wordGuaranteed was not so distinctively and exclusively applicable to the plaintiffs' corset as that the court would restrain the defendants from using the same word in connection with their corset. I do not find from the evidence I have heard that any person ever attached to the word Guaranteed" the meaning that the corset was the make of Symington & Co. If that is so, the case fails upon the only point argued before me, because what the defendant did was this: They found no doubt that this kind of corset was having a large sale. They discovered, as anybody easily could, what was the system of guaranteeing adopted by Messrs. Symington & Co. The defendants are also makers of corsets, and they determined to adopt the system. It was perfectly right. They had as much right to do it as the plaintiffs had. They sold their corsets in boxes. Their corsets were cheaper in price, and were of inferior make; and they put upon the boxes a label, with the words in large letters, "Guaranteed Corset." But they put other words on the label, and no person could mistake one label for the other. That is admitted, otherwise I suppose I should have heard some argument on the question of trade-mark. It is admitted that so far as infringement of trade-mark goes, this case could not be supported for a moment. Now are the defendants so wrong in doing that which they have done in using the word "Guaranteed" that the court can restrain them by injunction? I cannot at all see that the court can do so. If I could by any means believe that the word "Guaranteed" had attached itself to the plaintiffs' corsets, so that the public had come to understand that a particular kind of corset, or any corset made by the plaintiffs, was called "Guaranteed," then I could understand the case. But on the evidence before me it is shown that the plaintiffs make a great number of different corsets, and that they never attach these words "Guaranteed Corsets" excepting to tho corset to which they attach the guarantee, and that then they attach the guarantee in the way I have pointed out, by affixing the label and putting the postcard in the box. As I have already observed, the plaintiffs have never by any means given the public to understand that "Guaranteed Corset" meant any thing else but this, a corset which we will guarantee." Consequently I am quite unable in that state of circumstances to say that the plaintiffs have made out that which is the first step of their case-that "Guaranteed " has come to be the description of corsets made by them. I am satisfied that it has not come to have that meaning. Never having had any meaning but "a corset which we will guarantee,' anybody else who guarantees a corset has, it seems to me, a perfect right to use the words "Guaranteed Corset." That being the only complaint urged before me, and the only reason put forward as a reason why this action should succeed against the defendants, I must say that in my opinion the action fails. I think I ought to dismiss this action, and that the costs should be paid by the plaintiffs. Chan. Div., March 17, 1887. 56 L. T. Rep. (N. S.) 696. Symington v. Footman. Opinion by Kay, J.

66

NEW BOOKS AND NEW EDITIONS.

LABOR AND POLITICS. Trade Organizations in Politics, or Federalism in Cities. By J. Bleecker Miller. 1887.

We have received a copy of this work for review, and accordingly give it such space as opportunity offers, and this, we regret to say, is not very much. We are not attracted by the curious paradox and anti

climax of the title, "Federalism in Cities." In the first place, the word "Federalism" in America has become a term of political science, denoting some phase of a relation of political aggregation much greater than cities, so that it sounds to us very odd to hear of "Federalism in cities." But the epigrammatic use of this sounding phrase perhaps justifies Mr. Miller's use, and we pass on to the matter of the book without further discussion of the accuracy of the mere label.

The writer of this work does not profess that the volume he now gives to the public has as a whole much continuity. It purports to be a collection of essays on various cognate themes. Some of these seem to be spoken addresses, others lectures, and one or two political "speeches delivered * * * against the heresies of Henry George." As collected, the essays now stand together under the title we have ventured to question.

The place of emphasis in the volume is given to the "Paper on Trade Organizations in Public Affairs," which opens with a somewhat occult analysis of a very venerable institution, and grows slowly into the very modest suggestion that such organization may be useful in the present disorganized condition of public affairs. The conclusion is so very innocuous, and the demonstration so very stately, that one is left at the end in a condition of bewildering uncertainty as to whether or not he has "caught on," as the cant phrase goes.

In the succeeding paper, "Federalism and the Social Contract Theory," the author is at his best, and the essay is, to say the least, a very creditable performance, barring some curious inversions of correlated members of sentences, such as "Ulysses * * gives no explanation of why Agamemnon was entitled to such a large share of the spoil, and so many beautiful women beyond the heavy weight of his staff." Of course it is obvious that Mr. Miller does not mean to say that the beautiful women were beyond the weight of Agamemnon's staff-unless this word "staff" has some secondary meaning which we do not understand -but he does mean to say that no other "explanation beyond the weight of his staff,” etc. This may be said though to be very a minute style of criticism, and so no doubt it is, and we hurry on to the more important matters of the essay. Mr. Miller has the advantage of being a very excellent German scholar, and in his discussion of the social contract theory he certainly speaks accurately, and not at second hand, of his GerWhile to no single conclusion of Mr. Miller's own do we give our assent, yet we concede that his collation of the various philosophers imbued with this particular theory is in itself valuable for reference. Admitting this, we protest against the very flippant reference to Austin (p. 90) as "hopelessly befogged by the various meanings of legal terms, and by lack of historical knowledge." Mr. Miller is not entitled to speak thus of so distinguished a scholar and so influential a jurist as John Austin.

man sources.

Mr. Miller's "Progress and Robbery," by which title he dubs his political speeches against Mr. George's candidacy for the mayoralty, do not appeal to us as powerful antidotes to one of the most mischievous of economic heresies. No doubt Mr. George's literary style has subjected him to more respectful treatment than his pernicious and detestable theories warrant, but at the same time Mr. Miller's knock-down answers to Mr. George's notions are by no means adequate replies, and to that extent they are even baneful to a good cause.

One merit-and a great one it is in any author-Mr. Miller possesses beyond all other philosophers we know of: he is invariably most amusing, and in dogdays this is no small quality.

ration acting under the authority of Congress, if such power exists in the national government. He then took up the question of the extent of this power, and asserted it in the broadest terms. He repeated the expression, so frequently used of late by the Supreme Court in its great constitutional discussions, commercially this is one country;' and he enforced it with a new expression which will be long remembered, 'In matters of foreign and inter-State commerce there are no States.' He declared that the power of Congress is supreme over the whole subject, unimpeded and unembarrassed by State lines or State laws; that in this matter the country is one, and the work to be accomplished is national, and that State interests, State jealousies and State prejudices do not require to be consulted.'" We shall give the text of this decision when it reaches us in official form. The Journal approves the doctrine here laid down, remarking: "It will be manifest to any one who will study the line of decisions of the Supreme Court from Gibbons v. Ogden down to those delivered in May last, that this opinion of Mr. Justice Bradley broaches no new doctrines. It only asserts those already established, with an emphasis drawn out by the occasion." The decision may well be a surprise to the New Jersey people, coming from a judge appointed from that State, and as we infer from from what we have heard, not at all hesitating or mealy-mouthed.

A correspondent in another column makes some suggestions about filling the vacancy on the Supreme Court bench with which we cordially agree, and which are in accord with what we have heretofore said on the subject We have never supposed that the name of Mr. Lamar in reference to this place was any thing more than a tub to a whale. At all events we should regard this appointment as very unwise. As our correspondent urges, we believe that the new judge should be a civilian, and naturally we look to Louisiana for such a man. We have already suggested the name of Chief Justice Bermudez. Since then we have heard that of Mr. Semmes suggested. The latter has the advantage of being a learned common lawyer as well, and his nomination would receive the hearty acquiescence of a great many lawyers in all the States, who have become acquainted with his commanding talents through the meetings of the American Bar Association. It is hoped that the president will not make a mistake similar to that which General Grant once committed in naming a politician for this judicial place.

Superserviceability. we hope there is such a word, but if there is not we will make it, as the judges make law is a very bad fault in a judge, and it has recently been strikingly illustrated by ex-Judge Noah Davis as referee to perpetuate testimony in the Ives case. The referee was anxious to distinguish himself by extra devotion to public interests, as he was in the Tweed and Morey cases,

and so he presented the singular and unprecedented spectacle of a referee, on a proceeding to perpetuate testimony, asking questions of the witnesses and expressing opinions. Now, Chief Justice Lawrence of the Common Pleas has held that this sort of thing is improper, and that the testimony thus elicited must be struck out. The next thing in order is for the referee to abuse the chief justice. "Never bite off more than you can chew" is an excellent motto for a judge or an ex-judge, and this ex-judge would do well to pencil it on his cuff for handy reference.

Senator Ingalls is represented by a Tribune reporter as urging men not to patronize barbers, but to shave themselves. If this reporter is to be believed, the senator says that a man "feels that he has acted like a gentleman," if he shaves himself. This may be so in his case, but not so in ours; we feel that we have acted like a butcher. Then the senator says there is a great deal of time lost at barbers' shops. This need not be so in the case of professional men; they can take some reading with them. We have read many columns of proof, and turned over many volumes of reports and many periodicals, while waiting for the announcement of "next gent." Then we like to listen to the talk of barbers. As we do not belong to a women's sewing society or a men's club, we do not despise the gossip and news and politics which our barber emits. Barbers are too much abused. It does a lawyer good to be placed periodically in a position where he can not talk, and must listen, and then he will know how to feel for judges and juries when he is soft-soaping them. By all means let us encourage the barbers.

Gibson's Law Notes brings us news of several singular law-suits and decisions. The House of Lords have held that a horse is part of the "plant of a wharfinger, and that viciousness in the horse is a defect in the plant," within the Employers' Liability Act. Justice Chitty has granted a year to certain executors to choose legatees for a bequest of 501. each to six curates of the Church of England whose respective incomes are less than 1007., and who should have four children apiece. The time is too long; it should have been less than nine months; otherwise a child may be forthcoming where it does not now exist. Two thousand wills, dated between 1258 and 1348, have been discovered. In 1670 a sum of money was subscribed by dwellers in East Kent for a plate to be run for on Barham Downs. It has not been contested since 1881, and the interest has been accumulating. Now a man applies to the court for the interest on the ground that he had ridden over the course on the sly ever since. He did not get it. Justice Mathew sent a man to prison for four months for stealing money belonging to his wife from the conjugal bolster, and a wife has been sent up for seven days for smashing the windows of her husband's house. In 1886 a

If

resented to the purchaser that she was barren, and for this reason a bargain was made to sell at a price per pound, at which the cow would have brought about eighty dollars. The purchaser also appeared to believe that the cow was barren. Before delivery it was discovered that she was with calf. the cow would breed she would be worth from $750 to $1,000. Held, that the seller had a right to rescind, and to refuse to deliver. The court, by Morse, J., said: "I know that this is a close question, and the dividing line between the adjudicated cases is not easily discerned. But it must be considered as well settled that a party who has given an apparent consent to a contract of sale may refuse to execute it, or he may avoid it after it has been completed, the assent was founded, or the contract made, upon the mistake of a material fact such as the subject-matter of the sale, the price, or some collateral fact materially inducing the agreement; and this can be done when the mistake is mutual. 1 Benj. Sales, §§ 605, 606; Leake Cont. 339; Story Sales (4th ed.), §§ 377, 148. See also Cutts v. Guild, 57 N. Y. 229; Harvey v. Harris, 112 Mass. 32; Gardner v. Lane, 9 Allen, 492; 12 id. 44; Huthmacher v. Harris' Adm'rs, 38 Penn. St. 491; Byers v. Chapin, 28 Ohio St. 300; Gibson v. Pelkie, 37 Mich. 380, and cases cited; Allen v. Hammond, 11 Pet. 63-71. If there is a difference or misapprehension as to the substance of the thing bargained for; if the thing actually delivered or received is different in substance from the thing bargained for, and intended to be sold, then there is no contract; but if it be only a difference in some quality or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both of them, yet the contract remains binding. The difficulty in every case is to determine whether the mistake or misapprehension is as to the substance of the whole contract, going, as it were, to the root of the matter, or only to some point, even though a material point, an error as to which does not affect the substance of the whole consideration.' Kennedy v. Panama, etc., Mail Co., L. R., 2 Q. B. 580, 587. It has been held, in accordance with the principles above stated, that where a horse is bought under the belief that he is sound, and both vendor and vendee honestly believe him to be sound, the purchaser must stand by his bargain and pay the full price, unless there was a warranty. It seems to me however in the case

made by this record, that the mistake or misapprehension of the parties went to the whole substance of the agreement. If the cow was a breeder she was worth at least $750; if barren, she was worth not over $80. The parties would not have made the contract of sale except upon the understanding and belief that she was incapable of breeding, and of no use as a cow. It is true she is now the identical animal that they thought her to be when the contract was made; there is no mistake as to the identity of the creature. Yet the mistake was not of the mere quality of the animal, but went to the very nature of the thing. A barren cow is substantially a different creature from a breeding one. There is as much difference between them for all purposes of use as there is between an ox and a cow that is capable of breeding and giving milk. If the mutual mistake had,simply related to the fact whether she was with calf or not for one season, then it might have been a good sale, but the mistake affected the character of the animal for all time, and for its present and ultimate use. She was not in fact the animal, or the kind of animal, the defendants intended to sell or the plaintiff to buy. She was not a barren cow, and if this fact had been known there would have been no contract. The mistake affected the substance of the whole consideration, and it must be considered that there was no contract to sell or sale of the cow as she actually was. The thing sold and bought had in fact She was sold as a beef creature she is in fact a breeding cow, and a The court should have instructed the jury that if they found that the cow was sold, or contracted to be sold, upon the understanding of both parties that she was barren, and useless for the purpose of breeding, and that in fact she was not barren, but capable of breeding, then the defendants had a right to rescind, and to refuse to deliver, and the verdict should be in their favor." Campbell, C. J., and Champlin, J., concurred; Sherwood, J., dissented. Compare this with the diamond case, Wood v. Boynton, 64 Wis. 265; S. C., 54 Am. Rep. 610.

no existence. would be sold; valuable one.

In Chapin v. Brown, Rhode Island Supreme Court, July 23, 1887, owners of land in a country town platted it into sixty-six house lots with streets, and recorded the plat. A. purchased one of the lots by reference to the plat. At the time of purchase the street on which the purchased lot fronted was in fact closed by a gate, though the plat showed it unobstructed. A. removed the gate, whereupon B., a purchaser of lots adjoining A.'s, erected a gate across the street on the line between his lots and A.'s. Held, that A. was entitled to enjoin B. from maintaining the gate. The court said: "In Breed v. Cunningham, 2 Cal. 361, decided in 1852, the law is thus laid down: 'Where lots are sold as fronting on or bounded by a certain space, designated in the conveyance as a street, the use of such space as a street passes as appurtenant to the grant, and vests in the grantee in common with the pub

lic a right of way over said street.' And see Smiles v. Hastings, 24 Barb. 44; 22 N. Y. 17; Cox v. James, 45 id. 557. In City of Dubuque v. Maloney, 9 Iowa, 450, decided in 1859, the court held the following language, to wit: 'If the owner of land lays out a town and exhibits a plan thereof, on which are represented various plats of space or vacant ground, such as streets, alleys, squares, quays, etc., and the lots are sold with reference to the plan, the purchasers of the lots acquire, as appurtenant to the same, every easement, privilege and advantage which the plan represents as belonging to them. The sale and conveyance imply a grant or covenant to the purchasers that the streets or other public places indicated as such upon the plan shall be forever open to the use of the public, free from all claim or interference of the proprietor inconsistent with such use.' Citing Rowan's Exec'rs v. Town of Portland, 8 B. Mon. 232; Livingston v. Mayor of New York, 8 Wend. 85, 106; Wyman v. Mayor of New York, 11 id. 486. In Bartlett v. Bangor, 67 Me. 460, decided in 1878, the court says: When the owner of land within or near to a growing village or city divides it into streets or building lots, and makes a plan of the land thus divided, and then sells one or more of the lots, he thereby annexes to each lot sold a right of way in the streets, which neither he nor his successors in title can afterward interrupt or destroy, and we think reason and the weight of authority are in favor of holding that such a platting and selling of lots constitute an incipient dedication of the streets to the public, which the owner of the land cannot afterward revoke. The dedication is not complete till the streets are accepted by competent authority, or the public has used them for at least twenty years. But so far as the owner of the land is concerned, such acts constitute a proposition to dedicate, which he cannot afterward withdraw.' And see Dill. Mun. Corp., §§ 503-5; Angell Highways, § 149; City of Indianapolis v. Kingsbury, 101 Ind. 200. In Taylor v. Helper, 2 Hun, 646, decided in 1874, the rule is stated thus: When the proprietor of land surveys, maps and lays out such land into lots, numbering them, with streets designated, named and put down on the map, as between him and a grantee of a lot bounded on one of the designated streets, his conveyance is per se a dedication of the street to the use of his grantee as a street, as between the grantor and grantee it is a street, which the latter has a right to use as such as soon as the conveyance is made to him. By force of the grant an easement is attached to the land granted, which thereby becomes an appurtenant, viz., a right of way on and over the street, designated as a street for the use of the lot conveyed.' And see De Witt v. Village of Ithaca, 15 Hun, 568; Potter v. Iselin, 31 id. 134; Cox v. James, 45 N. Y. 557; In re Eleventh Street, 81 id. 436. The ratio decidendi of these cases is this: that when the grantee of a lot so platted purchases it, the existence of the streets as platted, inasmuch as they add value to the lot by the conveniences or advantages which they promise, is an inducement

* *

to the purchaser, and so enters into the consideration as between the grantor and grantee, and operates by way of implied covenant, implied grant, estoppel or dedication, whichever way of operation may be the truer, to secure to the grantee a right of way over such platted streets, and reciprocally to subject any interest which the grantee may acquire therein to a right of way for the benefit of the other platted lots. And see Steam Engine Co. v. Steamship Co., 12 R. I. 348; Grogan v. Town of Hayward, 6 Sawyer, 498. In some of the cases above cited the doctrine is not laid down as applicable to other than plats of urban or village lots; but we can see no reason why it should not equally apply, at least as between the lot owners, to a plat of lots numbering sixty-six, delineated with intersecting streets, for that number of lots, if occupied with houses, would be a village. * The defendant contends that inasmuch as the east end of North avenue was closed by a wall and gate when he purchased, he is entitled either to have the wall and gate replaced or to maintain his fence and gate across the avenue for the protection of his land. He adduces no authority for his position. Certainly, if every lot along North avenue had been bought by a different person it could not be maintained that every purchaser, if he chose, would have the right to obstruct the avenue by a fence and gate for the protection of his lot. The language of the cases generally imports that the right which a purchaser of a lot on a plat of lot acquires to pass and repass over the platted streets or ways is as full and unrestricted as if such streets or ways were public highways. North avenue is represented on the plat as open at the east end, and the plat does not indicate any obstruction anywhere in it which would lead a purchaser to suppose that it was intended to be incumbered by gates and fences, from the highway on the east to the highway on the west. Our conclusion is that the complainants are entitled to have the fence and gate removed from North avenue, on which lot 31 abuts, and kept removed, and we will decree accordingly."

COMMON WORDS AND PHRASES.

BRASS

RASS KNUCKLES.-A statute prohibiting carrying brass knuckles is infringed by carrying steel knuckles. Harris v. State, Tex. Ct. App., Jan. 22, 1887. The court said: "The only question in the case is, are knuckles made of steel, or any other material except brass, within the meaning of the term, brass knuckles,' used in the statute? The trial judge held that brass knuckles meant steel or any other metal knuckles. In this view we concur. We understand the words 'brass knuckles,' as used in the statute, to signify a certain weapon used for offense and defense, worn upon the hand to strike with, as if striking with the fist. This weapon, when first known and used, was commonly made of brass, but is now made of steel, platinum or other heavy metal, as well as