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a person dealing in an article designates it as of a peculiar kind, character or quality, or as manufactured by or for him, or dealt in by him, and of which he is entitled to the exclusive use. Rogers v. Taintor, 97 Mass. 291; Chadwick v. Covel, 151 Mass. 190. It is a mark, device, etc., "adopted by a manufacturer or vendor:" "a mark by which one's wares are known in trade." Shaw Stocking Co. v. Mack, 12 Fed. Rep. 710; Anderson's Law Dict., tit. "Trade-mark." It is "something affixed by a manufacturer or merchant to goods he offers for sale, to distinguish them from like goods of other dealers." Gilman v. Hunnewell, 122 Mass. 147; Mfg. Co. v. Tanner, 11 Otto (U. S.), 56; Newman v. Alvord, 51 N. Y. 193; 2 Abb. Law Dict., tit. "Trade-mark;" Stroud's Jud. Dict., tit. "Trademark;" Winfield's Words & Phrases, tit. "Trademark." It "must, either by itself or by association, point distinctly to the origin or ownership of the article to which it is applied." Canal Co. v. Clark, 13 Wall. (U. S.) 311, 323; Black's Law Dict., tit. "Trademark." "It must indicate to those familiar with its use and purpose by and for whom the article was made, produced or prepared for sale." Cigar Makers' P. U. v. Conhaim, 40 Minn. 243, 246.

There is no exclusive ownership of the names, devices, symbols or marks which constitute a trademark apart from the use or application of them; but the word trade-mark is the designation of them when applied to a vendible commodity. Weener v. Brayton, 152 Mass. 101.

The Supreme Courts of Massachusetts, Pennsylvania and Minnesota, and the U. S. C. C. for the E. D. of Mo., have all held that this particular label is not a trade-mark. Weener v. Brayton, 152 Mass. 101; McVey v. Brendel, 144 Pa. St. 235; Cigar M. P. U. v. Conhaim, 40 Minn. 243; Carson v. Ury, 39 Fed. Rep. 777. Indeed, no court has ruled to the contrary, except the Supreme Court of N. Y., under a statute, essentially changing the definition of a technical or common law trade-mark. This opinion will be discussed.

The court asserts that the object of the use of the label is "to designate the cigars thus labeled from cigars manufactured by persons other than members of the union." It is simply a device to distinguish between the work of union and non-union workingmen. The cigars are not "manufactured or prepared" by the union as an organization. The union is not a manufacturer or dealer in cigars, or engaged in trade or commerce of any kind. The label does not point out the source or origin of the cigars, the place of manufacture, the name of the manufacturer or dealer, nor the name of the maker. Filley v. Fassett, 44 Mo. 168, 176; Liggett & Meyer T. Co. v. Sam Reid Tobacco Co., 104 Mo. 53, 60. The right to use the label is not a property right, without which there can be no trademark. It is a mere personal privilege contingent upon membership in the union; when membership ceases, the right to use the label ceases.

The court says that the Missouri law not only protects technical trade-marks, but the use of other insignia by label symbol or otherwise, which may be attached to merchandise to distinguish it from all other articles of merchandise in the market, and this protection may be had by "injunctive" ("injunction" was probably meant) proceedings at the instance of a member of an unincorporated association "which has adopted a label purporting to be issued by the association, to be placed on boxes of merchandise made by members of the association who have the sole right under their articles of association to use the same, against any person not authorized to make use thereof, and who is making fraudulent use of such label,"

citing Carson v. Ury, 39 Fed. Rep. 777. Therefore, concludes the court, the State may, by appropriate legislation protect the use of such label, etc. "And this ('sequence') is true," declares the court, "even though the legislature may have used the word 'trademark,' in the sense that it is ordinarily understood and used by text-writers and defined by judicial decisions!!"

The statement of the court as to the remedy by injunction is inaccurate and misleading, resulting doubtless from a total misapprehension of the principle of the decision of Carson v. Ury, supra. It is submitted that no court of last resort has ever ruled, as indicated in the opinion. The remedy by injunetion will not lie at the instance of a member of the union unless such member is a manufacturer or dealer. If Carson v. Ury, supra, and other cases on this point had been even casually examined it seems evident that such loose statement would not have been made. In the Carson case the court said: "This is not a trade-mark čase. It is a bill filed to restrain the defendants from perpetrating a fraud which injures complainant's business, and occasions him a pecuniary loss." And in commenting on Cigar Makers' P. U. v. Conhaim, 40 Minn. 243, 246, and Schneider v. Williams, 44 N. J. Eq. 391, the court farther said: "In both of those cases the bill seems to have been framed upon the theory that the union label was a technical trade-mark, and that as such it was the property of the members of the union in the aggregate, and that any one or more members of the union whether they were or were not engaged on their own account in the manufacture and sale of cigars and in the use of the label, might maintain a suit to restrain an unauthorized party from using the label. The decision in each case was adverse to such contention. The bills appear to have been filed by persons and by an association who were not engaged in the manufacture and sale of cigars on their own account. Hence, they were not injuriously affected by the fraudulent acts complained of, or, if they were liable to suffer a pecuniary loss to any extent or at any time in consequence of such acts, the loss to be apprehended was indirect and speculative. It may well be conceded that the plaintiffs in those cases had no such property rights involved as would enable them to maintain an action, even on the theory on which this decision proceeds."

That the legislature may, by proper legislation, protect a label or other form of advertisement is unquestionably true, but whether such may be protected as a mere abstract right, disconnected from a business, is a different proposition. If the legislature used the word "trade-mark" in its technical sense, it follows that a label or other form of advertisement, unless such fall within the technical definition of a trade-mark, is not included in the act. Yet the court holds that label, etc., are included. Then, the word trade-mark was not used in a technical sense. That "a trade-mark cannot exist as a mere abstract right, independent of, and disconnected from a business" is a sound rule of law, and fully endorsed by the court. If this is true, how can the legislature protect the rights of an organization not engaged in buying or selling or manufacturing, that is to say, not engaged in business, in a trade-mark? To eliminate the busi ness idea, destroys the trade-mark.

The court declares that the law was intended to protect "labels as trade-marks when adopted by association or unions of workingmen." The expression "labels as trade-marks" is rather loose, since a label may or may not be a trade-mark, yet the court uses the expressions: "the right to adopt as a trade-mark a label;" "the purpose was to protect them (workingmen) in any label, advertisement or symbol that they might adopt as their trade-mark;" "any label, symbol or advertisement, which may be, or has been adopted as a trade-mark." Such expressions do not harmonize with the principles of the textwriters and judicial decisions. The law meant either to protect labels, etc., as such as well as technical trade-marks or only to protect such labels, etc., as may be adjudged to be trade-marks in conformity with well-established legal principles. The decision of the court seems to be that the law includes all labels, etc., as well as common-law trade-marks.

In the beginning of the opinion the court expressly states that the defendant was convicted, under an information charging him with having sold a box of eigars upon which there was a counterfeit label, in violation of a statute, and afterwards says, "the question then recurs was the defendant guilty," etc., "if he knowingly placed a counterfeit label," etc., on the box of cigars sold. Under the statute selling an article containing a counterfeit label, and placing a counterfeit label on goods, etc., are separate offenses, and it appears in the principal case the defendant was convicted of the former, which was the only question before the court. Such careless statement produces confusion and inaccuracy, and may explain other inconsistencies and loose declarations contained in the principal opinion.

The decision of People v. Fisher, 50 Hun (N. Y.), 552, referred to in the principal opinion, resulted from construction of the New York Penal Code, which changes entirely the definition of a technical or common law trade-mark. As defined by the New York statute (§ 366), a trade-mark "is a mark used to indicate the maker, owner or seller of an article of merchandise; and includes, among other things, any name of a person or corporation, or any letter, word, device, emblem, figure, seal, stamp, diagram, brand, wrapper, ticket stopper, label, or other mark lawfully adopted by him and usually affixed to an article of merchandise, to denote that the same was imported, manufactured, produced, sold, compounded, bottled, packed or otherwise prepared by him," etc.

This statute evidently intended to change the law as it existed prior to its adoption. It expressly declares that "any letter, word, device, emblem

label," etc., is a trade-mark, within the meaning of the New York law. The Illinois law is equally broad for under its express provisions it protects "any label, trade mark or form of advertisement announcing that goods to which such label, trade-mark or form of advertisement shall be attached were manufactured by such person or by a member or members of such association or union," etc., and it emphatically declares that "any person who shall use any counterfeit or imitation of any label, trade-mark or form of advertisement," etc., "shall be guilty,"

etc.

The most hasty reading of these statutes will disclose that they are radically different in language, scope and purpose from the Missouri statute, hence, the New York and Illinois cases cannot support the decision of the principal case.

The first section (the section conferring the right of adoption, etc.), of the Missouri law, relating to the adoption of trade-marks, provides that "If any me. chanic association or union of workingmen or other person, shall wish to adopt any particular name, term, design or device as his or their trademark, to designate, make known or distinguish any

goods, wares or merchandise by him or then manufactured or prepared," he or they may have the same registered, etc. In this language two essential elements of every trade-mark are pointedly expressed, namely, first, that the name, term, design, or device adopted must possess the characteristics of a technical trade-mark, and, second, the goods, wares or mer. chandise must be manufactured or prepared by the adopter; and the third requisite is clearly implied, namely, that the trade-mark must be used in connection with the goods, etc., "manufactured or prepared." These are the three essential characteristics that constitute a trade-mark none of which are present in the label in question. No argument is necessary, to demonstrate that the language quoted from the Missouri statute cannot by any possible construction be held to include any name, term, device, label, etc., unless such things are trade-marks. Such things are included in both the New York and Illinois statutes, as above shown. But it appears clear that the above language does not protect labels, etc., as such but only such names, terms, devices, etc., as may be adjudged to be trade-marks. The language is designed to protect "trade-marks" as contradistinguished from mere names, terms, devices and labels. This is the construction given to this statute by the St. Louis Court of Appeals, and is unquestionably sound. It is true that the law uses the expression "proof of the adoption of such label, trade-mark or form of advertisement, and of the right of such mechanic

to adopt the same." Also section 4 of the laws, under which conviction was obtained, uses the words "label, brand, stamp, wrapper, trade-mark," etc. But the language conferring the right to adopt, register, etc., trade-marks limits, in as plain terms as our language will express, the "name, term, design or device," which may be selected to such as may be held to be technical trade-marks. This language creates the right and confines it to such terms, labels, etc., as may be regarded by the general principles of laws, as common-law or technical trade-marks. No language could be more clear, direct or pointed. The words "brand, stamp, wrapper, imprint," etc., as employed in section 4, are not used in section 1, conferring the right of adoption, etc. The language above quoted, indicates a clear comprehension of the meaning of the word "trade-mark." It was intended to be confined within its legitimate scope, to-wit, as a business term. The goods, etc., to which the trade-mark was to be attached, were to be by "him or them (workingmen) manufactured or prepared," on his or their own account, and not as mere servants of others. The law does not create a trade-mark in labor. But that seems to be the result of this decision.

2. Is the Law Constitutional? It is construed as conferring upon an association or union of workingmen the right to adopt and affix a label to goods made by them as mere employees of others, and not made by them in the capacity of manufacturers or proprietors, either as individuals or as an association or union; as creating a label (with all the attributes of a trade mark), in labor, disconnected from, and independent of, trade or commerce; as conferring upon the members of an association or union of working. men special privileges respecting the labeling and identification of the products of their labor not conferred upon or possessed by other citizens who do not engage in manufacture or commerce. All other associations or unions not of workingmen, formed for the elevation and comfort of their members are excluded from such special privileges, likewise are all workingmen who do not belong to "associations or unions."

The fact that the law thus directly discriminates, in the respect just pointed out, against all classes of as. sociations and unions not of workingmen, and nonunion workingmen is immaterial. Yet the law is held to be general for the reason, says the court, that it relates to persons as a class, to-wit, "associations or unions of workingmen," and not to particular persons of a class. The law embraces, that is to say, within its provisions, all associations or unions of workingmen. Does the court mean that the class is determined by the words "associations or unions," or by the word "workingmen," or by the phrase "associations or unions of workingmen?" First, let us assume the latter. Workingmen have been uniformly held to belong to and constitute a particular class in every community. Yet they do not all belong to associations or unions, as every well informed person knows. Unless they do the law, as above construed, cannot afford them protection in the manner indicated, hence, it is evident that the court errs when it says that the law relates to persons as a class, for this illustration shows that it relates to particular persons (members of associations or unicns) of a class (workingmen). Second, let us assume that "persons as a class" applies to "associations or unions." Numerous associations or unions exist in every section, but they are not all composed of "workingmen," as this word is usually understood and applied. If the term is to be confined to those embracing workingmen only, it is apparent that the discrimination is in favor of "particular persons of a class," to-wit, workingmen compris. ing associations or unions, and not in favor of "persons as a class," to wit, those who belong to associations or unions of whatever nature. Third, let us assume that the word "workingmen" establishes the constitutionality of the law. Undoubtedly this terms relates to "persons as a class." But the law, by express language separates the workingmen into union and non-union workingmen, when it employs the phrase "associations or unions of workingmen." The result is the same, as in proposition first, above, namely, the designation, in direct, pointed and unequivocal language, of "particular persons of a class."

All

A careful reading of the label likewise leads to this conclusions. It is not an emblem of business. It is radically different from a trade-mark, or business label, in its character, its purpose and the manner of its use. It is solely and simply a device, to distin guish between union and non-union workingmen, and to discriminate against the work of the latter. workingmen are entitled to equal protection under the law, and no discrimination, however slight, should be tolerated. Yet, "the law allows it, and the court awards it." The Supreme Court of Pennsylvania said the "right to use such a label may well be doubted, whether the question is treated as one of morals or of law." McVey v. Brendel, 144 Pa. St. 235.

clusive use of the label. In United States v. Braum, 39 Fed. Rep. 775, it was expressly held that an indictment, to punish counterfeiting of registered trademarks, which alleges that a certain word has been admitted to registration as a trade-mark, without averring facts showing that the alleged owners acquired an exclusive property therein, was bad. And this is the law.

4. It Appears that the Union has no Property Right in the Cigars to which the Label is Affixed.-Will this defeat prosecution? It seems that this specific question was not directly considered by the court. The misapprehension by the court of the principle of Carson v. Ury, supra, relating to the remedy by injunction, indicates that this feature was either entirely overlooked or deemed immaterial.

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The clear intention of the law was to give protection to a trade-mark (or label, as the law is construed) only of the proprietor of the goods to which it is attached. Without a proprietary interest there is and can be no trade-mark or label, either at common law or under the statute. Ownership of the goods to which the label is affixed, and exclusive right to use the trade mark (label) must unite in the "mechanic, manufacturer, association or union of workingmen, or other person," claiming protection. The most cursory perusal of section 4, set out in the opinion, will render this contention clear. The idea of proprietorship of the goods, etc., to which the label is affixed is unequivocally expressed. Under this section the offense is created when one sells goods, etc., upon which there is an imitation trade-mark (label), "and intends to represent the said goods," etc., "as the genuine goods, etc., of any other person or persons, association or union of working," "knowing the same (the trade-mark) to be imitation or counterfeit." Such construction harmonizes the provisions of the law, in the respects above indicated, with the principles announced by text-writers and judicial decisions, referred to above, and, in the opinion of the court. Any other interpretation contravenes the whole law relating to trade marks, and in effect says, that a trade-mark may exist as a mere abstract right, independent of, and disconnected from, a business. The element of business cannot be eliminated, for it is this which gives life and vitality to the trade-mark, and constitutes it a right, recognizable by the law. Indeed, the court would seem to take this view by quoting, with approval from Weener v. Brayton, 152 Mass. 101, that "The right to a trade-mark cannot exist as a mere abstract right, independent of, and disconnected from, a business. It is not property as distinct from, but only as incident to business. It cannot be transferred except with the business, may be sold with it, and ordinarily passes with it." This doctrine cannot be reconciled with the conclusion of the court. The label may be used by any one who joins the union or by any one who employs union men. It may be transferred without the business, as any other kind of property. It is not an incident to the business, but a property right per se, independ ent of, and disconnected from, the business. This is the doctrine of the decision. Although untenable, still it is the law of Missouri, as declared by her supreme tribunal, and,

3. Averment of Exclusive Ownership of the Label in the Association is Held not to be Required.-It would seem that in accordance with elementary principles ownership of the label in some individual, or association or union should be pleaded. A trade. mark or label cannot be established without aver ment and proof of exclusive ownership. There exists no decision to the contrary. The misdemeanor, specified in the law under consideration, is against some "person or persons, association or union of work. ingmen, or body-corporate or politic." Here it was claimed that the Cigar Makers' International Union of America was injured; and this without alleging that it was the sole proprietor and entitled to the ex

"Twill be recorded for a precedent;
And many an error by the same example
Will rush into the State,"

unless it is reversed, a contingency not foreign to the
previons experience of Missouri's highest court.

CORRESPONDENCE.

CRITICISM OF A MISSOURI DECISION.

.

We

To the Editor of the Central Law Journal: The case of Maddox v. Duncan, recently decided by the St. Louis Court of Appeals, presents the question whether a guarantor of a note is bound by payments made by the maker so as to arrest the bar of the statute of limitations. Defendant was payee of the note and assigned it to one Grant as follows: "Waiving notice, protest and demand, I assign the within note to Samuel Grant for value received and I guarantee the payment of it." Grant assigned the note to plaintiff. The court held that "defendant by his indorsement became in effect a copromisor upon nonpayment of the note at maturity. He could have been sued as such at any time after maturity of the note, either severally or jointly with the maker. are bound to hold that payments made by the maker were effectual to arrest the running of the statute in favor of defendant." We submit that this ruling is erroneous. The rule is that as between joint obligors payments by one arrest the bar as against the others. And "this is placed upon the ground that as they are jointly liable, the admission or act of one is the admission or act of both." Brandt on Suretyship and Guaranty, § 143. Manifestly defendant's relation to the note was as guarantor only, and the general rule is that the guarantor is not jointly bound with the principal debtor. Ib. § 1. This is well settled in Missouri. Thus in Graham v. Ringo, 67 Mo. 324, it is held that "a guarantor is neither an indorser nor a surety; his undertaking is his own separate and independent contract; it is not a joint engagement with his principal, and he cannot be sued with him." To same effect Bank v. Shine, 48 Mo. 456; Parmerlee v. Williams, 71 Mo. 410; Prior v. Kiso, 81 Mo. 249; Osborne v. Lawson, 26 Mo. App. 549. Hence, not being a joint obligor with the maker of the note, defendant was not within the reason of the rule. It is to be regretted that the further point, which seems fairly involved, was not raised, viz: whether the assignment of the note to plaintiff was effectual to give him any recourse whatever upon the guarantor. F. P.

JETSAM AND FLOTSAM.

PROTECTION FROM NOISE.

It was reported that a prominent official of this city, who recently died, was annoyed during his last illness by the playing of a piano in a residence adjoining his house. The story has been denied, and we have no knowledge and express no opinion as to the facts and merits of the controversy. The episode, however, suggests the inquiry whether discretionary power ought to and could be exercised to interfere, for the benefit of a sick person, with musical performances or other unnecessary noise in the house-which is his castle-of an unneighborly neighbor. It is extremely doubtful whether the police power could be constitutionally stretched to authorize the prevention by a public health officer of music or other moderate noise, during seasonable hours, in a person's own house because, through exceptional and abnormal circumstances, a single individual suffered.

There are, however, two recent decisions in civil cases which may appropriately be cited while the incident above referred to is fresh in mind. In Feeney v. Bartaldo, in the Court of Chancery of New Jersey (February, 1895, 30 Atl. Rep. 1101), it was held that

where a saloonkeeper caused a piano to be played in his saloon every night from 7 o'clock till 10 and sometimes till 11 o'clock, to the music of which dancing, accompanied by loud noises, was indulged in, the effect of which was to prevent the occupant of an adjoining dwelling from sleeping, a preliminary injunetion would, at the suit of such occupant, be granted restraining the use of the piano after 9 P. M. In Pea cock v. Spitzelberger, in the Court of Appeals of Kentucky, March, 1895, 25 S. W. Rep. 877, it was held that owners of residence property near a blacksmith shop were entitled to a perpetual injunction to restrain its operation during the night, which it was alleged greatly disturbed such owners and, through loss of rest and sleep, injured their health.

These latter cases go part way towards the end in view, and, although their principle is for the benefit of sick and well alike, reaching only to the prevention of noises at unreasonable hours, it is not improbable that their spirit would be extended so as to entirely enjoin noises in a suit for the benefit of a sick person whose comfort or life was at stake. The remedy of private suit might not be as summary or expeditious as intervention by a Health Board. But a civil action is the more proper remedy, because, the wrong being against an individual as distinguished from a public offense, the peculiar facts and necessity should be passed on under the increasingly comprehensive jurisdiction of equity. New York Law Journal.

BOOK REVIEWS.

AMERICAN ELECTRICAL CASES.

This, the second volume of a valuable series, con tains a collection of all the important cases (excepting patent causes) decided in the State and Federal Courts of the United States for 1873 on subjects relating to the Telegraph, the Telephone, Electric Light and Power, and other practical uses of electricity. This statement of its contents will suffice to show its value to the practitioner in new and as yet undeveloped fields of law. Many of the cases have useful notes. It is a handsome volume of nearly nine hundred pages, bound in best law sheep. Published by Matthew Bender, Albany, N. Y.

BOOKS RECEIVED.

Hand-Book of International Law. By Captain Edwin F. Glenn, Acting Judge Advocate United States Army. St. Paul, Minn.: West Publishing Co. 1895.

Outline of the Infringement of Patents for Inventions, not Designs, Based Solely on the Opinions of the Supreme Court of the United States. By Thos. B. Hall, of the Cleveland Bar. New York and Albany: Banks & Brothers, Law Publishers. 1895.

American Electrical Cases, Being a Collection of all the Important Cases (Excepting Patent Cases) Decided in the State and Federal Courts of the United States from 1873 on Subjects Relating to the Telegraph, the Telephone, Electric Light and Power, Electric Railway, and all other Practical Uses of Electricity, with Annotations, Edited by William W. Morrill, Author of "Competency and Privilege of Witnesses," "City Negligence," etc. Volume III. 1889-1892. Albany, N. Y.: Matthew Bender, Law Publisher. 1895.

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WEST VIRGINIA

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.........17, 28, 35, 67, 80, 82 School District.-Actual 1. ADVERSE POSSESSION adverse possession of land by a school district for 10 years under a claim of absolute ownership creates a title by prescription, which will support an action to quiet title.-INDEPENDENT DIST. OF OAK DALE V. FAGEN, Iowa, 63 N. W. Rep. 456.

2. ALIMONY-Foreign Decree - Action. - An action at law may be maintained in this State upon a decree for alimony made in New York if the New York court had jurisdiction of the subject-matter and of the person of the defendant.-BULLOCK V. BULLOCK, N. J., 31 Atl. Rep. 1024.

3. APPEAL-Action on Bond.-Where an appeal bond is insufficient in amount, and the appellant, on order of the court, fails to furnish a new bond, the fact that the appeal is dismissed on motion of the appellee does not estop him from bringing an action on the bond.HASCALL V. BROOKS, Mich., 63 N. W. Rep. 413.

4. ASSIGNER FOR BENEFIT OF CREDITORS.-An assignee for the benefit of creditors is not a bona fide purchaser, and cannot claim possession of property, unpaid for, which was delivered to the assignor under a contract that the title was to remain in the vendor until the property was paid for. -HERRING HALL-MARVIN CO. V. MOORE, Miss., 17 South. Rep. 385.

5. ASSIGNMENT FOR BENEFIT OF CREDITORS.-An assignment for the benefit of creditors, which does not show on its face that the assignor was, at the time it was executed, insolvent, or contemplating insolvency, will, in absence of any proof of such facts, be regarded as a common-law assignment, and the assignee treated as a trustee.-TENNENT V. DAVIS, Tex., 31 S. W. Rep. 251.

6. ATTACHMENT - Assignment for Creditors. An at. tachment is discharged as to an assignee in a general assignment for the benefit of creditors by an amendment to the complaint and affidavit for attachment, made after the execution of the assignment, substitut

ing an entirely different and distinct cause of action for the one set up in the original complaint and affi. davit.-HEIDEL V. BENEDICT, Minn., 63 N. W. Rep. 490.

7. ATTACHMENT - Bond-Exemplary Damages.-Under Code Proc. § 295, providing that, in an action on an attachment bond, plaintiff may recover, if the attach ment was wrongfully sued out, and without reasonable cause, the actual damages sustained, and if the attach ment was sued out maliciously he may recover exemplary damages, the term "exemplary damages" does not comprehend damages by way of punishment, but only indeterminable actual damages, such as damages to reputation, pride, and feeling.-LEVY V. FLEISCHNER, Wash., 40 Pac. Rep. 384.

8. ATTACHMENT-Non-resident Debtor.-One may be an absconding debtor, and yet may have a residence in this State, which will prevent an attachment issuing against him as a non-resident debtor. Mere incon. venience in the service of summons or other process furnishes no reason why an attachment should issue against one as a non-resident debtor. Temporary absences for business or pleasure is not an abandonment of one's abode or place of residence.-STATE V. MILLS, N..J., 31 Atl. Rep. 1023.

9. BANKS Setting Off Indebtedness.-A bank on which a check is drawn, though knowing that the drawer is insolvent, cannot, as against the payee, set off against the deposit its indebtedness from the drawer, not yet due. -MERCHANTS' NAT. BANK OF LOUISVILLE V. ROBINSON, Ky., 31 S. W. Rep. 136.

10. BENEFIT OF CREDITORS-Amendment of By-laws. -A member of a benefit society who took a certificate, "subject to such laws, rules, and regulations as now exist or may hereafter be adopted by and governing" the society, under which she was to receive one-half the amount thereof in 12 years, "if living and in good standing," was not bound by a subsequent amendment of the by-laws which restricted the benefits to holders of certificates, both previously and subsequently issued, who should live to the expectation of life, and become totally disabled, and limiting the payment then to be made to 10 per cent. of the amount of the certificate.-HALE V. EQUITABLE AID UNION, Penn., 31 Atl. Rep. 1066.

11. BOUNDARIES - Evidence. The owners of city lots had for 35 years maintained a fence between their lots and the street, and the city had acquiesced therein. The marks of the original survey having been de stroyed, a resurvey was made on the theory that the original survey was wrong, and should be corrected Held, that the fence was better evidence than the resurvey as to the location of the line between the lots and the street.-CITY OF MT. CARMEL V. MCCLINTOCK, 111., 40 N. E. Rep. 829.

12. BOUNDARY - Estoppel.-Where the division line between adjoining lots is in dispute, and the owner of one has the line located for the purpose of erecting a building on his lot, and notifies the other owner of such location, who tells the workmen to construct the partition on this line, and subsequently pays his proportion of the wall so erected, the latter will be es topped from asserting that this division line is not the true one.-EVANS V. KUNZE, MO., 31 8. W. Rep. 123.

13. CARRIERS - Injuries to Stock - Negligence.-Injuries received by stock while on board cars, resulting from known causes which can be explained on no other ground than that of negligence in managing the train, furnish ground for an inference of want of ordi nary care in transportation.-SCHAEFFER V. PHILADELPHIA & R. R. Co., Penn., 31 Atl. Rep. 1088.

14. CARRIERS-Passengers.-Evidence that the street car on the rear step of which plaintiff was standing at the time he was injured was so crowded that he could have stood on the platform only by crowding other passengers, that the conductor made no objections to his riding on the steps, and that the accident was caused by the motorman suddenly increasing the speed while passing over a curve, was sufficient to

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