wharves of the cities. This, for the purpose of the argument, may be admitted. They authorize the collection of the fees in cases where boats use the wharves owned by the cities. The collection of the fees in the first case, it may be here conceded, is not within municipal authority; in the second case it is not forbidden by the Constitution and Laws of the United States. It may be done in the first, but is forbidden in the last.

The doctrines presented in these views are most infrequently applied to taxation. Where taxes are levied by the same ordinance or act of a corporation, some of which are not authorized by its charter, these would be void; those within the corporate powers would be valid.

The point upon which we base our decision in these cases, namely, that the cities under the ordinances may recover for the actual use of improved wharves, was not made nor decided in Cannon v. New Orleans. The question discussed and decided in that case was whether the ordinance of New Orleans, in its full breadth, was valid. The Supreme Court of Louisiana held it valid in its every provision, and to its full extent. It was not claimed by the United States Supreme Court that it would be valid against vessels using improved wharves, and void as to vessels moored in the stream, or landing at the natural bank of the river. We may not inquire why the point raised in these cases was not presented and discussed in that. It is sufficient to know that it was not, and, of course, no discussion was made thereon. The case is, therefore, not authority against the conclusion we reach, but, as we have pointed out, is in harmony therewith.

The wharfage-fees provided by the ordinances of the cities of Keokuk and Burlington are based upon and fixed by the tonnage of the vessels landing at the wharves. It is insisted that this is a tonnage duty, and is obnoxious to art. 1, § 10, p. 2 of the Constitution of the United States, which forbids the imposition by the states of such imposts.

It must be admitted that the constitutional inhibition is directed against taxation, and is intended to protect the cargoes of vessels engaged in commerce therefrom. Imports and exports may be subjected to duties by charges levied upon vessels engaged in commerce. This is simply a form of taxation. The Constitution, in the clause inhibiting duties upon tonnage, in terms forbids taxes levied in that manner. word duty means a tax, toll, impost or custom.

The

The wharfage-fee charged under the city ordinances in question is in no sense a tax. It is a charge made as compensation for the use of the wharves built and maintained for the benefit of vessels engaged in commerce. The distinctions between such a charge and a tax, toll, impost or custom is too obvious to admit of discussion.

66

The fact that the wharfage-fee is graduated by the tonnage of the vessel does not require us to regard it as a duty on tonnage." The tonnage of the vessels using the wharves of the cities affords a convenient and just measure of the fees charged, which should be varied according to the size of the boats; the larger occupying more river space at the wharves than those of less capacity.

The foregoing discussion disposes of all points presented in the several cases. The judgment in each is affirmed.

SEEVERS, C. J., dissenting:

My reasons for dissenting from the foregoing opinions are:

1. The right to recover a reasonable compensation is based on the fact that the boats of the defendant landed at the constructed wharves. There is no count in the

petitions basing the right to recover on a quantum meruit.

The theory upon which a recovery is sought is that the plaintiff's possessed the power to establish and construct wharves; that, by ordinance, such have been established and constructed, and a compensation for their use fixed thereby. It is that compensation, fixed by the ordinance, for which a recovery is sought in these actions, and not a reasonable one for the voluntary use of wharves constructed by the city.

The compulsory use of anything can never be the basis of a reasonable compensation for its use. Under the ordinances, the defendant was compelled to pay just as much, if the vessels were landed anywhere in the city limits, or anchored in the stream, as at the constructed wharf. Whatever ought to be the rule under proper pleadings, as to the recovery of a reasonable compensation, no such question is presented in the record in these cases.

2. I am unable to distinguish the ordinances in question from that in Cannon v. New Orleans, 20 Wall. 577. The port of New Orleans was twenty miles in length and the constructed wharf only two. But this fact was not deemed material by the court. If, however, it was of importance, the proportion of established to constructed wharf in the Ft. Madison case is fully as great as in the New Orleans case; the established wharf being about two miles and the constructed about six hundred feet.

The ordinances in all the cases constitute the whole city-front a wharf, and in one case the wharf extends to the middle of the main channel of the river, and in another to one hundred feet in front of any public landing. It is not shown in either of these cases, along how much of the city-front wharves have been constructed. If such wharves extend the whole length of the city-front, the plaintiff should have so averred. The burden was on the plaintiff to establish snch fact. It does not appear, whether the vessel landed at the constructed wharf or not in the New Orleans case. It follows, however, that this circumstance, in the opinion of the court, made no difference, or it would have been alluded to. If the vessel landed, in the New Orleans case, at the constructed wharf, then, according to the opinion of the majority of this court, the judgment should have been in favor of the city. Evidently, this fact, in the opinion of the Supreme Court of the United States, was not deemed material. It is intimated, as the city has, under the police power, the right to compel vessels to land at certain designated places within the limits of the city-frontage, that it necessarily follows, they may be compelled to land at a constructed wharf, and compensation collected therefor. I do not impugn the correctness of the rule laid down in Dubuque v. Stout, 32 Ia. 85; but I do deny that any such consequence as compensation for the use of the wharf follows. That case had nothing whatever to do with the subject under consideration. The decision is based solely on the police power and has no bearing on the question, whether these ordinances are void because in conflict with the Constitution of the United States. Even if wrong in this, I recognize the principle that in this class of questions the decisions of the Supreme Court of the United States are conclusive in this court. As I have said, these cases can not be distinguished from the New Orleans case, and this court is bonnd thereby. It is said in that case: "The tax is, therefore, collectable for vessels which land at any point on the banks of the river without regard to the existence of wharves." The same result must follow in the cases at bar; for the facts and purport of the ordinances are identical. It is also said in that case: "The tax is also the same for a vessel which is moored in any part of the port of New Orleans, whether she lies

up to a wharf or not, or is located at the shore or in the middle of the river." Here again the same result must follow; for the ordinances in this respect are identical. It is further said in that case: "A tax, which by its terms is due from all vessels arriving and stopping in a port without regard to the place where they may stop, whether it be in the channel of the stream or out in the bay, or landed at a natural riverbank, can not be treated as a compensation for the use of a wharf."

Here again the cases at bar fulfill exactly all the conditions and limitations above stated. In the opinion of the majority of the court, stress is laid on that portion of the opinion in the New Orleans case which intimates that a reasonable compensation may be recovered for the use of a constructed wharf. What is meant in that case as to such recovery is simply this. The power of the city is likened to that of an individual, and if the city, under its charter, has the power and does construct a wharf, a reasonable compensation may, by ordinance, be collected from vessels using it. But the city can not by ordinance establish a wharf, construct it, and then provide that vessels landing at the natural bank of the river or mooring in the stream shall pay wharfage-dues. Such dues are neither more nor less than a tax for stopping in port, and not compensation for the use of the wharf.

If, under the police power, vessels may be required to land at the constructed wharf, and the right to compensation follows because of this compulsory use, then the Constitution of the United States is but a rope of sand, and vessels engaged in commerce on the navigable waters of the country are at the mercy of every municipality located on the borders of the stream. Such power might be so exercised as to annihilate and destroy the commerce of the Mississippi River.

It is maintained that one part of the ordinances may be held valid, even though another portion be void. While I concede there is such a rule, I deny its application to the ordinances in question, for the reason that there is but a single subject-matter contemplated thereby. There is nothing said as to constructed wharves or any charge made for landing vessels thereat; nor do they contain two separate prohibitions, relating to different acts, with distinct penalties for each. I am therefore unable to see how one part can be held valid when another part is void, or rather, how the subject-matter can be separated or divided by judicial construction, when the ordinances define and contemplate but a single subject-matter as a distinct whole.

The length of this dissent forbids that I shall farther enlarge on this subject. In my opinion the judgment of the court should be reversed.

NOTE-The conclusion of the majority of the court in this case is in accord with the recent decision in the United States Circuit Court for the Eastern District of Missouri, in Northwestern Union Packet Co. v. City of St. Louis, and several other cases, decided at the same time, and reported in 3 Cent. L. J. 58. On the other hand, in a case decided last month by Hill, J., in the United States Circuit Court for the Southern District of Mississippi, Tobin et al. v. The City of Vicksburg, a contrary opinion was held. In this case the city of Vicksburg had, on July 12th, 1865, passed an ordinance taxing "all steamboats passing or re-passing, for each landing, $10; for each steamboat exceeding 1,000 tons burden, $1 additional for every 100 tons excess." It further provided that any of ficer commanding such a vessel, who shall be convicted before the mayor of said city, of having refused to comply with this ordinance, should pay $50 and cost, and said boat should be charged at the rate of $100 for each landing there. after, until the claim is settled. In an action of assumpsit to recover $5,400, paid under this ordinance, the ordinance was held to contravene the Constitution of the United States, and to be therefore null and void. "By the Consti

tution," said the learned Judge, "Congress alone is invested with the right to regulate commerce among the states, and the latter are prohibited from imposing any duty of tonnage without the consent of Congress. The Mississippi River is one of the great highways of commerce in the United States. That the plaintiffs' vessels, for the landing of which this wharfage-tax was imposed and collected, were largely engaged in the transportation of articles of commerce between the states bordering upon this great river, is not questioned. The right of plaintiffs to navigate the river with their vessels included the right to land at its banks, as required by the necessities of the business in which they were engaged. The public interest is concerned in the protection of commerce vouchsafed by the Constitution of the United States; and the law of any state or municipality interfering with or obstructing it in a manner prohibited should be unhesitatingly denounced as null and void by the courts. The ordinance, by its terms, imposes this tax for the privilege of landing at the city of Vicksburg,' and not for the use of the city's wharves. It applies as well to a landing at the wharfboat or upon the private property of any citizen. The tax is imposed for the privilege of stopping at Vicksburg. To acknowledge the validity of such an ordinance would be to make the immense commerce which floats the Mississippi River the easy prey of all the towns and cities upon its banks. This commerce, carried on by these agencies, constitutes the very life-blood of Vicksburg and other towns and cities on the banks of this river. Public policy requires that this commerce shall be aided and facilitated, not taxed and obstructed. But the unconstitutionality of this ordinance is not maintained by reason alone, but by the supreme judicial authority also. Every decision made by the Supreme Court of the United States touching the subject, from its organization to the present time, condemns every such law or ordinance. Cannon v. New Orleans, 20 Wall. 577. That this demand was made and enforced, in pursuance to the ordinance, is apparent from the fact that no other law or ordinance, or city regulation, authorized or required it. Defendant has not exhibited or pretended to have had any other law or authority. It is moreover evident from the fact that the collections were made by the officer designated and appointed for the collection of that tax, and from the fact that the receipts given by him for the payment of the tax had printed upon them a copy of the ordinance, and, to make it the more conspicuous, it was printed with red ink. This must have been done, that those to whom they were presented might see the penalties denounced for non-compliance, and to avoid which, it was well expected, payments would be made without resistance. I must hold, therefore, that this defense is not maintainable."

As to the right to recover fees, voluntarily paid under the void ordinance, a question which was raised, but not expressly decided, in Northwestern Union Packet Co. v. City of St. Louis, ante, the court decided in the affirmative, using the following language: "The rule, undoubtedly, is that when a party, with a full knowledge of the facts, makes a voluntary payment to another, he can not recover it. The difficulty is in determining what is a voluntary payment. The learned counsel for the defense have read and commented on a large number of adjudicated cases, to show that payments made, as they assumed, under similar circumstances with those under consideration, were held to be voluntary. A careful consideration of these cases has satisfied me that no court has gone so far as to hold a payment, such as these were, to have been voluntarily made. The great current of authority as well as sound reason is against the defendant. A review of the cases is unnecessary. All of those which would seem otherwise to support the argument of counsel are cases where the parties stood upon an equality with each other, and it was simply a question with the payer, whether he would pay or litigate. Nothing but costs and expenses were to be hazarded by resistance in those cases. The provisions of the ordinance under consideration, together with the relation the parties bear to it, place them on very unequal grounds. In the first place, the ordinance is highly penal against all parties who do not yield an unquestioning obedience to its requirements. To instance, it imposes a fine of fifty dollars against the captain or officer in command of any steamboat who shall refuse to comply.' The city's own officer is to be the judge who tries the offender; for the ordinance provides, 'on conviction thereof before the mayor of said city,' the officer shall pay, etc. There is alsɔ a provision intended to place the owners of the boat also at a disadvantage. It provides, and said boat shall be charged at the

·

rate of $100 for each landing thereafter until the settlement of the litigated claim.' The mayor is authorized to enforce all fines by imprisonment. It would be difficult to frame an ordinance which would place the parties on a greater inequality. The payments, therefore, were exacted by compulsion. It is strangely contended by the defendant that plaintiffs are estopped, because the payments were made by them from week to week, and sometimes from day to day, during the six years. If a person should suffer personal injury by the hand of an assailant every day for a week or a month, the argument would not be seriously presented, that he was estopped from recovering damages for the wrongs on account of their daily repetition. But, we are not left without the highest authority on this question. In Cannon v. New Orleans, above referred to, the suit was brought to enjoin the further collection of the wharfage charges, and to recover those paid for several years previously. Whilst it is true, nothing is said in the opinion of the court upon that portion of the suit for wharfages theretofore paid, we must presume the right was conceded, or the court, in its opinion, would have so declared. In Tuttle v. Everett, 51 Miss. 27, it was held that, when a corporation levies an illegal tax, and the tax-payer pays it to one who has a formal authority to collect it, such payment is not voluntary, but compulsive, and may be collected from the tax collector, unless he has paid it over to his superiors, in which event suit must be brought against the corporation. This was a tax collected under an Act of the Legislature afterwards declared by the Supreme Court to be void. In the case of the County of LaSalle v. Simmons, 5 Gilman, 513, the Supreme Court of Illinois held that, where payment of money is compelled by undue advantage of the situation of the party paying, and it is against equity and good conscience that the payment should be retained, the money so paid can be recovered by the party paying it. In the case of the City of Marshall v. Snedeker et al., 25 Tex. 460, the Supreme Court of Texas held that, where the ordinances of municipal corporations require a party to obtain a license before retailing spiritous liquors, and impose a heavy penalty for their violation, a compliance therewith by the payment of the sum required to obtain the license, will not preclude a suit to recover it back. And, the parties not standing upon an equal footing, the rule that a party voluntarily paying money, with a knowledge of the facts, can not recover it back, does not apply. Without further comment, I am satisfied that the facts, found by the special verdict of the jury, establish the existence of all the facts, which Judge Dillon in his work on Municipal Corporations, page 705, holds necessary to enable one who has paid taxes to recover them back; that is, that the tax or charge imposed was wholly void and without authority; that the money, or its equivalent, was actually paid to the defendant for his own use, and that it was not voluntarily paid. Had the city made improvements, affording facilities to plaintiffs' boats to land, discharge and receive freight and passengers, of which they availed themselves, either at an agreed or reasonable rate, neither the Constitution nor public policy would have been invaded, and the money paid could not have been recov ered back; but the verdict does not show such a state of facts."

BOOK NOTICES.

A SUMMARY OF EQUITY PLEADING. By C. C. LANGDELL, Dane Professor of Law in Harvard University. Cambridge: Charles W. Sever. 1877.

This work is radical and elementary. These terms are used in their literal sense. The author, in giving this summary of the principles of equity pleading has not been content to lay down the principles simply, or even with superficial comments; but with what care might be rightfully expected of one having the delicate and onerous charge of shaping the minds of future advocates and jurists, with the same this work has evidently been prepared.

The introduction is devoted to a concise, but nevertheless quite minute description of the course of a suit before the ecclesiastical courts of England; the object being to present a distinct outline of such proceedings, that the subsequent portions of the work, showing the body of equity procedure to be drawn from such prac

tice, may be apprehended, and that as many as possible of the rules of equity pleading may be traced to their source.

The body of the work is devoted to a consideration of the equity system as it existed in England from the earliest times to the end of Lord Eldon's chancellorship, without any attempt to notice the modifications in England, or the different jurisdictions in this country; the object beiug "to aid the student in acquiring a knowledge of the equity system as such."

The text of the author's discussion is a collection of cases upon the law of Discovery, than which, for the subject in hand, no more comprehensive head of equity jurisdiction could have been selected; for, says an eminent predecessor of the present Dane Professor, "every bill in equity may, in truth, be properly deemed a bill of discovery; for it seeks a disclosure of circumstances relative to the plaintiff's case." 1 Story Eq. Jur., § 689. It is true that in many, if not quite all jurisdictions, the old bill of discovery, with its attendant expense and complexity, has been supplanted by a cheap and easy method of interrogating an adverse party, as an incident to the cause in which discovery is sought; but this fact is not argument for the abandonment of the study of the original system; for the principles of this head of jurisdiction are as vital and operative under a code as when the original bill was the appropriate remedy. Wilson v. Webber, 2 Gray, 558.

The author has presented, in their appropriate. sequence, sketches of the bill, answer, replication and subsequent pleadings, demurrers and pleas, and has devoted chapters respectively to cross-bills, bills of discovery, purchase for value without notice, discovery and relief, and production of documents.

Perhaps one of the most entertaining portions of the book is the discussion of pleas, negative, affirmative and anomalous, and the marvelous absurdities in pleading, growing out of the decision of Sir John Leach, in Thring v. Edgar, 2 Sim. & St. 224, relative to the amount of discovery which must, and which must not, be given in the answer supporting a negative plea; when the distracted pleader found himself in a dilemma not more inviting, and was harrowed by an injunction not more rational, than was imposed upon poor Shylock by the Venetian tribunal, albeit Shylock was to take, while the pleader gave.

"If thou tak'st more,

Or less, than a just pound,-be it but so much As makes it light, or heavy, in the substance, Or the division of the twentieth part

Of one poor scruple; nay, if the scale do turn But in the estimation of a hair,—

Thou diest."

This decision ranking as a precedent, caused infinite confusion in subsequent pleadings, and was first successfully attacked, and its fallacies exposed by ViceChancellor Wigram, in his valuable, and now rare work, on Discovery.

In conclusion, we have to say, that this work must be a valuable addition to the handful of books which every law student is supposed to possess; for its evident design is to dispel obscurities, and leave little as possible to the mind of the student which is anomalous. In the brief preface it is remarked that there is published, as a companion to this summary, the selection of cases which are the basis of the author's discussion. These cases, we are further informed, have for three or four years past been the text for instruction in equity pleading in the Law Department of the University at Cambridge. Excellent as is this material, we can easily understand that, without such light as this summary affords, the study of these select cases as the only text, might leave the mind of the former student in so frightful a maze, that it would be quite possible for him to quit the shades of Dane Hall with no very de

fined ideas upon this important subject. Indeed we think, we are not alone in this opinion, and are disposed to regard this work as a concession to that sentiment.

The book is an ordinary octavo, and contains one hundred and thirty pages of matter, including an index and table of cases cited. It is in flexible covers, with beautiful, clean paper and printed in brevier.

E. G. M.

HOLMES' REPORTS. VOL. I. Reports of Cases determined in the Circuit Court of the United States for the First Circuit. JABEZ S. HOLMES, Reporter. Volume I. Boston: Little, Brown & Co. 1877. This volume contains the cases determined in the Circuit Court of the First Federal Circuit, from July, 1870, to June, 1875, inclusive. Of this circuit Hon. George F. Shepley is the circuit judge, and Hon. Edward Fox, Hon. Daniel Clarke, Hon. John Lowell, and Hon. John P. Knowles, the district judges. Nearly all the opinions here reported are those of Judge Shepley; the opinions of the associate justice of the Supreme Court assigned to this circuit, Hon. Nathan Clifford, not being included. The cases are well reported, the index well made, and the syllabi generally thorough. The reporter, however, has omitted to head them with ́catch-words, indicating the subjects decided, and his work is here, we think, open to criticism. Fully twothirds of the decisions are patent and maritime cases. The typographical execution of the work, it is hardly necessary to say, is excellent; in size it is somewhat smaller than the ordinary volumes of law reports. Among the decisions of general interest are the following:

COPYRIGHT-TITLE NOT WITHIN THE PROTECTION OF THE ACT-TRADE MARKS.-Osgood v. Allen, p. 185. Opinion by SHEPLEY, J. This was a bill in equity for an injunction to restrain the defendant from the use of the words, "Our Young Folks," as the title of a publication. The complainants were the proprietors and publishers of an illustrated magazine for boys and girls, entitled "Our Young Folks," which had been published monthly in Boston, under the same title since December, 1864. Previous to the publication of the first number, the publishers duly entered the title of their magazine, for securing the copyright thereof. They alleged that when the copyright of the first number was taken out, the title, "Our Young Folks," had not been adopted, and was not in use for any other similar publication; that they had expended large sums of money in publishing and selling the same, and that the work had acquired a large and valuable reputation throughout the United States and elsewhere as a publication for young people, under the title of "Our Young Folks." The defendant, a publisher at Augusta, Me., was publishing, commencing October 1, 1871, an illustrated publication for young people, under the title of "Our Young Folks' Illustrated Paper." The complainants claimed that they were entitled to a remedy under the law of copyright, and also that they had a right to the exclusive use of the name, "Our Young Folks," as indicating a periodical according to the doctrine of trade-marks, as applied to the protection of literary publications. The court held that the title of a copyrighted publication, separate from the publication which it is used to designate, is not within the protection of the copyright; that the office of a trade-mark is to point distinctively to the origin or ownership of the article to which it is affixed; that where a trade-mark right is invaded, the essence of the wrong consists in the sale of the goods of the manufacturer or vendor as those of another; that it is only where this false representation is directly or indirectly made, that relief is granted in equity; and as it did not appear whether or not the public was actually deceived, or in danger of being deceived, into buying the defendant's publication as that of the complainant, the cause was referred to a master to ascertain and report whether such was the fact. By the plain terms of the act, said the court, the copyright protested is the copyright in "the book," the word "book" being used to describe any literary composition. Although a printed copy of the title of such book is required, before the publication, to be sent to the librarian of Congress, yet this is only as a designation

of the book to be copyrighted; and the right is not perfected, under the statute, until the required copies of such copyright-book are, after publication, also sent. It is only as a part of the book, and as the title to that particular literary composition, that the title is embraced within the provisions of the act. It may possibly be necessary in some cases, in order to protect the copyrighted literary composition, for courts to secure the title from piracy, as well as the other productions of the mind of the author in the book. The right secured by the act, however, Is the property in the literary composition-the product of the mind and genius of the author, and not in the name or title given to it. The title does not necessarily involve any literary composition; it may not be, and certainly the statute does not require that it should be, the product of the author's mind. It is not necessary that it should be novel or original. It is a mere appendage, which only identifies, and frequently does not in any way describe, the literary composition itself, or represent its character. By publishing, in accordance with the requirements of the copyrightlaw, a book under the title of the life of any distinguished statesman, jurist or author, the publisher could not prevent any other author from publishing an entirely different and original biography, under the same title. When the title itself is original, and the product of the author's own mind, and is appropriated by the infringement, as well as the whole, or a part of, the literary composition itself, in protecting the other portions of the literary composition, courts would probably also protect the title. But no case can be found, either in England or in this country, in which, under the law of copyright, courts have protected the title alone, separate from the book which it is used to designate. In Jolie v. Jaques, 1 Blatch. 627, Mr. Justice Nelson says: "The title or name is an appendage to the book or piece of music for which the copyright is taken out, and if the latter fails to be protected, the title goes with it as certainly as the principal carries with it the incident." The only doubt expressed by Mr. Justice Nelson in that case is as to how the question might be decided in case of a valid copyright of a book and an infringement of the title by the defendant. While expressing no opinion upon this question, the reasoning by which he arrives at the conclusion, that, when the book fails to be protected, the title goes with it, would seem clearly to point to a similar result in a case of alleged infringement of copyright of the book; namely, that if there was no piracy of the copyrighted book, there could be no remedy under the act for the use of a title which could not be copyrighted independently of the book. The injunction granted in the case of Hogg v. Kirby, 8 Ves. 215, was not founded on copyright, but on the power of a court of equity to restrain one person from carrying on a trade, or from publishing a work, under a fraudulent representation that such trade or work is that of another. In the case at bar relief is sought, not only under the law of copyright, but upon the general ground of equity, as relates to the good will of trades, and the doctrine of trade-marks. It becomes necessary for the court to determine, in this case, how far the complainants are entitled to a remedy upon these grounds of equity jurisdiction, and upon the general principles governing courts of equity jurisdiction. Property in the use of a trade-mark or name has very little analogy to that which exists in copyrights or patents for inventions. In all cases where rights to the exclusive use of a trade-mark are invaded, the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another. It is only when this false representation is directly or indirectly made, that relief is granted. Canal Co. v. Clark, 13 Wall. 311. Words or devices may be adopted as trade-marks, which are not original inventions of the one who adopts and uses them. Words in common use may be adopted, if, ai the time of the adoption, they were not used to designate the same or similar articles of production. A generic name, or a name merely descriptive of an article of trade, or its qualities or ingredients, can not be adopted as a trade-mark, so as to give a right to the exclusive use of it. The office of a trade-mark is to point distinctively to the origin or ownership of the article to which it is affixed. Marks which only indicate the names or qualities of products can not become the subjects of exclusive use; for, from the nature of the case, any other producer may employ, with equal truth and the same right, the same marks for like products. Geographical names, which point out only the place of production, and not the producer, can not be appropriated exclusively, so as to prevent others from using them and selling articles produced in the dis

tricts they describe under these appellations. In the case of Brooklyn White Lead Co. v. Masury, 25 Barb. 416, the court said that, as both plaintiff and defendant dealt in the same article, and both manufactured it at Brooklyn, each had the same right to describe it as "Brooklyn White Lead." The Master of the Rolls well expresses the whole law of trade-marks by names in the case of the Collins Co. v. Cowen, 3 Kay & Johns. 428. He says: "There is no such thing as property in a trade-mark as an abstract name. It is the right which a person has to use a certain name for articles which he has manufactured, so that he may prevent another person from using it, because the mark or name denotes that the articles so marked were manufactured by a certain person, and no one else can hav the right to put the same name upon his goods, and then present them to have been manufactured by the person whose mark it is." Applying these principles to the case before this court, the question presented is, whether the defendant has so simulated the mark of the complainant as to deceive the public, so that it will naturally mistake his publication for that of the complainant.

CERTIFICATES OF STOCK TRANSFER-AUTHORITY OF CASHIER TO BIND BANK-ESTOPPEL.-Matthews v. Massachusetts Nat. Bank, p. 397. Opinion by SHEPLEY, J. A stock certificate, originally for two shares of stock, in the name of C, which had been by him fraudulently altered so as to purport to be for two hundred shares in the name of a certain bank as collateral, was received in good faith by the bank from C, as collateral security for a loan to him. On payment of the loan by C, the cashier of the bank, as such, signed a transfer in blank upon the back of the certificate, and delivered it to C. Afterwards the plaintia, in good faith, received the same certificate from C, as collateral security for a loan then made to him. The plaintiff's loan was not paid. On suit by him against the bank, to recover the amount of his loss, held that the bank was liable. 1. It is within the general authority of the cashier of a bank to sign, in its behalf, a blank transfer upon a certificate of stock in the name of the bank, held by it as collateral security for a loan, and deliver the certificate to the pledgor on payment of the loan. 2. The signing a transfer in blank on a certificate of stock is a warranty of the genuineness of the certificate.-1. Cashiers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of business conducted by the bank. Their acts within the scope of such usage, practice, and course of business, will in general bind the bank in favor of third persons possessing no other knowledge. Morse v. Mass. Nat. Bk., ante p. 209; Minor v. Mechanics' Bk., 1 Pet. 70; Merchants' Bk. v. State Bk., 10 Wall. 604. One of the ordinary and well known duties of the cashier of a bank is the surrender of notes and securities upon payment; and his signature to the necessary transfers of securities or collaterals, when in the form of bills of exchange, choses in action, stock certificates, or similar securities for loans, which are personal property, is an act within the scope of the general usage, practice, and course of business in which cashiers of banks are held out to the public as having authority to act. Undoubtedly the ordinary duties of a cashier do not comprehend the making of a contract which involves the payment of money without an express authority from the directors, unless it be such as relates to the usual and customary transactions of the bank. But the transfer of certificates of stock held as collateral is certainly one of the usual and customary transactions of banks, and the public would be no more likely to require evidence of a special authority to the cashier to make such a transfer, than of a special authority to draw checks on other banks, or to perform any other of the daily duties of his office. The signature of the cashier must therefore be considered as the signatnre of the bank. 2. The next question is, whether such blank assignment on the back of the certificate, by the bank, is so far a warranty of the genuineness of the certificate, that the bank is estopped from setting up the forgery as a defense. In the case of forged negotiable instruments, it is well settled that the indorser warrants that the instrument itself, and the antecedent signatures thereon, are genuine. Story on Prom. Notes, p. 135; State Bk. v. Fearing, 16 Pick. 533; Hortsman v. Henshaw, 11 How. 183; Critchlow v. Parry, 2 Camp. 182; Canal Bank v. Bank of Albany, 1 Hill, 287. The indorser's liability in these cases is properly placed upon the ground of estoppel. "This proceeds," says Judge Story, "upon the intelligible ground that every indorser undertakes that he possesses a clear title to the note deduced from and through all the ante

cedent indorsers, and that he means to clothe the holder under him with all the rights which by law attach to a regular and genuine indorsement against himself and all the antecedent indorsers. It is in this confidence that the holder takes the note without further explanation; and if each party be equally innocent and one must suffer, it should be the one who has misled the confidence of the other, and by his acts held out to the holder that all the indorsements are genuine, and may be relied on as an indemnity in case of the dishonor thereof." This is a statement of the grounds upon which the rule of law rests as applicable to negotiable instruments; but the reasoning would seem to apply with equal force and pertinency to the case of a traasfer of a certificate of stock by indorsement in blank. Stock certificates are sold in open market like other securities, and form the basis of commercial transactions. In the language of Davis, J., in Bank v. Lanier, 11 Wall. 377, "although neither in form nor in character negotiable paper, they approximate to it as nearly as practicable." In Leitch v. Wells, 48 N. Y. 613, it is said: "Since the decision of the case of McNeil v. Tenth National Bank, 46 N. Y. 325, certificates of stock, with blank assignments and powers of attorney attached, must be nearly as negotiable as commercial paper" The common practice of passing the title to stock by delivery of the certificate, with the blank assignment and power, has been repeatedly proved and sanctioned in cases which have come before the courts in New York. In N. Y. & N. H. R. v. Schuyler, 34 N. Y. 41, the rights of parties claiming under such instruments were fully recognized by the court, and such mode of transfer was shown to be the common practice in the city of New York. It is well settled that the form of assignment printed on the back of stock certificates, when signed in blank, may be filled up by a subsequent purchaser of the stock. Kortright v. Com. Bk. of Buffalo, 20 Wend. 348; Bridgeport Bank v. N. Y. & H. R. Co., 30 Conn. 273. The certificate in this case, as it came from the bank, contained, on the same piece of paper and on the back of the certificate, a blank assignment, which was all that was necessary to transfer the title of the stock as between the parties. The defendant must, therefore, be held to have intended and agreed, that whoever should present the certificate so issued from the bank, with the assignment executed in blank, should be entitled to fill up the blanks with his own name, and to have a transfer of the stock made to himself on the books of the company. The certificate, accompanied with the transfer executed in blank, has a species of negotiability of a peculiar character, but one well recognized in commercial transactions and judicial decisions, and absolutely essential in the usage and necessities of modern commerce to make such certificates available in commercial transactions. Even when such blank assignments or powers of attorney to transfer stock are under seal, the blanks may be filled up according to the agreement of the parties at the time. Bridgeport R. R. v. N. Y. & N. W. R. R., 30 Conn. 274. The decisions to the contrary in the English courts have not been followed in this country, and they were influenced not merely by a rigid adherence to the technical rules of the common law in relation to instruments under seal, but by the policy of the stamp system. But the case of Walker v. Bartlett, 36 Eng. L. & Eq. 368, and later English decisions recognize the validity of blank transfers of stock, and that such transfers impose upon the holder of them the obligation to pay calls upon the shares while they remain his property. In Kortright v. Buffalo Com. Bk., 20 Wend. 94, speaking of the filling up of a blank transfer of stock, and power of attorney, Nelson, C. J., after stating this is in strict conformity with the universal usage of dealers in the negotiation and transfer of stocks, according to the proof in the case, goes on to say: "Even without the aid of this usage, there could be no difficulty in upholding the assignment. The execution in blank must have been for the express purpose of enabling the holder, whoever he might be, to fill it up. If intended to have been filled up in the name of the first transferee, there would have been no necessity for its execution in blank; Barker might have completed the instrument." The right to fill the blank in a blank transfer of stock is recognized by the supreme court of Massachusetts in Sewall v. Boston Water Power Co., 4 Allen, 277. If the conditions which governed the apparent right of control which the bank conferred upon C, were not expressed on the face of the instrument, but remaimed in confidence between the bank and C, the case is not distinguishable in principle from that of an agent