tion on any of the notes, regardless of defenses that may exist as against the corporation itself.-KINKEL V. HARPER, Colo., 42 Pac. Rep. 173.

51. NEGOTIABLE INSTRUMENT Indorsers of NotesNotice. Where plaintiff bank recognized certain per. sons, whose names appeared upon the back of a note, as indorsers, and treated them as such, they will be held to be indorsers, as to the bank, and as such, entitled to notice of dishonor.-CAROLINA SAV. BANK v. FLORENCE TOBACO CO., S. Car., 23 S. E. Rep. 139.

52. NEGOTIABLE INSTRUMENT- Release of Surety. In an action on a note with surety it appeared that the maker before its maturity transferred his property to a stranger to sell, and out of the proceeds pay the note; that after maturity all the parties agreed to a sale of the property on 15 days' notice of sale; that, a sale on the day fixed being impracticable, plaintiff consented to a postponement, and there was no evidence that the surety did not consent thereto. There was o evidence that the payee agreed to look wholly to he sale for payment of the debt or to release the surety: Held, that the surety was not released.PIMENTAL V. MARQUES, Cal., 42 Pac. Rep. 159.

53. NEW TRIAL-Application.-Grounds of a motion for a new trial, which are expressed in terms so vague, general, or indefinite as not to indicate the nature or character of the errors alleged to have been committed, or which embrace utterly superfluous and unnecessary matter, such as lengthy colloquies between counsel on opposing sides, or between counsel and the court, tedious recitals of irrelevant facts, statements taken from the stenographic notes of the trial, and other like things, to such an extent as to bury the point in question under a great mass of entirely needless phraseology, and thus render it very difficult, if not impracticable, for this court to ascertain what was really the ruling or other conduct of the court com. plained of, will not be considered.-GATE CITY GASLIGHT CO. V. FARLEY, Ga., 23 S. E. Rep. 119.

64. PARTNERSHIP BETWEEN HUSBAND AND WIFE-Evidence. Much more evidence is necessary to establish the existence of a business partnership between husband and wife than between persons not in that relation.-JOHN BIRD CO. V. HURLEY, Me., 33 Atl. Rep.

164.

55. PAYMENT BY CHECK-Diligence. Where a check was received after banking hours, and on the following day the payee, in the usual course of business, deposited it in the bank in which he kept his account, and on the next day it was presented for payment to the drawee bank, at its place of business, during banking hours, but after 11:30 A. M., at which time the drawee failed, the payee is not chargeable with lack of diligence in presenting it for payment.-LoUX v. Fox, Penn., 33 Atl. Rep. 190.

56. PLEADING-Answer- Estoppel.-In an action to enjoin a city from laying its pipes over private land, defendant is not estopped to deny plaintiff's ownership by the fact that it has instituted proceedings against plaintiff to condemn such land.-COLBY V. CITY OF SPOKANE, Wash., 42 Pac. Rep. 112.

57. PRINCIPAL AND AGENT-Authority to Sign Notes. -The G Co., a manufacturing and trading corporation located in Ohio, had a branch in Missouri, which was conducted by one D, as general agent and manager, and at which a large business was carried on, in the purchase and working up of raw material, and the sale of the finished product over a large territory. Dwas left in full control of all departments of this business conducted in Missouri, and managed all its affairs, financial and other, with the knowledge and consent of the officers of the G Co., and generally without direc tions or oversight by them. He reported to the G Co. from time to time, and some of his reports showed entries of "bills payable." Upon the trial of an action against the G Co. upon notes signed in its name by D, as treasurer, the president of the G Co. testified that he knew that D was signing all the bills payable made by the Missouri concern for goods purchased;

that he supposed it was the natural order of things for D to procure the discount of bills receivable by indorsing them as treasurer of the G Co.; and that, if money were required in an emergency, he supposed D would be expected to make and procure the discount of the company's notes: Held, that D, being left in the absolute control and management of the whole business of the G Co. in Missouri, to act on his discretion, had authority to do whatever a reasonably prudent merchant or manufacturer would do, and, accordingly, to sign promissory notes in the name of the G. Co. - GLIDDEN & JOY VARNISH CO. OF OHIO V. INTERSTATE NAT. BANK OF KANSAS CITY, U.S. C. C. of App., 69 Fed. Rep. 912.

58. PUBLIC LANDS-Cutting Timber from Mineral Lands.-On the trial of an indictment for cutting tim. ber from the mineral lands of the United States for purposes other than those connected with building, agricultural, mining, or other domestic uses, contrary to the act of June 3, 1878, the intent is wholly im. material, and it is only necessary to show that the prohibited acts were done.-UNITED STATES V. REDER, U. S. D. C. (S. Dak.), 69 Fed. Rep. 965.

59. PUBLIC LANDS - Exclusion from Grant. - It is not necessary, in order to exclude lands from the operation of a grant by congress in aid of a railroad com. pany, that title to such lands should have passed to another company, but it is sufficient if such lands have been in any way segregated from the public domain, so as to indicate an intention to exclude them from the grant.-UNITED STATES V. OREGON & C. R. Co., U.S. C. C. (Oreg.), 69 Fed. Rep. 899.

60. PUBLIC LANDS - Timber.-Mesquite, a small tree indigenous to deserts, used only for firewood, and not used in the manufacture of any useful article, is not "timber" within the meaning of Rev. St. U. S. § 2461, making it a crime to cut, etc., timber from the public lands of the United States.-BUSTAMENTE V. UNITED STATES, Ariz., 42 Pac. Rep. 111.

61. RAILROAD COMPANY - Street Railway-Repair of Streets.-Where the charter of a street car company and city ordinances require it to repair and repave streets occupied by it, such duty extends to the replacement of an old pavement by a new one of a dif ferent and improved kind, ordered by the city.-CITY OF PHILADELPHIA V. THIRTEENTH & FIFTEENTH STS. PASS. RY. Co., Penn., 33 Atl. Rep. 126.

62. RECOGNIZANCE Execution.-A recognizance, though signed by one as surety, is not binding on him, he not having been before the magistrate who signed it as having been taken and acknowledged before him. -COMMONWEALTH V. HICKEY, Penn., 33 Atl. Rep. 188.

63. REMOVAL OF CAUSES-Jurisdiction to Determine. -The State court in which an action has been commenced, if an application is made to it for an order of removal to a Federal court, and the Federal court to which removal is sought, have an equal right to determine whether, upon the face of the record and the petition for removal, a proper case for removal is made out.-SPRINGER V. HOWES, U. S. C. C. (N. Car.), 69 Fed. Rep. 849.

64. REPLEVIN BOND Judgment.-A judgment in replevin that at commencement of the action the right of possession was in the plaintiff, that costs betaxed against defendant, and showing that they have been paid, will not support an action for breach of a delivery bond conditioned to deliver the property to plaintiff if delivery be adjudged, and to pay costs and damages awarded against defendant on failure to return the property.-LEWIN V. STEIN, Colo., 42 Pac. Rep. 185.

65. SALE-Rescission-False Representations.-Statements on the sale of a note secured by a mortgage, as to the condition of the property covered by the mortgage, which the vendor alleged were based on in. formation derived from third persons, are expressions of opinion, and, if untrue, afford no ground for a re. scission of the sale, where the vendor refused to guaranty the note, and the vendees took other steps to

ascertain for themselves the value of the note and mortgage.-ENGLISH V. GRINSTEAD, Wash., 42 Pac. Rep. 121.

66. SALE-When Title Passes.-Where a manufacturer contracted to manufacture goods for another, and store them in the former's warehouse, to be shipped as instructed, the purchaser to pay for the goods as fast as they were made and stored by honoring the manufacturer's drafts when presented with warehouse receipts attached to the same, and where the latter is. sued a warehouse receipt reciting that a specified quantity of the goods had been so made and stored, the facts, however, being that, although the goods had been actually manufactured, they needed some slight work to put them in merchantable condition as required by the contract, and had not been removed from the factory to the warehouse, and the purchaser paid a draft for the price of these goods, to which this receipt was attached,-under these facts the title to the goods passed to the purchaser as against the claim of a receiver who was appointed at the instance of creditors to take charge of the manufacturer's assets, and who had accordingly seized the goods in question be fore their actual shipment to the purchaser.-SHEPARD V. KING, Ga., 23 S. E. Rep. 113.

67. SALE OR AGENCY.-A writing, in the form of a bond, providing that plaintiff was to "supply" the principal therein with goods at a fixed price, to be paid when the goods were disposed of by such princi pal, but not restricting control of the goods by such principal, or providing for commissions on the sales to be made by him imports a sale to him, and not an agency.-LEMP V. RYUS, Colo., 42 Pac. Rep. 169.

68. SEDUCTION - Consent.-Where it was apparent from the testimony of prosecutrix in a prosecution for seduction that she yielded to defendant's solicitations, but she testified that she did not expressly consent to the act, the jury properly subordinated the literal terms to the substance of the evidence.-PEOPLE V. WALLACE, Cal., 42 Pac. Rep. 159.

69. SPECIFIC PERFORMANCE — Evidence of Parol Contract. The respondent, W B, promised his brother, P B, that if the brother would refrain from making a will, and thus leave the respondent, as heir and next of kin, the sole inheritor of all his brother's estate, he, the respondent, would pay a certain annuity out of such estate to a certain relative of the two parties: Held, that such a promise, if acted upon, may be en. forced in equity, the court abiding by the case of Gilpatrick v. Glidden, 16 Atl. Rep. 464, 81 Me. 137.-GRANT V. BRADSTREET, Me., 33 Atl. Rep. 165.

70. TAXATION-Assessment of Poll Tax.-Under the revenue act (Laws 1891, 2d Sess., p. 123, § 171), providing that the assessor may require a person to make a verified statement showing the number of his employees subject to taxation, a demand in writing, signed by the assessor in his official capacity, requiring a compliance with said statute, and served upon a member of a partnership, was sufficient, and it was not necessary that said assessor should personally swear as to the one upon whom demand was made.STATE V. OWSLEY, Mont., 42 Pac. Rep. 105.

71. TAXATION Occupation License. Where the license ordinances of a town or city for a given year require the issue of a license for, and impose a license tax upon, the conduct of a particular business, and also impose a specific license tax upon the use by such a licensee of a particular agency necessary to be employed in the conduct of that business, a person li. censed to conduct such business takes his license subject to all the provisions of the license ordinances of that year; and if, in such general business, he employ an agency which is itself subject to a specific license tax, he becomes liable for such tax.-MACON SASH, DOOR & LUMBER CO. V. MAYOR, ETC., OF CITY OF MACON, Ga., 23 S. E. Rep. 120.

for which the land was sold were in fact paid before sale.-NICKUM V. DANVERS, Oreg., 42 Pac. Rep. 130.

73. TELEGRAPH COMPANIES-Penalty.-According to the decision of this court in Telegraph Co. v. James, 16 S. E. Rep. 83, 90 Ga. 254, there could be a lawful recovery of the statutory penalty from a telegraph company for negligence in delivering a message at one of its offices in this State, although the message came from an office in another State, notwithstanding the provisions of the interstate commerce clause of the federal constitution. WESTERN UNION TEL. Co. v.

75. TENANTS IN COMMON Joint Action. - Where tenants in common mortgage their common property to secure the debt of one, on his promise to reimburse them for any loss on account thereof, and the property is sold to pay the debt, they may maintain a joint action against him.-MCGILL v. MCGILL, Penn., 33 Atl. Rep. 146.

76. TRIAL BY COURT-Additional Findings.-Where a case has been tried by the court upon waiver of a jury, and the court has decided it, and made special findings covering the ultimate facts of the case, additional findings cannot afterwards be made upon the request of a party.-LANG V. BAXTER, U. S. C. C. (Me.), 69 Fed. Rep. 905.

77. TRUSTS-Monopolies.-The act of July 2, 1890, to protect trade and commerce against unlawful restraints and monopolies, is not applicable to the case of a State which, by its laws, assumes an entire monopoly of the traffic in intoxicating liquors (Act S. C. Jan. 2, 1895). A State is neither a "person" nor a "corpora. tion," within the meaning of the act of congress.LOWENSTEIN V. EVENS, U. s. C. C. (S. Car.), 69 Fed. Rep. 908.

78. TRUST Resulting Trust.-There is no resulting trust in favor of the wife in land purchased by the husband, on his credit, though part of the purchase price was paid with money subsequently borrowed from her.-WOODSIDE V. HEWEL, Cal., 42 Pac. Rep. 152.

79. WILLS Proof of Execution Witness.-Where, upon the trial of an issue of devisavit vel non, a subscribing witness to the will, from want of memory or other cause, is unable or unwilling to testify to its at testation by himself or by the other subscribing wit nesses, or to the execution of the will by the testator, or to the fact that the testator was mentally capable of making a will, or where a subscribing witness in his evidence denies the existence of any of these facts, the same may be proved by any competent witness having knowledge thereof, although the latter was not a subscribing witness to the will-GILLIS V. GILLIS, Ga., 23 S. E. Rep. 107.

80. WILL Testamentary Capacity.-To establish a will, contested on the ground of the want of testamentary capacity, it must appear that the testatrix was a person of "sound and disposing mind;" that she had mental capacity sufficient to enable her to understand the business in which she was engaged. A "disposing mind" involves the exercise of so much mind and memory as would enable a person to transact common and simple kinds of business with that intelligence which belongs to the weakest class of sound minds. It exists when the testator can recall the general nature, conditions, and extent of his property, and his rela tions to those to whom he gives as well as to those from whom he withholds his bounty. There must be active memory enough to bring to mind the nature and particulars of the business to be transacted, and mental power enough to appreciate them, and form some rational judgment in relation to them.-HALL V. PERRY, Me., 33 Atl. Rep. 160.

Central Law Journal.

ST. LOUIS, MO., DECEMBER 20, 1895.

The decision of the Ohio Supreme Court, holding the inheritance tax law of that State unconstitutional, to which we called attention in a recent issue of this JOURNAL, and the enactment of an inheritance tax law by the last legislature of Illinois, renders of special interest information on the subject of such enactments, as gathered by Max West, Ph. D., and which appears in the fourth volume of his studies in history, economics and public law. The volume itself we have not at hand, but we find in the National Corporation Reporter a review thereof from which it appears that Pennsylvania in 1826 was the first State to levy an inheritance tax, and this act has served as a model for subsequent American legislation. The Louisiana tax on foreign heirs was held constitutional in Mager v. Grima (1850), 8 Howard, 490. The tax was abolished in 1877. The State of Virginia passed its law in 1844; Maryland, 1845; North Carolina, 1847; Wisconsin, 1874; Alabama, 1848; Delaware, 1869; Minnesota, 1875; New York, 1885; West Virginia, 1887; Connecticut, 1887; Massachusetts, 1891; Tennessee, 1891; New Jersey, 1892; Ohio, 1893; Maine, 1893, and California, 1893. The Wisconsin statute was judged unconstitutional in State v. Mann, 76 Wis. 498. The statute of Minnesota was declared unconstitutional in State v. Gorman, 40 Minn. 232. The question of a permanent tax was since submitted to the people of that State. The State of New Hampshire is the only State which declared an inheritance tax in itself unconstitutional in Curry v. Spencer, 61 N. H. 624. The New York law was held constitutional in the Matter of McPherson, 104 N. Y. 306. In the latter case it was said that tax upon legacies and inheritance have been approved generally by writers upon political economy and systems of taxation, and no tax can be less burdensome and interVol. 41-No. 25.

NOTES OF RECENT DECISIONS.

LIFE INSURANCE-SUICIDE-MISSOURI STATUTE. Rev. Stat. Mo. 1889, § 5855, provides that, "in all suits on policies of insurance on life, *** it shall be no defense that the insured committed suicide, unless it shall be shown * * * that the insured contemplated suicide at the time he made his application for the policy." It was held by the United States Circuit Court of Appeals, Eighth Circuit, in the case of Etna Life Ins. Co. v. Florida, that the word "contemplated," as used in such statute, is equivalent to "intended" or "had resolved," and that it is not sufficient to show that the insured, at the time of his application, had considered the subject of suicide, without any definite purpose to commit suicide. The court says in part:

The question in the case of paramount importance is whether the Circuit Court properly defined the words "contemplated suicide," as used in Rev. St. Mo. § 5855, supra. On this subject the court charged the jury as follows: "The fact of suicide is no defense, unless it be the culmination of a purpose formed at the time application was made for the respective policies. Unless, therefore, you believe from the weight of the evidence that on the 30th day of July, 1891, at the time of making application for the policy of that date, Alonzo K. Florida contemplated thereafter committing suicide, and thereby enabling his wife to collect the amount named in the policy, then your verdict upon the first count must be for the plaintiff. Unless you believe from the weight of the evidence that on the 12th day of July, 1892, at the time of making application for the policy of insurance of that date, Alonzo K. Florida did so with the contemplated, well-formed purpose of thereafter committing suicide, and thereby enabling his wife to collect the amount named in the policy, your verdict must be for the plaintiff upon the second count of the petition. The fact, if from the evidence you believe it to be a fact, that Alonzo K. Florida committed suicide, constitutes in itself no defense on the part of the insurance companies under this clause. In order to make a defense out of such fact, you must believe from the preponderance of the evidence that Alonzo K. Florida, at the time he made application for either or both of the policies of life insurance involved in this suit, contemplated suicide; and by contemplated is meant there was a complete, well-formed purpose of taking his own life, and that purpose culminated by actually killing himself, with a view and for the purpose of defrauding the defendant company out of the money stipulated in the policy to be paid." The objection made to this part of the charge, and the only objection thereto, is that the court declared that the word "contemplated" meant the same as the word "intended." It is insisted that there is a material distinction between the words "contemplated" and "intended;" that the former word means "attentively considered," "thought about," whereas the latter word signifies "a more determinative state of mind," a well-formed purpose;

surance.

and that the legislature must be presumed to have used the word "contemplated" in the sense above suggested. The proposition maintained by the defendant company is thus concisely stated by its counsel: "It was not necessary for the defendant to show that Florida effected this insurance with the deliberate purpose to commit suicide; it was sufficient to show that he was 'considering with attention' the project of suicide, and effected the insurance with the design that, in case his contemplation should ripen into actual perpetration of suicide, then his beneficiaries should be provided for out of the proceeds of the in*. Hence it follows that the theory expressed throughout the several portions of the charge bearing on this point, that 'contemplated suicide' meant a predetermined, well-formed purpose of suicide, is erroneous, and those portions of the charge expressing this conception were erroneous." It is no doubt true that the primary signification of the word "contemplate" is to consider attentively or to meditate; but it is equally true that a secondary meaning of the word is to "intend;" and in ordinary conversation the word "contemplated" is frequently used as a synonym for the word "intend," that is, to express a well-formed purpose. Moreover, instances are not wanting where the word "contemplate" has been held to be synonymous with the words "expect" or "intend." Thus, in Buckingham v. McLean, 13 How. 151, 167, the words "in contemplation of bank. ruptcy," as used in the bankrupt act of 1841 (5 Stat, 442, ch. 9, § 2) were held to be tantamount to the ex pression "expecting or intending to commit an act of bankruptcy." See, also, Jones v. Howland, 8 Mete. (Mass.) 377.

We think, however, that the sense in which the legislature intended to use the word "contemplated" in the statute now under consideration, can be best determined by considering the statute itself and the connection in which the word occurs. The statute was primarily designed to prevent the plea of suicide from being thereafter interposed as a defense to an action on a policy of life insurance. It declares that, "in all suits upon policies of insurance on life hereafter issued by any company doing business in this State, it shall be no defense that the insured committed suicide." The subsequent clause, "unless it shall be shown to the satisfaction of the court or jury trying the cause that the insured contemplated suicide at the time he made his application for the policy," was not intended to create or afford to life insurance companies a new defense to such actions, but rather to state an exception to the general rule first enunciated. The legislature was, doubtless, aware of the fact that at common law, without the aid of any statute, it was competent for an insurance company to show, by way of defense to an action on a life insurance policy, that the assured had taken out the policy with the preconceived intent of thereafter committing suicide, and that such purpose was subsequently executed. It, doubtless, intended by the concluding clause to preserve the right to still make that defense. Smith v. Society, 123 N. Y. 85, 25 Ν. Ε. Rep. 197. This seems to us to have been the manifest purpose of the concluding paragraph of the statute. It recognizes the existence of a defense well known to the law, to-wit, the defense of fraud, and authorizes the insurer to make that defense. It must be borne in mind that the general purpose of the statute was to curtail the rights of insurance companies rather than to enlarge them, wherefore it cannot well be presumed that the legislature intended to create in their favor a new statutory defense consisting in the fact that the

assured, prior to his application for insurance, had considered the expediency of committing suicide in a given emergency, although he had formed no fixed resolution to do so. We think, therefore, that the contention that the legislature used the word "contemplated" to signify a state of mind in which the assured had considered or thought about the subject of suicide without having any well-defined purpose or intent, is not tenable.

TRADE-NAME

MANDATORY INJUNCTION.

In Weinstein, Lubin & Co. v. Marks, 42 Pac. Rep. 142, it is held by the Supreme Court of California that a tradesman, by the adoption of the name "Mechanics' Store" for his place of business, may acquire a property right therein as a trade-name, so that equity will enjoin the use by another of the name "Mechanical Store" in such a way as to induce persons to purchase goods from the latter under the belief that they are purchasing from the former. In that case it appeared that a merchant erected a building of peculiar architecture adjoining a similar building occupied by an old firm engaged in a similar business, and, for the purpose of deceiving the customers of such firm, adopted a similar name, and refrained from using any sign about the building to designate the proprietor. The court held that equity could not compel the merchant to designate by signs within and without the building who was the proprietor thereof, but should require him to distinguish his store from the other in some other way that would be a sufficient indication to the public that his store is a different place of business from that of the other. The following is from the opinion:

The foregoing chapter of facts makes interesting reading, and we first turn our attention to that portion of the judgment restraining defendant from the further use of the words "Mechanical Store" as a designation of his place of business. We see but little difficulty in arriving at a conclusion upon this branch of the case. Defendant assails the judgment in this particular with but a single weapon. He insists that the words "Mechanics' Store" are not the subject of trade-mark, and that, therefore, plaintiff can have no exclusive right to them. As we view the picture presented by the findings of fact, the question as to what may or may not be the subject of trade-mark is not the problem to be solved. That these words are of a kind that may be used as a trade-name we have no doubt, and, having established that fact, we are required to pursue the investigation no further. That certain names and designations which may not become technical or specific trade-marks may become the names of articles or of places of business, and thereby the use thereof receive the protection of the law, cannot be doubted, for the cases everywhere recognize that fact. The learned judge said in Lee v. Haley, 5 Ch. App. 155: "I quite agree that they (the plaintiffs) have no property right in the name, but the

principle upon which the cases on this subject proceed is not that there is property in the word, but that it is a fraud on a person who has established a trade, and carried it on under a given name, that some other person should assume the same name, or the same name with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name." A similar doctrine is declared in Manufacturing Co. v. Hall, 61 N. Y. 226, and also in the late case of Coats v. Thread Co., 149 U. S. 562, 13 Sup. Ct. Rep. 966. This court said in Pierce v. Guittard, 68 Cal. 71, 8 Pac. Rep. 645: "We are of opinion that it is not necessary to decide whether the plaintiff's label, with the accompanying words and devices, constituted a trade-mark, and, as such, the exclusive property of the plaintiff, for the reason that it is a fraud on a person who has established a business for his goods, and carries it on under a given name or with a particular mark, for some other person to assume the same name or mark, or the same with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with a person who has given a reputation to that name or mark." The same general principle is also recognized and approved in Schmidt v. Brieg, 100 Cal. 672, 35 Pac. Rep. 623. While in these two cases the fact appears that the defendants were selling an inferior article, and thereby deceiving and defrauding the public, it is not apparent that such fact was a necessary element in pointing the judgment. Neither do we consider it so upon principle; and in cases without number, restraining defendants from trespassing upon the good will of plaintiff's business, such fact was an element foreign to the litigation. It may be said that the adjudged cases for relief are based solely upon the ground of loss and damage to the tradesman's business, by unlawful competition. In Levy v. Walker, Cox, Man. Trade-Mark Cas. No. 639, the learned judge declared: "The court interferes solely for the purpose of protecting the owner of a trade or business from a fraudulent invasion of that business by somebody else. It does not interfere to prevent the world outside from being misled into anything."

While our statutes attempt to deal with trademarks, and provide for the filing thereof with the secretary of State, with accompany any affidavits, etc., yet trade names are equally protected upon analogous principles of law. And that the words "Mechanics' Store" may be made a trade-name, and the user thereof become entitled under the law to protection from pirates preying upon the sea of commercial trade, we have no doubt. We think the defendant should be restrained from the use of the words "Mechanical Store." The court has declared the fact to be, and it is not challenged by defendant, that these words were used as a designation of his store for the purpose of deceiving the public, and especially plaintiff's customers, and thereby securing the advantages and benefits of the good will of plaintiff's business. To say that such conduct upon the part of defendant is unfair business competition is to state the fact in the mildest terms. In Celluloid Manuf'g Co. v. Cellonite Manuf'g Co., 32 Fed. Rep. 97, Justice Bradley, of the Supreme Court of the United States, in speaking to the question of similarity in name said: "It was not identical with the plaintiff's name. That would be too gross an invasion of the complainant's rights. Similarity, not identity, is the usual recourse when one party seeks to benefit himself by the good name of another. What similarity is suf