Tradesmen's Marks. act,quence the rates of postage prescribed by this act, quence to do it." Notwithstanding this with the annual appropriation from the opinion of so learned a judge, we find a vatreasury of seven hundred and fifty thou- riety of instances in later times, in which sand dollars herein granted, shall prove in- injunctions have, under such circumstances, sufficient to defray the expense of the mail been granted. Lord Hardwicke, however, service throughout the United States to an does not deny that there are cases in which extent equal to what is now enjoyed by an action at law would lie, and he alludes the public, and also the expense of extend- to the case referred to in arguments cited ing and enlarging the same in due propor- by Mr. Justice Dodderidge, in Popham, 151, tion with the increase and expansion of the where it was held that an action at law population, particularly in the new states could lie against a cloth-worker for using and territories, the deficiency that may the same mark as another in the same trade. arise shall be paid out of any moneys in the But his lordship thus remarks, that "it was treasury not otherwise appropriated: Pro- not the single act of making use of the mark vided, That the amount of expenditure for that was sufficient to maintain the action, the post office department shall not in the but the doing it with a fraudulent design to entire aggregate, exclusive of salaries of put off bad cloths by this means, and to officers, clerks, and messengers, of the draw away customers from the other clothgeneral post office, and the contingent fund ier; and there is no difference between a of the same, exceed the annual amount of tradesman's putting up the same sign, and four million five hundred thousand dollars. making use of the same mark with another § 23. And be it further enacted, That of the trade." In the case, however, before nothing in this act contained, shall be con- Lord Hardwicke, it was not necessary to strued to repeal the laws heretofore enact- determine so broad a question; and we ed, granting the franking privilege to the shall see that in the subsequent cases, his president of the United States when in of lordship's view has not been followed. It fice, and to all ex-presidents, and to the also appears that the right of protection does widows of the former presidents, Madison not depend on the wilful fraud of the deand Harrison. fendant, but that a person innocently using the marks of the plaintiff may be restrained from so doing. The ground for not granting the injunction in the case before Lord Hardwicke was the fact, that the plaintiff had not made out his title to the mark in question. It was on this ground, and on this alone, that the injunction was refused; for if, Lord Hardwicke admits, an action at law, may in some cases arise, then it follows, from the principles of equity, that the court of chancery will, on such a case being made out as would support an action at law, interfere to prevent irreparable injury, and also by granting an account give that relief for which damages at law, could not in many instances, afford an adequate comsation in reference to the injury received. But the right at law, and a very strong case, must be fully made out before a court of equity will interfere in the first instance, The lord chancellor, in Motley v. Downham,† said "the court, when it interferes in cases of this sort, is exercising a jurisdiction on a legal right; and although some. times, in a strong case, it interferes in the JOINT RESOLUTION To fix the time when the act to reduce the rates of postage, to limit the use and correct the abuse of the franking privilege, and for the prevention of frauds on the revenues of the post office department, passed at this session, shall go into effect. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act "to Reduce the Rates of Postage, to limit the use and correct the abuse of the Franking Privilege, and for the prevention of frauds on the revenues of the Post Office Department," passed at the present session, shall go into effect on and after the first day of July next, and not sooner, anything in said Act to the contrary notwithstanding. Approved, March 3, 1845. TRADESMEN'S MARKS.* ART. I. LORD HARDWICKE, in a case before him, is reported to have said, "every particular trader has some particular mark or stamp; but I do not know any instance of granting an injunction here, to restrain one trader from using the same mark with another, and I think it would be of mischievous conse The greater portion of this article appeared in the London Quarterly Review of Jurisprudence. * Blanchard v. Hull, 2 Atk. 484. Tradesmen's Marks. first instance by injunction, yet, in a general way, it puts the party upon asserting his right by trying it in an action at law. If it does not do this, it permits the plaintiff, notwithstanding the suit, to bring an action. In both cases the court is only acting in the aid of, and is only ancillary to the legal right. I can hardly conceive a case in which the court will at once interfere by injunction, and prevent the defendant from disputing the plaintiff's legal title." In that case, the injunction had been granted in the first instance in the court below, but no provision had been made for permitting the right to be tried at law. The first thing to be shewn is the legal title: Thus, where the plaintiff's father prepared and sold a medicine, called "Dr. | Johnson's Yellow Ointment," for which no patent had been taken out, and the plaintiff, after his father's death continued to sell the same, and the defendant sold the medicine with the same mark; Lord Mansfield said, "If the defendant had sold a medicine of his own under the plaintiff's name or mark, there would be a fraud for which an action would lie; but here both plaintiff and defendant use the name of the original inventor, and no evidence was given of the defendant's having sold it as if prepared by the plaintiff. The mere fact of the plaintiff's father having been the inventor and vendor of this medicine gave no right to the son to claim any property in the medicine or the mark, and the only ground upon which such an action could be maintained would be the fact, that the defendant sold it as if prepared by the plaintiff. In fact, this is the ground in all questions of this nature." It appears from the concluding part of Lord Mansfield's judgment, though it is not stated in the body of the case, that there was no patent, nor were there any letters of administration thus implying, that, under these circumstances, the plaintiff had acquired no better right to the medicine and the mark than the defendant. They were both using a mark and selling a medicine which belonged as much to one as the other; but if either had attempted to sell the medicine with such marks, and in such a manner as to lead the purchaser to imagine it was prepared by the other of them, then an action would lie. A similar doctrine was held also in * Singleton v. Bolton, 3 Doug. 293, another case-where the plaintiff, whose name was Sykes, marked his shot belts with the words "Sykes' Patent," and it appeared that the plaintiff had taken out a pa. tent which had been held invalid on the ground of a defect in the specification. The defendant's name was also Sykes; and it was proved that he marked his shot belts in a similar manner, and that mistakes were made among the retail dealers, though not among the wholesale dealers, whom alone the defendant supplied. The question then left to the jury was, "whether the defendant adopted the mark in question for the purpose of inducing the public to suppose that the articles were not manufactured by by him but by the plaintiff."* A verdict was found for the plaintiff, which was afterwards held good by the whole court. Here we see, that although the plaintiff had no preperty whatever in the invention, and although every other person was entitled to vend it, yet that the attempt to sell it as if manufac tured by the plaintiff was actionable. This distinction must be borne in mind. It ap pears also that the mere attempt is sufficient to maintain the action, and no special damage need be proved.† In a recent case, it appeared that the plaintiff, who was a manufacturer and exporter of iron, manufactured by him for the Turkish market, with the letters W. C. inclosed within an oval figure, and that he had gained great reputation on account of the excellent quality of the iron so manufactured and marked by him; that the defendant manufactured iron of a similar form, and stamped the same with a stamp or mark in imitation of the plaintiff's mark consisting of the letters W. O. inclosed within an oval figure, which last mentioned mark was in imitation of and similar to the plaintiff's mark, and was used by them in order to denote that the iron so marked was of genuine manufacture of the plaintiffs, and sold the same as and for iron manufac tured by the plaintiff. At the trial, the witnesses for the plaintiff stated that the W. O. was very likely to be taken for the W. C., when the impression of the die was im. perfect, or the iron had been exposed to the air; and that more especially the people of Asia Minor, who were the principal consumers of the iron in question, were On Criminal Liability. likely, from their ignorance of the charac-plode in his absence some hours afterwards. ter, to be deceived. All such modes of offending are at least equally mischievous with the most direct acts; they are, indeed, more dangerous, because it is more difficult to guard against them effectually, and they usually exclude the benefit of repentance, which, up to the last moment may arrest the arm of the of fender, who himself proposes to strike the blow. For the defendant, it appeared, by the testimony of several witnesses that it was usual for iron manufacturers to mark iron according to orders received from the purchasers; and it was proved that all the iron marked by the defendants with the mark so complained of, had been marked in obedience to the directions received from the merchants. Two points were left to the The same principles apply to all who jury. first, whether the mark used by the procure any criminal act to be done by the defendant so closely resembled the mark of agency of any other person, according to the plaintiff as to be calculated to deceive the well-known brief rule of the Roman persons of ordinary skill and care, and to law, "Qui facit per aham facit per se." induce them to believe that the iron so Where the procurement is by means of an marked and sold by them, was iron manu- innocent agent, as where an offender caufactured by the plaintiff': secondly, whether ses a party to administer deadly poison to such mark was so used by the defendant, a third person, and he does so administer it with a fraudulent intention to procure their supposing it to be wholsome medicine, the iron to be received in the market as iron of innocent agent is but in effect a mechanical the plaintiff's manufacture, or bona fide in machine, whose movements are regulated the execution of foreign orders. The jury by the offender. Where the crime is dihaving found for the defendant, and the rectly executed by a guilty agent, the prolearned judge having asserted that he was curer, in addition to the guilt peculiar to the not dissatisfied with the verdict, the court crime itself, frequently adds the aggravation refused to grant a new trial.* of corrupting the principles, and always that of compromising the safety of the criminal agent. ON CRIMINAL LIABILITY. CRIMINAL AGENCY. THE rule relating to criminal agency and participation, are derivable immediately from the first principles of penal laws. The union of offenders involves, in addition to the guilt pertaining to the particu lar crime jointly perpetrated, that of con. spiracy, an offence in itself dangerous to the peace of society. By such union the Their great object is to restrain men power of offending is greatly increased, and from acts prejudicial to society, but where the inclination to offend encouraged by the the thing done is prejudicial, the means of addition of force and cunning, and of augdoing it cannot be material, unless the par-mented means for the execution of both, ticular means essential to the defined of fence. It can make no difference, either in respect of the mischief resulting from an injury done, or for its prevention, whether the offender do it directly with his own hand, or indirectly by mechanical means, or whether he effect it by proximate or remote means, or whether he be present or absent at the time when any hurtful effect or consequence results. In the case of wilful homicide it is immaterial to the essence of the crime, whether the offender directly administers poison or sends a poisoned cake, knowing that it will be eaten by the party to whom it is sent; or whether an incendiary applies lighted match to the corn-stack of another person, or thrusts it into combustible matter which will exCrawshay v. Thompson, 5 Scott 562. whilst the power of resistance is proportionably diminished. Atrocious violations of the laws are thus accomplished, to which the efforts of a single individual would have been unequal. Where several so unite, each leading his aid to the execution of the criminal project, it is manifestly immaterial what particular share is alloted to each, or whether the object be accomplished jointly by all present at the same time and place, or each performs his own part separately. Where all concur in effecting the criminal result, each does the act so far as his own part extends, and as to the residue, may be regarded as procuring it to be done by means of guilty agents; all the parties so concerned stand in the mutual relation of principals and agents to each other. Extract Crim. Law Comm'rs Rep. Law Reading.-Miscellaneous. MOTIVE. To allow any man to substitute for law his own notions of right, would be in effect to subvert the law. To investigate the real motive in each case would be impracticable, and even if that could be done, a man's private opinion could not possibly be allowed to weigh against the authority of the law. Mr. Hume on this subject observes, that, "though he (the offender) thought that the act was innocent, or even meritorious, (as we know that by fanaticism, both in politics and religion, men of worth and ability have been moved to commit the foulest crimes,) yet still it will not save him from the judgment of the law, which must be determined by the nature of the act and its evil consequences to the public, and not by any regard to those miserable and strange delusions which are as dangerous as the views of the most open malefactor. Whatsoever be the cause which impels a person to the doing of those things which are destructive of the interest or bonds of society, his will is not on that account the less vicious, or his nature the less depraved. It is only the greater proof of his depravity that he could do things without perceiving that they were wrong. Ib. LAW READING. should ask questions of our books and of ourselves, what is its subject, by what me thod it elucidates the subject, whether we fully comprehend the one, whether we folthe statements convey distinct meanings to low up with improvement the other? Do us? Do we understand all the positions and conclusions? Does our mind act over acted before? Do we reason as he reason Stu again from the writer's guidance what he as how to bear prosperity. Take a man and is sometimes even at a loss to know meanor. He is gentle, quiet, unobtrusive, modest, tolerant, amiable; and these quali He seldom offends any one; he is slow to ties express themselves in his behaviour. take offence; he pays respect and wins it. This man cannot be said to be visited by adversity, but he is such a neighbor to it To read profitably, two things are ne- that when it comes actually home to him it cessary, never to read too much at a time, wears the lineaments of no unfamiliar guest. and always to pay great attention to what He bears the visitation well; humility, his is being read. To read too much at a time old and constant mentor, has taught him to defeats the legitimate object of reading, re-do so. Such a one is said to be independent tention. The secret of great attainments is of circumstances, from the fact of his know. not comprehended in too severe labor, but ing how to bear adversity. But is he so inin a constant and temperate course of in-dependent? Certainly not. He has not quiry and application. Dumont, in his "Re- been taught that still harder lesson, how to collections of Mirabeau," describing the per- bear prosperity. severing industry of the late Sir Samuel Romilly, observes, "Romilly, always tranquil and orderly, has an incessant activity: he never loses a minute, he applies all his mind to what he is about; like the hand of a watch he never stops, although his equal movements in the same way almost escape observation." It is not, then, by wearying the mind in reading for many hours during the day, that the student's aim is attained, "Quo magis properare studeo, eo me impedio magis." Reading to be profitable should be accompanied by an inquiring spirit; we LUDICROUS ERROR.-Franklin when he was ambassador to France, being at a meeting of a literary society, and not well understanding the French when declaimed, determined to applaud when he saw a lady of his acquaintance express satisfaction. When they had ceased, a little child who understood the French, said to him: "But, grand-papa, you always applaud the loudest when they are praising you." The good man laughed heartly and explained the matter. Ver Bew VOL. III.] THE York Legal NEW YORK, JUNE, 1845. TRADESMEN'S MARKS. ART. II. bserver. [MONTHLY PART. as to him, and be in reality superior to a patent. Every invention, unless protected by patent, according to the policy of the A COURT OF EQUITY, on questions of laws of this kingdom, is, therefore, open to this nature, acts upon the same principles; be used and taken advantage of by the pubthough, unless the case be very strong in- lic at large; the only restraint being-that deed, it never precludes the right from be- no one shall represent that which he sells ing tried at law, if the defendant desires it.* or manufactures to be the same article as Nevertheless, it will not recognize any that sold or manufactured by another, and property in a particular invention which this restraint appears from the above prinis not the subject of letters patent, and ciples to be equally applicable to all parties, will grant no assistance to a party claim- and not for the benefit of the first inventor ing such right as the inventor or manufac- or manufacturer. The placing of any parturer. Thus, where J. S. was for many ticular mark or device upon any article for years proprietor of a preparation called sale, by a trader, amounts in fact to the "Velno's Vegetable Syrup," which he had same thing as placing that trader's name purchased for a large sum of money, and upon it; and to do so fraudulently is, in ef bequeathed to the plaintiffs, and the defend- fect, writing one man's name upon another ant, who was a discharged servant of the man's goods. In Blofield v. Payne,* a plaintiffs, advertised and sold a medicine manufacturer of metallic hones maintained under the same name, and which he stated an action against another manufacturer of to be the same in composition and quality as the same article, who had imitated his enthe plaintiffs', the bill appears to have pro-velopes; and in Day v. Day, mentioned in ceeded solely on the ground that the plain- Eden on Injunctions, p. 314, a manufactiffs had the sole property in their medi- turer of blacking was restrained from imcine; and, on demurrer, the vice chancellor, Sir John Leach, held that, under these circumstances, the plaintiffs had no monopoly in the medicine; and he went on to say, "The violation of the right here does not fall within the cases in which the court has restrained a fraudulent attempt by one man to invade another's property; to appropri. ate the benefit of a valuable interest in the nature of good will, consisting in the character of his trade or production, established by individual merit ;-the other representing himself to be the same person, and his trade or production the same, as in Hogg v. Kirby. He here sells not the same medi. cine but a medicine of the same kind, of as good quality, and this he has a perfect right to do." Unless this were so, every irventor would gain a monopoly in his production, which might last without limitation *Mosley v. Downham, 3 M. & C. 1. S Ves. 215. This case was a question of copyright relating to the right to carry on a magazine published periodically Canham v. Jones, 2 Ves. & B. 218. itating those employed by the plaintiff. Where, however, A., the inventor of a medicine, employed B., a foreigner, resi ding abroad, to manufacture it for him there, and sold it in England for his own sole profit, and a label and seal denoting that the medicine was manufactured by B., and sold by A., were affixed to the bottles in which it was sold; on a bill filed by A. and B., against certain engravers and printers, for manufacturing seals and labels, the exact imitation of the plaintiff's labels and seals, with a view to their being affixed to bottles containing the medicine invented by the plaintffs, for an account and injunction, a demurrer was allowed on the ground that B. had no interest. It was held that the court would not protect the copyright of B. in such seals and labels, he being a foreigner and not entitled to an account. The bill, too, did not charge that there was any sale of spurious medicine, and the court would not intend a fraud * 4 Bar, & Ad. 410. |