company passed into the hands of a receiver. Mrs. Miller applied by petition to have her claim, as a death claim, paid out of the funds before the payment to the living policyholders of their return premiums. The court below denied the petition, and the General Term, Judge Daniels giving the opinion, affirmed this decision, holding that under the charter the reserve premium or shares of premiums to which an insurer is entitled on the insolvency of a company form a debt, and on the appointment of a receiver the insurers become creditors of the company. The act under which the receiver was appointed gives no preferences to any class of debts except debts to the United States and judgment liens.

The Serjeants Inn portraits, twenty-six in number, which have heretofore adorned the hall, dining and reading room of that building, have been presented to the National Portrait Gallery at South Kensington. The portraits were nearly all painted by distinguished artists, several being of full-length size. They include

Serjeant Higham (1640), Sir Henry Hobart, Sir Edward Coke, Lord Keeper Littleton, Sir Randolph Crewe, Sir Matthew Hale, Sir John Maynard, Sir John Pratt, Lord Chancellor King, Earl of Mansfield, Lord Chancellor Camden, Lord Tenterden, Lord Chancellor Eldon, Lord Chancellor Truro, Lord Chancellor Copley, Lord Denman, and Lord Chancellor Campbell. The names of the principal painters are Lely, Hudson, Richardson, Kneller, Reynolds, Phillips, Briggs, and Sir Francis Grant.

In the case of Hallett v. Stackpole et al., recently tried at Riverhead, known as the Hallett School case, which was an action against a public school teacher for excluding a child from the school, because the child, in obedience to the direction of the parent, refused to pursue a study in the regular school course, Mr. Justice Pratt of the Supreme Court, in his charge to the jury, held that boards of trustees of schools may designate a course of study, within the authority delegated to them by statute, and that they may also prescribe the text-books to be used in pursuing this course of study. But in addition to the course of study prescribed by statute, the trustees are not permitted to say that a child shall pursue a study which the parent, who is the guardian and has the control, nurture and education of the child, desires that the child shall not pursue. In this case the study required was not within the statutory course, and it was held that the teacher and board of education were liable for the exclusion of the child from the public school. A new case of great fortune in England, lost heirs, etc., is going the rounds of the papers. This time the amount is $12,000,000, and the money is on deposit in the Bank of England. The story is that in 1810, Robert Shepard deposited in the Bank of England £1,000,000 to the credit of his sister, who had married John Shepard and gone to Canada. Lately an advertisement appeared inviting the heirs of Robert and his sister to claim this money, which it is now estimated has accumulated to $12,000,000. Altogether about eleven persons in this country lay claim to a share in the division of the money.

The London Law Times very properly criticises a habit which some judges have of interrupting counsel and making comments during proceedings in court. "Talking judges," condemned by Bacon, are now common on the bench. No case is heard in the present day without an amount of judicial interposition unknown to our ancestors. And too frequently it happens that such interposition takes the form of criticism upon other courts and other judges. As to criticising the acts and sayings of other judges and reporting the criticisms, it says: "When something has been done by a judge which cannot be rectified by a court of appeal, the less said about it the better. When it can be rectified, it should be rectified without criticism. This desirable course, however, is not likely to be taken by our loquacious bench, and therefore the reporters have a very responsible duty in preventing reckless conversation from reaching the public eye."-The common council of London feel aggrieved at the recent neglect of the judges of the English courts to formally attend church at St. Paul's, for the purpose of meeting the Lord Mayor and corporation of London, according to an ancient custom, and have directed the Lord Mayor to communicate the circumstance of their grief to the Lord Chief Justice.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, JUNE 9, 1877.

CURRENT TOPICS.

THE act relating to the compensation of county judges and surrogates passed at the late session of the legislature, and approved by the governor on the 4th inst., is ostensibly for the purpose of reducing the salaries of such officers and it does so reduce them in certain counties. But in most instances the rate of compensation is left the same as it has heretofore been, and in the county of Kings an addition is made. While it is perhaps a difficult matter to so arrange the salaries of these officials that the compensation shall in all instances accord with the amount of work to be performed, it does not seem to be just the thing when there is a general call for economy in the matter of public salaries to add a large sum to the compensation of one officer while that of another officer of the same class is diminished. So far as we can understand the new arrangement of salaries, there is, taking the whole State together, no decrease of moment in the compensation paid to county judges and surrogates but a mere shifting of burdens from those counties where complaint is apt to be made concerning such matters, to those where it is not made or is not heeded if made, namely from counties where the agricultural class are numerous to those where tax payers are merchants and manufacturers. The reason generally given for a distinction in salaries that the judges in counties containing a large population have much more business to perform, is, to some extent, a fallacious one. The county judge of Kings has probably more routine duties to attend to than the county judge of Rensselaer, but it may take one no more time to transact a large routine business than it does to transact a less one. With an increase of business usually comes an increase of facilities for doing it, so that one man may work no harder than another who accomplishes much less. There should undoubtedly be a discrimination in favor of judges in populous localities, but not to the extent that the bill recently passed has gone.

The judicial system of Illinois has undergone somewhat of a change, the governor having signed a part of the bills recently enacted by the legislature for that purpose. The bills signed by the govVOL. 15.-No. 23.

ernor create what are called the Appellate Courts, which seem to resemble our General Terms. These courts are four in number, the State being divided into an equal number of districts. These courts each consist of three Circuit Court judges who are to be selected by the Supreme Court, and they are to have jurisdiction of all matters of appeal or writs of error from the final judgments of the Circuit Courts or the Superior Court of Cook county, and city courts of Chicago, except in criminal cases and cases involving a franchise or freehold or the validity of a statute. In actions ex contractu involving less than $1,000, and actions for damages in which judgment is for less than $1,000, the decision of the court is final, in other cases an appeal may be had to the Supreme Court. The increasing business of the court of last resort in Illinois has rendered this expedient necessary. We think, however, the exception of certain classes of cases from the jurisdiction of this tribunal will much diminish its beneficial effect, though it cannot fail to cut off a multitude of trifling causes with which the docket of the Supreme Court and the pages of the Illinois reports have lately been cumbered. We do not find in the law a provision forbidding judges to sit in review of their own decisions, which has with us been found to be a very salutary rule.

The people of to-day are given to criticising severely certain judicial eccentricities of a century or two ago, among which the prosecution of old women for witchcraft is one. The feeling is so strong upon the subject that the proceedings against those unfortunate women who suffered for that alleged offense are considered to be a blot upon the otherwise unblemished record of the courts of Massachusetts, and the belief in the existence of such an offense and the assertion of the duty of the courts to punish it, detracts from the reputation of the good and learned Sir Matthew Hale. Yet the judicial records of to-day show prosecutions which, if we mistake not, another generation will regard in about the same light as we look upon the Salem witchcraft trials. We refer to the recent prosecutions in England, against what are known as spiritual mediums. The ground upon which these proceedings are instituted is, that the defendants violate certain laws designed to promote good order and to suppress a class of vagrants who foster petty crimes but do not directly commit them. The prosecution of Slade, under the statute aimed at what are known as fortune-tellers and wizards, failed on account of a technical difficulty, but a subsequent one against one Lawrence, under the statute relating to false pretenses, succeeded. In this case defendant was convicted of attempting to obtain money upon the false pretense that he had power to communicate with the spirits of deceased and other persons; and

also that he had power to produce and cause to be present, such spirits in a materialized or other form; and also that divers musical instruments, by the sole means of such spirits so caused to be present, produced musical and other sounds. The complainant had paid one shilling to witness the performance. The Court of Queen's Bench, upon a writ of error, sustained the conviction. That they should have done so is remarkable. The prosecution of these individuals is undoubtedly popular, but it is not, therefore, justifiable. The real reason for it is that they, in playing upon the superstitious feelings of the better classes, are trespassing upon a preserve, which, until lately, was supposed to belong exclusively to the clerical order, and these proceedings are brought as a substitute for an action of ejectment.

While the fraudulent divorce business is receiving a check in the Western States, the law makers of Massachusetts are endeavoring to encourage it at the East. The law of that State has heretofore been lax enough on the subject, but there has been no disposition to foster actions brought by persons coming from other States for the purpose. Under the provisions of the statute heretofore in force, a residence of five years on the part of the applicant, immediately preceding the filing of the application, was required, and even this was not enough if it was made to appear that the applicant had moved into the State for the purpose of procuring the divorce. As the law is amended three years' residence only is essential, and the purpose of such residence is now immaterial. The only object of such a change that can be imagined is to invite persons from other localities who are tired of the restraints of the marital contract, to take up their abode in Massachusetts and procure from her courts what they are unable to procure from their own. The inducement, however, is weak in comparison to that offered in some of the territorial legislatures, Utah for instance, where only an intention to reside is required to give the court jurisdiction. Utah divorces are not worth much, however. Massachusetts divorces will in time be worth just as little.

The courts in Massachusetts, or else the litigants, deal with trials involving matters of scandal far better than it has been the custom in this State to Ideal with such matters. In a case in Boston, involving the reputation of numerous prominent citizens, recently brought to trial, the newspapers and those of the public who care for such things were anticipating a sensation second only to that furnished by the renowned controversy between Messrs. Tilton and Beecher. But their hopes have been disappointed, as the proceedings are to be conducted privately, and the misfortunes and misadventures of the parties concerned in the litigation are to be made

no further public than the interests of justice require. This, of course, will take from the case a vast amount of dramatic interest, and will undoubtedly render a settlement of the matter possible. It would be a great improvement in the method of conducting trials of this character if parties could be induced to forego the right they have to insist on a public exposure of the matters in issue before a jury. But if that were done, the advantage which an individual who has no reputation to lose, and does not feel any annoyance from being the object of disparaging remarks, has over others in public exposures of this kind, would be lost, and a very potent influence in aid of blackmailing prosecutions done away with. But as many persons who now suffer in silence rather than to go into court with their wrongs would have removed the chief obstacle to seeking the aid of the law to right them, the loss of one class would be compensated by the benefit received by another, in case a change from public to private trials could be had.

The legislature, according to the usual custom, passed a number of bills of general interest upon the eve of adjournment, which, under the provision of the constitution, the governor has the right to approve within thirty days of the time of adjourn

ment. He has since the 24th ult., when that event occurred, signed a number of bills, some of them of general importance. Among those of that class are the following, namely: amendments to the first thirteen chapters of the Revised Code; amending the game law; regulating the use of text-books in schools; regulating the assessment of highway labor upon railroad corporations; prohibiting the admission of minors under the age of fourteen into places where intoxicating liquors are sold, or certain places of amusement unless accompanied by parents or guardians; providing for the security of life at bathing places; permitting the assessment of owners of lots in rural cemeteries by the trustees. There are a number of bills yet unsigned, the most important among which are those relating to the remaining nine chapters of the Revised Code. As the Code is incomplete without those chapters, it would not seem to be giving it a fair trial to allow only the fragmentary portion to become law which must be adjusted to the existing statutes with which it was not designed to be connected. The friends of the Revised Code will be disappointed if the legislature in regard to the matter. governor should decline to approve the action of the

NOTES OF CASES.

THE THE Court of Appeals of Maryland, in the case of Hambleton v. Cent. Ohio R. R. Co., 44 Md. 551, pass upon the question as to which of two innocent parties shall bear a loss occasioned by a forgery.

The firm of Hambleton & Co., in good faith, advanced money upon Central Ohio Railroad corporate stock pledged to them under forged powers of transfer. The railroad company, upon the receipt of the original certificates of stock, in like good faith, canceled them, and issued new ones in the name of the firm. The court held that, as between the firm and the company, the rights of third parties not being involved, the loss must fall on the firm; that a sale of the stock by the firm, after knowledge of the forgery, would not affect the case, and that the issuing of the certificates to the firm upon the faith of the forged powers of attorney did not create an estoppel against the company. The court, in deciding this case, follow Brown v. Howard Fire Ins. Co., 42 Md. 384, which resembles it very nearly. The doctrine appears, also, to have the support of numerous cases. See Canal Bank v. Bank of Albany, 1 Hill, 287; Lowry v. Com. & Farm. Bank, Taney, C. C. 310; Swan v. N. Brit. Aust. Co., 7 H. & N. 603; Weaver v. Barden, 49 N. Y. 286; Hildyard v. South Sea Co., 2 P. Wms. 76; Bank of Commerce v. Union Bank, 3 N. Y. 230; Ellis v. Ohio L. Ins. & T. Co., 4 Ohio St. 668; Nat. Bank of Commerce v. Nat. Mechan. Bank, 55 N. Y. 211; Dinsmore v. Duncan, 57 id. 573; Colson v. Arnot, id. 253. See, however, Pollock v. National Bank, 7 N. Y. 274, where it is held that a bank which has permitted a transfer of stock upon a forged power of attorney, and has canceled the original certificates, can be compelled to give new certificates to the person owning such stock, and if it has no shares, it can issue, to pay him the value thereof. See, also, Ashby v. Blackwell, Ambler, 503; Duncan v. Lintly, 4 McN. & G. 40; Hoffman v. Bank of Milwaukee, 12 Wall. 503.

In Woodley v. Metropolitan Railway Co., decided by the English Court of Appeal, on the 14th of February last, and reported 36 L. T. Rep. (N. S.) 419, the plaintiff was employed by a contractor engaged by the defendant to execute certain work in one of the Metropolitan Railway tunnels. Trains were passing the spot every ten minutes, and the line being on a curve the workman could not be aware of the approach of a train until it was within twenty or thirty yards of him. The place was perfectly dark. No one was stationed to warn the workmen of the approach of trains, nor was the speed of trains slackened at the spot where the work was being done, nor the whistle sounded. The plaintiff was struck and severely injured by a train in the course of his work. While similar work at a different part of the tunnel was being done before, a man was placed to give warning of the trains. The plaintiff sued the defendant to recover damages for the injuries he had sustained. The court held (two judges out of five dissenting),

reversing the judgment of the court below, that the defendant was not liable, as the plaintiff must be taken to have entered upon the employment under the contractor with full knowledge of its dangerous character, and to have accepted the risk attending it. The court in deciding the case is in harmony with the principle that where the servant's action is founded upon the assumption that the master ought to have known of the defect which caused the injury, it is a sufficient defense to show that the servant had equal means of knowledge. See Coonam v. Brockway, 3 Robt. 74; 28 How. Pr. 472; Illinois Cent. R. R. Co. v. Jewell, 46 Ill. 99. The dissenting judges, however, did not consider the plaintiff to occupy the position of a servant to the defendants. See, also, as to the general rule in such cases, Seymour v. Maddox, 16 Q. B. 326; Indermaur v. Dames, 14 L. T. Rep. (N. S.) 484; Morgan v. Vale of Neath Ry. Co., 13 id. 464; Wiggett v. Fox, 11 Ex. 832; Bilbee v. Lond. B. & S. C. Ry. Co., 13 id. 146; Skelton v. Lond. & N. W. Ry. Co., 16 id. 563; Clarke v. Holmes, 7 Hurlst. & N. 937; Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 521; 10 Am. Rep. 417.

The Supreme Court of Maine in the recent case of Meader v. White, to appear in 66 Me. Rep., decide that a loan made on Sunday is in that State void, and the amount loaned cannot be recovered

back. The decision is in accordance with the current of decisions in various States where a statute

forbidding Sunday contracts exists. See Fenn v. Donahue, 35 Conn. 216; Plaisted v. Palmer, 63 Me. 576, etc. The court, however, very strongly animadvert upon the statute in question, saying: "It is an unfortunate condition of the law when the violator of its commands is rewarded by it for such violation. The defendant and the plaintiff are alike guilty of a violation of law; the former in soliciting a loan, the latter in yielding to such solicitation. But the defendant is absolved from an indebtedness created at his own instance; while plaintiff is liable to a double penalty, that inflicted by the law, and that arising from the non-payment of money loaned.” See upon the subject of Sunday contracts Cratty v. Bangor, 57 Me. 423; 2 Am. Rep. 56; Bailey v. Blanchard, 62 Me. 168; Garrick v. Wason, 4 Ohio St. 566; Whitcomb v. Gilmore, 35 Vt. 297; State v. Goff, 20 Ark. 289; Jones v. Anderson, 10 Allen, 18; Commonwealth v. Sampson, 97 Mass. 407; McGrath v. Merrin, 112 id. 467; 10 Am. Rep. 179; Phil. R. R. Co. v. Phil. Towboat Co. 23 How. (U. S.) 209; McClary v. Lowell, 44 Vt. 116; 8 Am. Rep. 366; Hearne v. Nichols, 1 Salk. 289; Flagg v. Millbury, 4 Cush. 243; Adams v. Gray, 19 Vt. 358; Parker v. Latner, 60 Me. 528; 11 Am. Rep. 210, and notes to cases; 3 Am. Rep. 371; 8 id. 367; 9 id. 544; 11 id. 212.