in the judgment of Turner, L. J., in the case of Burgess v. Burgess, indicates very clearly what the rights are under similar circumstances. I do not profess to say now whether J. W. Thorley, if honestly carrying on a business on his own account in the manufacture and sale of this article, might not call it by the name of "Thorley's Food for Cattle," provided he took proper precautions to prevent it being supposed that the article he was so manufacturing was manufactured by the representatives of Joseph Thorley, but I feel satisfied that the company has no right whatever to use that name. I strongly lean to the opinion which was given by Lord Westbury in the Glenfield Starch case in describing the expression "Glenfield" as having a secondary signification indicating the trade denomination of the article manufactured by the particular person, but as I have said, I do not think it necessary to express a decided opinion on that point. I should be prepared to assume in this case that the defendant company had not only the right to manufacture this article, but to call it " Thorley's Food for Cattle," and even on that assumption I have come to the conclusion on the evidence in this case, that they did adopt such a mode of endeavoring to push that article in the market as to induce the reasonable belief which was entertained by many persons, that the article they were so putting upon the market had been manufactured by the representatives of Joseph Thorley. Now, in that sense, even the adoption of the name is not to be left out of consideration, because no doubt, in a doubtful case, the article being sold under the same name as that by which it was sold by another person helps the deception, if any is practiced. I pass from that to the form in which this article was sold. Mr. Higgins said that nothing was made in the evidence with reference to these packets, but it came out in this way: He was putting forward a strong case on behalf of the defendants that they had done every thing that they possibly could to prevent any mistake. He talked loudly about the different sized boxes, and the carriers observed that the shape of one box was different from the shape of the other. But when we come to look at the packets with which these said boxes were filled - and that is the article which finds its way into the hands of the customers - I cannot fail to be struck with the remarkable resemblance between the one and the other. You have a packet not only of the same size and the same shape, but you have them of the same color, and you have indorsed upon them corresponding terms as regards the amount to be given to each description of cattle, whether horse, cow, sheep, or pig, to which it is to be given, every thing exactly following not in every case according to the same words, but the same character of direction being given in almost every case. It is all very well to say that we sitting here, having heard this discussion, and looking at the two together, at once see there is a difference between the two; but how would it affect the customer who went into a druggist's shop, or some other shop, in a country town, and asked for a packet of this condiment to be given to him, and had it given to him in a packet similar in color, similar in shape, similar in size, and exactly at the same price as that which he had been in the habit of having given him before? The form of these packets is enough to indicate an intention to deceive. As has been very often said in these cases, why did they choose to adopt every thing which could make what they are selling as like as possible to what was being sold by somebody else? Why adopt the same color, the same size, why sell it exactly in the same form? The only reply which, looking at it with common sense, we can give to such a question as that is, that it was done with a view to induce the public to believe they were the same. I think that if those are the suggestions which come to our minds in the first place, looking at the packages, and

looking at the form of the attractive words on the counter bills, or whatever they are called, at the contents of the almanacs, the sending round of these almanacs purporting to be the Illustrated Farmers' Almanac, or words very similar, implying the same thing all these things bear out the same view. But when we come to consider what took place between the travellers and the different persons whom they visited, unless we are to disbelieve some eight or ten witnesses, all of whom speak most positively on the subject, there were representations made to them, representations, I fully admit, in particular instances, as far as regards the words used, not in themselves false, but calculated and proved to convey a very contrary impression of what the real fact was to those who listened to them. It has been said that Mr. Stillwell must have been almost an idiot to think that these representations would be successful. Very possibly it occurred to him that in the great majority of instances it would be unsuccessful, that it would be found out; but still would it always be found out? Was there not that prospect of success in making these representations to the different persons to whom he was going that some at least would be induced to purchase? The evidence shows that they did purchase. It is unnecessary to go further into the facts of this case. I am satisfied on the whole transaction from beginning to end that the object was to obtain as far as possible a slice of the large business previously carried on by Joseph Thorley and by his executors, and to obtain that by making representations which the practice of this court will not allow to be made.

BRAMWELL, L. J. I am of the same opinion, and I have very little to add. As to the action in which the company are plaintiffs, I am satisfied that the two documents were libels. As to that one which uses the word "foist," it is needless to say any thing at all about it, because it seems to be confessed that it is a libel. I had some misgiving about the other one, because I doubted at first whether it was any thing more than that sort of commendation of their wares which people may put in; but really, when one thinks of the old way of declaring for libel or defamation, and considers this advertisement in that way, that is to say, with the statement of the surrounding circumstances to which it is applicable, and begins to have an idea of this introduction that the plaintiffs carried on the business of preparing food which they said they prepared according to a recipe which Joseph Thorley had formerly used in his life-time - when one considers this case with such an introduction as that, it is manifest that this advertisement is a libel on the plaintiffs in their trades. It begins "Caution," and it says, "The public, and in particular farmers, are warned that any food for cattle not signed with the name of Joseph Thorley, is not the manufacture of the establishment carrying on the business of Joseph Thorley, the proprietors of which are alone possessed of the secret of compounding that famous condiment." I am satisfied that was a libel on the plaintiffs in the way of their trade, and calculated to do them injury, and consequently an action is maintainable with reference to that as well as with reference to the other. Now as to the other case, the complaint of the plaintiffs is not that the defendants made and sold the same article that the plaintiffs made, but the complaint of the plaintiffs is that it was sold in such a way as to induce purchasers to believe, or cause purchasers to believe, that it was the article manufactured by the establishment which was Joseph Thorley's, and now is his executors'. That is the complaint which is made, and it is admitted by the learned counsel for the defendants in that action that if that is so there is a cause of action against them, and they must be restrained from

doing it. The question therefore is one of fact. Was the trade so carried on by the defendants as to give rise to that belief? Now really it is almost impossible to make a doubt about it. I confess, for my own part, directly I saw the two packages I thought there was an end of the case. It is impossible to suppose that those are not calculated to deceive. It is all very well to say, if you examine them you will find a difference between them. No doubt; so you will between a Bank of England note and a Bank of Elegance note, but people have got into trouble for obtaining money under false pretenses who passed off a Bank of Elegance note, although they never could be convicted of forgery. It is impossible to suppose that there was not an intention to mislead at the bottom of that. If not, all I can say is, the defendants ought to be very much obliged to those who have pointed out to them that they are doing that which they do not intend to do, but which there is no doubt they are doing, that is to say, misleading people. I should like to say one thing about this expression, "Thorley's Food for Cattle." It has been said that the defendants have a right to say they make Thorley's food for cattle, if they do not deceive. Well, I agree, and if one could by any possibility suppose-I ought not perhaps put it so strongly, but if one could suppose that they could use that expression without the risk of deceiving, I should think they ought to have a right to do so; but it seems to mo almost impossible that they can. Now it is said that it is hard upon them, because it is said every Thorley has a right to make food, and therefore to sell it in his own name, and consequently I suppose call it "Thorley's Food." But not only has every Thorley a right to do that, but every John Doe has a right to do that, because he may give himself the name of Thorley, and carry on business under that name if he thinks fit. A surname is acquired by reputation, and is not any man's legal property or conferred upon him by law in any particular way; it is gained by reputation, and if he choose to adopt it and other people call him by that name, he is "Thorley" to all intents and purposes, although his name was originally John Doe. Then it is said it is hard, if a man has the name of Thorley, that he cannot make food and call it "Thorley's Food." So he may, but if unfortunately for him some preceding Thorley has carried on the business of making cattle food in such a way that by the name "Thorley's Cattle Food" is understood the manufacture of that man, then the second Thorley, or the man who assumes his name, must take care so to conduct his business that he is not mistaken for the original Thorley, and if he willfully, or even I should say without willfulness, does carry on his business so as to be mistaken, he must be restrained from doing it, and really there is no hardship upon him at all. It is not a hardship upon him that he should put into his advertisements, as these persons might do here, "The article produced is the same as Joseph Thorley produced it; it is the article which he called Thorley's Food for Cattle; it is the same article, and we make it, and you may buy it of us as well as of them." If they do that, in that sense they might use the words "Thorley's Food for Cattle," no doubt; but if they cannot use that expression without misleading people they must not use it, because it is a thing to the detriment of the plaintiff. I should like to make one remark relating to the same business which James, L. J., mentioned. I think I can sce very well how this thing arose. The persons who got up this thing, who have done this, who are now sought to be restrained, on the death of the original Thorley, I suppose, there was no one who had any particular right to use "Thorley's Food for Cattle any more than anybody else had; consequently anybody with the name of Thorley, and possibly without for all I know, could manufacture this article and call it "Thorley's Food

for Cattle," just as I suppose anybody may make Liebig's extract of meat, or anybody may make Daffy's elixir, or the other things which have been mentioned. Very likely they got hold of Thorley, who had the good fortune to have that name, and to know the secret, and so they began this business. Now, let us suppose, for instance, that Bass's firm consisted of Bass, Smith, and Jones-and it seems as though it would be admitted, as long as Bass continued one of the firm, no one would havo a right to brew ale and sell it under the name of "Bass's Pale Ale," unless he took care it was not confounded with that well-known beer or ale which is produced by the firm which, I suppose, to consist of Bass, Smith, and Jones. Now, suppose Mr. Bass retired, and Smith and Jones carried on the business under the same name as beforethat is to say, Bass & Co. - could it be supposed for a moment that, because Mr. Bass had left the firm, people would then have a right to say, "Oh, there is no longer a Bass who makes Bass's pale ale, therefore we will call ourselves makers of Bass's Pale Ale.'" It seems to me manifest there would be no right to do such a thing as that. Bass's pale ale has acquired, as Thorley's cattle food has here, a sort of name, and is known as the production of a certain establishment, and that is a right-a property I suppose one can hardly call it - in the proprietor of the establishment, and no one else has the right to so act that people dealing with him may think they are dealing with the original establishment. If after Thorley's death some time had elapsed before anybody had started afresh, before his executors had started the manufacture of this food, then the words "Thorley's Cattle Food" might have become common property just in the same way as Liebig's extract of meat. But that not being the case, it seems to me the defendants have done, and I must say I think willfully done, what is to be regretted and what they must be restrained from doing, that is to say, endeavored to injure, not for the sake of injury no doubt, but endeavored to make a profit at the expense of the plaintiffs, by producing an article and selling it in such a way as to cause tho public to believe that they are buying the article manufactured by the plaintiffs and not a different ar

party," and added that as the judge belonged to that party it was "unanimous for once that it need take no cognizance of the imposition practiced upon it and the disgrace attaching to it." We may safely assume that it meant to charge and did charge that the judge had decided the case wrongfully from motives of political partisanship. We have no hesitation in pronouncing such a publication to be a gross libel on its face. Nothing can be more disgraceful-not even, perhaps, a charge of direct bribery-than such an imputation on the motives of a judge in the administration of justice.

The court thereupon sent for the complainants, and on their appearance and taking upon themselves the responsibility of the publication in question, entered rules upon them to show cause why they should not be disbarred and their names stricken from the list of attorneys for misbehavior in their office as attorneys. To this rule they appeared and put in answer respectively, and the rule was afterward made absolute.

Many objections have been raised to the proceeding, which we will not stop to consider. We entertain no doubt that a court has jurisdiction without any formal complaint or petition upon its own motion to strike the name of any attorney from the roll in a case, provided he has had reasonable notice and been afforded an opportunity to be heard in his own defense.

No question can be made of the power of a court to strike a member of the bar from the roll for official misconduct in or out of court. By the 73d section of the act of April 14, 1834, P. L. 354, it is expressly enacted that "if an attorney-at-law shall misbehave himself in his office of attorney, he shall be liable to suspension, removal from office, or to such other penalties as have heretofore been allowed in such cases by the laws of this Commonwealth." We do not mean to say for the case does not call for such an opinion - that there may not be cases of misconduct not strictly professional which would show a person not to be fit to be an attorney, nor fit to associate with honest men. Thus if he was proved to be a thief, a forger, a perjurer or guilty of other offenses of the crimen falsi. But no one, we suppose, will contend that for such an offense he can be summarily convicted and disbarred by the court without formal indictment, a trial and conviction by a jury, or upon confession in open court. Whether a libel is an offense of such a character may be a question, but certain it is that if the libel in this case had been upon a private individual, upon a public officer, such as the districtattorney, the court could not have summarily convicted the defendants and disbarred them from practice. The office of an attorney is his property, and he cannot be deprived of it unless by the judgment of his peers, the law of the land—the last phrase meaning as we have been taught by Lord Coke, "due process of law." By the seventh section, the first article of the Constitution of 1874-the Bill of Rights-it is declared that no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of affairs of men in public capacity, or to any other matter proposed for public investigation or information when the fact that such publication was not maliciously made shall be established to the satisfaction of a jury." This is a new and very important provision introduced into the Bill of Rights by the Constitution of 1873. It would be a clear infraction of the spirit, if not the letter, to hold that an attorney can be summarily disbarred for the publication of a libel on a man in a public capacity, or when the matter was proper for public investigation or information, for as he certainly does not forfeit his constitutional rights as a free man by becoming an attorney, it guarantees to him immunity from all liability to punishment in the case of "the publication of papers relative to the official conduct of affairs of men in

public capacity where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury."

But the grievance of the offense of the complainants was that the publication was a libel on the court of which they were attorneys-and this, it is earnestly contended, was "misbehavior in their office," which gave the court power to exercise summary jurisdiction by removing them from their office.

The duty of an attorney is briefly comprehended in the terms of his oath "to behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client." Was the publication in question a breach of this oath? Fidelity to the court includes many particulars, but they all evidently concern his official relations. "The sum of the matter," says Chief Justice Gibson in Austin's case, 5 Rawle, 205, is that an attorney-at-law holds his office during good behavior and that he is not professionally amenable for assaulting the official conduct of the judge which would not expose him to legal animadversion as a citizen. Some of the remarks in the opinion in that case have been much relied upon by the learned counsel in support of the action of the court below. But there are two considerations bearing upon the question, which now exist, but did not at the time that decision was ordered. The first is the new provision on the subject of the liberty of the press, which has been introduced into the Bill of Rights of the Constitution of 1873, and the second is that at that time the judiciary was not elective. Judges in 1835 were appointed by the governor, and their term of office was during good behavior. There might then be some reason for holding that an appeal to the tribunal of popular opinion was in all cases of judicial misconduct a mistaken course and unjustifiable in an attorney. The proceedings by impeachment or address were then the ones, and the only ones, which could be resorted to to effectively remedy the supposed evil. To petition the Legislature was then the proper step. To appeal to the people was to diminish confidence in the courts and bring them into contempt without any good results. We would not say that the case is altered and that it is not the right and the duty of a lawyer to bring to the notice of the people who elect the judges every instance of what he believes to be corruption or partisanship. No class of the community ought to be allowed freer scope in the expression or publication of opinion as to the capacity, impartiality or integrity of judges, than the members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those, who are called on to vote, never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system.

In admitting, as he seems to do, that a libel on the court may be a breach of professional duty in an attorney, Chief Justice Gibson adds a most material qualification. "The motive should be clearly shown to have been the acquirement of an influence over the judge in the exercise of his judicial functions by the instrumentality of popular prejudice." No such motion has been or can be imputed to the complainants. The learned judge who delivered the opinion of the court below imputes no such motive to them. He says: "Their motive, though not openly or at all avowed in the publication, is too obvious to admit of doubt. The least reprehensible motive by which their professional misconduct can be supposed to have been

animated is a desire for prominence or notoriety in the editorial corps. The real or true motive could be no other than partisan malice or a willful, headlong zeal to promote their partisan interests in the face of their official fidelity to this court, and regardless of all consequences." Suppose the motives here assigned be the true motives which actuated the complainants- -a desire for notoriety, and a willful, headlong zeal to promote partisan interests-what had they to do with professional conduct or fitness to practice law? The complainants, in their sworn answers to the rule, aver that in making the publication in question they were acting in good faith, without malice, and for the public good."

Of course we mean to express no opinion on the merits of the controversy between the court below and the complainants. We concede to the court all that has been claimed on their behalf — that the publication in fact was a false and malicious libel and that in making the rule absolute they were actuated by a simple desire to uphold the authority and dignity-of the court. If this were a mere question of discretion we are of opinion their order was a mistake. The act of 1879 gives this court jurisdiction to review the discretion of the court below, and wo think it was not in this case wisely exercised.

The order which made absolute the rule to show cause why tho names of the complainants should not be stricken from the list of attorneys is hereby vacated and the rule discharged, and it is ordered that the complainant be restored to the bar, the costs of this proceeding and writ of error to be paid by the county of Lancaster.

NATIONAL BANKS, WHEN LIABLE FOR FRAUDS OF OFFICERS.

PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

STECKEL V. FIRST NATIONAL BANK OF ALLENTOWN. Plaintiff, who was a depositor in a National bank, requested

a certificate of deposit drawing interest for a portion of his deposit. The teller of the bank gave him a certifilcate which purported to be issued by B. & Co., a private banking firin, and informed him in the presence of the cashier of the bank that this was the bank's certificate, upon which assurance plaintiff accepted it. The members of the firm were the managing officers of the bank, but had separate place of business in the same town. Held, that the bank was liable to the plaintiff for the amount of his deposit.

1

ACTION by Alfred P. Steckel and others to recover

$3,251.63, a balance of money alleged to be deposited with defendant. The opinion states the case. The court below directed judgment for $251 in favor of plaintiffs, from which they took a writ of error.

E. 1. Fox, Evan Holben, and D. D. Roper, for plaintiffs.

Edward larvey, R. E. Wright, Jr., and G. & H. Lear, for defendant.

PAXSON, J. The principal cause of complaint in this case is that the learned judge of the court below withdrew from the jury the consideration of the question of fraud upon the ground that there was not sufficient evidence to submit it.

The plaintiffs kept an account with the corporation defendant, and were in the habit of making deposits and drawing checks in the usual manner. William H. Blumer was the president of the bank; his son, Jacob Blumer, was the cashier. Three of the directors, in

cluding the said William H. Blumer, composed the banking-house of William H. Blumer & Co., which carried on business but a few hundred feet distant from the First National Bank of Allentown. The plaintiffs having money on deposit with the bank, and being desirous of obtaining interest-bearing certificates therefor, called at the bank for that purpose. Dr. A. P. Steckel, one of the plaintiffs, testifies as to what occurred, substantially as follows: "I went to the bank every week or two to make my deposits; some time in August, when I made deposit, I asked the teller, George Straub, does the First National Bank take any money on certificates? He said, 'yes, sir; do you want to leave us some?' I said, 'no, not to-day.' I asked him whether the First National Bank issued certificates of deposit, and as a matter of course pay interest, and he said 'yes;' then I came there again in September, 1876, and made my ordinary deposit in the bank, and after we were through I said to the teller that I would take the First National Bank certificates for $700. I filled out a check, and he handed me a certificate; I looked at the certificato for $700; it was to be made on demand, and asked him, 'is this the First National Bank certificate?' the answer was, 'yes, sir, it is;' I then said, 'this reads Blumer & Co.; I want this distinctly understood, I want nothing but the First National Bank certificates;' he answered me that this was one and the same thing; that it should pass to the credit of the company, the same as it was before. With this assurance I took that certificate.. This was in the presence of the cashier of the bank, Jacob A. Blumer." Two other certificates, aggregating, with the one above mentioned, the sum of $3,000, were obtained under circumstances uot essentially different. There was evidence that the president of the bank recognized them as binding upon the bank, and offered to reinstate the plaintiffs as they were before, when the bank examiner was through his examination. That examination, however, resulted in the closing of the bank.

Wo must assume the jury would have found the facts as testified to by the plaintiff Steckel. The facts established, wo have a case of palpable fraud. It is not an answer to say the plaintiffs ought not to have been deceived, and with ordinary care would not have been. The fact that the Blumers were respectively president and cashier of the National Bank, as well as leading members of the banking-house of Blumer & Co., was calculated to mislead and deceive, and when told in positive terms that the certificates, although signed by Blumer & Co., were the certificates of the bank, the plaintiffs may readily have believed it was all right.

It was urged, however, that even if there was a fraud it does not affect the bank; that an agent can only act within the scope of his authority; and that a bank is not bound by the fraudulent representations of one or more of its officers. There is no doubt as to the general rule that an agent can only bind his principal so long as he acts within the scope of his authority; but we do not think the principle applies in this case. A bank is responsible for the safe keeping of the money of a depositor, and it cannot set up fraud of its own officers as an answer to a demand for repayment. Public policy forbids it. The plaintiffs, after ascertaining the fraudulent character of the transaction, tendered the certificates to the bank and demanded the payment of their original deposit. In other words, they rescinded the contract on the ground of fraud. If their allegations are true, they had a right to do so, and proceed upon the original cause of action.

The question of fraud should have been submitted to the jury. What has been said sufficiently covers the points involved.

Judgment reversed and a venire facias de novo awarded.