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[No. 3.

Vol. IV.]

Digest OF CASES.

highest number of votes is to avoid the election. It does not elect the person having the next highest number of votes. 16.

JURISDICTION. OF U. S. COURTS. — UNDER THE ACT OF MARCH 3, 1875, the United States circuit courts have jurisdiction over a suit in equity to foreclose a mortgage, given to secure a promissory note, where the assignee and holder is a citizen of another state, though the assignor could not, by reason of citizenship, have brought the suit. Seckel v. Backhaus, C. C. U. S. E. D. Wisc., Chicago L. N., February 3, 1877.

MANDAMUS. 1. APPLICATION FOR MANDAMUS WHICH DEPENDS ON VALIDITY OF STATUTE. — On an application for a mandamus, the right to which depends upon the question whether a certain public statute, appearing in the statute book with all the prescribed forms of authentication, is valid or not, the onus of proof is upon the applicants, with a strong presumption against the right asserted by them; and before that right can be recognized and judicially declared in the face of a public statute, having almost a conclusive presumption in its support, the applicants are bound to furnish the most conclusive evidence of the truth of the facts upon which they rely to invalidate the statute. Legg v. Mayor of Annapolis, Ct. App. Md., Am. Law Reg., January, 1877.

2. NEVER A PREVENTIVE WRIT. — Mandamus is a writ commanding the performance of some act or duty therein specified, in the performance of which the applicant for the writ is interested, or by the non-performance of which he is aggrieved or injured. As a preventive remedy simply, it is never used. Its use is confined to those occasions where the law bas established no specific remedy, and where in justice and good government there ought to be one. A mandamus does not lie to prevent a person from being disturbed or molested in the exercise of the functions and powers pertaining to his office. 1b.

See PLEADING AND PRACTICE, 2, 3.

MUNICIPAL BONDS. SUBSCRIPTION TO STOCK. — WHERE ACT CONTAINS NO CONDITION AS TO TIME. — CONSTRUCTION OF AGREEMENT TO BUILD WITHIN SPECIFIED TIME, ETC. — A township voted to subscribe to the capital stock of a railroad company, and to issue its bonds in payment on condition that the road was completed, equipped, and running from P. to D. within five years. The road was built to within one mile of D., and a part of another road leased, by which arrangement the company ran its trains from P. to D. The company tendered the stock and requested the township officers to subscribe, which they refused to do. By this refusal the company was delayed in completing its own road to the city limits until after the five years had elapsed: Held, that the company had substantially complied with the conditions, and that it was the duty of the township to have subscribed to the stock of the company, the condition

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Digest Of Cases.

[No. 3.

referring to the payment, and not the subscription; that as the act authorizing the vote contained no conditions as to the time of subscribing, but only as to the payment of such subscription, it was the duty of the township officers to subscribe at once; and if, by reason of default, the company did not build its road within the time specified, the township could not plead such non-compliance in defence to an action by the company. People v. Supervisor, fc. of Danville Township, S. Č. Ill., Mo. West. Jur., February, 1877.

NEGLIGENCE.
See COMMON CARRIER.

NUISANCE.
See TRESPASS.

PLEADING AND PRACTICE. 1. DIVORCE. — AVERMENTS OF PETITION. — In proceedings for divorce (except where the injury complained of was committed within the state, or while one or both of the parties resided within it), residence within the state for twelve months next before the institution of the suit is a constitutive and jurisdictional fact, which must be alleged in the petition. And a decree of divorce, rendered upon a petition which lacks the averment of this jurisdictional fact, is coram non judice and void. Cole v. Cole, St. Louis (Mo.) Ct. of App., Cent. L. J., January 19, 1877.

2. MANDAMUS. — IF THE ANSWER TO AN APPLICATION FOR A MANDAMUS contains or sets up any sufficient reason for refusing the writ, though it be in other respects evasive and irresponsive, it should not be quashed as a whole. Legg v. Mayor of Annapolis, Ct. App. Md., Am. Law Reg., January, 1877.

3. WHERE THE ANSWER TO A PETITION FOR A MANDAMUS IS QUASHED, the allegations of the petition are not authorized to be taken pro confesso ; nor is the judge authorized to enter judgment as by default for want of answer, or by nil dicit. The case must be heard ex parte, and the mind of the judge satisfied both as to the law and the facts, before the writ can be ordered. Ib.

4. STATUTE WILL NOT BE DECLARED INVALID UPON ADMISSIONS OF PARTIES. — It is not competent for parties, though engaged in an adverse litigation, to procure a public statute, affecting the public interest, to be declared a nullity, upon their mere allegations and admissions as to the manner in which the statute was enacted by the legislature. Proof of a higher and more reliable character should be required in such case. Ib.

5. LIBEL BY INSURER AGAINST CARRIER. — In a libel by the insurer, who has paid the loss to the assured, against the carrier, by whose wrongful act the loss occurred, the respondent is not permitted to set up as a defence that the insurer was not legally bound to indemnify the assured for the loss sustained by such wrongful act. Such libel is properly filed in [No. 3.

1 The report of this cause is accompanied by cial remark in the principal case, are quite fully a note in which decrees in divorce cases ob- and intelligently discussed. — EDITOR. tained by fraud, which was the subject of judi.

Vol. IV.]

DIGEST OF CASES.

the name of the insurer, and it is not necessary nor proper in admiralty that the action be brought in the name of the assured for the use of the insurer. Amazon Ins. Co. v. The Iron Mountain, D. C. U. S. So. D. Ohio, Cent. L. J., February 2, 1877; Chicago L. N., February 3, 1877.

6. SLANDER. — PROOF OF GENERAL RUMOR. — In England, and in some of the United States courts, it has been held that, under the general issue, in slander, the defendant may prove in mitigation of damages that when the words were uttered a general rumor or report existed in the neighborhood that the plaintiff was guilty of the offence charged, but in Pennsylvania the rule is different. Pease v. Shippen, S. C. Pa., Leg. Int., February 9, 1877.

See CRIMINAL LAW, 1; MANDAMUS, 1 ; REMOVAL OF CAUSES.

PRESIDENTIAL ELECTOR.

See ELECTION.

REMOVAL OF CAUSES. CAUSE PENDING READY FOR RETRIAL. — Under the Act of March 3 1875, providing for the removal of causes from the state to the federal courts, a cause once tried, but pending, ready for retrial when the act was passed, is removable. Crane v. Reeder, C. C. U. S. E. D. Mich., Albany L. J., February 10, 1877.

SLANDER.
See PLEADING AND PRACTICE, 6.

STOCK.
See DAMAGES.

TAXATION. 1. WHARFAGE TAX. — WHEN TONNAGE TAX MAY BE IMPOSED BY CITY.— A city cannot levy a tax in the nature of a tonnage duty upon vessels or commerce, nor can it do so by way of discrimination. But a city, under legislative authority, or a riparian owner, can lawfully charge reasonable compensation for the use of expensive and artificial conveniences which a vessel may use at its option, — there being ample space elsewhere for it to land within the harbor where no artificial or expensive improvements have been made. U. W. Union Packet Co. v. City of St. Louis, D. C. U. S. E. D. Mo., Cent. L. J., January 19, 1877.

2. IBID. — CONSTITUTIONAL LAW. – THE ORDINANCE OF THE CITY OF St. Louis prescribing certain wharfage dues at the improved wharves constructed by it, graduated according to the size of the vessel, to be ascertained by its tonnage, is not in conflict with the provisions of the federal Constitution in respect to interstate commerce, and the prohibition that “no state shall, without the consent of Congress, lay any duty of tonnage." Ib.

teme for it to faha may use at use of expenowner,

Vol. IV.]

HARRINGTON v. LIBBY.

[No. 3.

TRESPASS. NUISANCE AND TRESPASS DISTINGUISHED. - Where A enters upon the land of B and digs a ditch thereon, there is a direct invasion of the rights of B. A completed trespass, and the cause of action for all injuries resulting therefrom, commences to run at the time of the trespass. And the fact that A does not reënter B's land and fill up the ditch does not make him a continuous wrong-doer and liable to repeated actions as long as the ditch remains unfilled. A party may be responsible as a continuing wrong-doer, as for permitting a nuisance to remain upon his lands; but no one can be charged as such continuing wrong-doer who has not the right and is not under the duty of terminating that which causes the injury. K. S. R. R. Co. v. Mihlman, S. C. Kans., Cent. L. J., February 2, 1877.

WILL., ESTIMATING VALUE OF BEQUEST TO UNBORN DEVISEES. — BEQUESTS OF CERTAIN SHARES OF STOCK were made to living grandchildren by name; and further, testator directed his executors to set aside equal amounts for other grandchildren that might be born within a certain date. Held, that the value of the bequest to the unborn grandchildren was to be fixed by the value of the stock at the date of the will. In Clarke, S. C. Pa., Leg. Int., January 19, 1877.

CIRCUIT COURT OF THE UNITED STATES. — SOUTHERN

DISTRICT OF NEW YORK.

[FEBRUARY, 1877.]

TRADE-MARK. — FORM OF PACKAGE.

HARRINGTON v. LIBBY.

Held, that complainant could not legally enjoy the exclusive right to use a decorated

tin pail as a collar box, notwithstanding that he was the first to so employ it, and had registered it as a trade-mark.

The facts are sufficiently stated in the opinion.
J. A. Whitney, Esq., for complainant.
E. Wetmore, Esq., contra.

JOHNSON, J. The plaintiff claims to be entitled to the exclusive use of a tin pail with a bail or handle to it, the tin ornamented with a geometrical pattern, and used to contain paper collars. This claim is made not on the ground that he is the inventor and patentee of pails thus made, or of the material used in making them, or of the art of selling collars by giving away a tin pail with them. But the claim is that the pail is a trade-mark, and entitled to protection as such, either by force of the statute of the United States on the subject, or by virtue of the general

[No. 3.

Vol. IV.]

Notes Of New Books.

law of trade-marks. It appears that the ornamented tin which the plaintiff employs is a common article in commerce, and that pails made of tin, ornamented or unornamented, are and have long been in use for all such purposes as any one chose to apply them to.

The question whether any one can seize upon such an article and make title to its exclusive use for a special purpose by calling it a trade-mark, must be far from clear in favor of the claimant. The forms and materials of packages to contain articles of merchandise, if such claims should be allowed, would be rapidly taken up and appropriated by dealers; until some one, bolder than the others, might go to the very root of things and claim for his goods the primitive brown paper and tow string as a peculiar property. It will be observed that it is not a mark at all which is claimed, but the whole enveloping package, the whole surface of which is covered by the ornamental pattern. There is no name, no symbol, no assertion of origin or ownership. The case strongly resembles that of · Payson's Indelible Ink (Browne on Trade-marks, 186, 187), where the claim was rejected, on the ground that if maintained the effect would be to gradually throttle trade.

The case of Moorman v. Hoge, 2 Sawyer, 78, seems to me quite in point. In favor of maintaining the right to the barrel in question, in that case, all circumstances of fact concurred; but the court held that the law did not recognize an exclusive right to an unpatented package, nor permit its assertion. I concur in the principles maintained in that case, and think the plaintiff has failed to show such a right in the premises as can entitle him to a preliminary injunction. The motion must be denied.

NOTES OF NEW BOOKS.

Two EXHAUSTIVE ESSAYS BY JUDGE Dillon, one on the Removal of Causes, and the other on Municipal Bonds, have been reprinted from the Southern Law Review, and are offered by the proprietors of the Central Law Journal, St. Louis. Price 75 cents in paper ; $1.00 in cloth. Their great value is beyond question.

Sassum's InSURANCE DIGEST. A Digest of the Law of Insurance: being an analysis of Fire, Marine, Life and Accident Insurance Cases adjudicated in the Courts of Eng. land, Ireland, the United States of America, and Canada, commencing with the earliest reported adjudications and continued to the present time. Chicago: Callaghan & Co.

A REPUBLICATION OF VOLUMES 19 to 31 of the Illinois Reports is announced by Norman L. Freeman, Esq., and Wm. L. Gross, Esq., of Springfield, Ill.

REPORTS of CASES DETERMINED IN THE CIRCUIT Court OF THE UNITED STATES FOR THE FIRST CIRCUIT. Jabez S. Holmes, Reporter. Volume I., July, 1870 — June, 1875. Boston : Little, Brown & Company. This volume, although it does not contain the usual number of cases, embraces not a few opinions of more than usual interest and value. The decisions touching Admiralty and Patents are especially to be remarked.

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