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surrogate could be enforced by exe- for regulating and grading a portion cution against the body, and not by of Madison Avenne.

The Compproceedings for contempt; that an troller, in accordance with an order execution against the body in the obtained from the Court for that purform prescribed by the Court of pose, proceeded to pass upon the Chancery is the proper process in sufficiency of the sureties proposed, case of the non-payment of a sum and rejected them as insuficient. adjudged by a final decree upon The relator thereupon, with the conwhich the defendant is liable to im- sent of the Commissioner, proceeded prisonment. (2 Hoff. Ch. Pr., 92, Rule to name new sureties, and the Comp4). For non-compliance with an in- troller baving failed to act, this

proterlocutory order, a precept of com- ceeding was commenced to compel mitment such as was used in that him to pass upon the sufficiency of court under 2 R. S., 535, $ 4, or an the new sureties. Before the hearing execution under chapter 360, Laws of of the motion, the Commissioner 1837, would be proper.

determined to withdraw his consent Appeal dismissed.

to the substitution of the new sureties, Opinion by Rapallo, J. All con- and requested a return of the papers cur, Miller, J., taking no part. to him. The Comptroller had in

these proceeding, prior thereto, been MANDAMUS.

prohibited from refusing to approve N. Y. SUPREME COURT. GENERAL

the sureties, or from returning the TERM. First DEPT.

agreement of the sureties unapproved The people ex rel. James McKone to the Commissioner. Before any v. Andrew H. Green, Comptroller, further action could be taken, an and Allen Campbell, Cominissioner order was obtained restraining the of Public Works.

Commissioner from taking any steps Decided May 21, 1877.

towards the withdrawal of his conThe head of -a department in the City of New sent, until after the hearing and

York may, after consenting to the substi- determination of the motion for a tution of sureties in place of these originally proposed, by one seeking to obtain a con

mandamus. The counsel to the cortract of a public letting, if he becomes poration thereupon, upon an affidavit satisfied that such substitution would be of the Commissioner that he desired unwise, at any time before such sureties are

to reconsider the matter, as the work approved by the Comptroller, withdraw his consent.

could be let at half the price at which The writ of mandamus is not a writ of right, McKone proposed to do it, obtained

and a court may, and should refuse to an order to show calise why. the order grant it where a proper case for such refusal

restraining the Commissioner should is presented, and where the relator has another remedy equally as effective, and at.

not be set aside, and the Court ditended with less hardship to those sought to rected that such order should be be affected by the writ.

heard at the same time as the motion Appeal from judgment of the for a mandamus. Special Term denying motion for The motions so heard were: 1. peremptory mandamus. The relator The motion to set aside the order was the lowest bidder upon proposals I restraining the Commissioner froin

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reconsidering his consent, &c. SERVICE OF SUMMONS ON The relator's motion for a mandamus. FOREIGN CORPORATION.

The former was granted, the latter The service of summons on a director of a fordenied.

eign corporation while he is temporarily in James A. Deering, for applt.

the State, is good where the cause of action Geo. P. Andrews, for respt.

arose and the principal part of it was per

formed within the State. Held, The consent for the substitntion of new sureties for those N. Y. COURT OF APPEALS already proposed is an act of grace, Hiller, respt., v. B. & M. R. R. R. on the part of the head of a depart. Co., applt. ment, no obligation is imposed to give

Decided June 19, 1877. such consent, $ 27, article 2, chap. 7, Plaintiff, a foreign corporation, conRevised Ordinances of 1866. There tracted with defendant, a corporation is no new consideration, and if the in Nebraska, to procure during five head of the department becomes years, Menonites, who were expected satisfied before the act is consum- to emigrate to this country from Rusmated by the Comptroller's approval sia, to purchase and settle on defendof the soreties, that he has acted in ant's lands in Nebraska. He was wisely or unadvisedly, it should be, bound during the whole time to and it is, within his power to with- maintain at his own expense an office draw his consent. The writ of man- in New York City, where his headdamus is not a writ of right. It is quarters were to be, and was to go to one of which the Court, exercising a Europe for two or three months to sound discretion, has full control, and, arrange for the emigration of the in this case, should be denied as a Menonites. No other place was speciproper exercise of judicial discretion, fied in the contract where service because, if entitled to the contract, under it was to be performed. An he has another remedy to recover action was commenced upon said condamages, which would be far less tract by the service of a summons injurious to the city, and especially upon one of defendant's directors to the persons on whom the expense while he was temporarily in this state of the work would largely be thrown, in the pursuit of his own business. if the contract were entered into, and, Joseph H. Choate, for applt. because it is extremely doubtful Clarence Lerow, for the respt. whether there is not such a departure Held, That as the cause of action from the ordinance in making up the was one which arose in this state, and specifications, as to render the action the principal part of it was to be perof the Commissioner illegal, and the formed here, and the service was valid contract in excess of the anthority upon the corporation (Code, $ 134; 63 conferred by the Ordinance of the N. Y., 114; 3 id., 132), that the legislaCommon Council.

ture had a right to provide for and Judgment affirmed with $10 costs anthorize such a service of a summons, and disbursements.

and did not violate any provision of Opinion by Davis, P. J.; Daniels, the constitution in so doing. J., concurring

Order of General Term, reversing

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order of Special Term, granting mo- of law l'eviewable on appeal, 41 N. tion to set aside service of summons, Y., 159; 49 id., 57. affirmed.

Order of General Term, granting Opinion by Earl, J. All concur. new trial, and reversing judgment

for plaintiff, affirmed. USURY. PROOF.

Opinion by Allen, J. All concur, N. Y. COURT OF APPEALS.

except Church, Ch. J., not voting. Matthews, applt., v. Coe, respt.

TRADE-MARK. Decided June 22, 1877.

SUPREME COURT OF RHODE ISLAND. Where the contract itself raises no presump

Carmichel et al. v. Latimer et al. tion of usury, the onus is upon the party Decided Nov., 1876. attacking it upon that ground to prove the

There is no property whatever in a trade-mark. guilty intent.

But a person may acquire a right of using a This was an action to recover back,

particular mark for articles which he has

manufactured, so that he may be able to on the ground of usury, certain ware

prevent any other person from using it, behouse receipts held by defendant. It

cause the mark denotes that the articles so appeared that L., plaintiff's assignor, marked are manufactured by a certain perwho was a dealer in produce, entered into a contract, in a proper and usual

Whether a trade-mark can be asform, with defendant, a commission signed. QUÆRE. merchant, for the loan or advance of It is not common in this country, his money, at the legal rate of interest, and in New York it is forbidden by to L., to purchase or carry his mer-statute, to keep up the name of an old chandise, and also for an agreed com- mercantile firm for several generamission to undertake the care and tions or successions of partners, when management and sale of the commo- no partner of the original name redity.

mains. Samuel Iland, for applt.

The bill alleges that, from July 1, Amasa J. Parker, for respt. 1864, to April 1, 1871, George G.

Held, That the contract was not Stillman, Amos Stillman, Jonathan necessarily usurious ; that there was P. Stillinan, Thomas V. Stillman no presumption of an illegal or usuri- Albert Stillinan, and A. Carmichel, ons intent in the agreement itself, were partners by the style of Stilland the onus was upon the party man & Co., in manufacturing linseys, seeking to impeach it on that ground using on their goods a ticket or label to prove the guilty intent, and that containing “Stillman & Co.," on it, the contract was a cover for usury, as a trade-mark, and that they had and for the loan of money upon usury. acquired a considerable reputation for 32 N. Y., 605; 27 id., 137; 4 Seld., said goods. Albert died April 1, 280; 19 J. R., 160; 4 Hill., 211; 4 1871, and his share was bought out J. Ch., 69; 93 U. S. R., 314.

by Amos, Jonathan, and Thomas, and Where the finding of a referee is the firm continued to November, 1871, unsupported by evidence, an excep- when George bought the right to said tion to the report presents a question ticket, and continued to manufacture



until Jnly 6, 1875, when he sold said to last case, 43 Eng. Com. Law Rep., ticket to the plaintiffs, whose firm 204; Southern v. How, Popham, 143; consisted of A. Carmichel, William 3 Cro. Jac., 468. But as that remedy B. Lawton, George Carmichel, Jr., is now seldom resorted to, we need and W. P. Barney. The plaintiffs only inquire into the grounds on which made two varieties of linseys, and courts of equity exercise jurisdiction. their goods were known not only as In some of the early cases, it was restStillman & Co.'s linseys, but as Stilled on the ground of fraud. In some man linseys, and had kept up the repu- later cases, partly on that ground and tation of the goods. And it is further partly on the ground that it was to be alleged that the defendants (whose treated as a species of property. In firm, consisting of Robert F. Latimer, the of The Collins Co. James Stillman, and Alexander Jaff- Brown, 3 Kay & J., 423, which was rey, was formed August, 1874) had a case of edge tools, Page Wood, begun in July, 1876, and were con- V. C., says (page 426): “ It is now tinuing to make linseys--some like settled law, that there is no property plaintiffs' and some inferior, and with whatever in a trade-mark, but that a a fraudulent design to injure the person may acquire a right of using plaintiffs and the public, and know- a particular mark for articles which ingly and wrongfully, either with in- he has manufactured, so that he may tent to defraud, or without such intent, be able to prevent any other person put upon them a label or trade-mark, from using it, because the mark dein imitation of that of the plaintifis, notes that articles so marked were whereby the public are liable to be, manufactured by a certain person.” and are deceived, and the plaintiffs And, page 431 : “No person can acdeprived of great profit, etc. quire property in a trade-mark.” But

A suit at law was commenced in no one has a right to use it to deceive. August, 1876, and the bill containing Subsequently, in the case of Ilall v. the foregoing allegations was filed Barrows, Lord Romilly, M. R. (A. D. August 11, 1876. An injunction 1863, 11 W. R., 525), held that it having been granted until the hearing, rested on the ground of property; a motion for preliminary injunction and Lord Westbury, L. C., in the same was heard before Matteson, J., and by case (12 W. R., 322 ; 4 De G., J. & him refused, and the matter has now S., 150), put it on the same ground. been argned at great length before Duer, J., in Fetridye v. Wells, 4 the full court.

Ab. Pr., 144, on page 146, says: “It Peabody & Crofts, for compls. is not necessary to deny that a name

N. F. Dixon, Jr., & N. F. Dizon, may in some cases be rightfully used for respts.

and protected as a trade-mark; but Hell, In the old actions at law the this is only true when the name is remedy was chiefly on the ground of used merely as indicating the true frand. See a review of them in Mot- origin or ownership of the article ley v. Downman, 3 M. & C., 1. See, offered for sale; never where it is used also, Crawshay v. Thompson et al., to designate the article itself, and has 4 M. & G., 357; also American note become, by adoption and use, its proper appellation.” See, also, Fet-good-will of the business; and in ridge v. Wells, 13 Ilow. Pr., 385. In many of these cases the sale of the Ferguson v. Davol Mills, 2 Brews., trade-mark would be upheld. See 314, Alison, J., says on page 318: A Dixon Crucible Co. v. Guggenheim, person“ has no right to a sign or sym- 2 Brews., 321. So where the name bol which, from the nature of the fact denotes the product of a particular it is used to signify, others may em- property, e. 9., “ Congress Spring,” or ploy with equal truth, and therefore wine made from a particular vinehave an equal right to use for the same yard.

In such cases there is no proppurpose.” And on page 320: “Pro- erty in the words, but only as the tection is given only in consideration means of designating a property. of the guarantee of the integrity of Congress & Empire Spring Co. v. the manufacturer or merchant, certi- High Rock Congress Spring Co., 57 fied by his trade mark. When the Barb. S.C., 526. device fails to accomplish this end, it But where the reputation of the is no trade-mark, and all claims goods and of the name has grown out founded thereon must be rejected.” of excellence of manufacture, deAnd that it is only on the ground of pending on the honesty and skill of false representations that a complain the maker, it is more difficult to hold ant is entitled to protection.

that it can be sold to a stranger, or These remarks on the nature of that it is generally assignable. the right have a bearing .on the ques

In The Leather Cloth Co. v. Amer. tion of its assignability. Upon this Leather Cloth Co., 11 W. R., 931; 1 question there has been a great variety H. & M., 271; 4 De G., J. & S., 137; of decisions, and it is difficult to re-11 II. L., 523, an English company concile them. A proper classification had purchased the business of an of the cases would probably remove American company, and applied for some of the difficulty.

an injunction against persons using Where, from its being a peculiar certain marks, representing their invention, or secret process, or par- goods as being the article known as ticular mode of manufacture, not gen-“ Crocket's leather cloth,” etc., etc., erally known to the public, the knowl- Wood, V. C, had granted an injuncedge of these processes might be com- tion, and, on appeal, Westbury I.. C., inunicated to others and the public, reversed his decision (4 De G., J. & and the purchasers should be pro- S., 137), and this reversal was contected against imitations. These cir- firmed by the House of Lords. 11 cumstances would give a value to the II. L., 523 (A. D. 1865). Many reprocess, and assimilate it to the na- inarks of the lord chancellor and of ture of property which might be dis- the lords are directly applicable to posed of.

the case before us. Says the lord In some of the cases the question chancellor (4 De G., J. & S., 143): has been between partners, or there “ But suppose an individual or a firm has been a sale of a business, to be to have gained credit for a particular continued by the vendee, and more or mannfacture, and that the goods are less connected with a place and the marked or stamped in such a way as

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