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Rep. (N. S.) 485; 20 Ch. Div. 1. Ch. Div., July 26, 1883 fraud any particular person, or the way and manuer Smith v. Land and House Property Corporation. Opin in which the fraudulent intent is to be cousummated. ion by Denman, J. (49 L. T. Rep. (N. 8.] 532.

Commonwealth v. Morse, 2 Mass. 128; Commonwealth v. Hulbert, 12 Met. 446; Commonwealth v. Butterick,

100 Mass. 12, 17; State v. Hastings, 53 N. H. 452, 457. CRIMINAL LAW.

New Hampshire Supreme Court. State of New Hamp

shire v. Kenneston. Opinion by Clark, J. (59 N. H. BASTARDY-EVIDENCE MUST BE BEYOND A REASON- 36). ABLE DOUBT.-A bastardy proceeding is quasi-crimi.

LARCENY-INSUFFICIENT DESCRIPTION OF PROPERTY pal, and the defendant must be proved, beyond a

IN INDICTMENT--An indictment for larceny, which reasonable doubt, to be the father of the child before

describes the property stolen as “one case of merhe can be compelled to contribute to its support. A

chandise of the value of six dollars," and contains no finding by the court, in such a case, that the defend

excuse for the want of a more full and definite deant is guilty “upon preponderance of the scription, is not sufficient. See Commonwealth v. evidence but not beyond a reasonable doubt,” Sawtelle, 11 Cush. 142. Maine Sup. Jud. Ct., March is equivalent to an acquittal. Wisconsin Supreme

24, 1883. State of Maine v. Dawes. Opinion by WalCourt, January 29, 1884. Van Tassel v. State of Wis

ton, J. (75 Me. 51). consin. Opinion by Cole, C. J. CONFESSION - OBTAINED

CORRESPONDENCE. IXADMISSIBLE. -Where a prisoner was visited during the night in his cell by three persons in succession who

CODIFICATION. were none of them officials, but who held out promises of favor in order to obtain a confession, held, that

Editor of the Albany Law Journal: admissions of guilt thus obtained were inadmissible.

An argument in favor of the adoption of the Civil No reliance can be placed upon admissions of guilt so Code has just occurred to me which I have never seen obtained; for the very obvious reason that they are

expressed in this form, but which would seem to comnot made because they are true, but because, wbether

maud the assent of all its opponents. true or false, the accused is led to believe it is for his A Civil Code has been drawn, and criticised, and interest to make them. State v. Phelps, 11 Vt. 116; amended, for nineteen years. It is presented to us as S.C., 34 Am. Dec. 672; State v. Walker, 34 Vt. 296 ; a substantially correct epitome of the common law by Hector v. State, 2 Mo. 166; S. C., 22 Am. Dec. 454; Mr. Field, whom in every other connectiou, no man Stato v. Bostick, 4 How. 563; State v. Guild, 10 N. J.

doubts to be an excellent lawyer, and by what is fairy Law, 163; s.j C., 18 Am. Dec. 404; Spears v. State, 2

claimed to be a majority, but is most certainly a large Ohio St. 583; Commissioner, etc., v. Taylor, 5 Cush.

minority, of the lawyers of the State. 605; Commissioner, etc., v. Tuckerman, 10 Gray, 190; This work is proved by a pamphlet to contain, in Smith v. State, 10 Ind. 106; Miller v. People, 39 III

one article (since entirely omitted, in submission to 457; Cain v. State, 18 Tex. 387; Davis v. State, 2 Tex. such criticism, though previously adopted at the reApp. 588; Van Buren v. State, 24 Miss. 512; Jordan v.

commendation of a “miscellaneous body composed of State, 32 id. 382; People v. Barrie, 49 Cal. 342; State mercbants, average adjusters, representatives of unv. York, 37 N. H. 175; Miller v. State, 40 Ala. 58; derwriters, chamber of commerce, and the like bodies Porter v. State, 55 id. 95; State v. Whitfield, 70 N. C. [including lawyers] who assembled at different times 356; State v. Hagan, 54 Mo. 192, and Flagg v. People,

in England and on the continent"), six positive errors, 40 Mich. 406. Michigan Supreme Court, October 24, and numerous ambiguous expressions. 1883. People of Michigan v. Wolcott. Opinion by

Or to adopt another form of expression, “it (the Cooley, J.

Code) is utter nonsense."

Or to state a mode of opposition adopted by another CONFESSION ADMISSIBILITY THREATS PROMISES.-The sheriff and State's attorney talked

objector: There is no case in the eighty-fifth volume

of the New York Reporter, of which it may be said, with the respondent while in jail. The sheriff first

that if the parties in controversy had turned to the testified that no inducements to confess were held out,

proposed Code, the point in controversy would have but afterward he said "that he presumed he and the

been found as decided in it." State's attorney both told the respondent it would be

This work, at the same time, is admitted to be the better for her to tell the whole story, and the punish

only codification of the common law in existence. ment would be likely to be lighter." Held, that his

Now if the only codification of the common law, testimony was admissible. Vermont Supreme Court,

thus introduced as aforesaid, is in the opinion of the May Term, 1883. State of Vermont v. Day. Opinion

most ardent friends of the common law, thus surby Veazie, J. (56 Vt. 510).

charged with error, or this “utter nonsense," or thus INDICTMENT-COUNTERFEITING-ALLEGING INTENT incapable of guessing at future controversies, and setTO DEFRAUD. — (1) In an indictment for an of. tling them, of wbat use is the common law as a rule of feuse created by statute, it is in general, suffi- action? How can it keep a man to what is right, or cient to describe the offense in the words of the stat- evable him to escape what is wrong? ute. "Certain pieces of false and counterfeit coin, in And if it cannot, what means of escape hare we, eximitation of the silver coin current within the State cept the reduction of the law to writing, and the resoby law and usage, to-wit, five pieces called twenty- lution to arrive at a true reduction by indefatigable five cent pieces, and five pieces called dimes,” is a correction? sufficient description in an indictment upon Gen. St., A practical experience of the need of a Code has ch. 258, § 9; State v. Goulding, 44 N. H. 284, 287; just occurred to me. I have received the following State v. Gore, 34 id. 510; Com. v. Cone, 2 Mass. 135; letter from a lawyer friend: Wharton Cr. Law, 364; State v. Abbott, 31 N. H. 434; "I want to examine in some large law library in 2 Bishop Cr. Proc., 265, 266, 704; Commonwealth v. your city, some authorities upon the question of how Stearns, 10 Met. 256; State v. Mabanna, 48 N. H. 377. far are admissible the declarations of a murdered man, (2) When a general intent to defraud is sufficient to expressing fear, eto. It was done in the Hunter case constitute an offense, the allegation of a general in- in Jersey, which we have. Also in the Hayden caso, tent to defraud is sufficient in the indictment, and it for the murder of Mary Stannard in Connecticut. is not necessary to allege or prove an intent to de- This we have not. In Burrill on Circums. Ev. 304,


which we have, we find references to State v. Carawan, I know that there are many cases holding that in the Pamph. Rep. 42, 46, and Mr. Spooner's case, 2 Chand.absence of any statutory provision, such power does not Am. Crim. Trials, 19-21. Also discussed in the case so pass, but if you will be so kind as to let me bare against Dr. Webster. Will you go with me to some your opinion on the subject, I shall be rery much public library?”

obliged. We went to the New York Law Library. State v. It is stated in volume 3, of Wait's Actions and DeCarawan was not in it. We found it cited a dozen fenses, page 261, that said power is a personal trust, times in Burrill, once as a North Carolina case, but no and for that reason does not pass (in absence of statreference to it in the North Carolina Reports. We ute), but what I insist upon, is that if our Orphans' found Chandler Am. Crim. Trials not in the library. Court is empowered to annex a will, it is thereby given In short my friend added nothing to the information that quasi equitable power to preserve any trust in furnished by his native village, and had come the that will, and that even if said power is a personal 120 miles to New York in vain. And this was the only trust it passes by virtue of that annexing of the will, library which I have ever been told claims to be com- and that the act of 1865 is not necessary to give said plete. It is then a matter of proof that there is in Orphans' Court the extra or additional power. America no place where a man can be informed of the Please let me know whether the above case in 92 N. law he is expected to obey ?

Y., rests upon statute or not.
Respectfully yours,

Most respectfully,
NEW YORK, March 5, 1884.


CUMBERLAND, Mn., March 5, 1884. Editor of the Albany Law Journal:

[We think it rests upon statute. ED. ALB. LAW Codification or not, the time is at hand, when the laws of the land must be simplified. The common

JOUR] law of agency is becoming a snare, even to the average lawyer. The laws growing out of the Statutes of

COURT OF APPEALS DECISIONS. Frauds, are somewhat contradictory, all tending toward confusion and uncertainty.


HE following decisions were handed down TuesThe 134 volumes of the decisions of the Supreme

day, March 11, 1884. Court of Massachusetts are replete with dicta and

Judgment affirmed with costs-Andrew Donlon, adlegal exceptions, which take time to eliminate, in

ministrator, appellant, v. Long Island Railroad Comorder to reach the law as it is.

pany, respondent; John C. Derby, appellant, v. J. Earl Good lawyers will not have to go,” even if codifi-Hulbert, as execulor and administrator, respondent;

Robert J. cation is adopted, for good counsel and ability, are

ivingston, indirectly, and another, executors, always in demand.

appellants, v. Russell Sage and others, respondents; In the city of Boston, the law dockets are becoming

Robert J. Livingston, indirectly and as executor, and so crowded that there is not sufficient time to try all

appellant, v. Wm. H. Webb and others, respondents. the cases, and much of this clog is owing to the length

-Judgment reversed; new trial granted, costs to of time consumed at the different stages of trials, in

abide the event-John M. Carroll, executor, and re

spondent, v. Henrg A. Deimel and others, appellants; presenting and arguing points and decisions of com- Elvira Vick, administrator and respondent, v. N. Y. mon law.

C. & H. R. Railroad Co., appellants; Catharine SANDWICH, March, 1884. E. S. WHITTEMORE. Waldele, administratrix, respondent, v. N. Y. C. & H.

R. Railroad Company, appellant.- Order of General PARTITION UNDER WILL WITH OUTSTANDING POWER Term and surrogate rerersed and case remitted to the OF SALE.

surrogate; costs of Supreme Court and of this court Editor of the Albany Law Journal :

to be paid to the appellant out of the estates in case

he shall be finally successful in the contest-In re. I saw in your JOURNAL (Feb. 9, 1884) a very inter- Probate of Will of Trust Felix Gourand, deceased. esting article on the subject of “partition under will Order affirmed, with costs out of the estate - William with outstanding power of sale." Among other things Laytin and others, trustees and respondents, v. Ellen therein stated I noticed this: "And in Mott v. Acker- Louisa Davidson and others, appellants.- - Appeal disman, 92 N. Y. 540, we find that a power of sale with appellant, v. N. Y. and N. H. R. R. Co., respondents.

missed with costs—Cynthia Brouk, administratrix and directions to pay debts or distribute passes to an ad

-Judgment reversed and proceedings dismissed ministrator with the will annexed."


costs-Clemence B. Bloomfield, respondent, v. I have tried in vain to see 92 N. Y. I therefore con- Stephen A. Ketcham appellant. cluded to take the liberty of asking you the following question: Does such power of sale pass to the admin

NOTES. istrator, C. T. A., in the absence of statutory provisions ? Or is there in New York an act corresponding with ПНЕ the Maryland Statute of 1865 (i. e., transferring the contains the following leading articles: Abuses power to such administrator)?

of the writ of Habeas Corpus, by Seymour My reason for asking the question is this: Our Pro. D. Thompson; Domicile as affecting Marriage and bate Court (Orphans' Court) is a tribunal of limited

Divorce, by Hugh Weightman; Preferred Stock, by

Leonard A. Jones; Peculiarities of Manx Law, by and special jurisdiction," and as such cannot appoint Roger Foster; address of M. Rivier, at late meeting an administrator with any such powers to carry out of Institute of International Law, at Munich; Review trusts in a will, were it not for that act of 1865. Never- of Causes in Courts of Last Resort, by Samuel Max. theless I claim, that inasmuch as said court is em- well. The “Notes" continue excellent. The Ameripowered to annex the will to an administrator (thereby

can has swallowed up not only the Western Jurist, but annexing (not conferring] said power contained in the

the Southern Law Review. We hope it will spare us

the Central Law Journal. Notwithstanding the Ameri. will to said administrator), such annexing is part of its can's assertion is not the "hub," we notice that on "special" jurisdiction, and therefore independent of the retirement of Mr. Murfree from the editorial said act of 1865, or any other statute, the power would management of the Central, he is succeeded by a Bogpass to the administrator, C. T. A., directly from the

ton man, Mr. Elisha Greenhood.- A correspondent will as it did in the first place to the executor (who in the reports, have you Mr. Preserved Fish, who


writes us: "Among your collection of funny names died or renounced as we have been supposing all along), pears in the third volume of the New York City Hall

, and is thus mediately granted by said Orphan's Court. Recorder at page 129? He is certainly either an ancesbut immediately by the will which said court is spe. tor of or of the same tribe as our friend 'Napoleon K. cially authorized to annex.




The publishers of Myer's Federal Decisions call The Albany Law Journal.

our attention to a mis-statement in our recent notice

of that work, namely, that “the publishers hope to ALBANY, MARCH 22, 1884.

bring every letter into one volume.” This they do not hope, but they do hope to complete each subject

in a single volume, and each volume will have a CURRENT TOPICS.

table of cases and an index. We cheerfully make

the correction, and shall endeavor to speak more HE Denver Law Journal, continuing the gown fully of the work hereafter.

discussionsays: Our people have confidence in their judges. The want of confidence is in the results of jury trials in criminal cases.

The bill now pending in our Legislature to abolish Eastern judges and courts have so refined the law,

free passes on the railroads ought to prevail, at and made technical loopholes for the escape of un

least so far as it concerns legislators and judges. doubted criminals, that the best judges are unable

Our opinion beyond this may be considered obiter. to prevent acquittals, where stern and equal justice,

It requires no argument to demonstrate the impolicy as well as the evidence, demands conviction. No

of granting free passes to those who make and technical objection upon which a criminal will go

administer the laws by which the railroads are unwhipped of justice, can be found which is not the bound. The bill ought also to provide against invention of judges who robe in silken gowns. The selling tickets to such persons under the usual rate. judges, who wear silken robes in Westminster Hall

, Otherwise the railroads may easily evade the proare the authors and originators of the net-work of hibition of free passes. technicalities which disgrace the administration of the criminal law. Witness the Hartung case, the Cancemi case, and others familiar to the profession, forbidden by law to commute, has respited a mur

Speaking of the evasion of law, some governor, in the courts of New York. Now we ask, with these

derer for fifty years. Of course we know nothing of cases in view and the repeated escapes of persons guilty of the most heinous crimes from merited

the particular hardships of the case in question,

but the act looks like an unhandsome evasion of the punishment, giving our people well founded ground law. It is such acts that inspire if they do not to fear that justice will not be impartial and speedy

excuse lynching. in its administration, where can the ALBANY LAW JOURNAL find any reason to believe that robing the

The printed argument before the Senate Judiciary judges in gowns will tend to elevate the popular Committee against Mr. Throop's Revision Bill, by idea of law and of the courts ? Our western judges Messrs. Opdyke, Frankenhemier, Wilds and Foster, have done much to remove technical obstructions in the administration of the criminal law. To-day bill, and some cogent arguments in favor of the

contains some trenchant and just criticism of that technical objections are countenanced in New York Field Code. As Mr. Field's Code has in former and other eastern courts, which find no favor with

years been criticised for changing the law — at Colorado judges. Our judges follow eastern pre

present it is not amenable to such a charge - it is cedents when they permit technicalities to obstruct noteworthy that Mr. Throop proposes to change the the speedy administration of justice, but in a

law in many particulars which are pointed out in majority of instances, technicalities are not favored.”

this argument. The argument points out that while Our contemporary is unfortunate in its illustrations.

the proposed code contains about 90,000 words, the The Cancemi case simply held that a prisoner was

proposed revision, covering about one-fourth of the not bound by his election to be tried for a felony by

same ground, contains about 70,000. This points less than twelve jurors, and the l'artung case simply

one of our main objections to Mr. Throop as held that a man could not be hanged when there codifier. Hamlet would be out of all patience with was no law for it, owing to bungling legislation.

his “ words, words, words." Probably no western court would have held differently in either case. We believe that the rule of the Cancemi case has been adopted in the west. It The first annual report of the new Board of is not correct to attribute the failures of criminal Claims, shows a great cutting down of claims transjustice to the laxity of eastern courts. The rulings of ferred from the late boards. Contested claims the eastern courts in criminal law are extremely strict amounting to $150,000 have been allowed at about and technical compared with those of the western $6,500. This looks healthy. Claims to the amount courts. We do not know how it is in Colorado, but of more than $160,000 were dismissed for want of the rulings of the Missouri courts, for example, in prosecution. favor of prisoners, have excited bitter animadversion even among lawyers of that State. Our brother Mrs. Weldon had a hard time of it before the should reflect, when he talks about Westmins- Lord Chief Justice the other day, in spite of the ter Hall, that there is no country where crime fact that she appeared in her own behalf. She had is so swiftly and speedily punished as in England. sued her husband for slander in saying that she was Westward the course of looseness takes its way. hopelessly insane. The following colloquy illus

Vol. 29 -- No. 12.

trates the ease with which an English court audience sition scems preposterous to a lawyer who undermay be set to giggling:

stands the principle upon which a person is liable "The Lord Chief Justice Who appeared on the for the acts of his servant and the reason why he is other side ?

not liable to one servant for the acts of a fellow-serMrs. Weldon Two or three barristers. (Laugh-vant, but there are practical reasons why some furter.)

ther protection should be furnished to the servants Mr. Wood Hill — And I am one of them, my lord. in a large manufactory or of a railroad company (Great laughter.)

against injuries arising from the negligence of Mrs. Weldon — Yes, and Mr. Wood Hill says that others in the same employment, especially if they this action is not maintainable in tort as it has no are in any sense his superiors in rank, Many States relation to property, but I say that a woman's have already passed laws making railroad companies reputation is her property.

responsible for the negligence of fellow-servants The Lord Chief Justice — I am afraid that we generally. This fact indicates a popular pressure cannot construe the act in the sense you would wish; in this direction, but it does not prove that such it does not relate to character. I dare say, Mrs. legislation is wise." We agree with this. But 3 Weldon, you have read Shakespeare ?

practical answer to all such attempts is found in the Mrs. Weldon - I have, and I have got it here. I fact that corporations can always find servants who will read the passage

will agree not to hold them responsible in such cir"Who steals my purse steals trash ; 'tis something, nothing; cumstances. "Twas mine, 'tis his, and has been slave to thousands, But he that filches from me my good name

Robs me of that which not enriches him,
But makes me poor indeed.'

'N Germantown Pass. Ry. Co. v. Brophy, Pennsyl. The Lord Chief Justice — Yes, 'that not enriches him.' Mrs. Weldon

N, Cas., 213, it was held that where a person sits in Yes; he took away my money and my house, which made him very rich. I only wholly within the car, and by a sudden collision his

a street car with his arm resting on a window sill wish I could get rich so easily. (Laughter.)

arm is thrown out and broken, his occupying such The Lord Chief Justice here reminded Mrs. Weldon of the provisions of the Act of 1882, declaring The court said: “The company has two railway

a position is not contributory negligence in law. that 'except as aforesaid' no husband or wife was

tracks, separated by so narrow a space on a curve, entitled to sue one another in tort. Mrs. Weldon --- It would be a very good thing if

that when its cars were passing in different direc

tions they came in collision, whereby the defendant all the women in England knew that. (Laughter.) Then I can't catch him in any way? (Great laugh- The main contention is whether he was guilty of

in error, a passenger in one of the cars, was injured. ter.) The Lord Chief Justice -- Certainly not in this contributory negligence in producing the injury to

his arm. * * The learned judge charged that if way. (Rencwed laughter)

he sat with his arm out of the window when the Mrs. Weldon So that a husband can libel his

collision occurred, he was guilty of negligence, and wife or do any thing he likes. It is a very good thing that we were not told this before we got

could not recover. Not satisfied with this, the counmarried, or else the men would be very badly off.

sel for the company requested the court to charge

if the defendant in error placed his arm on the win(Great laughter.) The Lord Chief Justice Your appeal is dismis

dow sill and by a jolt of the car it was thrown out

of the window and he was injured, he was guilty of sed.

contributory negligence, and could not recover. Mrs. Weldon – Very well. I don't see that the Married Woman's Property Act is of much good. jury to find whether if he was so riding it was deg

The court refused to so charge, but left it to the (Laughter.)" These unfeeling people would have laughed at ligence on his part which contributed to the injury.

The company has no just cause of complaint of this poor Miss Flite, in Bleak House. But we think it

answer. It would have been clear error if the court would be very unwise to subject husband or wife

had instructed the jury that occupying such a poto action of slander of the one by the other.

sition was negligence in law. Resting his arm upon

the window-sill wholly within the car, created no The New Jersey Laro Journal says that a bill has legal presumption of negligence. If it constituted been introduced in the Legislature of that State pro- negligence, it was a fact to be found by the jury, viding that the servant of a railroad company may to whom it was submitted, and it was not to be so recover damages for injury caused by the negligence declared by the court. In the absence of a collision of a fellow-servant. The Journal says: “Similar with an external object his arm was in no danger of bills have been introduced before, and from the fact injury. He was under no legal obligation to assume that they were directed against railroad companies or anticipate that the company would run another alone, have not received much attention. An car against the one in which he was sitting. The amendment was proposed this year, making it ap-window-sill in a railway car is substantially the top plicable to all persons and corporations. The propo) of the back of the seat. It cannot be declared neg

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ligence in law for a passenger to so rest his arm, when they wish to have a trade-mark for their oil and the jury has found it is not negligence in fact." in America they take the word valvoline,' not by

itself, but plus something else. And in like manner In Shay v. Thompson, Wisconsin Supreme Court, I find that when they began to sell the oil over here, February 19, 1884, 18 N. W. Rep. 473, it was beld and wanted to have a trade mark in England, the that where two voluntarily fight each other, either mark which they registered was again, not the

word 'valvoline' alone, but the device of a shield may recover from the other for the injury suffered. The court said: “The parties own adjoining farms with 'valvoline' printed across it. The opinion and had a personal difficulty concerning the suffi- which I have formed upon hearing the facts — and ciency of the line fence between their respective for this purpose I take the facts as stated to me by On a certain Sunday in August, 1882, they the plaintiffs used that word as descriptive only,

the plaintiffs themselves farms.

- is that from 1873 to 1878 met, quarrelled about the fence, and fought. Al and not as a trade mark at all; and that although though they were both old men, it is but just to say the word was indeed branded on their casks, yet they fought with great spirit and brutality. The their trade mark was not the mere word valvoline,' defendant is the larger and probably the stronger but the mark of the shield with the word 'valvoman, and had the best of the fight. He gouged both eyes of the plaintiff, and it is claimed that the 1878 was only effected in order to try to keep to

line' across it; and further that the registration in sight of one of them is permanently impaired. This themselves the word "valvoline,' and not bona fide action is to recover damages for such injuries. * * * The jury were also instructed as follows: "If two, consider, under these circumstances, whether in

to register it as a real trade-mark. Then I have to in anger, fight together, each is liable to the other 1878 they could turn around and alter their position. for the actual injury inflicted. If you find that the plaintiff and defendant by common consent, in

By that time the word, even if it had ever meant anger, fought together, and that the plaintiff was

any thing else, had come to mean merely oil used

for lubricating machinery; and being thus simply actually injured in said fight by the defendant, the plaintiff is entitled to recover from the defendant not be used as a trade mark to the exclusion of the

equivalent to 'valve oil,' was a word which could the actual damages resulting from said injury, but rest of Her Majesty's subjects. It is a word merely not exemplary damages.' This instruction is fully sustained by the authorities cited by counsel for the and there is plenty of authority for holding that

describing the substance of which it is the name, plaintiff. These are 2 Greenl. Ev., $ 85; Comm. V.

such a word cannot be registered as a trade-mark.” Colberg, 119 Mass. 350; S. C., 20 Am. Rep. 328; Adams v. Waggoner, 33 Ind. 531; Stout v. Wren, 1 Hawks. 420; Bell v. Hansley, 3 Jones Law (N. C.), COMMON WORDS AND PIIRASES. 131; Exodus, xxi, 18, 19. These authorities go upon the principle that the fighting being unlawful, YONSENT. — Owners of property cannot be said the consent of the plaintiff to tight is no bar to his to have given “consent" to the furnishing of action, and he is entitled to recover. We believe labor and materials by a sub-contractor of a subthe rule is one of sound public policy, and we do contractor, within a mechanics' lien law. Geddes not hesitate to ineorporate it into the jurisprudence v. Bowden, 19 S. C. 1. The court said: “The word of this State."

consent' ordinarily implies choice, and one can

scarcely be regarded as giving his consent to that In Leonard v. Wells, Ch. Div., 50 L. T. Rep. (N. S.) which he has no right to object to. In the experi23, it was held that there can be no trade-mark in ence of life a man is oftentimes compelled to accept “ valvoline," and so "valvoleum” is no infringement. results, in the sense that he makes no opposition or The court said: “The question I have to decide is objection thereto, for the reason that he has no whether that word was then a fancy word, and one right or power so to do, but he cannot, in any proper which they could adopt and register as a trade- sense of the term, be regarded as consenting to them mark, and by so doing exclude the rest of Her Ma- unless he has the right and the power to exercise a jesty's subjects, or whether it was only a descriptive choice to consent or object thereto." word, and merely equivalent to 'valve oil,' and PROBABILITY. - In Brown v. Atlanta, etc., R. Co., therefore incapable of being so registered. The late 19 S. C. 39, the court said: “It seems to us that Master of the Rolls, when the word came before him there is a difference between probability and proof. in Re Horsburgh, certainly considered it was not a The object of both words is to express a particular fancy word, but was simply the same as 'valve oil;' effect of evidence, but 'proof' is the strongest exand from what I know of Sir George Jessel, I think pression. All the dictionaries give different defithat if he had been called upon to decide the point nitions of “probability.' One of Worcester is, he would not have held that it was a word which ‘Likelihood of the occurrence of an event in the could be registered by itself. But I need not rely doctrine of chances, or the quotient obtained by upon obiter dicta of the Master of the Rolls, for since dividing the number of favorable chances by the 1873 I am satisfied that the word has been used by whole number of chances;' and one of Webster is, the plaintiffs themselves as a word of description *Likelihood; appearance of truth; that state of a only, and not at all as a trade-mark. I find that case or question of fact which results from superior

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