hibits any other supposition, but if the offense had been committed, not by a white woman of unblemished reputation, but by a white man of very bad character, would not he be protected upon the same principle? It is a manifest anomaly that courts of general jurisdiction should be powerless to punish crimes committed within their borders by aliens. We presume that United States courts have jurisdiction in such cases, and that other writs from those courts as well as the writ of habeas corpus will run in the Indian nations. NOTES OF RECENT DECISIONS. TRADE-MARK TRADE-NAME LABEL. We are favored by a valued correspondent with a newspaper report of a recent decision, rendered by Deady, J., on December 28, 1886, in the case of Coleman v. Flavel in the United States Circuit Court for Oregon. The facts were that Coleman & Co. of San Francisco are dealers in canned fish, especially salmon, and they have business relations with several "canneries" on the Columbia river and elsewhere, of which they are "sole agents," and whose products they sell guaranteeing quality. One of these canneries some time ago came to grief, financially, and made an assignment, and its stock in trade, material, etc., including a large number of labels for salmon cans with plaintiff's name on them as "sole agent" became the property of the defendants in the case under consideration. The bill was filed by Coleman & Co. to enjoin the defendants from using the labels which had on them the name of said Coleman & Co., "sole agents," in packing their goods and putting them on the market, because they had no right to avail themselves of the reputation which the plaintiffs had established, nor to injure that reputation by selling under those labels inferior goods which plaintiffs had not guaranteed, and would not guarantee. The court held that plaintiffs were entitled to the relief which they sought, saying that a "trade-mark may be constituted of ordinary words and is used for the purpose of signifying the origin or ownership of the article on which it is used, but not its quality;" and it is further held that "no one has a right to use the sign, label, or name, of another, whether it constitutes a trade-mark or not, so as to deceive the public and thereby divert from such other any portion of the trade or business established under and on the faith reposed in such sign, label or name." In support of this ruling the court cites several authorities,' which fully sustain the position assumed by the court. In the first of the cases cited Mr. Justice Strong says: "The office of a trade-mark is to point out distinctively the origin or ownership of the article to which it is affixed; this may, in many cases, be done by a name, a mark, or a device well known but not previously applied to the same article." This difficulty, however, is suggested by Mr. Browne, that the rule as stated by Mr. Justice Strong is too vague. Mr. Browne says, however: "But the learned jurist did not mean to intimate that the name of the producer must necessarily be an element of the mark or even accompany it; for he qualified his language by saying: 'a trade-mark must either by itself or by association point distinctively to the origin or ownership.'" In a New York case, decided in 1880, the court goes much further than Mr. Justice Strong, and says: "It is not essential to property in a trade-mark that it should indicate any particular person as the maker of the article to which it is attached. It may represent to the purchaser the quality of the thing offered for sale." So the court sustained a finding of the validity of trade-mark which did not indicate the inventor or maker or proprietor of the article, except that the initials of the latter appeared upon the label with other devices. And, in that case, the proprietor who claimed the benefit of the trade-mark was neither the inventor nor the maker of the article to which it was attached. The article was prepared for him by other persons in France, and was imported and sold by him in the United States. We think that Judge Deady is fully warranted by general principles of equity, irre 1 Canal Company v. Clark, 13 Wall. 322; Brown on Trade-Marks §§ 39, 144. See also Congress Spring Co. v. High Rock Spring Co., 45 N. Y. 291; Boardman v. Meriden Brittania Co. 35 Conn. 402. 2 Brown on Trade-Marks § 144. 3 Godillot v. Harris, 81 N. Y. 263. spective of technical trade-mark law, in holding that no one can be permitted to avail himself by the use of any device, symbol, name or label, of the custom, credit or reputation gained by the industry or ingenuity of another, and which custom, credit or reputation is in any manner or degree connected with such device, symbol, name or label. JUDGMENT BY DEFAULT. The effect of a judgment, by default, as long as it remains unvacated and unreversed, is, in every respect, the same as a judgment entered after a formal trial of the issues. Its conclusiveness and binding effect is the same, and the same rules govern any attempt to vacate or enjoin it.1 A judgment by consent or by default is binding and conclusive as res judicata; but nothing can be res judicata which is not in fact presented to the court and determined.3 The English cases are somewhat at variance with the American cases, as to the effect of a judgment taken by default where no evidence was introduced. In one case it was said: "A party is estopped from saying that any issue was improperly decided, but he is not estopped in a future action by an admission on the record. He is not to be estopped by any matter not in dispute, and upon which the jury never gave judgment." 5 6 In a New York case, the fact is emphasized that, although the judgment was by default, yet the court was required to take testimony and to have proof of the allegations necessary to plaintiff's recovery. The Illinois courts incline toward the English rule, and seem to deny that res judicata can arise, except when a court, after argument and consideration, comes to a decision in a contested matter." 1 Sohier v. Merrill, 3 W. & M. 179; Faulkner v. Campbell, Morris, 148; Mason y. Richards, 3 Gilm. 35. 2 Ellis v. Mills, 28 Tex. 584; Fletcher v. Holmes, 25 Ind. 458; Dunn v. Pipes, 20 La. Ann. 276; Derby v. Jacques, 1 Cliff. C. C. 425; Newton v. Hook, 48 N. Y. 676; Brown v. Mayor, etc., 66 N. Y. 385; Jarvis v. Driggs, 69 N. Y. 143; Doyle v. Hallam, 21 Minn. 515; Van Valkinburg v. Milwaukee, 43 Wis. 574. 3 Adams v. Adams, 25 Minn. 72; Colwell v. Bleadley, 1 Abb. App. 400. 4 Jenkins v. Roberts, 1 H. L. Sct. Ap. 177. 5 Carter v. James, 2 D. & S. 236. Contra, Boileau v. Rutlin, 2 Exc. 665. • Blair v. Bartlett, 75 N. Y. 150. 7 Wadham v. Gay, 73 Ill. 415. There can be no solid distinction between a judgment confessed and one tried and determined.8 After a default is declared, judgment may be entered either by the court acting judicially, or by the clerk acting ministerially. If the clerk has no authority by statute to enter a default, or having this, has no authority to enter judgment thereon, any judgment entered by him is void.9 "The clerk derives all his powers from the statute, and as they are special, no intentments are to be made in support of his act, but in each page it must appear that what he did was within the authority conferred on him by the statute; and whether the act done by him be considered as purely ministerial or of a mixed nature, partaking of elements both ministerial and judicial, is of no practical importance. The question is, had he the authority to enter the defendant's default and thereupon judgment final against him as the case stood at the time?" 10 But where the clerk has authority to act and exercises it erroneously, the question is: "Is the judgment void so as to be an absolute nullity, incapable of enforcement, or is it simply an erroneous judgment which may be enforced until modified on motion, made in the proper manner at the proper time, or on appeal from the judgment? In such case we do not think the judgment would be absolutely void, in consequence of an error of the clerk in determining the amount. It would be an error committed in the performance of an act within his jurisdiction to perform, which could be corrected on motion made in time, or on appeal, but which would not vitiate the judgment if not corrected. There is no want of jurisdiction over the subject-matter, but only an error in its exercise. Until modified or reversed, the judgment was valid.” 11 The entry of a default by the clerk being a ministerial act, "the disqualification of the judge or his court to try or render judgment in a case does not disqualify the clerk from 8 Bradford v. Bradford, 5 Conn. 127; Gates v. Preston, 41 N. Y. 113: Green v. Hamilton, 16 Md. 317; Gates v. Preston, 3 L. T. R. 221; Phillips on Ev., 270, note. 9 Sterns v. Aguirre, 7 Cal. 443; Chipman v. Bowman, 14 Cal. 157; Kelly v. Van Austin, 17 Cal. 564; Gliddon v. Packard, 28 Cal. 548; Wilson v. Clevelaud, 30 Cal. 192; Curry v. Rountree, 51 Cal. 149. 10 Providence Tool Co. v. Prader, 32 Cal. 634. 11 Bond v. Pachio, 30 Cal. 530. performing his ministerial act.” 12 default a proper subject for appeal, and reverse such judgments when the complaint fails to state a cause of action. The default cannot be held to admit any fact which the plaintiff did not think proper to allege.18 In a leading California case,19 the rule and its reasons are stated by Mr. Justice Sanderson, as follows: "Nor is there any force in the idea that a distinction is to be made between cases which were once denominated cases at law, and cases which were once called cases in equity, and that on appeal from judgments by default this court will review errors in the latter cases and not in the former. There is matter in some of the cases cited by the respondent which gives color to such an idea, but we say of them, as we have said of the others, there is no foundation for the distinction. Nor is there any force in the suggestion that this court will exercise origi There is a difference of opinion as to the effect of a judgment by default rendered on a complaint containing good and bad counts. Some courts hold that a judgment by default confesses all issuable facts of the several causes of action declared upon, and that the plaintiff's right to take on a good cause of action stated, cannot be affected by the fact that no judgment could be rendered on another count, in which no cause of action is stated. 14 In Massachusetts, where the contrary is held, the court said: "The damages,nal, instead of appellate jurisdiction, if it after a default, are general, and, without looking into the papers filed to see how the damages were in fact assessed, there is legal ground to assume that they were not assessed on this count. The rule is well settled in case of a verdict and general damages, when one count is bad in substance, that the judgment must be reversed, except where it can be amended by the certificate of the judge so as to show that the damages were assessed on tho good counts alone. The same reasons apply with even more force in case of general damages on a default." 15 Some difference of opinion prevails as to whether a defendant must appear and object by demurrer to a complaint which does not state facts sufficient to constitute a cause of action. On one hand, it is held that, if he neglects to avail himself of this remedy, he cannot be heard on appeal.16 A default cannot be reviewed by appeal. The remedy is to move, upon excuse, to have the default opened. Other courts hold a judgment by 12 People v. DeCarrillo, 35 Cal. 37. 17 18 When the complaint demands judgment, and the summons which is served with it contains the form presented by second subdivision of sections 54, ch. 66, Gen. St. Wis., clerk may enter default: Hemrick v. England (Minn.), 26 N. W. 122. 14 Hunt v. San Francisco, 11 Cal. 250. 15 Dryden v. Dryden, 9 Pick. 546; Hemmenway v. Hicks, 4 Pick. 496. 16 Adams v. Oaks, 20 Johns. 282; Pope v. Dinsmore, 8 Abb. Pr. 429; Dorr v. Birge, 1 Barb. 351; Golden v. Knickerbocker, 2 Cow. 31; Dean v. Abel, 1 Dick. 287. 17 Pope v. Dinsmore, 8 Abb. Pr. 429; Downing v. Harmon, 13 Ia. 535. entertains the points made in the appeal. It is true that, as matter of fact, the court below has never passed upon the sufficiency of the complaint; yet it is equally true that, as matter of law, it has. Though entered by the clerk, without the direction of the judge, it is as much the judgment of the court as if it had been announced from the bench, and the defendants are as much entitled to the opinion of the court upon the sufficiency of the complaint as they would have been had they appeared and demurred. Questions of jurisdiction and of the sufficiency of the complaint upon the point, whether the facts stated constituted a cause of action, are never waived in any case, and may be made for the first time in this court. The idea which finds countenance in some of the cases cited by the respondent, that at all events this court will deal more liberally with judgments by default than with others, and will pass over errors for which it would reverse a judgment rendered upon a trial, we here take occasion to say is with foundation. It is true, we will not reverse a judgment by default for mere technical defects in the com 18 Abbe y. Marr, 14 Cal. 210; Barron v. Frink, 30 Cal. 486; Choynski v. Cohen, 39 Cal. 501; Childress v. Mann, 33 Ala. 206. A default admits only matters well pleaded. Johnson v. Mantz (Ia.), 27 N. W. Rep. 467. No greater relief can be granted on default than is demanded in the complaint. Edleman v. Kidd (Wis.), 26 N. W. Rep. 116; Johnson v. Mantz (Ia.), 27 N. W. Rep. 467. 19 Hallock v. Jandin, 34 Cal. 167. plaint, which fall short of an entire want of something which is material to the plaintiff's right to recover. So the cases referred to declare, and in this respect they are sound. The error in those cases was in giving countenance to the implication that the court would do so in any case, not by declaring the rule to be universal. On the question of reversal, this court can make no distinction between judgments by default and judgments upon issue joined and tried, for the statute makes none. It will reverse the former where it would the latter." There may be error in a judgment by default, as well as in a judgment rendered upon issue joined, and in both cases it may be corrected on appeal.20 Order refusing to open a default on an application made before judgment may be reversed on appeal.21 There is no presumption of jurisdiction on appeal. The record must show affirmatively that jurisdiction was obtained. 22 Judgment will be opened when summons was radically defective, although service is shown.23 So, a judgment founded on a return signed by A, as "under-sheriff," will be set aside, because the court cannot recognize the act of a deputy sheriff, unless done in the name of the principal;24 or one entered before the expiration of the time allowed to answer. In addition to such radical defects as want of jurisdiction and failure to state facts sufficient to constitute cause of action, an appellate court will exercise its power on a judgment by default, so as to make it such a judgment, as should have been entered on the facts confessed by the default. Either party to an action may move to open a judgment rendered on default.26 So it may be vacated on motion of a stranger to the cause, to allow him to come in and be made a party.27 But the practice of opening a judgment and letting creditors in to defend is irregular. 28 20 Stevens v. Ross, 1 Cal. 94. 25 21 McGwin v. Case, 9 Abb. Pr. 160. See Clark v. Lyon, 2 Hilt. 91. 22 Schloss v. White, 16 Cal. 65. 23 Winslow v. Lombard, 57 Me. 356; Parle v. Herman, 8 Cal. 619. 24 Joyce v. Joyce, 5 Cal. 449. 25 Burt v. Scranton, 1 Cal. 416. 26 Montgomery v. Ellis, 5 How. Pr. 326. No one but a party to a judgment is entitled to relief under the statute.29 In many of the States, special statutes have been enacted authorizing, "the court, at its discretion and on such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment, taken against him through his mistake, inadvertance, or excusable neglect." In other States, the provision is substantially the same, except that the time is computed from the rendition of the judgment instead of from the time of notice thereof.3 30 These statutes are intended to apply to cases where the party was not present at the trial, and was not represented through some mistake or excusable neglect. They must be regarded as limiting the cases to applications made within the time and for the causes stated therein. They do not apply to motions made at the term at which the judgment is entered.33 Nor do they preclude a party from seeking relief in equity after the time limited in the statute has passed, where proper reasons are shown for the delay.34 The New York courts have interpreted this statute very liberally, going so far as to set aside a judgment on the ground that neither party assented to the contract as understood by the other. 35 31 29 Kan v. Chalfaut, 7 Minn. 487, Gil. 393. One not a party to the proceedings in which default was entered on service by publication, and who appears in his own right, is not entitled to have such judgment opened and the case re-tried under Iowa Code, § 2877; Parsons v. Johnson (Ia.), 24 N. W. Rep. 921. 30 See Stocking v. Hanson (Minn.), 28 N. W. Rep. 507; Washburn v. Sharp, 15 Minn. 63; Holmes v. Campbell, 13 Minn. 66; Wieland v. Shillock, 23 Minn. 227. 31 McKinley v. Tuttle 43 Cal. 239. 32 Gerrest v. Johnson, 5 Minn. 23. See Pier v. Millard, 22 N. W. Rep. 759, for construction of Wisconsin statute. 33 McCullock v. Doak, 68 N. C. 267. 34 District v. White, 42 Iowa, 608; Bond v. Epley, 48 Ia. 600. On an application under this statute there is no presumption of want of proper diligence: Frankovitz v. Ireland (Minn.), 28 N. W. Rep. 508. 35 Levy v. Joyce, 1 Bosw. 122. 36 Carter v. Torrance, 11 Ga. 654; Eldred v. Hazlett. 38 Pa. St. 16; Wooster v. Woodhull, 1 Johns. Ch. 539; Leighton v. Wood, 17 Abb. Pr. 177; Norton v. Nixon, 24 Ill. 439; Washburn v. Sharpe, 15 Minn. 63 (Gill. 43); Reagan v. Medden, 17 Minn. 402, (Gill. 378). 41 rily. 37 It must be liberally construed. 38 Orders granting and denying such applications may be reviewed on appeal, but they will be disturbed only in case of "gross abuse of the discretion of the court."'40 Such abuse must be affirmatively shown. On a motion to open a default, the court will not determine absolutely as to the sufficiency of the defense proposed to be used at the trial, but where it clearly appears that the defense suggested has no foundation in fact, that may be taken into consideration in disposing of the application.42 The object of all statutes authorizing the opening or setting aside of judgments by default is the furtherance of justice, and not to enable the party to avail himself of a purely technical defense. "Every consideration of expediency and justice is opposed to the opening up of cases, in which judgment by default has been entered, unless it be made to appear prima facia that the judgment as it stands is unjust.' In all cases an affidavit of merits must be made and filed. In Illinois, Indiana, Texas, and Missouri, it must set forth matter constituting a good and meritorious defense.44 In some cases it held 943 37 Wieland, v. Shillock, 24 Minn. 345; Bailey v. Taafe, 29 Cal. 422; Johnson v. Eldred. 13 Wis. 482; Powell v. Weith, 68 N. C. 342. 38 Roland v. Kreyenhagen, 18 Cal. 455; Mason v. McNamara, 57 Cal. 274. 39 Mulholland v. Heyneman, 19 Cal. 605; Haight v. Green, 19 Cal 113; Hill v. Crump, 24 Ind. 291; Leighton v. Wood, 17 Abb. Pr. 177; Carter v. Torrence, 11 Ga. 654; Parker v. Grant, 1 John. Ch. 630; Eldred v. Hazlett, 38 Pa. St. 16. 40 Howe v. Independence Co., 29 Cal. 72; Woodward v. Backus, 20 Cal. 137; Merritt v. Pullman, 7 Minn. 492; Bailey v. Taafe, 29 Cal. 422; Frazier v. Bishop, 29 Mo. 447; Ewing v. Peck, 17 Ala. 339; Palmer v. Hutchins, 1 Cow. 42; W. & W. Mfg. Co. (Wis.), 24 N. W. Rep. 109; Sandberg v. Berg (Minn.), 28 N. W. Rep. 255. 41 Willett v. Millman, 61 Iowa, 123; Nugent v. Nugent, 54 Mich. 557. 42 Catlin v. Latson, 4 Abb. Pr. 248; Catlin v. Billings, 13 How. Pr. 511; Com's of Ex. v. Hollister, 2 Hilt. 588. 43 Parrott v. Den, 34 Cal. 79; Thatcher v. Haun, 12 Iowa, 303; Wooster Coal Co. v. Nelson, 4 Up. Ca. Pr. R. 343; Mulhollan v. Scroggin, 8 Neb. 202; Anderson v. Beebe, 22 Kan. 768; Niagara Ins. Co. v. Rodecker, 47 Ia. 162; Bank v. Foot, 77 N. C. 131. 44 Lamb v. Nelson, 34 Mo. 501: Foster v. Martin, 20 Tex. 118; Roberts v. Carty, 86 Ill. 182; Costlio v. Bishop, 51 Mo. 162; R. R. Co. v. Gates, 23 Ind. 238; Goldsbury v. Carter, 28 Ind. 59; Shields v. Taylor, 21 Miss. 127; Frost v. Dodge, 15 Ind. 139. Copy of affidavit should be served on adverse party: Hall v. O'Brien, 5 Ill. 405. See Hill v. Crump, 24 Ind. 291. Court may consider the character of the affiant, and where he has served a term in the penitentiary for crimen falsi, disbelieve the affidavit: Schoenbut's Appeal (Pa.), 5 At. Rep. 619. that a verified answer will obviate the necessity of an affidavit of merits, but this is not the general rule, as all the facts may not be stated in the answer. But in order that the court may be informed of the character and sufficiency of the defense, the answer which it is proposed to file should accompany the application. But, in addition to having an answer, it must be made to appear prima facie that the defendant has a defense which is sufficient.46 The affidavit need not necessarily be made by the defendant, but may be made by another where satisfactory reasons are shown. Where made by defendant it is not absolutely indispensible that the facts relied on be detailed. But a mere statement that the defendant has a good legal defense is not sufficient, as it may be merely technical.47 So an affidavit that affiant had stated "his defense to his attorney is insufficient, because it does not show that he stated all the material facts affecting the action. It should show that he stated "the case. An affidavit, stating that the case had been fully and fairly represented to counsel, who thereupon advised him that he had a good, full, and perfect defense on the merits, is sufficient.49 He must state that he has "fully and fairly stated the facts of the case to his counsel."'50 A judgment by default, entered before the court acquired jurisdiction of the case, may be set aside without an affidavit of merits.51 When circumstances throw suspicion upon defendant's case, a special affidavit should be required. 52 Where the affidavit is made by 45 Babcock v. Terry, 4 Wis. 51; Thatcher v. Haun, 12 Iowa. 303; Wells v. Cruger, 5 Paige, 164. 948 46 Stewart v. McMartin, 2 How. Pr. 38; Bogardus v. Doty, 2 How. Pr. 75; Reese v. Mahoney, 21 Cal. 305; Miller v. Alexander, 1 N. J. L. 400; Stevens v. Helm, 15 Ind. 183; Robinson v. Sinclair, How. Pr. 106; Alberti v. Peck, 1 How. Pr. 230; Draper v. Bishop, 4 R. I. 489; Watson v. Newsham, 17 Tex. 437; Cook v. Phillips, 18 Tex. 31; Butler y. Mitchell, 15 Wis. 355; Adams v. Hickman, 43 Mo. 168; Dall v. Bugh, 16 Ind. 233; Campbell v. Garten, 29 Mo. 333; Palmer v. Russell, 34 Mo. 476; Lamb v. Nelson, 34 Mo. 501; Quinn v. Case, 2 Hilt. 467; Jones v. Russell, 3 How. Pr. 334; Mowry v. Hill, 11 Wis. 146. Changed by statute in Wisconsin: See Omro v. Ward, 19 Wis. 232. 47 People v. Rains, 23 Cal. 127. 49 Woodward v. Backus, 20 Cal. 137. 50 Nickerson v. California R. Co., 61 Cal. 268; Morgan v. McDonald (Cal.) 11 Pac. Rep. 350. 51 Rice v. Griffiths, 9 Ia. 539. A defendant defaulted after the service by publication need only aver that he had no actual notice and that he has a good defense: Snow v. Hampe, 22 Tex. 168. 52 Dix v. Palmer, 5 How. Pr. 233; Ellis v. Jones, How. Pr. 296. |