contract; refused to name his principal; promised to sign the contract note; took possession of that note when it came to Heward's office, and put it by. He also beat down the price, and threw the brokerage on the purchaser; perfectly aware of what he was about. Afterwards, it seemed that immediately the clerk telegraphed to Heward at Toronto, and the latter adopted the contract, and merely asked with whom it had been made, the amount, &c. The telegraphic communications showed this. In fact, Heward tried to get the flour to execute the contract, and even offered damages to the amount of 6d. per barrel. The repudiation only took place two days after his return. Now, assuming the clerk to have authority, what were the circumstances? That he being Heward's agent applied to Messrs. Esdailes to find a purchaser for a quantity of flour to arrive. He had power to do so, and there was nothing to prove that it was what had been called a speculative sale, since Heward might have had the flour on its way. Here it must be remembered that a general agent was created, not by the power that the principal gave to the agent, but by the power he permitted the agent to assume, otherwise there would be no safety in commercial dealings, for commercial men would be constantly repudiating their contracts on the ground that they had given no authority. All the public can know is what are the acts of the agent allowed by the principal. The general agent's power is not, however, unlimited, and must be kept within the scope of the principal's business. This was the case here, and especially as the defendant did not repudiate the bargain at once. On being informed of it, he thought it binding on him. Another point was, if the contract had been completed in a legal manner. It was certain that the statute of frauds was part of our commercial law, and the seventeenth section of that act provided that the parties to be charged should be parties to the memorandum of the contract. But in England it had been frequently decided that it is sufficient to name the parties, if the broker signs the note. The main point in the case, however, was this:-Were the Messrs. Esdailes the agents and brokers of the defendant for this sale, and did they deliver a memorandum to him according to the requirement of the statute of frauds? He thought they were; the delivery of the bought and sold note, signed by the broker, to the buyer or seller, being according to the English rule, was sufficient to bring the case within the statute. The learned judge then proceeded to give some account of the position held by brokers. Under the French law they were not to treat, but to explain the position of the parties and to bring them together. By the English law they were sometimes the agents of both parties, and bound both by their signature. In Russel's practice, it was said that where the bought and sold notes were identical, and contained the names of the buyer and seller, the object, and the price, they would make evidence; but this would be set aside by the note given to one of the parties, showing any material alteration. Again, the non-return of a note handed to one of the parties was a strong proof of acquiescence. These reasons from the writers on the subject seemed to him to be all in favor of the plaintiff, and there was this additional one drawn from the broad principle of honesty, which was this-that if one of two innocent parties must suffer from the misconduct of a third, he must sustain the loss who has given to the third party the opportunity to do wrong. It had been said that brokers had peculiar powers in England, which could not be extended to them here, and therefore that the English rule could not apply. But the fact was, that the laws relating to brokers in England merely incorporated them, and did not relate at all to their powers as brokers. But the law that the broker could bind both parties prevailed in Upper Canada. There was in fact no peculiarity in the position of the brokers here to take them out of the usual rule of commercial countries. His Honor, in support of this view of the case, cited Domat and some decisions in the United States, one by Chancelor Johnson, of New York, and another in the case of Wentworth. It was necessary now to say one word about the clerk. It was said that he was in a state of intoxication when he made this transaction. But the intoxication which could render a man incompetent to contract was one that impaired all the powers of his mind, memory, and reflection. There was nothing to show anything of all this in the present case. In a recent case in England, where a plea of this sort was set up, it was laughed out of court.

DAY, J.-The important law point in this case was whether persons, styling themselves brokers in this country, possessed that kind of quasi officiality under which authenticity was to be given to their signature so as to bind both parties to a bargain. The question arose out of the provision of the statute of frauds, the seventeenth section of which enacted that no sale for more than £10 should be valid unless there was a memorandum in writing by the parties to be charged, or their agents duly authorized. Was Esdailes then duly authorized to sign the contract-note? And if this was not proved, was it to be presumed because Esdailes carried on the business of a broker? Now, taking up the English decisions, there had been an evident desire on the part of the judges to escape from the stringent rule of the statutes, and that might have been justified by the desire to render commercial transactions easy. Thus the entry on his books by an auctioneer was at one time held to be binding on both parties, but that being found to destroy the statute altogether, it was afterwards held that the statute did not apply to auctioneers at all. Then came what seemed the received doctrine in England, that the auctioneer should be considered the agent for both parties. But he could not believe that this was a proper decision. A man who went into an auction-room bought of the auctioneer as the agent of the seller, and if the seller repudiated the contract, the auctioneer became the principal. Now, the signature of Esdailes, if good at all to bind the two parties, must be good on one of the two grounds he had stated, either the Esdailes were the authorized agents of Heward, or they were to be presumed to be so, because they were brokers. In examining the first alternative, he referred again to the English decisions, and said it was extremely difficult to understand precisely the causes which had sometimes induced the English judges to hold agents to be the agents of both parties. In Cooper and Smith, (East.'s Reports,) when the clerk of the agent of the vendor wrote the note of sale in the vendor's order-book, in the presence of the vendees, and then at the desire of the latter read it over to him, it was held that the signature was not enough to bind the parties. Then came a case in 5 Bingham, 603, where the vendor's clerk sold thirty barrels of sugar, and at the time made and signed the contract in the books of the vendee. That was held to be insufficient. There the agent signed his own name, and not for either of the parties, which was the reason for the decision. If he had proved that he was the attorney of the vendor, it would have been sufficient. This was a similar case. Esdailes did not sign as attorney but as broker. When an individual, acting between the two parties, signed for both, it had been sometimes held that that bound both; but the decisions ran the other way when the note of one party was set up as binding the other. When that was received it was always because there was evidence of one party being authorized by the other. With regard to the quotation from Domat, the word used by that author explained the whole thing. He spoke of entremetteurs of men being employed by persons having opposite interests, and who were the agents for both to place them in a position where they might treat for themselves. It was further said that any man who set up business as a broker created for himself a capacity in which he was presumed by law to be the agent of the parties, and that he might give a note binding the party adverse to the one he represented. Brokers having powers like that were not to be found in either England or France. What said Bell? That if a broker was authorized by one party to buy, and another to sell, the entry in his book was binding. But that was because he was authorized by both parties. The only reason for supposing Esdailes to have been authorized by Heward was the fact that the clerk went to them and got them to sell for Heward. But John Esdailes said, in answer to the question, who authorized you to make a sale for defendant? I bought the flour from the defendant through his clerk. Again; when asked, state what your proceedings were, &c., and the nature of the authority received by you from the defendant, Mr. Esdailes said nothing of any authority from defendant, but described the affair by saying that the flour being offered for sale by the defendant's clerk, the plaintiff authorized him to purchase 1,000 barrels on the best terms he could, not exceeding 37s. 6d. He offered 37s., provided Heward would pay the brokerage, but was told that it

would cost more to deliver it from Upper Canada, where the price was to be 35s. Here a party had flour to sell, and another came and said that he was authorized to buy, and bargained for the purchase; but how was this last Mr. Esdailes the agent for Heward, the defendant? It had been said by his learned brother that there was no legislation in England affecting the powers of brokers; but there was a statute so early as James I., confirmed by one of Anne, obliging the brokers to give security, and placing them under the strictest provisions as to the conduct of their profession. No man would be admitted in England to act as a broker on his ipsi dixit, and any assumption which might be good in their favor would not apply in the case of a man who had not their privileges and obligations. However, on this point the court could not look to England, but to France, and the doctrine he had laid down would be found in Savary Parfait Negociant; Roque Jurisprudence Consulaire; and Villeneuve Deit. Commerciale verbo Courtiers. The position of the majority of the court, then, is simply this: that there was no evidence to show that Esdailes was authorized to act as the agent of the defendant; and that no presumption of his being so arose from his styling himself a broker. That where a broker was applied to by both parties and became really the agent of both, he might bind both; but unless he stood in that position, even though the character of broker was better defined than it could be here, he could not bind both parties by his simple signature until the profession of brokers were put on a different footing-he said this without any reproach on the gentlemen now exercising the profession, and least of all on Messrs. Esdailes-any other rule would involve traders in ruinous losses. Judgment for the defendant.

THE LAW OF TRADE MARKS-BRINDLE'S WATCHES.

Before Judge Davies, (New York.) Morris L., Samuel, and Edwin M. Dunn vs. Albert Berger.

Plaintiffs alledge that they are assignees of Sylvester L. Samuel, who, by agreement with one James Brindle, acquired the right to use his name upon watches manufactured by Samuel and his assignees. The defendant sells watches manufactured by Brindle, and stamped with his name.

It is sought to restrain him from so doing by injunction.

DAVIES, J.-The rule, governing the interference of courts in this and like cases, is well laid down by DUER, J., (Amoskeag Manufacturing Company ts. Spear,) 2 Duer, 607. He says:

"At present it is sufficient to say, that in all cases where a trade mark is imitated, the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another; and it is only when this false representation is directly or indirectly made, and only to the extent in which it is made, that the party who appeals to the justice of the court can have a title to relief."

Applying these principles to the facts in this case, we shall see that the plaintiffs invoke a rule of law which the defendant might claim to be applied to them, but which will not avail the plaintiffs.

The plaintiffs say that Brindle, as a watchmaker, had acquired a reputation as such, and that all watches manufactured by him were stamped with his name; that Sylvester J. Samuel purchased from Brindle the right to stamp Brindle's name on watches manufactured by Samuel; and that Samuel assigned to the plaintiffs the right to stamp Brindle's name on watches manufactured by them. The defendant has on hand for sale the watches manufactured by Brindle, and stamped with his name, and this court is called upon to restrain him by injunction from selling the genuine, and thus to protect the plaintiffs in selling the simulated articles.

The plaintiffs ask the court to aid them in passing off upon the public watches manufactured by them and held out to the public as made by Brindle, when, in truth, the watches made by Brindle, and stamped by him with his mark, are those which the defendant seeks to sell.

If the defendant was seeking to make sale of watches manufactured by him as those manufactured by Brindle, and the right of the plaintiffs to use his name as a trade mark was clear, then the injunction should go; but they cannot call on this court to aid them in passing off the watches made by them as those manufactured by Brindle.

Another rule enunciated by Judge Duer in the case above cited is to be applied to this case. He says, (2 Duer, 618,) the rule is fully settled, and is recognized in nearly all the cases, that, in suits of this nature, an injunction is never to be granted in the first instance if the exclusive title of plaintiff is denied, unless the grounds upon which it is denied are manifestly frivolous. When the title is disputed, the course is to let the motion for an injunction stand over until the plaintiff has established his legal right in an action at law.

OBSTRUCTIONS TO NAVIGATION ARISING FROM RAILWAYS.

The American Railroad Journal notices, as among the interesting questions that have arisen from our grand system of railroad travel, the conflict of the convenience of society which occurs when a railway is to be carried across navigable streams, bays, and arms of the sea. The Journal says, that on account of the benefits they bestow they are endowed with certain peculiar privileges: they obtain monopolies; they secure rights which the law will not allow to individuals. But it is always on the condition that they will do no injury to the public. There are doubtless many inconveniences to private individuals, many grievances which no compensation can recompense, for which no damages can atone. But all these are overlooked in comparison with the benefit conferred upon the community in general. But they have no right to destroy prescriptive and original means of communication, to obstruct navigable rivers, or prevent the usual means of transportation in order to facilitate their own.

The Hudson River Railroad, passing along the shores of the river from which it takes its name, has undoubtedly injured the property of many proprietors on its eastern bank. The splendid water-fronts of many country-seats have been ruined; the seclusion which men of wealth have sought is disturbed, much against their inclination, by the shrill steam-whistle and the noisy passage of countless trains. These are inconveniences which must be submitted to for the general advantage of the community: damna absque injuria. But when the direct course of their railroad would impede the navigation of the branches and bays of the river, the company are compelled by the terms of their charter to construct drawbridges, and to provide that their right of way should not deteriorate the usual and original channels of travel and transportation.

Getty vs. the Hudson River Railroad Company, 10 Barbour, 617.

In this case the plaintiff owned a farm situated on a bay in the river to the north of Hudson. In the year 1849, the railroad company, under their charter, proceeded to build their road on an embankment, and on piles directly across the mud flats on the east side of the river, at the distance of one thousand feet from the shore at high water. At low water the flats across which the railroad passed were nearly or quite exposed. By this the plaintiff was prevented from selling sand from the sand-banks on his farm. The brickmakers on the opposite side of the river had been accustomed for many years to obtain molding-sand in greater or less quantities from the plaintiff. This sand was then taken chiefly in the winter across the ice by teams, and in summer by scows of some sixteen to sixty tons burden, both with or without masts, which could be brought within fifty feet of the shore at high water.

The plaintiff brought his action against the company for damages, and also

claimed a decree that they should be compelled to build a drawbridge for the convenience of navigation. The company contended that, as the road was constructed in the river, one thousand feet from the shore, not taking or touching the plaintiff's lands, or in any way interfering with his rights on lands belonging to the State of New York, and that as there was no dock or other convenience for navigation inside said road, no drawbridge was required by the terms of their charter in such cases.

By the Court-The general question of damages for injuring the private rights (of navigation, fishing, etc.,) of individual proprietors along the banks of this river where the company has, under its charter, built on the property of the State, would seem to be very clearly decided and adjudged, and can need no discussion here.

If this case be not so different from those, by reason of the plaintiff's location on a bay, as to entitle him to a drawbridge, then he has no right to recover damages for an obstruction that is there by leave of the State on lands of the State. Is he then entitled to have a drawbridge built there in case his prayer for specific relief be granted? I must say that the answer to this seems to me as plain as does that to the previous part of the case, and it is two-fold. 1. No one individual can maintain this action for a specific performance of a public duty imposed for the public benefit, and that public the people of the State, and they only, can institute proceeding to compel a compliance with that duty. 2. It cannot be that this "bay," if correctly described in the statement of facts, is such a bay as, by the 15th section, the company are bound to furnish with a drawbridge, "to provide for free passage of such vessels as heretofore have passed or now can pass." That some sort of water craft can at sometimes pass near to shore of a curve in the stream, does not make the "bay" spoken of. It can mean in view of public necessity such bays only as have a general navigation deserving the name of navigation.

AGENTS-ACTION TO RECOVER VALUE OF COTTON SOLD TO A MANUFACTURER.

Supreme Court of New York, Saratoga County. Before Judge Rosekrans. Patrick Walsh vs. Russell P. Clapp and Herman Warner.

This was an action for the recovery of $186 20, the price and value of six bales of cotton, sold and delivered to the defendants, who are partners, residing and doing business at Ballston Spa, in the county of Saratoga, under the name and style of Clapp and Warner. It appeared from the evidence that the plaintiff sold the cotton through his broker in New York to the defendants, through their agent, one Hapgood, and the cotton was duly received and worked up by the defendants at their mill. It appeared also that the defendants' agent was insolvent, and had sold out to them the stock and running gear of the mill by an instrument in writing, dated two or three days previous to the alleged purchase of cotton. This instrument, in its terms, was absolute, and on its face was a perfect conveyance. The agent, however, did not leave the mill at once, but remained for some time in the employ of the defendants.

The defendants acknowledged that they received the cotton, but set up that they never authorized Hapgood to buy for them-that he was largely indebted to them at the time of the alleged purchase-that the cotton was sold and delivcred to them by said agent on account of such indebtedness, and that the instrument in writing was merely to secure such indebtedness.

The court charged the jury that the sale by Hapgood to the defendants was proved; that if the defendants had received the cotton and reaped the benefit of it through their agent, even though Hapgood, at the time of the purchase, did not make known his principals, they were liable; that the jury were the sole judges of the agency of Hapgood in this matter, and that, in determining it, they were to consider the circumstances of the sale, Hapgood's position in the mill previous and subsequent to the purchase, and his utter insolvency at that

time.

Verdict for the plaintiff for amount of claim and interest, $196.