Hamilton Common Pleas. 340 may exercise it. They have no power to issue process until council has passed an ordinance authorizing its exercise, and an ordinance can not be passed by one board; it must be passed by both boards. They may empower a specified committee, to exercise the power that is here delegated, but the intention of the legislature was that it should be submitted to the common council, and not to any existing board, or one or two or three members. I do not know how many boards the council may have; they may have fifty, and the idea would be to erect each of these fifty boards into so many different courts to go to work and summon the community in before them to investigate what one of the members of such board might want investigated. That is not the intention of the legislature at all. If anything needs. investigation, the common council, shall, by ordinance, provide for it and designate the committee that shall have the exercise of this power. In this view of the case it is, of course, unnecessary to go into the other questions as to what matters are included within their range, because the preliminary step giving them jurisdiction to issue compulsory process has not been taken. They always have the jurisdiction to investigate as much as they please, but the jurisdiction to issue compulsory process and commit to jail was vested in the mayor and police court judge before the change, and since the change the exercise of the power is given to council after they pass an ordinance for that purpose, and not before. Jerome D. Creed and Wulsin & Perkins, for plaintiff. Horstman, Hadden & Galvin, City Solicitors, for defendants. 349 LANDLORD AND TENANT. [Superior Court of Cincinnati, General Term.] Peck, Taft and Moore, JJ. †MARY A. DEE V. THOMAS J. AND J. J. EMERY. Where premises let to a tenant include a walk appurtenant to the property, to which certain other tenants of the same landlord have a right of access and use, the landlord, in the absence of a contract to that effect, is not bound to keep such walk in repair, and is not responsible in damages to the tenant if injured by reason of the defective condition of the walk. RESERVED on motion for a new trial. PECK, J. The action was brought by plaintiff to recover damages for a personal injury received by her from a fall occasioned by a defective plankwalk in the rear of the premises occupied by her as tenant of the defendant. There are allegations in the petition which assume the right of plaintiff to recover upon two grounds: That defendants had agreed with plaintiff to repair the walk in question, and that by reason of their failure to comply with that agreement the injury had been occasioned; and also that the walk was upon property owned by defendants, and under their †A judgment of the circuit court of Hamilton county in the case of Thomas J. Emery et al. v. Mary A. Dee, was affirmed by the Supreme Court without report, March 8, 1892. control, and it was their duty to keep it in repair, and by reason of their failure to perform that duty the plaintiff was injured. There was a failure of proof as to the first of the alleged grounds of recovery, and the case went to the jury solely upon the question whether the defendants were bound, without regard to contract, to repair the walk, and whether their failure so to do caused the injury to plaintiff without any contributory negligence on her part; and the jury returned a verdict for plaintiff. Whether defendants were bound to repair, obviously depends upon the question as to who had control of the property on which the walk was situated. It was claimed on the part of the plaintiff, that the walk was not included in the premises let to her by defendants, while the later assert that it did constitute a part of such premises, which consisted of a house and lot, the house being one of a block of eleven houses owned by defendants. The walk in question was in the rear of the block, extended its whole length, and was used by the tenants of all the houses as well as by others in going to and from the various houses. Beyond it was an open space extending to a bank of earth, beyond which all parties are agreed that the premises did not extend. Defendants contend that the premises leased to plaintiff extended from the rear of her house between parallel lines drawn from and continuing the center line of the wall of the house on each side, and back to the bank of earth. Plaintiff claims that the premises let to her only extended to the walk; or if beyond it, that the walk itself was excepted from the operation of the agreement as to the letting, because it was a common walk used by the tenants of all the houses. The first of these two claims of plaintiff is disposed of by her own testimony. Upon cross-examination she testified as follows: "Question: How much yard is there that corresponds to the house; how much yard did you have the use of there? Answer: Well I don't know just how many feet; there is the width of the house. 2. Just the same as the width of the house, is it not? A. The width of the house, and so many feet back to this bank of earth. *** Q. And this walk is part of the yard, is it not? It is in the yard? A. It is in the yard." There is more to the same effect, and it is plain that on this point the learned counsel for plaintiff does not understand the facts as his client understood them, or she did not understand his theory of the case, for the facts and the theory will not agree. As to the claim that the walk, although in the yard, was in some way excepted from the operation of the agreement to let, by reason of the fact that it was used in common by all the tenants, it seems to us that this proposition involves a non sequitur. The conclusion does not necessarily follow from the premise. The fact that each tenant has an easement of way in that part of the walk extending through the yard of each of the others, does not show that the custody and control of such part is not in the tenant through whose yard it passes, any more than the fact that the public has a right of way over a sidewalk in front of a house excludes the owner from a property interest in the walk and the ground covered by it. From the plaintiff's statements as to what was let to her, it seems to us that the only reasonable inference to be drawn is that she took the walk as part of the premises, subject to the right of the other tenants to make use of it, and that the responsibility as to its condition rested upon her, and not upon the landlord. Plaintiff's counsel has cited to us certain cases. Redman v. Conway, 128 Mass., 374: Milford v. Holbrook, 9 Allen, 17; Loony v. McLean, Superior Court of Cincinnati. 129 Mass., 33; Walkins v. Goodall, 138 Mass., 53, and others, wherein it is held that the owner of a tenant house, letting rooms therein to various tenants, is responsible for the condition of the common halls, stairways, and other parts of the building remaining under his control, but to which the tenants had the right of access. We do not question those cases; on the contrary, we have recently followed them in the case of Dorse v. Fischer, believing, in the absence of any decision by our own Supreme Court on the subject, that they are based upon sounder views of public policy than the cases which maintain a contrary doctrine, such as Purcell v. English, 86 Ind., 34. The case at bar is distinguished from the cases just cited by the fact that the control of that part of the walk, where the injury occured, passed to the tenant by virtue of the agreement under which she held the premises. The motion to set aside the verdict and order a new trial is granted. W. L. Dickson, for plaintiff. 350 BANK CHECKS. [Hamilton Common Pleas.] †NATIONAL LAFAYETTE BANK V. CINCINNATI OYSTER AND FISH Co. The holder of a certified check must look for payment to the bank, to the exoneration of the drawer. SHRODER, J. The petition sets forth that plaintiff holds defendant's certified check to the plaintiff's order on the Fidelity National Bank; that upon due presentation the bank failed to honor it. Defendant demurs on the ground that by accepting the certified check the plaintiff accepted the bank as its debtor, to the release of the defendant as drawer of the check. Under section 5208, U. S. Rev. Stat., it is unlawful for a national bank to certify a check unless the drawer has at that time on deposit an amount equal to that specified in the check. It is, therefore, presumed that at the time the defendant had the amount of the check to his credit in the bank. By the certification the bank assumed an unconditional obligation to pay the amount of it to the lawful holder upon presentation, regardless of the state of the drawer's account. The theory of the law is, that when such certificate is made the amount is charged to the drawer's account, since all well regulated banks, for their protection, adopt this practice, and the reasons for it are so strong that the law presumes they all do so. (Merchants' National Bank v. State National Bank, 10 Wall. U. S. S. C., 604.) The drawer is charged the amount of the certified check as so much cash paid his account is reduced to that extent-and this amount is placed to the account of a certified check account or its equivalent. He is not released from responding to future overdrafts because the certified charge may happen to enter into the overdrawn balance, although the check be then still outstanding and not presented for payment. These consequences of certification follow whenever and by whomsoever it is obtained from the bank. It is therefore of no importance that it was obtained by the depositor himself, for in any case, by accepting the check, the holder is presumed to have done so with a knowledge of these consequences, and to have †See, also, supra, 20 B. 419. This Judgment was affirmed by the circuit court, 2 Circ. Dec., 463, and the circuit court was affirmed by the Supreme Court: see opinion, 51 O. S., 106. 350 Bank v. Cincinnati Oyster and Fish Co. assented thereto, and thereby to have accepted the bank's obligation (secured at the expense and charge of the drawer), in satisfaction of the drawer's liability on the check. First National Bank v. Leach, 52 N. Y., 340; Thompson v Bank of N. A., 82 N. Y., 1; Girard Bank v. Bank of Penn., 39 Pa. St., 92; Ballard v. Randall, 1 Gray, 605; Morse on Banks, pp. 310, 311 et seq. Opposed to this view are the decisions of the Illinois and Tennessee courts (Beckford v. National Bank, 42 Ill., 238; Andrews v. German National Bank, 9 Heisk., 211), in which the certified check is compared to an accepted bill of exchange, the bank to the acceptor and the depositor to the drawer. These decisions overlook that the construction of the commercial paper is to be founded upon commercial practice, and that by the certification the check has ceased to be an order against the depositor's account, and they become an order upon the bank's own certified check account. It therefore follows that upon principle, and according to the weight of authorities, the demurrer ought to be sustained. It is urged that the petition does not allege the fact of certification. It sets forth an exact copy of the check as certified in the usual form. Thus set out, it must receive the reading and construction usually and ordinarily given to it; and so read, it amounts to a complete statement of the fact of certification. F. V. Andrews, for plaintiff. A. W. Symmes, for defendant. TRADEMARK. [Superior Court of Cincinnati.] 362 SOCIETE ANONYme de la Distillerie de LA BENEDICTINE V. MICA LOVITCH, FLETCHER & Co. "Benedictine" is a valid trade-mark for a liquor invented by and made after a recipe of the Benedictine monks, although used by an assignee of the original proprietor whose name is employed in the labels, without disclosing the change of proprietorship, and although such assignee is a French alien who has not deposited a copy of the trade-mark in Paris. Action for injunction against infringement of a trade-mark. The opinion states the case. TAFT, J. Plaintiff alleges that it is a French corporation engaged for some. years past in manufacturing a liqueur of superior quality, known and branded by plaintiffs as "Benedictine," which it sells extensively and at a profit in Europe and America in peculiarly-shaped bottles with labels and trade-marks, described in the petition and duly registered in the patent office at Washington, and that defendants have put up and sold an article in imitation of plaintiff in bottles with labels and trade-marks exacly like those of plaintiff, thereby deceiving the public and defrauding the plaintiffs. An injunction is asked and damages. The answer of defendants raises two issues, first, that the trade-marks, labels and advertisements claimed by defendant were in use long before defendant adopted them, and were registered at the patent office several years prior to plaintiffs' registration of them; and second, that they contain misrepresentations as to the person manufacturing the liqueur, which deceive the public and so disentitle plaintiffs to relief. Defendants do not deny that they are putting up and selling an article in imitation of the plaintiffs' article in bottles with labels, marks and advertisements exactly like those described in the petition. An allegation at the close of the answer, which seems to be such a denial when carefully read with the rest of the Superior Court of Cincinnati. 362 answer, turns out to be only an argument from previous allegations and no denial of fact at all. The evidence discloses the following state of fact: At Fecamp in Normandy, France, the Benedictine Monks had a monastery for several centuries before the French revolution. They invented a liqueur or cordial made from cognac and a decoction of an herb growing wild in that country and other ingredients, and made it for their own usc. They preserved the recipe as a secret in a book of recipes. In 1792 the abbey of Fecamp was destroyed and the monks driven out. A. Legian.. Senior, of Fecamp, one of whose ancestors was an attorney-general of the abbey, came into possession of the book of recipes by inheritance. In 1863 he began the manufacture of the liqueur in question, on an estate which was formerly part of the lands of the abbey, and where now is situated a museum of the relics of the abbey. The recipe of the monks was followed exactly in the manufacture of the liqueur. The recipe is preserved as a secret known only to LeGrand, Aine, and two sons in business with him. In 1863 the liqueur first became an article of commerce, and then for the first time was it given the name "Benedictine." In 1876 Le Grand, Aine, registered his trade-marks for this liqueur in the patent office at Washington. They were: First. The letters D. O. M. with a cross above them, and the letters A. L., Le Directeur, beneath. Second. A representation of the Holy St. Benoit, former Abbot of Fecamp, in a circle, used as a seal impress on the cork of the bottle. Third. The coat of arms of the Abbey of Fecamp, used also as a seal impress on the face of the bottle. Fourth. The word "Benedictine." Fifth. A lead band running round the top of the bottle and down the side, ending beneath the seal of the abbey on the face of the bottle. Sixth. A fac simile of the signature of A. Le Grand, Aine, under the words "Veritable Liqueur Benedictine, Brevetee France et a l'tranger." How long he had been using these trade-marks does not clearly appear, but it had probably been since he began the manufacture in 1863. In 1876 he organized a corporation which was called the "Societe Anonyme de la distillerie de la Benedictine liqueurde l'Abbaye de Fecamp," to which he conveyed all the property used for the manufacture of this liqueur, together with his trade-marks, business assets and good will, and received therefor 4.500 shares out of the 5,000 shares of the company. He became sole director of the company. In 1883, on behalf of this company, he registered in the patent office at Washington the trademarks described in the petition, on which the controversy arises at bar. The trade-marks include all that have been described above as registered in the name of A. Le Grand in 1876. Also a label containing the words: "Liquor Monachorum Benedictorum Abbatiæ Fiscanensis." Also a label containing the following, in French: Every bottle of the genuine Benedictine liqueur bears on the lowest label a fac simile of the General Director, A. Legrand, Aine." The broadest leaden ligature surrounding the neck of the bottle bears the following marks and inscription: "*Feritable Benedictine* The cork is marked all around with *"Veritable Liqueur Benedictine.*" At last on the under side of the cork is to be found: "D. O. M. t To increase the sale of the liqueur, advertisements of its good qualities accompany each bottle, and placards are sent to be hung up in |