by whom the action may be maintained; but as he cites Cro. Jac. only, it may be inferred that he considered the case as establishing the right in the purchaser, which it certainly would, if that report is correct. In Southern v. How the case is certainly cited as a distinct affirmance of the right of a manufacturer to maintain an action for an unauthorized use of his trade-mark. Lord Rolle, however, expressly states that "Doderidge did not say whether the action was brought by the clothier or by the vendee;" but he adds, " semble que gist pur le vendee" (2 Roll. 28). Therefore, if we depend upon the old books, we are left in doubt as to who is the protected party. But, fortunately, the question may be said to be settled in these days; although in the minds of some chancellors there is a lingering doubt whether the public have any right to protection in such a case.

§ 64. We may safely assume that it is the moral, if not the legal, duty of a court to protect the public against fraud, perpetrated by means of false tokens. The maxim quoted by Lord Cranworth in the case of the Leather Companies1- "Vigilantibus, non dormientibus leges subveniunt"— is not always approved doctrine; for not only the watchful but the careless should be guarded against wily craft and cunning. The morals of a nation are like those of an individual: they must be guarded by the supervising power, whatever that may be. In this matter it is the court of justice trying the question of infringement upon a mark of trade. The law of gravitation seems to operate in morals as in physics; there is an increased momentum at every stage of descent. Of this we have had melancholy proof in recent developments in some portions of our country, where corruption soiled even the ermine of the judge. When we read of excessive stickling for legality, we are apt to suspect that moral obligations have not due weight. When a rogue stands convicted of his offence, why not punish him to the extent of his merits? In trade-mark

1 11 Jur. (N.s.) p. 513.

cases there is a great laxity; as if the community at large had no interest in the upholding of mercantile honor. Spasmodic pretences to severity do not help the matter. Let punishment be sure, like the bodily pain which follows every excess as a manifestation of Divine will, and fraud must decrease. Whether by corporal pain or pecuniary mulct, the effect would be beneficent. The law should protect the weak and the simple. Is the child or the illiterate clown to be plundered at the will of any charlatan or knave? Is the law to lend its aid only to the vigilant, who require it not? It must be that the exponents of justice have sometimes, by mistaking the intent of the law, become false oracles. If the reasoning sometimes used is good in one case, then why not in another? If the confiding purchaser of wares may be cheated with impunity, why not also suffer the pickpocket to ply his craft unmolested against the youthful, the thoughtless, the unsuspecting? Would it be a good defence for a vendor of brass watches bearing the mark of the American, the Elgin, or any other reputable watch company, to plead that prudent examination would have detected the fraud? Verily not. Does one prudent person in a thousand keenly scrutinize each article he buys? What percentage of ordinarily cautious persons closely examine the printed national currency, to see that it bears all its legitimate marks? We come to the conclusion that the rule of caveat emptor should be changed into caveat venditor, demanding sincerity in the seller, rather than extreme caution in the purchaser.

§ 65. There seems to be a contrariety of opinion among judges, both in law and equity, as to the real principle upon which is founded the duty of judicial intervention. Some judges, remarkable for probity in private life, appear to permit the ermine to stifle sentiments of the nobler morality, and to deal with the rigid letter of the law, rather than with its equitable spirit. They base their action entirely upon the legal

1 See opinion of Kindersley, V. C., in Glenny v. Smith, 11 Jur. (N.s.) 964.

right of the party complainant, and treat as a matter of little or no consequence the fact that the public at large have some right to protection. Conceding that a court cannot go outside. of the immediate case presented, is it not true that the rights of the public may be guarded and vindicated by holding the simulator of trade-marks to a rigid responsibility? Woodbury, J., in one case,1 uttered the true doctrine: "To elevate our own character as a nation, and the purity of our judicial tribunals, it seems to me we ought to go as far in the redress and punishment of these deceptions as can be vindicated on any sound principle." Robertson, J., in the case of Corwin v. Daly, said that "the origin of the favor shown to trade-marks was the protection of the public, and not merely of the individual dealer;" and in speaking of the scope or design of a bill in chancery, invoking protection for honest trade, Lott, Senator, said: "Its object is to prevent the commission of a fraud not only on them and to the prejudice of their rights, but on the public, by the sale of an article with an imitation of their trade-mark thereon in such a manner as to deceive purchasers, and through the false representations thus held out, to deprive the owners thereof of the profits of their skill and enterprise. Honest competition relies only on the intrinsic merit of the article brought into the market, and does not require a resort to a false or fraudulent device or token." 3 "It is undoubtedly the duty of courts to regard with disfavor every establishment having any tendency to corrupt the public morals, to create idle or dissipated habits, to encourage a craving for undue excitement, or to impair the taste for domestic attachments. and domestic society," said another judge.1

§ 66. Class of Goods. - Protection will not be given unless in connection with the class of goods to which the mark has been applied. Vice-Chancellor Wood,5 in 1865, remarked that

1 Taylor v. Carpenter, 2 Wood. & M. 1.

2 7 Bos. 222.

3 Taylor v. Carpenter, N. Y. Ct. of Errors, 11 Paige, 292.

4 Christy v. Murphy, 12 How. Pr. R. 77.

5 Ainsworth v. Walmesley, 44 L. J. R. 252.

the court had taken on itself to protect a man in the use of a trade-mark as applied to a particular description of article. "He has no property in that mark, per se, any more than a person has in any fanciful denomination which he may assume for his own particular use, without reference to his trade. If he does not carry on a trade in iron, but carries on a trade in linen, and stamps a lion on his linen, another person may stamp a lion on iron; but when he has appropriated a mark to a particular species of goods, and when he has caused his goods to circulate with that mark, when that mark has become the known indicium of their being his, the court has said that nobody shall defraud him by using that mark and passing off the goods of another's manufacture as being the goods of the owner of the mark."

§ 67. As the first adopter of a mark does not acquire any exclusive right to its use, except in connection with the specific class to which he has applied it, it is not uncommon for the same mark to be placed upon different classes by different owners. The word "MAGNOLIA" may properly serve to indicate a certain manufacture of gin for one proprietor,1 and a certain brand of whiskey for another; 2 for although both contain a large proportion of alcohol, the fluids cannot be said to belong to the same class; and the fanciful appellation of "BISMARCK" may in compliment to the statesman be used for cement, notwithstanding the fact that another had previously appropriated it for paper collars.*

§ 68. The importance of a specific mention of the class of merchandise to which a certain emblem is to be attached as a trade-mark, may be illustrated by the letters "IXL” (I excel). To guard against looseness in practice, the statute requires that the class, "and the particular description of goods comprised in such class," shall be set forth in the application.

1 C. & W. A. Waters, No. 544.

3 Wendt & Rammelsberg, No. 585.

2 Mills, Johnson, & Co., No. 241.

4 Messerole v. Tynberg, 4 Abb. Pr. R. (N.s.) 410, and 36 How. Pr. R. 14.

Time out of mind, the manufacturing establishment of Wostenholm, in England, has used the letters IXL upon cutlery. The exclusive right to the use of that symbol had at common law become vested in that firm, so far as it was actually stamped upon certain articles. It could properly have been appropriated for marking all kinds of cutlery, fine and common, large and small. The mark was known all over the world, and by it was understood that the house of Wostenholm had manufactured the steel fabrics thus stamped. The Examiner was well aware of the existence of that mark, and recognized its import. It was his duty to refuse registration to any one else who claimed property in that mark, as applied to the particular class of goods made and so marked by the English house. It did not matter that no official notice of the use of the mark in a foreign country had been filed. It was enough that a claimant must have been the prior adopter of it.

§ 69. An American firm, doing business at Evansville, Ind., applied for registration of that mark for a chopping-axe. They did not pretend to have adopted the symbol before the year 1870, many years after it had acquired a universal reputation through the English firm of Wostenholm. Held, choppingaxes are not included in the particular class of goods in which the Wostenholms used the mark. Registration allowed.1

§ 70. In January, 1872, Wostenholm & Son, of England, filed an application for the registration of the said symbol, "IX L," as a trade-mark for cutlery. They set forth the long term of years during which their firm had used it for the same purpose. The certificate of registry was duly issued.2 In March, 1872, a manufacturing company in Hartford, Conn., filed an application for a mark, newly adopted, of which the said symbol is the essential part. It was to be applied to scythes. The case was suspended until evidence was furnished that the English firm of Wostenholm did not make scythes. The adoption by the Hartford company was

1 Boetticher, Kellogg, & Co., No. 83. 2 Wostenholm & Son, No. 666.