visions should be so construed as to promote justice. It is wholly The judgment of the court below is affirmed. Trade-Marks-Deception upon the Public-Use of the Word "Patent." THE CONSOLIDATED FRUIT JAR CO. v. DORFLINGER | ond and third of the forms of words which have been quoted. But when the question is considered with reference to a pre-existence of a patent to Mason, these expressions are to be understood as applying to it, or as including the subject of it. The patentee of an alleged invention, in consideration of the exclusive privilege granted to him for a limited period, is bound to disclose fully his secret; and is understood as dedicating the supposed invention to the public, subject to the supposed exclusive privilege. If the privilege is invalid, the dedication is immediate and absolute. It has, therefore, been contended that the rights of the public ought to be protected against any subsequent assertion by the patentee of an independent right under the name of a. trade-mark. This objection to the complainants' alleged right would prevail, if it covered the whole of the question. But it does not. The answer to the objection is, that tradesmen who have an individual patent may, nevertheless, rightfully use the subject of the patent himself, and that he ought, in that case, to be protected against injury by others who falsely impose their goods on the public as his own. Upon this view of the subject, the case of Sykes v. Sykes (3 B. & C. 541; 5 D. & R. 292), was decided in the year 1824. It is a decision apparently in favor of the complainants here. It was hastily considered on a motion for a new trial, a rule to show cause being refused. But there was no defect in the reasoning on the point upon which alone it was decided. Another objection, however, to the complainants' bill, does not admit, in reason, of the same answer. This objection is, that no title can be successfully asserted in a trade-mark, which is of a tendency to mislead or deceive the public. This objection may avail a defendant, notwithstanding what would otherwise be imputable to him as misconduct. The doctrine is, that the complainant must Circuit Court of the United States, Eastern District of Pennsylva- come into a court of equity with clean hands: (4 De G., J. & S. nia, in Equity, October 4, 1875. Before Hon. JOHN CADWALLADER, District Judge. 1. Trade-Mark-Deception of the Public.-No title can be maintained in a trademark which is of a tendency to mislead or deceive the public. 149). This doctrine, if applicable alike at law, was overlooked in the case of Sykes v. Sykes. The direct application of the objection appears, when we consider the alleged trade-mark in question, tends rationally to induce a belief that the subject of it is a securely patented invention of s. When this objection may avail Defendant.—This objection may avail de- Mason, whereas, it has been judicially decided that he never had fendant, notwithstanding what would otherwise be imputed to him as misconduct. 3. Trade-mark Indicating that the Article is Patented.-A trade-mark calculated to convey the impression that the article to which it is attached is patented, when there is no valid patent upon it, is deceptive in its name and therefore invalid. 4. Patentee must Disclose his Secret.-The patentee of an alleged invention is bound to disclose fully its secret, and is understood as dedicating the supposed invention to the public, subject to the supposed exclusive privilege. If the privilege is invalid the dedication is immediate and absolute. 5. Use of the word "Patent" in a Trade-mark.-Where the word "patent" or "patented" has by long usage become so associated with the name of an article, as to be understood as a part of that name, and not as representing it to be protected by letters patent, the use of that word in a trade-mark may not be calculated to mislead the public, and may not affect the validity of the trade-mark. Saml. A. Duncan & J. H. B. Latrobe, Esqs., for plaintiff; Charles S. Minor & John E. Shaw, Esqs., for defendant. Opinion by CADWALADER, J. a valid patent for it as an invention. In cases prior to 1863, before English Vice-Chancellors, the authority of Sykes v. Sykes could not be disregarded, and there was great hesitation in holding directly that a trade-mark representing an article as patented, when in fact it was not securely protected by a patent, was invalid in equity. Thus, Vice-Chancellor Wood, afterwards Lord Hatherly, in 1853, intimated an opinion that the trade-mark would be invalid where no patent had ever existed, (Flavel v. Harrison, 10 Hare, 467); but afterwards, in the same year, when considering the case of a patent which had expired, suggested some qualification of the general doctrine. Edelsten v. Vick, 11 Hare, 86, 87; compare with Morgan v. McAdam, 36 L. J. Ch. 229, 231. But such doubts or hesitations were removed in England by the case of The Leather Cloth Co. v. The The complainants deduce their asserted right under Mason, who American Leather Cloth Co., in the House of Lords in 1865, (11 was the patentee of certain alleged improvements in fruit jars. H. L. 523), affirming a decree made by Lord Chancellor WestThere has been a judicial decision against the validity of his bury, in 1863. 4 De G., J. & S. 137. In this case, Lord Kingsdown patent; and they do not now assert its validity. But they claim a said: "If a trade mark represents an article as protected by a trade-inark in what I think is not sufficiently distinguishable from patent, when in fact it is not so protected, it seems to me that such a claim of exclusive right in the patented privilege. In other a statement prima facie amounts to a misrepresentation of an imwords, the alleged trade-mark is either deceptively obscure, or pur-portant fact, which would disentitle the owner of the trade-mark to ports to be for the subject of the patent, or to include it. These remarks apply, whether the trade-mark is claimed in the words "Mason's patent, November 30th, 1858," or in the words " Mason's improved," or in the words " The Mason Jar of 1858," or in any substantially similiar form of words. If there had not been a patent, a different import might perhaps be attributable to the sec * Reported for this journal by Messrs. Hatch and Parkinson, attorneys for patent cases, Saint Louis and Cincinnati. relief in a court of equity against any one who pirated it;" and An exception from this rule of decision had been previously, and has been since, recognized in the case of an article, such as patent leather, or patent thread, whose disignation of this kind is in constant use, though no one supposes that it is thereby intended to convey the impression that the subject is protected by any patent. Marshall v. Ross, Law Rep. 8 Eq. 652, 653. So after a patented privilege is long since expired, such a designation may have become a general or special word of art. Hall v. Burrows, (4 De G., J. & S. 155). But such exceptions only confirm the rule of decision in ordinary cases. appellees answered, and steps were taken by both parties in the preparation of the cause. Afterward appellees moved to dismiss the action upon the face of the pleadings, and their motion was sustained. This practice is certainly irregular, if not wholly unauthorized, and the judgment of dismission can be sustained, if at all,only upon the ground that the petition presents no cause of action. It is not good as a petition under the third section of the act of 1864. Gross negligence is not necessarily the same as " willful negligence," and we have held frequently that to maintain an action under the provisions of the section and act named, it is necessary to charge Lord Westbury in the court of chancery, (4 De G., J. & S. 138, 139), seems have had American decisions in view. His opinion appears to have been followed in the Patent Office of the United" willful neglect," either in express terms or in language which States. If other American opinions are conflicting, it may, perhaps, be attributable to undue deference to the supposed authority of Sykes v. Sykes. If there be such a conflict, the question is too doubtful for interlocutory adjudication. clearly and necessarily imports that high grade of negligence. We must assume that the legislature purposely used the term "willful,” and that it did not intend that it should be regarded and treated as synonymous with "gross," a word which, when applied to negligence, has a well-defined legal meaning. 2 Duvall, 576; 10 Bush. The above observations may not be applicable to the alleged trade-mark in the words "The Mason Jar of 1872." The complainant, if so advised, may renew his application as to this mark. But, notwithstanding this conclusion, it does not follow that the But a man is perhaps not at liberty to flood the market with vari- facts set out in the petition do not authorize a recovery. If the inous designations, all including more or less of a common subject, testate had survived the "suffering and agony" resulting from the without making the differences very distinct. How this may be as poisonous potion administered to him, he would undoubtedly, at to the particular subject here, I can not at present decide. the common law, have had a right of action against the employAs to the other alleged trade-marks, a preliminary injunction is ers of the negligent prescription clerk. Fleet & Semple v. Halrefused. 1. Right of Action for Injury Resulting in Death.-The court, construing its previous decisions on this question, and also chapter to of the General Statutes of Kentucky, held that, although where the death is instantaneous there could be no recovery, yet in cases not embraced within the exceptions of the statute, if there is an appreciable interval between the infliction of the injury and the death, the personal representative of the decedent may recover damages for the injury. 2. Case in Judgment.-Therefore, where the petition alleged that the defendants were druggists, and that their prescription clerk, in attempting to fill a physician's prescription, through "gross and culpable negligence," put up croton oil instead of linseed oil, which oil was, in consequence of such mistake, administered to the plaintiff's intestate, and "that it caused him great suffering and agony, and did him serious and irre parable injury, and was the immediate cause of his death on that day, and besides great injury and suffering, deprived him of the remainder of his natural life,"-it was held to state a good cause of action. Appeal from the Mercer Circuit Court. C. A. & P. W. Hardin and Geo. B. McKee, for appellant; Thompson & Thompson, Kyle & Pastor and Bell & Harding for appellees. LINDSAY, J., stated the case and delivered the opinion of the court. lenkemp, 13 B. Monroe, 227. If that right of action survives to his personal representative, then the petition is good. The tenth chapter of the revised statutes, which is continued in force by the tenth chapter of the general statutes, provides that "no right of action for personal injury, or injury to real or personal estate, shall cease or die with the person injuring, or the person injured, except action for assault and battery, slander, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury; but, for any injury other than those excepted, an action may be brought or revived by the personal representative, or against the personal representative, heir or devisee, in the same manner as causes of action founded on contract." The wrongs and injuries complained of do not fall within either of the exceptions named in this statute, and according to its language literally construed, it is plain that the right of action growing out of these wrongs and injuries, survives to the personal representative of the injured person. But appellees claim that the statute was not intended to, and does not, create new rights of action, and argue with plausibility and force that personal injuries resulting in death were not, at the common law, the subject of civil actions. In support of the lastnamed proposition, they rely upon the cases of Eden v. The Railroad Company, 14 B.. Monroe, 204; Murphy v. The Canal Company, 9 Bush, 522; and Case's Administrator v. The Railroad Company, ib. 728. The petition shows that the appellees are druggists or apothe- These cases do sustain the doctrine that, in general, injuries caries, and that their prescription clerk, in attempting to fill a phy-affecting life can not be the subject of a civil action under the rules sician's prescription, put up croton oil instead of linseed oil, of the common law, but in Eden's case the court cite the case of and that this mistake was made through the "gross and Baker v. Bolton, I Campbell, 493, in which it was conceded that culpable negligence" of the clerk. It further shows that the husband might recover for the distress of feeling and the loss the oil so put up was, in consequence of the mistake, administered of society, from the moment of the injury to his wife up to the time as directed by the physician to appellants intestate, and "that of her death, and this court states the doctrine to be, that for agit caused him great suffering and agony, and did him serious and gravated injuries to the person of the wife or child, the husband or irreparable injury * and was the immediate cause of his parent has an independent and separate cause of action for the death on that day, and besides great injury and suffering, deprived loss of the society of the wife, or the service of the child, notwithstanding the fatal result of the injuries, and Eden was refused relief upon the sole ground that the death of his wife was instantaneous. * * him of the remainder of his natural life." Appellant sues as the personal representative of the deceased, and claims that she is entitled to recover" the sum of twenty-five thousand dollars, due her said intestate, for the wrongs, injuries and damages done him as aforesaid," and she prays for judgment for that sum. So, in the case of Murphy, the death of the child was instantaneous, and therefore the court correctly said that as the intestate had, during its life, no cause of action, none survived under the statute Without raising a question as to the sufficiency of the petition, to its personal representative. In the case of Case's Administrator, the court drew the distinction between the character of actions embraced by chapter 10, and the cause of action created by the 1st section of the act of 1854 This section gives a right of action for the death of intestate, whilst chapter 10 provides that actions for certain personal injuries shall survive, instead of dying with the person injuring or the person injured, as was the rule prior to its adoption. It is true it is said in that case that chapter 10 includes only causes of action growing out of personal injuries, not the direct and immediate cause of the death, but the context and the authorities cited and the case in hand, show that the court had in view only such injuries as resulted in instantaneous or immediate death. taneous; and it would be easy to prove the negative of this in all cases by medical testimony. Unless the legislature helps the Kentucky court, it will have to help itself in some such way as this. Not even the judicial tribunals, far as they are removed from the influence of popular feeling, can withstand remarks to be disrespectful to the Kentucky court, they are not to blame forever the clamors of the people for common justice. We do not mean in these for what their predecessors have done; and in this decision they have gone far towards relieving against the rule in the case in 14 B. Monroe, and for this they are entitled to the public thanks. Upon this question, see Sullivan v. Union Pacific Railroad Co., 1 CENT. L. J. 595; also 1 CENT. L. J. 590, 614, 622; 2 CENT. L. J. 12, 47, 117, 128, 165 Correspondence. REMOVAL OF CAUSES. The court did not intimate in either of the cases reported in 9th Bush that a cause of action which has accrued to the person inNEBRASKA CITY, NEB., Oct. 19, 1875. jured will not survive to the personal representative in case the inEDITORS CENTRAL LAW JOURNAL-DEAR SIRS :-In your issue of Oct. jury be the cause of the death. The recovery sought in each of 15, inst., under "Legal News aud Notes," you notice a recent decision of those cases was for the death itself, and in each the death was inhe Commission of Appeals of N. Y., refusing to transfer a cause before it to the Federal Court, because the petition failed to allege the citizenship of the stantaneous, and, therefore, in neither could such a question have parties at the commencement of the action, and your remark thereon: "The been considered or adjudicated. We are of opinion that the cases above decision is obviously correct, as otherwise it would be easy for one to relied on do not sustain the assumption, that causes of action grow-defraud a state court of its jurisdiction by removing to another state, and there ing out of personal injuries, ultimately resulting in death, are impliedly excepted from the operations of the chapter under consideration. Whilst we hold that in order to authorize a recovery in such cases, there must be an appreciable interval between the infliction of the injury and the death,and that no recovery can be had where the death is practically instantaneous or immediate, we think the petition in this case shows that between the time the poison was ad ministered and the moment at which the death occurred, there was an appreciable interval of time during which the intestate endured "great suffering and agony." For such suffering and agony the appellant is entitled to recover just as the intestate could have recovered if he had survived, and had obtained perfect and permanent relief at the moment of his death. We do not anticipate that this ruling will (as appellees' counsel fears) enable parties to sue under the third section of the act of 1854, for the death, and also under the provisions of chapter 10, for the damages accruing anterior to the time of dissolution. A recovery of punitive damages for the destruction of life will certainly bar any other action for the injury, or any of its consequences, and if a party elects to sue, and enforce the right of action that survives to him, he will not be allowed afterwards to avail himself of the benefits of the punitive statute, and also to recover under its provisions. Judgment reversed and cause remanded, with instructions to overrule appellee's motion to dismiss, and for further proceedings consistent with this opinion. JUDGMENT REVersed. NOTE.-The above decision aptly illustrates the position in which several of the American courts have placed themselves by following the senseless rule laid down by Lord Ellenborough in Baker v. Bolton, 1 Camp. 493. If the death is instantaneous the decedent's administrator may not recover; if the decedent had lived an hour, as in this case, where he took an overdose of croton oil, the rule would be otherwise. It is really pitiable to see a grave and learned court forced by a religious regard for "precedent" to declare a doctrine so silly. Decisions of this kind when read by plain men of sense, create a feeling of contempt for the administration of justice, and for the whole legal prfession. We have, as our readers are aware, steadfastfy opposed the resorting to fictions in courts of justice. We have steadfastly insisted that a fiction is a lie, and should never be resorted to in the tribunals of a free country, where there is no tyrant to fear, and where the truth only should prevail. Strongly as this notion has taken hold of us, we are not sure but that we could excuse the Kentucky court, if it would resort to a fiction in order to help itself out of its predicament with reference to this question, where it evidently feels uneasy, if not a little ashamed. Let it declare as a rule of law that no death is instantaneous; and, like the French tribunals, when trying Frenchmen for killing German soldiers, leave it to the jury to decide whether a stroke of epilepsy or some othe" visitation of God," between the time of the reception of the injury and the final cessation of life, may not, in fact, have been the principal cause of the death. "At least the court might hold that it should be left to the jury in all cases to decide whether the death was in fact instan transferring the cause to a United States Court." I have not as yet seen the case referred to, and so do not know the reasoning that induced the court to arrive at such a conclusion, but it is respectfully asked where would be the injustice or fraud in thus ousting a state court of its jurisdiction? The petitioner for removal must file an affidavit "that he has reason to be lieve, and does believe, that from prejudice or local influence he will not be able to obtain justice in such state court." Rev. Stat., Sec. 639. Unless it is assumed that every applicant to remove a cause is ready to commit perjury, we are unable to see why he should not be at liberty to charge the former Indeed, where the interests involved are large, and the judge who is to try the case, or the community in which it is pending, is so prejudiced or influenced that the rights of the applicant are jeopardized, why should a transfer be denied? Moreover, the decision in Pechner v. Ins. Co.. savors of the oft-suppressed "jealousy "between concurrent jurisdictions, and is unbecoming a court as diging a transfer of a cause for certain specified reasons, imposes no limitation upon the duration of the citizenship of the parties; if the applicant will make the necessary affidavit, and show that the cause is "between citizens of differcnt states" (Laws of U. S. 1875, Chap. 137), and otherwise properly removable, we can perceive no reason why it should not be transferred, and we confidently predict that on appeal, if carried up, the Supreme Court of the United States will reverse Pechner v. Ins. Co. Yours Respectfully. nified and able as that of New York. The statutes of the United States authoriz Book Notice. E. F. WARREN. UNITED STATES DIGEST: A Digest of the Decisions of the Various Courts within the United States. By BENJAMIN VAUGHAN ABBOTT. New Series. Volume 5, being the Annual Digest for 1874. Boston: Little, Brown, & Company. 1875. The profession will be rejoiced at the appearance of this volume, and will be glad to know that Mr. Abbott, who found the annual digests several years behind when he took charge of the work of compiling them, has nearly overtaken the flight of time. As there is an occasional misapprehension among the profession in regard to the character of this work, we will state that the United States Digest consists of two series, the First Series and the New Series. The basis of the old series was two volumes published in 1847. These were continued down in annual volumes to include the year 1869. This series is now being consolidated by Mr. Abbott in a new work of about sixteen volumes, the first seven of which, extending into the letter J., have already been published. The new series consists of supplementary annual volumes, beginning with the year 1870. Of the quality of the present work nothing further need be said than that the digests made by the author of this volume and his brother, Austin Abbott, are the models which are now generally imitated by the compilers of similar works; and that any digest which, in all its appointments, equals those of the Abbotts, is considered first class. Perhaps no man who has labored in this particular field of legal authorship, either in this country or in England, has performed as much work as the author of this volume, or performed it better; and while he certainly must feel that such a work at least is short-lived, and does not constitute a very enduring monu ment to its author; yet he must also have the satisfaction of knowing that no writer of his generation has placed his profession under equal obligations to him. It is not too much to say that the profession literally stand aghast at the magnitude of Mr. Abbott's works, and wonder what sort of a work-shop it is in which he turns out, as by machinery, so many books, and such good ones, too; what sort of an engine it is, which is capable of propelling the machinery necessary for the doing of so much work; whether it is high-pressure, low-pressure or compound, and what the motive power; how many engineers, stokers and wipers he employs, and what kind of a lubricator he uses to keep the thing from wearing out. When Mr. Abbott gets tired of making digests, if he will just write out a receipt explaining how he does it, enclose it in a sealed envelope and put it up to the highest bidder, he will realize handsomely by the operation. In the volume before us, one hundred volumes of reports are digested, namely: 17, 18 and 19 Wallace; 11 Blatchford; 3 Bissell; 5 Benedict; 5 and 6 Fisher; 8 and 9 Court of Claims; 1 to 10 Bankruptcy Register; 48 Alabama; 44 to 47 California; 40 Connecticut; 14 Florida; 48 and 49 Georgia ; 59 to 63 Illinois; 40 to 45 Indiana; 35 and 36 Iowa; 10 to 12 Kansas; 25 Louisiana Annual; 61 Maine; 38 and 39 Maryland; 109 and 110 Massachusetts; 26 to 28 Michigan; 19 Minnesota ; 49 Mississippi; 53 to 56 Mis. souri; 3 Nebraska; 9 Nevada; 53 New Hampshire; 36 New Jersey; 24 New Jersey Equity; 53 to 55 New York ;-4 Abbott N. Y. Court of Appeals; I to 4 Thompson and Cook; 8 N. Y. Supreme Court, by Hun; 35 to 37 N. Y. Supreme Court; 4 Daly; 15 Abbott's Practice; 46 and 47 Howard's Practice; 70 and 71 North Carolina; 23 Ohio State; 72 to 74 Pennsylvania State; 5 to 7 Heiskell; 36 to 38 Texas; 46 Vermont; 23 Grattan, 5 West Virginia; 32 and 33 Wisconsin; and 1 and 2 Pinney;work enough, we should suppose, to consume the time of one man for five years. Really, we should think Mr. Abbott would get tired after a while, and want to go a-fishing. In his preface to the first volume of the New Series, Mr. Abbott tells us that his aim is to present chiefly and prominently, the advance in general jurisprudence which has been made during the year. Cases which involve only the application of established rules to peculiar and unusual facts; opin. ions which are occupied with recapitulating well-known principles or accumulating cases from the authorities; adjudications of local importance only;— are to have a briefer treatment." But even with this plan of briefly dismissing unimportant decisions, it was when we took up this book difficult for us to understand how the contents of one hundred volumes of reports could be digested in a single volume of 863 pages, 74 of which are occupied by a table of cases; and we confess that a suspicion was aroused that a large number of cases must have been omitted; but on examining the table of cases, we find that about nine thousand cases have been included, which would make an average of 90 cases per volume of reports-about what American reports average, we believe. Mr. Abbott, however, states that in digesting the ten volumes of the Bankruptcy Register Reports, he has excluded some cases which have been plainly suspended by subsequent statutes or decisions, and some which have appeared in former volumes of the annual digest, cited from other reports," and he has no doubt been wise in so doing. The mechanical execution of this volume, like that of its predecessors, is excellent. A TREATISE ON PLEADING AND PRACTICE IN ACTIONS AND SPECIAL PROCEEDINGS IN THE COURTS OF IOWA, UNDER THE IOWA CODE OF 1873. By WILLIAM E. MILLER, Chief Justice of the Supreme Court of Iowa. Revised Edition. Des Moines: Mills & Co. 1875. pp. 832. Price, $7.50. Sold by Soule, Thomas & Wentworth, Saint Louis. We understand that the first edition of this work was received with general favor by the bar of Iowa. Judge Miller states in his preface, that the code of 1873, introduced a number of changes in the law relating to civil procedure, and thus rendered a revision of the work necessary, and that in making this revision he has been obliged to re-write much of it. He states that he has endeavored to embody the decisions of the supreme court, on questions of civil practice, down to, and including the 38th volume of reports, and including also some cases not yet reported. It would be obviously improper for us to attempt a critical examination of this work. First, because it would interest but a limited number of our readers; secondly, because it has already received the most thorough test to which a book can be subjected, that of use by a critical and exacting profession, and has not been found wanting; and thirdly, because of our inability properly to judge of the merits of a work on a subject with which we are not familiar. We may say, however, that if the appearance of a book is any index to its value, this book certainly ought to become a general favorite. It is the handsomest law book which has been laid upon our table since we began to edit this journal-with one exception, and that is the 38th volume of Iowa Reports, which we have just received from the same publishers. It will not surprise any one who is acquainted with the character of the people of Iowa and their manner of doing business, to be told that these books are manufactured by Messrs. Mills & Co., at the capital of that state. For courage in war, or success in the arts of peace, the people of that state have no superiors in the Union. The central counties of Iowa present in the summer season the appearance of one continuous garden. Her state debt is merely nominal; her system of public schools, unsurpassed; church spires rise on all her prairies; and peace and industry reign throughout her borders. Surely it can not add much to the glory of a state, which, in its infancy, has produced so many distinguished soldiers, statesmen and jurists, and which abounds in so many happy homes, to say she can make a book as well as it can be made in Boston or in London; but trifling as this addition is to her laurels, we are glad of the opportunity of calling attention to it. Notes and Queries. CONTRACTS-IMMORAL CONSIDERATION. OMAHA, NEB,, Oct. 26th, 1875. Editors CentrAL LAW JOURNAL:—I see a query in the JOURNAL for Oct. 22d, 1875, as to whether money, property, etc., given in consideration of illicit intercourse, can be recovered back or not. It is a general rule of law that all contracts and agreements which are illegal, immoral and against public policy are void; and a court of justice will never lend its aid to assis either of the parties to such a transaction, but will leave them just where it finds them. When the agreement has been executed the court will not make any order rescinding it. See 11 John. 388; 4 Ohio, 419; 3 Cowen, 213; 4 John. 419. ANOTHER ANSWER. A. N. F. EDITORS CENTRAL LAW JOURNAL:-In your issue of October 22d, ante page 694, your correspondent "B." asks where a case may be found, "hold" ing that where money, property, etc., is given in consideration of illicit intercourse, it can not be recovered back." Your correspondent will find, in the case of Marksbury, etc., v. Taylor, etc., 10 Bush. 519, decided by the Court of Appeals, January 7th, 1875, that the court, to use its own expression, was 'brought face to face" with this identical question. Smith, in 1865, in consideration of adulterous intercourse, conveyed to Mrs. Taylor a house and lot of ground. Both Smith and Mrs. Taylor died shortly thereafter, and the widow and heirs of Smith instituted suit, and sought to have the deed cancelled, because the consideration was a vicious one. In this case it was held by the court that when parties are equally concerned in illegal agreements or, transactions, whether mala prohibita or mala in se, courts of equity, like courts of law, will not interfere to grant relief to either. Story's Eq. 298; 11 Mass. 377; Cowper, 792; Bibb v. Bibb, 17 B. Mon. 307; Brookover v. Hurst I Met. 668. That an executed contract, based upon illicit sexual commerce, can not be set aside at the instance of the grantor, or his heirs at law, who can not occupy, in court, a better position than their ancestor, through whom they claim. "B" will find with the report of the case quite a large number of authorities which were cited by counsel, both in favor of, and opposed to the conclusion reached by the Court of Appeals. L. M. Q. October 29th, 1875. ADVERSE POSSESSION-ANSWER TO F. In answer to "F," CENT. LAW JOUR., vol. 2, p. 694. The original source of title to real estate is conquest-adverse holding. Adverse possession fo the period specified in the statute is a civil conquest of the title. It operates to divest the title out of the former owner, and to rest it in the adverse possessor. Possession is transfered in deed, and by deed. It rests in parol proof. No deed or paper title is necessary. See Weber v. Anderson, 7 Chicago L. N. 196, and authorities there cited. C. Some Recent Decisions in Bankruptcy. ORIGINAL JURISDICTION IN BANKRUPTCY OF UNITED STATES CIRCUIT COURT. Allen, Assignee of J. A. Jessel, v. Binswanger and Jonas. United States Circuit Court, Eastern District of Missouri, Sept. 27, 1875. A bill in equity, brought by the assignee to recover from defendants between four and five thousand dollars, alleging that the defendants were attorneys for bankrupt, and at or before the filing of the petition in bankruptcy received from the bankrupt the amount aforesaid in furtherance of a scheme to effect a fraudu lent composition with his creditors, under the bankrupt act; that after the filing of the petition in bankruptcy against Jessel, and when it became manifest that the composition would not be consummated, defendants paid over the money to the bankrupt, in fraud of the provisions of the bankrupt act, and the bankrupt absconded therewith. Demurrer on the ground that the district court, and not the circuit court, has jurisdiction of this cause of action. Held, by Miller and Treat, JJ. (citing McLean, Assignee, v. Lafayette Bank, 3 McLean, 185; Mitchell v. Mfg. Co., 2 Story, 660, and Pritchard v. Chandler, 2 Curtis, 488), that the circuit court had jurisdiction of such a cause of action. Demurrer overruled. NOTE.-It has been generally understood that the United States Circuit Court for the District of Missouri, some years since, rendered a decision (unreported) contrary in efject to the foregoing. It is believed that the only reported case sustaining the demurrer is that of Buchanan v. Packard, 7 B. R. 353. Bump, on page 216 of his 8th edition, in reference to the question raised by the demurrer, cites several cases which have no relation to it whatever, viz: Morgan v. Thornhill, 5 B. R., (s. c. 11 Wall. 65), determining in what cases an appeal will lie from the Circuit Court to the Supreme Court. Smith y. Mason, 6 B. R. 1 (s. c. 14 Wall. 49), determining, when an assignee must bring a plenary, instead of a summary action; Woods v. Forsyth, 5 B. R. 78, determining when a firm is liable, instead of one of its members; In re Allexander, 3 B. R. 29, determining to what cases the appellate jurisdiction of the circuit court extends. E. T. A Summary of Our Legal Exchanges. LOWER CANADA JURIST, JULY AND AUGUST.* Importer of Invention not an Inventor.-Woodruff v. Moseley; Court of Queen's Bench, Opinion by Sanborn, J. [19 Low. Can. Jur. 169]. Held, that the mere importer of an invention, which has been patented for many years in the United States by some other party, is not the inventor or discoverer thereof, within the meaning of "The Patent Act of 1869," and a patent obtained by him under the said act, on the ground that he was the inventor or discoverer, is null and void. conveyance is made within a reasonable time thereafter, the advance will be considered as a present consideration for the conveyance. 2. An insolvent debtor may, for a present and sufficient consideration, sell or encumber his estate, provided the transaction is bona fide, and free from fraud, or an intention to defeat the operation of the bankrupt law. 3. To defeat a conveyance for a present consideration, the proof must show that the party to whom, or for whose benefit it was made, knew or had reasonable cause to believe the grantor insolvent, and knew that a fraud upon the law was intended. 4. The knowledge that a fraud was intended may be established by circumstantial evidence. Liquidating Security before Proving Debt.--In re Anderson. United States District Court, Wisconsin. Opinion by Hopkins, J. [12 Nat. Bank. Reg. 502.] 1. The security that must be liquidated before the creditor can prove his debt, must be upon property real or personal of the bankrupt, that may be surrendered or conveyed to the assignee. 2. A claim which is secured by the endorsement, guaranty, or collateral liability of a third person may be proved as unsecured. Feme Covert as Surety-Dower - Mortgage - Partnership— Assets-Real Estate as Personalty.-Hiscock, Assignee, etc., v. Jaycox and Green; in United States District Court. New York. Opinion by Wallace, J. [12 Nat. Bank. Reg. 507.] 1. A feme covert, by charging her inchoate right of dower for her husband's benefit, does not thereby become a surety for him. 2. An agreement that a feme covert is to be compensated for a release of her contingent right of dower is not to be implied. 3. Where real estate is covered by a mortgage, the inchoate dower attaches to the equity of redemption only. 4. If the holder of a note, the indorser of which is secured by a mortgage, proves the note as unsecured, this does not extinguish the mortgage, for the assignee is thereupon subrogated to the right of the holder. 5. The intent to consider real estate partnership assets may be implied from the fact that the losses in the transaction are to be sustained by the assets of the Goods held by Warehouse Receipt Insurable-Evidence Identity.-Wilson v. Cit. Ins. Co.; Court of Queen's Bench. Opinion by Dorion, Ch. J. [19 Low. Can. J. 175]. Held, 1. That goods held under a duly endorsed warehouse receipt, as collateral security for advances, may be properly and legally insured as being the property of the holder of such receipt, being the party who made the advance. That in an action for the recovery of the insurance of said goods, it is sufficient to establish that goods of the character and brand and of the quality claimed were actually in the build-firm, and the profits which may accrue are to augment the capital of the firm. ing where the goods were stored, at the time of the insurance, and at the time the building and its contents were wholly burnt, without proving the actual identification of the goods described in the warehouse receipt. Collision of Vessels.-The S. S. Quebec, Bennett; Vice-Admiralty Court. Opinion by Y. Okill Stuart, J. [19 Low. Can. J. 195]. A steamship, after colliding with a sailing vessel, continued her course and struck another sailing ship. Held, that the steamship that had disregarded the rules of navi. gation before the first collision, could not plead the fault of the vessel first struck, to a suit brought against her for the second collision. Negligence of Vessel Breaking Cable.-The Czar; same court and judge. [19 Low. Can. J. 197]. Held, where a part of the line of an Electric Magnetic Telegraph passed under the river St. Lawrence, without injury to the navigation and so as not injuriously to interrupt the navigation of Canadian waters: Held, in a case of gross negligence on the part of a sailing ship, causing a wire cable to be broken, that her owners were liable for the damage. Collision between Steam and Sail Vessels.-The S. S. Quebec v. The Charles Chalomer; and vice versa; same court and judge. [19 Low. Can. J. 201]. Held, where a steamboat did not keep out of the way of a sailing ship, there being risk of collision, and the sailing ship, by porting her helm, instead of keeping her course, contributed to the collision, both held to be in fault and neither entitled to recover the damage she sustained. Power of Legislature to Compel Attendance of Witness---Warrant.—Ex parte Dausereau; Court of Queen's Bench. Opinion by Ramsay, J. [19 Low. Can. Jur. 210]. Held, 1. That the Legislative Assembly of the Province of Quebec has power to compel the attendance of witnesses before it, and may order a witness to be taken into custody by the sergeant-atms if he refuses to attend when summoned. 2. The omission to state in the speaker's warrant of arrest the grounds and reasons therefor is not a fatal decree. 3. The Quebec Statute, 33 Victoria, Cap 5, is within the powers of the local legislature. NATIONAL BANKRUPTCY REGISTER, Sept. 16 AND OCT. 1.t Foreclosure pending Proceeding in Bankruptcy.-Markson et al. v. Haney. Supreme Court of Indiana. Opinion by Worden, C. J. [12 Nat. Bank. Reg. 484.] If a mortgagee institutes proceedings to foreclose a mortgage after the commencement of the proceedings in bankruptcy, such proceedings may, on the application of the assignee, be stayed until the bankruptcy pro ceedings are closed. 6. When real estate is impressed with the character of personalty, the onus is on the party who alleges that it has lost that character, to show, not only that the partnership creditors have been paid, but that, as between themselves, the accounts of the partners have been settled. 7. A feme covert is not entitled to dower in real estate which was held as partnership assets. Exemption Laws.-In re John Owens ; in United States District Court, Indiana. Opinion by Gresham, J. [12 Nat. Bank, Reg. 518.] 1. Congress 2. A bankmay pass exemption laws impairing the obligation of contracts. rupt is entitled to an exemption of household and kitchen furniture, and other articles and necessaries, although the same were taken under an execution levied before the commencement of the proceedings in bankruptcy. 3. Under the laws of Indiana, a bankrupt is not entitled to an exemption against a judgment for damages in an action of replevin or for costs. When Debt barred by Discharge.-Lamb v. Brown; United States District Court, Indiana. Opinion by Gresham, J. [12 Nat. Bank, Reg. 522.] The debt of a creditor is barred by a discharge, although his name was not placed on the schedule, and he received no notice of the proceeding in bankruptcy, or of the petition for a discharge. Judgment by Default against Bankrupt, reviewed when.Shurtleff v. Thompson; Supreme Court of Maine. [12 Nat. Bank. Reg. 524.] If the bankrupt's counsel fails to appear for him in an action, because by mistake he supposed that the counsel for a co-defendant also appeared for the bankrupt, a review of a judgment by default entered against the bankrupt may be granted, so that he may plead a discharge. United States Penal Claim is Provable Debt.-Barnes v. United States, Circuit Court, New York. Opinion by Hunt, J. [12 Nat. Bank. Reg. 526.] A claim of the United States against bankrupts to recover as a penalty the value of goods imported and entered contrary to law is a provable debt against the estate of the bankrupt. Power of District Court over Property in Involuntary Case.-In re G. B. Holland, Jr,; United States District Court, Texas. Opinion by Duval, J. [12 Nat. Bank. Reg. 403.] 1. The District Court, in an involuntary case, has no authority under a provisional warrant to order the seizure o property from the possession of a person to whom the debtor transferred i before the filing of the petition. 2. The district court, in an involuntary case may issue an injunction to prevent the disposal of property by a person to whom the debtor has transferred it. Unsecured Debt.-In re Dunkerson & Co. United States District Cour Indiana Opinion by McDonald, J. [12 Nat. Bank. Reg. 413.] 1. A cred' Conveyance by Insolvent for Present Consideration.-Gattman & Co. v. Honea. In the United States District Court of Mississippi. Opinionitor who holds a debt against a bankrupt, whose liability arises by his accomby Hill, J. [12 Nat. Bank, Reg. 493.] 1. When an advance is made upon an agreement that certain and specific property shall be conveyed, and the *Montreal: Lovell Print. and Pub. Co. +New York: McDivitt, Campbell & Co. modation endorsement of bills of exchange, to secure the payment of which the drawers and acceptors have given certain collateral security, may prove his debt as secured. 2. A partnership is not entitled to retain, towards the payment of its debt. the surplus arising from the securities held by one part |