to many of the most important authorities. Again, the index is not very good. The same case illustrates this. The point should be indexed certainly under Evidence, with perhaps a cross-reference to Res gesta. It is not so indexed, but it is indexed under Abortion. It is easy to correct these things.

CORRESPONDENCE.

DEMURRERS UNDER THE CODE.

To the Editor of the Albany Law Journal:

bound to their customers to keep all dispatches secret. The chancellor held that telegrams were not as such privileged communications, but were subject to compulsory production in the same manner as letters; that a telegram in charge of a company might be reached by the courts in the same manner as a letter in the hands of a messenger. If a dispatch is relevant and competent evidence and is described with sufficient certainty in the subpoena, the company cannot refuse to produce it. In a case like the present, public policy does not require that any means of communication should be protected against examination."

The Canada Law Journal says: "Is there any diver

On the decision of a demurrer the court orders the judgment to be entered, the clerk enters the judgment. The decision is not the judgment. "In common-law actions no judgment is pronounced except by the record which is made up in the clerk's office." MORGAN, J. Butler v. Lee, 3 Keyes, 76.

Suppose demurrer to complaint decisive for defendant. The order is that defendant have judgment, either with or without leave to amend. If leave to amend and amendment made, no judgment is necessary. If no leave to amend or leave not availed of, the clerk enters judgment (final) for defendant and makes up roll.

Suppose the same demurrer decisive for plaintiff. The order is that plaintiff have judgment, with or without leave to amend, and goes on to direct how the damages are to be assessed, and after assessment judgment for the amount assessed. If there is an amendment no judgment is necessary; if there is not an amendment, the clerk enters judgment (interlocutory) that plaintiff have judgment, and directing an assessment of damages, and that judgment be had for the amount assessed. A roll is made up. From this judgment the defendant may appeal.

My experience is that I can't make judges or opponents understand that this is the course to be pursued. X.

Judgment aflirmed with costs-Lawler v. Maher; The Watertown Ins. Co.; Guckenheimer v. Angevine; Lee v. Garguilo; Titus v. Glen's Falls Insurance Co.; Long v. The Mayor, etc., of New York; Seery v. The Mayor, etc., of New York; Preston v. Ganoung.

· Order affirmed, with costs- Williams v. Thorn; Chesterman v. Eyland; In re assignment of Lewis. Order affirmed and judgment absolute for defendant, on stipulation with costs- Ward v. Stahl. Appeal dismissed, with costs (one bill only in these two cases) - In re Townsend v. Nebenzahl; People ex rel. Townsend v. Lawrence, a Justice, etc. Motion for reargument denied, with $10 costs-Rogers v. Laytin.

the Solicitors' Journal? The tendency of the day in all matters-and legal matters form no exception seems to us to be toward over-elaboration. Essays such as Lord Bacon's could never be produced at the present day; where he would write an essay on a topic in a couple of pages, a tinker of the present day would occupy forty. The same kind of observation applies to many judgments of the present day.' In this connection we would commend the singular succinctness the comprehensive brevity of the opinions- of Chief Justice Waite of the Supreme Court of the United States. They are models of judicial directness for which the over-worked advocate is thankful in this age of voluminous judgments." The same journal thinks we were not quite fair in our recent remarks about the prevention by the Canadian authorities of the threatened prize fight. All we meant to say was, that the Canadian authorities probably would not have been put on their guard but for information from the timid backer of one of the principals.

The article by Mr. Seymour Van Santvoord, in another column, was his thesis on graduating at the Albany Law School. The author is a son of the late George Van Santvoord, of Troy, well known in law and in literature by his work on "Pleadings," and his excellent "Lives of the Chief Justices." It is evident that the name of the distinguished father is not to be lost sight of for want of a worthy inheritor. - We have received from Mr. Secretary Rosendale, a copy of the printed proceedings of the third annual meeting of the New York State Bar Association. On the contents of this report we have pretty fully remarked heretofore. The volume contains the prize essay of Mr. Viele on Codification, and also that of Mr. Ivins on the same subject. In the articles entitled "The Conflict of Courts," ante, p. 446, the writer seems to have been misinformed as to the case of Stone v. Bush. The case arose in Massachusetts instead of Pennsylvania, and was decided in the Federal Circuit, instead of the Federal Supreme Court. We are informed by the clerk of the latter court that the case has never been

decided in that court.

A correspondent writes us from Yokohama: "One of those curiosities of procedure which crop up at times in the most unheard of way, came under my notice recently and may interest you. It is that of a divorce of husband and wife on board the 'Bullion,' one of our American ships, in the course of her voyage from New York to Japan, pronounced by her worthy captain, arrayed for the time with the authority of the chancellor. The record of the proceeding as entered by the captain upon the 'log' of the ship is as follows: Feb. 6, at 7 P. M., lat. 40° 30′ S., long. 158° 32′ E., Charles Brown, cook, and Hariet Brown, stewardess, separated as man and wife, with their own free will and accord, dividing their clothes and signed clear of each other forever as man and wife, each taking separate rooms.

***

A dis

manual delivery or appropriation; it is not a domestic animal; nor an obligation; nor a product of labor or skill, nor a right created by statute. The advantages of membership are very important and of great value to their possessors, and from that consideration an argument has been drawn that the seat to which they are incident may be sold by the officers of the court. There is no doubt that if membership in certain clubs were put up at auction a very large bonus could be realized by members disposed to retire. But few would contend that therefore the privileges of social enjoyment afforded by the Century, the Union or the Union League Club was property subject to legal process. tinction has been drawn between membership in the Stock Exchange and membership in a social club, in view of the fact that the former was organized for business purposes, and that a member on withdrawing is permitted to get back the money which he paid on acquiring his seat. I fail to see the force of this distinction. Whether the club be founded to aid business or to promote pleasure, the privilege of membership is attached to the person of the individual." The Daily Register says that Judge Choate, in the United States District Court, and Judge Speir, in the Superior Court, have, in cases before, held views in opposition to those announced by Judge Van Hoesen. The cases above alluded to may be found set out in 20 Alb. L. J. 242.

The heathen Chinee having scored two victories in the law courts, namely, in the queue and corporation labor cases, has now met with a single defeat. In Re Wong Yung Quy, in the United States Circuit Court for the District of California (5 Pac. Coast L. J. 459), it is held by Sawyer and Hoffman, JJ., Sawyer, Circ. J., delivering the opinion, as follows: "The statute of California making it an offense to disinter or remove from the place of burial the remains of any deceased person without a permit, for which a fee of $10 must be paid, does not violate subdivision 3 of section 2, Article I of the Constitution of the United States, providing that 'Congress shall have power to regulate commerce with foreign nations." Nor does it violate subdivision 2 of section 10, Article I, providing that 'no State shall, without the consent of Congress, lay any impost or duties on exports.' Nor is it in conflict with the Fourteenth Amendment, which prohibits any State from denying to 'any person within its jurisdiction the equal protection of the laws.' Nor does it violate the fourth article of the treaty with China, called the Burlingame Treaty, which provides that "Chinese subjects in the United States shall enjoy entire liberty of conscience, and shall be exempt from all disability or persecution on account of their religious faith or worship.' The act is a sanitary measure within the police powers of the State, and as such is valid. A corpse is not property, and the remains of human beings carried out of the State for burial in a foreign country are not exports within the meaning of the clause of the National Constitution prohibiting the laying of

* * *

* *

imposts or duties by the State upon exports." The court remark: "The fact that the Chinese exhume and transport to their own country the remains of all or nearly all their dead (amounting to more than ninety per cent of all such removals), while other aliens and citizens comparatively but rarely perform these acts, only shows that this generality of practice requires more rigid regulations and more careful scrutiny, in order to guard against infectious and other sanitary inconveniences, than would otherwise be required. * The exhumation and removal of the dead is not a matter of public indifference, harmless in itself, like the style of wearing the hair, as in the Queue case; but it affects the public health, and its regulation is like the regulation of slaughter-houses and other noxious pursuits, strictly within the police powers of the State." The Chinaman's queue will be of little post mortem use to him as a means of being drawn into paradise, unless his body is present in his native land for the exercise of this capillary salvation. But after all it is only a matter of $10 license fee, and Mr. Wong Yung Quy ought not to grudge that trifling amount for such a vital object.

THE

NOTES OF CASES.

THE suit of Connell v. Reed, Massachusetts Supreme Court, April, 1880, was brought to restrain the defendants from infringing upon an exclusive right claimed by the plaintiffs in the words "East Indian," used together with the word "remedy or "remedies," as a trade-mark upon bottles of medicine. It was found that there was no evidence that any other person than the plaintiffs or their agents had ever used the above words in connection with the manufacture and sale of medicines; but that the plaintiffs used these words to denote that said remedies were used in the East Indies, that the formula for them was obtained there, and that some or all of the ingredients for their manufacture were procured there; and that such use of these words was untruthful and tended to deceive the public. The court said: "Although the maker reports that there was no evidence that any other person than the plaintiffs or their agents had ever used these words in connection with the manufacture and sale of medicines, it is at least doubtful whether words in common use as designating a vast region of country and its products can be appropriated by any one as his exclusive trade-mark, separately from his own or some other name in which he has a peculiar right. Canal Co. v. Clark, 13 Wall. 311; Taylor v. Carpenter, 3 Story, 458, and 2 Sandf. Ch. 603; Gilman v. Hunnewell, 122 Mass. 139. But the conclusive answer to this suit is that the maker has found, upon evidence which appears to us to be satisfactory, that the plaintiffs have adopted and used these words to denote, and to indicate to the public, that the medicines were used in the East Indies, and that the formula for them was obtained there, neither of which was the fact. Under these circumstances, to

note he still held, and by his delivering to R. D. Wood & Co., inter alia, the two notes first mentioned. These notes were procured by Boyer to be made by Seitzinger and indorsed by Huddell & Seitzinger, and delivered to him by false representations, to the effect that R. D. Wood & Co. needed accommodation, and desired the use of this security. Neither Seitzinger nor Huddell received any consideration therefor. R. D. Wood & Co. had no notice of this transaction, and supposed that the notes repre

ticed first. While the revenue law for purposes of taxation, distinguished between smoking tobacco and cigarettes, there is, we believe, no substantial difference. Cigarettes consist of smoking tobacco, similar in all material respects to that used in pipes. The circumstance that a larger cut (than that commonly used in pipes) is most convenient for cigarettes is not important; nor that the tobacco is smoked in paper instead of pipes. It may all be used for either purpose, and is all embraced in the term 'smoking tobacco.' We do not believe that the public or the trade draws such a distinction as the defendant sets up." "The dominating characteristic of the plaintiff's trade-mark is the name, 'Lone Jack.' His tobacco has come to be known

by this name to such an extent that the accompany

So.

ing device has ceased to be important if it ever was At home and abroad, to the trade and the public, it is familiarly known as 'Lone Jack,' and is thus designated as the plaintiff's manufacture, by purchasers and sellers. The defendant's application of this name to his smoking tobacco is an adoption and use of the essential part of the plaintiff's trademark. Surrounding it with a different device signifies nothing to the public. The defendant's name upon the cigarettes, if recognized, would not inform the public that the tobacco is not of the plaintiff's

manufacture. That the defendant's act is calcu

lated to mislead can hardly be doubted; that it has misled, the plaintiff's affidavits, we think, show; and the inference that the defendant supposed it would mislead, and intended that it should, cannot be well avoided. Why otherwise did he adopt this particular name? He knew it to be the recognized designation of the plaintiff's tobacco which had become popular." Citing McLane v. Fleming, 6 Otto, 245; Machine Co. v. Wilson, L. R., 3 App. 878. See ante, 444.

In Ex parte Wood & Co., U. S. Circuit Court, Eastern District of Pennsylvania, April 30, 1880, 8 W. N. C. 407, R. D. Wood & Co. received from one Boyer two promissory notes, made by Seitzinger to the order of the firm of Huddell & Seitzinger, and indorsed by them. R. D. Wood & Co. had delivered to Boyer two of their own notes to be used for specified purposes. Boyer converted to his own use one of these notes, whereupon R. D. Wood & Co. called upon him to return the other. The matter was settled by Boyer's retaining the

were duly protested. In an action upon them, the question was this: Is the holder of a negotiable note, who has taken it as a security for a pre-existing debt, a holder for value, and so protected against any equities subsisting between the original parties to it? The court said: "If the rule established in Pennsylvania by the decisions of her highest court is to be followed, it must be answered in the negative. But these decisions are only persuasive, as may be said also of a recent decision in this court by a late eminent judge conformably to the State rule. The question involved is not one of local law, but of general commercial jurisprudence, hence the duty of the court is imperative to follow the guidance of general judicial opinion concerning it. As to the preponderating weight of this opinion there is scarcely ground for doubt. In perhaps a majority of the United States, the law is settled that the taking of a note as collateral security for a

Such

pre-existing debt is a holding for value. So it is held in England. See Percival v. Frampton, 2 C. M. & R. 180; and Poirrier v. Morris, 2 E. & B. 89. It is stated to be the better doctrine in 3 Kent's Com. 81; in Story on Prom. Notes, § 195; in Pars. Prom. Notes, 218; and in Byles on Bills, by Sharswood, 28. It has the judicial sanction of Judge Story, in Swift v. Tyson, 16 Pet. 1, while the adoption of it is distinctly approved by the Supreme Court, in McCarty v. Root, 21 How. 439. weight of authority must be regarded in this court as decisive, and judgment is, therefore, entered for plaintiffs on the case stated." The doctrine of Swift v. Tyson is followed in Roberts v. Hall, 37 Conn. 205; Naglee v. Lyman, 14 Cal. 450; Fisher v. Fisher, 98 Mass. 303; Allaire v. Hartshone, 1 Zabr. 665; Cobb v. Doyle, 7 R. I. 550; Atkinson v. Brooks, 26 Vt. 574; Manning v. McClure, 36 Ill. 490; Valette v. Mason, 1 Smith (Ind.), 89; Banks v. Chambers, 11 Rich. 657; Sav. In. v. Holland, 38 Mo. 49; Outhwite v. Porter, 13 Mich. 533; Maitland v. Citizens' Nat. Bank, 40 Md. 540; S. C., 17 Am. Rep. 620; but the contrary is held in Coddington v. Bay, 20 Johns. 637, and Stalker v. McDonald, 6 Hill, 93; and in Napier v. Elam, 5 Yerg. 108. The extent of this decision as an authority on the point in question may be questioned. The reporter in connection with the case very pertinently remarks: "Was not W. a purchaser for value of the notes of S., at least to the amount of W.'s second note retained for his own use by B. with consent of W.? If so, then there would be a consideration as to the amount of the second note, and to that extent this opinion would not be decisive upon the question of collateral se