was duly issued to the prisoner, and a letter of advice was duly sent to the post-office at N., to pay the prisoner 10s. He went to that office, and handed his depositor's book and the warrant to the clerk. But the clerk, instead of referring to the proper letter of advice for 10s, referred by mistake to another letter of advice for £8 168 10d, and placed the latter amount upon the counter. The clerk entered the amount paid, £8 16s 10d, in the prisoner's depositor's book, and stamped it. The prisoner took up the money and went away, having at the moment of taking it up an animus furandi, and knowing the money to be the money of the postmastergeneral. Held, by Cockburn, C. J., Bovill, C. J., Kelly, C. B., Blackburn, Keating, Mellor, Lush, Grove, Denman, and Archibald, JJ., and Pigott, B. (Martin, Bramwell, and Cleasby, BB., and Brett, J., dissenting), that the prisoner was guilty of larceny; by Cockburn, C. J., Blackburn, Mellor, Lush, Grove, Denman, and Archibald, JJ., on the ground that, even assuming the clerk to have the same authority to part with the possession of and property in the money which the postmaster-general would have had, the mere delivery under a mistake, though with the intention of passing the property, did not pass the property, and the possession being obtained animo furandi, there was both a taking and a stealing within the definition of larceny; by Bovill, C. J., Kelly, C. B., and Keating, J., on the ground that the clerk had only a limited authority to part with the money to the person named in the letter of advice, and therefore no property passed to the prisoner, and the possession was obtained animo furandi; by Pigott, B., on the ground that the mistaken act of the clerk, in placing the money on the counter, stopped short of placing it completely in the prisoner's possession, and that his subsequently taking it up was larceny. Held, by Martin, Bramwell, and Cleasby, BB., and Brett, J., that the prisoner was not guilty of larceny. Reg. v. George Middleton, L. R., 2 C. C. R. 38.

SALVAGE.

Pilotage.-A Dutch barque was riding at anchor off Deal, and waiting to proceed down channel, and a waterman who, though not a licensed pilot, was in the habit of piloting vessels, was taken on board her, under an arrangement whereby he was to receive 7s a day, with £5 in addition, for navigating the vessel as pilot until she arrived off Beachy Head. The day after the waterman came on board, and while the barque was still at anchor, a gale came on, and the tempestuous state of the weather caused the vessel to drive, and rendered it necessary to slip the chain, when, under the direction of the waterman, the vessel was taken through the Gull stream and brought up in safety in Margate roads. In a salvage suit instituted on behalf of the waterman and other persons who had rendered services to the vessel the court held, that the services rendered by the waterman were within the scope of his contract, and that he was not entitled to claim as a salvor. The Eolus, L. R., 4 Adm. & Ecc. 29.

WILL.

Destroyed by testator when suffering from delirium tremens: subsequent recognition of the act. The testator, having duly executed his will, subsequently, when suffering under an attack of delirium tremens, tore it in pieces. The pieces were preserved, and on his recovery he was informed of what he had done, and he answered he must have been mad when he did the act, and that he would make a fresh will, which intention he did not carry out. Held, that the will was not revoked. Brunt v. Brunt, L. R., 3 P. & D. 37.

CORRESPONDENCE.

HOW FAR ONE'S NAME WILL BE PROTECTED AS A TRADE-MARK.

Editor Albany Law Journal:

The article in your journal of date of August 16, 1873, entitled, "How far one's name will be protected as a trade-mark," seems to me to be calculated to work injustice to three persons and sets of persons, namely, to the defendants in the principal case referred to, Meneely & Kimberly, of Troy; to Hon. Rufus H. King, of Catskill, the learned referee who decided that case; and to the legal profession at large. It would do injustice to Meneely & Kimberly, because it seems to charge them with unfair dealing; to the learned referee, because it seems to make him put his decision on a ground which was not the basis of his judgment; and to our profession, because it conveys an incorrect statement of the law.* As you have heard the counsel for the plaintiffs, Mr. Fursman, I trust you will observe the useful maxim, audi alteram partem, and give a hearing to the opposing counsel; and as you have printed great part of my learned brother's ingenious brief, print a small portion of that for the defendants. And,

First. 1 have spoken of the seeming injustice to the defendants in your report. It is true that the referee found: "That the defendants, by the use of the name of Meneely in the establishment of their bell foundry at Troy, and in manufacturing and selling bells at Troy under the name of Meneely & Kimberly, expected and intended to derive a profit and advantage by reason of the good reputation and celebrity in bell founding given to that name throughout the country by the said Andrew Meneely and the plaintiffs;" but there was no finding that they were guilty of any fraud or unfairness therein, nor that they were conducting their own business with intent to induce the public to believe that their wares were the wares of the plaintiffs, nor that the defendants had imitated any mark or device, in connection with their names, which the plaintiffs had adopted as a trade-mark.

Second. I have spoken of the seeming injustice to the referee. It is true that the finding above quoted was a part of the decision, but it was not the basis. The ground of the decision was, that Andrew Meneely, the father of the plaintiffs and of the defendant Meneely, had made a will bequeathing his business and its good will to the plaintiffs, and giving no interest therein to the defendant Meneely, but giving him a small legacy, which was received by him. And, although the legacy was unconditional, and there was no expression in the will that the testator did not wish the defendant Meneely to carry on the bell business, yet the referee found: "That the plaintiffs, under and by the last will and testament of said Andrew Meneely, succeeded to the right and property of the said Andrew Meneely in

*[That the article alluded to was calculated to work injury either to Meneely & Kimberly or to the referee we do not believe. There was certainly nothing in the article-unless it was the part quoted from the finding of the referee-that could be construed into a charge against Meneely & Kimberly of "unfair dealing;" nor was there any thing tending to charge them with fraud. Nor did we state that the finding quoted was the basis of the decision, nor convey any such impression, as a reference to the article will show. Whether or not the article was unjust to the profession, “in giving them an incorrect idea of the law," we respectfully leave it to the courts to determine. As to the particular merits of Mencely v. Meneely we care nothing. The legal question involved is an important one. We published the article in question of our own motion, as an able argument on one side of that question, and we are glad to publish Mr. Browne's brief as an able argument on the other side-notwithstanding that, in so doing, we may be repeating our alleged "injustice to our profession."-ED. A. L. J.]

In respect to the case of Sykes v. Sykes, cited by the plaintiffs' counsel, Abbott, C. J., is quoted as saying: "Where a man has adopted a particular mark for his goods, in order to denote that they are manufactured by him, an action on the case will lie against another who adopts the same mark for his goods (even though that mark be the proper name alike of both parties), if it be adopted for the purpose of denoting that the goods of the defendant are manufactured by the plaintiff, and therefore for the purpose of selling them as and for the goods of the plaintiff."

Third. I have spoken of the injustice to our profession in giving them an incorrect idea of the law. Now I undertake to say that there never has been a case, in England or America, in which one has been restrained from using his own name in trade or manufacture simply because another of the same name had previously used it and built up a lucrative business in connection with it. An examination of the authorities will demonstrate that, where the court has interfered, it has done so only to restrain the use of trade-marks and devices which were adopted and used in such wise, in connection with names, the use of which the court would not restrain, as to directly proclaim or effectuate a falsehood or deception, whereby the public were falsely and fraudulently led to suppose that the commodities offered for sale by the new establishment were the genuine productions of the business already known and approved. It is not enough, it will be seeu, that the public should be mistaken in regard to the real producer of the new article. The public must have been induced to believe that the new article was the production of the old establishment, by means of some false or fraudulent device, before the court will interfere to restrain the new establishment from the use of such devices as it may choose to adopt.

It will be further seen that the court never restrain the prosecution of the business by the new establishment; so that true names and business are never interfered with by the court.

Thus, in the case of Croft v. Day, cited by the plaintiffs' counsel, it was declared by the master of the rolls: "My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the name Day & Martin, but upon the fact of the defendant using those names in connection with certain circumstances, and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself to which he is not, in fair and honest dealing, entitled. Such being my opinion, I must grant the injunction restraining the defendant from carrying on that deception. He has a right to carry on the business of a blacking manufacturer honestly and fairly; he has a right to the use of his own name. I will not do any thing to debar him from the use of that or any other name calculated to benefit himself in an honest way, but I must prevent him from using it in such a way as to deceive and defraud the public, and obtain for himself, at the expense of the public, an undue and improper advantage.' The fraud in this case was the imitation of plaintiff's label, and hiring the use of the name of a man who had no interest in

The remarks of the judge above quoted were copied from a citation of the case in Upton on Trade-marks, but on looking at the report it seems the judge said nothing of the sort. What he did say, and all he said, was: "It was established most clearly that the defendants marked the goods manufactured by them with the words 'Sykes' Patent,' in order to denote that they were of the genuine manufacture of the plaintiff; and although they did not themselves sell them as goods of the plaintiff's manufacture, yet they sold them to retail dealers, for the express purpose of being resold as goods of the plaintiff's manufacture. I think that is substantially the same thing, and that we ought not to disturb the verdict." It will be seen that this is a mere case of piracy upon a trade-mark, and does not in the least involve the question of the right of the second Sykes to use his own name in the same business as the first Sykes used his, and affords no hint that the second Sykes could not use his own name, had he not done so in connection with the false and fraudulent word "patent," the second Sykes having no patent.

In the case of Rodgers v. Nowill, referred to by plaintiffs' counsel, the decision is based on the piratical use of the name Rodgers & Son inscribed about the figure of a crown and constituting a known and established mark, but in no way establishes the doctrine that those defendants might not manufacture cutlery and sell it in their own name of Rodgers.

Again, in the case of Holloway v. Holloway, 13 Beav. 209, the plaintiff, Thomas Holloway, sold a medicine as Holloway's Pills." The defendant, Henry Holloway, commenced selling pills as "H. Holloway's Pills," but in boxes, etc., similar to the plaintiff's, and with a view of passing off his pills as the plaintiff's. He was restrained by injunction, for the reason that he had fraudulently imitated the plaintiff's catalogues, boxes, and labels. The master of the rolls said: "This case, upon the evidence before me, is perfectly clear. The defendant's name being Holloway, he has a right to constitute himself a vendor of Holloway's pills and ointment, and I do not intend to say any thing tending to abridge such right. But he has no right to do so with such additions to his own name as to deceive the public, and make them believe that he is selling the plaintiff's pills and ointment. The evidence in this case clearly proves that pills and ointment have been sold by the defendant marked in such a manner that persons have purchased them of defendant, believing that they were buying the goods of the plaintiff.”

The case of Holmes and others v. Booth, etc., Co., 37 Conn., was decided on the ground of an estoppel by contract.

Let us now look at a few cases to which, owing probably to the extreme length of his argument, my learned brother did not refer.

Burgess v. Burgess, 17 Eng. L. & Eq. 257, A. D. 1853. For more than forty years John Burgess, the father of the defendant, William Robert Burgess, had been engaged in business as an "Italian warehouseman," at 107 Strand. In 1800 he took his son, the plaintiff, into partnership, and they continued in business as partners, at the same place, under the firm of "John Burgess & Son," until 1820, when the father died. One chief article of their manufacture was a certain fish sauce which they called "Essence of Anchovies," and it was sold and known in the market as "Burgess' Essence of Anchovies," and those words as their trademark were printed on their labels which were attached to the bottles and packages containing the article. The defendant, William Harding Burgess, was a son of the plaintiff, and for many years was employed on a salary, upon the business premises of his father, No. 107 Strand. In 1851 he left the employment of his father and commenced business on his own account, No. 36 King William street, and manufactured and sold a fish sauce of anchovies, which he put up and marked Burgess' Essence of Anchovies," and over his door he caused to be placed a painted sign containing the words "W. H. Burgess, late of 107 Strand," and on each side of his door he caused to be placed a metal plate, with the following words cut or engraved thereon: "Burgess' Fish Sauce Warehouse, late of 107 Strand." The vice-chancellor enjoined the use of the words "late of 107 Strand," and also the words "Burgess' Fish Sauce Warehouse, late of 107 Strand," but refused to enjoin the use of the words "Burgess' Essence of Anchovies." On appeal this was affirmed. Lord Justice Turner said: "It is clear no man can have any right to represent his goods as those of another; but in all cases of this kind it must be made out that the defendant is selling his goods as those of another. When a person is selling goods under his own name, and another person, not having that name, is using it, it is clear that he is so using it to represent the goods sold by himself as those of another; but where the two persons have the same name, it does not follow that, because the defendant sells goods under his own name, and it happens that the plaintiff has the same name, he is selling goods as the goods of the plaintiff."

Clark v. Clark, 25 Barb. 79, A. D. 1857. This was an action in which an injunction had been granted, restraining the defendants from using a certain device which had been previously adopted by plaintiff to designate spool cotton manufactured by him. The plaintiffs' device contained the name "Clark & Co." The defendants' was exactly like it, except that it contained the name "J. Clark, Jr., & Co." The injunction, as originally granted, operated to restrain the defendants from using their name as well as the device. The injunction was sustained as to the device, "but," say the court, "the injunction should not be so broad as it was originally granted. It should be so expressed that the defendants might distinctly understand what is prohibited. Their firm name is "J. & J. Clark & Co." They manufacture six cord cabled thread; they have George Clark as their agent in New York. All this they may express as well as the number of their thread. But they should express it so as not to appear to imitate the plaintiffs. This could be done by inserting their firm name, instead of only a part of it; by changing the order of the colors in the concentric circles, and the style of the lettering and the figures, and the position of the letters. There will

be still a similarity between the labels of the two that may mislead some. But this results from two persons af nearly the same name being in the same business, and the undoubted right of each to use his own name, and to describe the article which he sells by its well-known name, but does not result from an imitation of the mark of the others."

Faber v. Faber, 49 Barb. 357, A. D. 1867. Motion to continue injunction against defendant, restraining him from using the name of "Faber" as a trade-mark on lead pencils, etc.

Sutherland, J., remarks: "It is unfortunate for the plaintiff that he and the defendant, J. H. Faber, are both manufacturers of lead pencils at and near the same place in Germany, and they both have the same name, Faber; for it is easy to see that this circumstance may have been and may be an injury to the plaintiff; but the defendant Faber has a right to put or stamp his own name in gold, gilt, or other letters, on his pencils, and on the bands, wrappers or covers in which they are put up, as described in the complaint. And any injury which the plaintiff has suffered, or may suffer, by such use of the defendant's name merely, must be viewed as an injury without remedy. * * * There is nothing but the name of the maker stamped upon the pencils, viewed singly, calculated to deceive the purchaser of a single pencil, or of any number less than a dozen; and the maker had a right to put his own name on his own pencils."

Henry T. Helmbold v. Horace T. Helmbold, 1872. A motion came on before Justice Barnard to restrain Horace T. Helmbold from making, using, vending or disposing of a certain article of buchu, manufactured by him at his place of business in Troy, N. Y. Numerous affidavits were read on both sides, and his honor decided that the defendant, by changing the form of label and wrappers, had a perfect right to manufacture in his own name, as H. T. Helmbold, any article called buchu, and put up in bottles similar to the ones he had been using.-N. Y. Sun, Newspaper.

One other case, unreported, was referred to on the argument, which I will allude to here, because another opportunity may not occur. That was the case of the Dutchman's dog. Hans said to his neighbor: "Fy do you suppose I calls mine tog 'Tige?'" The neighbor said he couldn't guess. "Cause dat ish his name," was the reply. And so the defendants in our case call themselves Meneely & Kimberly, because that is their name, and until it is held that they are using it in connection with a fraudulent imitation of some device employed by the plaintiffs, they will probably continue so to use it.

Respectfully yours,

IRVING BROWNE,

(Of TOWNSEND & BROWNE), Counsel for Meneely & Kimberly.

The library of the Philadelphia Law Association contains nearly six thousand volumes.

H. C. Whitman, democratic candidate for supreme judge of Ohio, though a good lawyer, is a very eccentric man. Somewhere about 1819 or 1850, shortly after the defeat of Cass for the presidency, he made a vow never to cut his hair till Cass should be elected to that office, and, as Cass has not yet been elected president, the length of Mr. Whitman's hair must be somewhat extraordinary.

question whether conditions might not be devised which would meet this argument. If it were allowed that the jury should individually form their opinions, and then the verdict of the majority should forthwith prevail, all the advantages would be lost which result from the discussion of the subject by the jury as a whole, with a view to agreeing on a conclusion. As it is now, the individual juryman is forced to listen to reason, and to give weight to the opinion of his fellows. The sounder view may be taken by the minority at first, and there is opportunity afforded them to explain their views to the rest, and, if possible, turn the minority into the majority, and so in time bring round the whole. Each man's opinion is discussed, and each acts on his fellows, and is likewise acted on by them; so the result is a product of united thought and reasoning, not a mere addition of units of isolated judgment. If the opinion of the majority were to be immediately admissible, all this would no longer be the case. This argument appears to be so strong as to be fatal to any proposition that should admit of the verdict of a majority being at once receivable. But it does not seem impossible that some device might be adopted which should continue, as far as possible, the advantages of the old system while obviating its mischiefs. Might not a discretion be given to the judge as to accepting the decision of a majority, after the lapse of a sufficient time to exhaust all possibility of agreement? It does seem extremely doubtful whether it is really consistent with justice to the party in whose favor the majority is, to discharge the jury, as is now done, thus causing all the expenses of the trial to be thrown away. Could it be argued that if one member of a court in banc was of a different opinion, as to a point of law or a point of fact arising on a special case, from that of the others, therefore no judgment should be given? One is at a loss to see the difference between this case and that of a jury. The truth seems to be that the key-stone of the logical arch upon which the necessity for an unanimous verdict rested was taken out by the introduction of greater laxity in the way of discharging juries that could not agree. It is obviously just and expedient that the tribunal charged with determining a question should be obliged to give some decision between the parties. If they do not it is a denial of justice, and when the practice of forcing the jury to unanimity by starvation is abandoned, because it is seen to be monstrous and inconsistent with experience, the logical consequence is that, with due safeguards, the verdict of the majority should be admitted.

Many other arguments of more or less weight may be urged against dispensing with unanimity, but none seem to be so weighty as that already dealt with. It will be said that the parties will not be so much disposed to rest satisfied with the verdict of a bare majority, that motions for new trials will be more frequent, and so forth. This would, no doubt, be so, if the verdict of the majority were to be lightly taken in cases where deliberation would probably have produced unanimity. But in cases where, after due lapse of time, the difference proves irreconcilable, it is obvious that, under the present system, a new trial is necessary. There is, moreover, no reason why the judges should not display the same admirable firmness in refusing to allow the verdict of a majority to be set aside, where they cannot see their way to the conclusion that it is perverse or improper, as they do now in the case of unanimous verdicts. The cases to be met are not ordinary cases in which a jury, though they know they will

be ultimately discharged if they differ, do now generally come to an unanimous verdict; but cases in which the jury, after being locked up as long as the judge thinks it right to keep them locked up, will not agree. The question is, in such cases, what is right to the parties and in the interests of justice-to discharge them, and thus admit the incompetence of the tribunal to do justice at all; or to take the best conclusion that, under the circumstances, it could arrive at― viz., the verdict of the majority.-Solicitors' Journal.

NOTES.

A letter from Chicago, in the Toronto Globe, says: "One day last week a curious scene was enacted in one of the numerous courts of this city. A lady appeared as counsel for another woman. The young attorney was Miss Alta M. Hulett, having offices in the most crowded part of the south side, devoted to business and professional avocations. The case was a very simple one, and offered no fair criterion of the powers of Miss Hulett; but it afforded an opportunity for the display on her part of considerable abilities as a talker. Miss Hulett was born in Rockford, and, after graduating at the female seminary at that place, entered a law office, where she studied diligently for two years. Then she came to this city, and for a year read in the office of Messrs. Sleeper & Whitson, two respectable, but not very showy, members of the local bar. A week since she was admitted to the bar, after a severe examination before the supreme court. Miss Hulett is only nineteen years of age, and is of slight build; a brunette of the most pronounced type. She is a pleasant conversationalist, and while engaged in professional duties has not neg lected to acquire those accomplishments which constitute the charm of true womanhood. The unqualified success which has attended her first suit has drawn much attention to her, and, so far as her chances of progress in her profession are concerned, has been an excellent advertisement. The only legal journal issued in this city is published by a lady, Mrs. Myra Bradwell, who, however, has the advantage of having Judge Bradwell for a husband, and of forty years experience as against the nineteen years of Miss Hulett."

- Inasmuch as Weller v Weller, 28 Barb. 588, and Hatfield v. Sneden, 42 Barb. 622, are cited by Washburn on Real Property (3d ed. 134, note 19), in support of the text that the court of New York, differing from Lord Mansfield and Best, C. J., and following Park and Sugden, have held curtesy to be defeated where the wife's estate has determined and the estate passed over to another by force of the original limitation; the profession is interested to know that the commission of appeals have lately handed down an opinion reversing Hatfield v. Sneden, and overruling Weller v. Weller on this point, so that at present the law in New York stands the other way than that mentioned by Washburn.

- In the opinion in the case of Owens v. The State 27 Wis. 456, Chief Justice Dixon has a fine bit of sarcasm on the prevailing methods of legislation. He says: "In thus considering the act, we cannot forbear remarking it as a most singular instance of the sparing hand of legislation in this State, that there should still be found upon our books a statute so old as this-the work of the first legislative body assembled, after our organization and admission as a State. It stands, we believe, without rival or peer, as the only statute of the State of Wisconsin which has been permitted to attain the venerable age