to protect authors and publishers against wholesome rivalry, or to restrict the sphere of legitimate competition in literature, but to prevent an unscrupulous man from diverting to his own advantage the fruits of another's labor; and the court will not interfere where it is a fair struggle for the public favor in which the parties are engaging, as was laid down and acted on by Vice-Chancellor Malins in Strahan v. King (February 22, 1877), where the proprietors of The Contemporary Review endeavored, but unsuccessfully, to repress the rivalry of the newly-four.ded Nineteenth Century, by attempting to show that the latter was designed to supplant their review by improper misrepresentations. Adequate proof of the plaintiffs' allegations was not forthcoming, and the court declined, as in such cases it always does decline, to interfere.

CONSTITUTIONAL LAW "DUE PROCESS OF LAW."

TOWLE V. MANN.

Supreme Court of Iowa, December, 1879.

The code of Iowa (§ 3058) provides that the claimant or purchaser of any property, for the seizure or sale of which an indemnifying bond has been taken and retained by the officer, shall be barred of any action against the officer levying on the property, if the surety in the bond was good when it was taken. Held, unconstitutional, so far as it declares that the owner can not maintain an action for the recovery of the specific property against an officer who has levied thereon under an execution against another.

Appeal from Harrison District Court.

Action to recover specific personal property which it was stated in the petition the defendant, as constable, under and by virtue of an execution, had levied upon and taken from plaintiff's possession. The answer, among other things, stated that "defendant states that after the levy (mentioned in plaintiff's petition), on the property therein mentioned by this defendant, as constable, an indemnifying bond was given to him, with good and sufficient sureties, approved by said officer, as provided by law, which bond was duly returned to the court that issued the execution mentioned in plaintiffs' petition, and filed by said court with the execution in the case of Milburn Wagon Co. v. W. T. Nash and E. H. McBride, which is a bar to this action."

To this portion of the answer a demurrer was interposed, on the ground that the statute on which it is based is unconstitutional. The demurrer was overruled, and the plaintiff appeals. Cochran & Bailey, for appellants; F. M. Dance, for appellee.

SEEVERS, J., delivered the opinion of the court: The Code, § 3055, provides that an officer, if he has received the notice therein contemplated, may refuse to levy, or release the levy made, unless an ind emnifying bond is given him; and section

3058 is as follows: "The claimant or purchaser of any property, for the seizure or sale of which an indemnifying bond has been taken and returned by the officer, shall be barred of any action against the officer levying on the property if the surety in the bond was good when it was taken. Any such claimant or purchaser may maintain an action upon the bond, and recover damages as he may be entitled to." Under this statute the defense was pleaded, and the effect of the decision below is to compel the plaintiff to accept the money value of the property and damages for the unlawful taking in lieu of the property, and the question is whether this statute is constitutional.

The Constitution of this State provides that "no person shall be deprived of life, liberty or property without due process of law,” (article 1, § 9, Code, 770), and the same provision is contained in the Constitution of the United States.

The plaintiff claims to be the owner of a portion of the property in question, and for the purposes of this case such property must be regarded as belonging to him. As the defendant relied on the statute as a defense to the whole action, and the defense was so pleaded, the demurrer should have been sustained if the same constituted a partial defense only. "Due process of law," has been variously defined, but it "undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights," (Edwards, J., in Westervelt v. Gregg, 12 N. Y. 209), and it was intended thereby "to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice." Bank of Columbia v. Okely, 4 Wheat. 235.

Under the pretense that the property in question belonged to the defendant in execution, the officer levied upon and took possession of the property of the plaintiff. The latter is thereby deprived of such property without a trial, without having had his day in court, without a pretense that the forms and proceedings known to the law of the land have been complied with; and in effect the plaintiff is compelled to sell his property on the market whether he so desired or not. The process in the defendant's hands did not authorize him to take the plaintiff's property, and therefore, for the purposes of this case, it can not be regarded as due process of law. "There is no rule or principle known to our system under which private property can be taken from one man and transferred to another. for the private use and benefit of such other person, whether by general laws or by special enactment." Cooley on Const. Lim. 357.

If the plaintiff can not recover the specific property taken, he is deprived thereof without his consent under and by virtue of a general statute. If this had been done directly-that is, if the statute had so provided in terms-no one would claim it was constitutional. In effect this precise thing has been done, and the plaintiff's property has

It is a thing of every day's experience that men when alone are constantly taken for each other, upon partial acquaintance and a supposed resemblance, but this never occurs when the men who resemble each other are together. And wherefore? Because the mistake arises from an imperfect image in the memory as to the individuality and peculiar appearance of the absent one. These mistakes occur in the experience of almost every person, and in many cases upon a very slight resemblance. This only proves the frailty of the memory in retaining images. But take the cases in which the resemblance is so striking that every one is in doubt; where the persons or things seem so exactly alike that when separate no one can distinguish them, and the illustration is still stronger. Take the case of twin children; you see two beautiful little girls pass your door day after day, dressed alike, the same size, hair alike, faces cast upon exactly the same model, complexion and expression of countenance identical. You are told that one is Nannie and the other Jeannette, but unless some one points out the difference, though you fancy you see some difference, when you meet them separately you will never know when you meet Nannie and when Jeannette. But stand them before you together side by side, look carefully into their faces, first the one and then the other, and you soon observe a difference, which will enable you forever to distinguish them; the one has brown eyes, the other blue; or the one has some mark or other peculiariarity of face which being laid away in your memory forever enables you to see the difference and distinguish the two apart. But this comes from comparison, for you would never discover the difference by casually seeing them apart. And so in reference to the subject of the identity of animals. What lawyer who has practiced in the rural districts, has not seen the most excited litigation as to the identity of a horse, a cow or even a pig. But never in any case where comparison by juxtaposition and collation were practicable. These controversies arise in this way: farm stock run at large, an animal strays away, the owner in his search finds in the forest with the herd of his neighbors one resembling it, and as he honestly thinks, the same, and drives it home and puts

it in his close. The neighbor seeing it there says it is his, and the resemblance is so striking that there is no lack of proof of identity on either side, and the litigation becomes bitter and stubborn. And this all for want of the opportunity of comparison. The writer remembers an instance where after a bitter litigation between two influential farmers, one of whom had gone into the forest and taken a colt which he alleged had been missing since spring, but which was claimed by another, the title to which the taker maintained and had quieted in the suit. But what was his surprise after the controversy was all over, to have another colt which he was bound to own was his, come home to him, when, he being an honest man, restored to the other claimant the one he had wrongfully wrested from him at the end of a law suit. The comparison of the animals at once showed the honest farmer where the truth was and where the ownership. But these illustrations might be multiplied ad infinitum. And as a general rule there is no subject to which this experience more forcibly appplies than to handwriting. Who has not

had two correspondents whose superscription of a letter so far resembled each other that he had either to inspect the post-mark or open the letter, before he could determine which of the two wrote the address. And yet, when the two envelopes containing the address are laid side by side, there is not the slightest difficulty in distinguishing them. But because perchance English juries at an early day could not read, and because the attainder of Algernon Sidney was reversed by act of parliament on account of comparison of handwritings at the trial, and because above forty years ago, a judgment at nisi prius disallowing comparison was affirmed by an equally divided court, the courts both in England and this country, with few exceptions, have discarded entirely the better method, and confined the search after truth to the worse.

short, the law does not permit one person to appropriate to himself the fruits accruing to another from the results of his literary exertions. Every person, therefore, who has a particular name or title for a particular periodical or magazine, "by his appropriation and user of the name, acquires a property in that name, and has a right to restrain any other person from using the same name in such a manner as would lead, or be calculated to lead, the public to believe that they are purchasing one thing when, in truth, they are purchasing another. So said Vice-Chancellor Malins in Bradbury v. Beeton, 18 W. R. 33,; and in the same manner Lord Hatherly, when lord justice, in Kelly v. Hutton, 16 W. R. 1182, L. R. 3 Ch. 703, said that "the proprietor has a right to prevent any other person from adopting the same name for any other similar publication." Nor is it only in England that the principle is recognized. In a case in the court of session (In re Edinburgh Correspondent Newspaper, Ct. of Sess. Cas. 1 ser. I. new ed. 407n), Lord Balgray stated that the publishers of a certain paper had "a right to prevent any paper from being published under such title or form as might mislead the public into a belief that it was the former paper." And the same doctrine is acted upon in America.

There is, in fact, a twofold reason why this should be so, and it was with justice that it was said in the New York Court of Common Pleas, in Matsell v. Flanagan, 2 Abb. Pr. (N. S.) 459, that "the enforcement of the doctrine that trade-marks (in which titles are included-the case was, in fact, one of newspaper title) shall not be simulated, does not depend entirely upon the alleged invasion of individual rights, but as well upon the broad principle that the public are entitled to protection from the use of previously appropriated names or symbols, in such a manner as may deceive them, by inducing or leading to the purchase of one thing for another." It is, in fact, obviously for the public benefit that articles should be purchased for what they are, and not for what they are not.

To set the law in operation, however, it is necessary for the proprietor of the literary property to take the initiative in protecting his rights. And what, then, must he prove to show himself to be entitled to the relief he seeks? It was formerly frequently argued that a positive intention to defraud must be established, that an intentional attempt at deception must be shown; but since the Bell's Life case, if not before it, all such contentions have been abandoned, and "the absence of fraudulent intention is no defense against an application to the court for an injunction by the person whose property has been injured” (per V. C. Stuart, in Clement v. Maddick, 1 Giff. 98). For the question of infringement of a title is a question of injury to property, and, as such, depends upon the injury done to the property, and not upon the mental condition of the infringer. Yet, although fraudulent intention need not be proved, fraud in a sense there must be for the plaintiff to succeed, for unless a probability of deception-of imposition on the public-is established, there can

be no cause of complaint. In this sense, therefore, of actual or probable deception of the public, fraud must be established, but it is only in this sense, and by way of test. Hall v. Barrows, 12 W. R. 322, 4 De G. J. & S. 150.

In determining the question whether deception of the public is to be anticipated, it is the ultimate purchaser who is to be regarded, and it may easily happen that deception would be probable in the case of those who receive the book or periodical to which the title is prefixed after it has passed through several hands, when it would not be probable in the case of immediate purchasers who received the publication direct from the publishers, accompanied by such explanations as they thought fit to make. And, therefore, where a music publisher instructed his shopmen to inform purchasers of a particular song that it was not the original one of the same man, an injunction was nevertheless granted, since the statements made by the shopmen would probably not pass on to subsequent purchasers. Chappell v. Davidson, 2 K. & J. 123.

While a fraudulent intention need not be proved to entitle the proprietor of a publication to a remedy, due weight will, nevertheless, be given to evidence of such an intention, and it may turn the scale when the similarity of the titles is questionable, or influence the costs even when the plaintiff fails to succeed, as in Tallcot v. Moore, 13 N. Y. Sup. Ct. 106. Actual deception, as in Matsell v. Flanagan, is, of course, practically conclusive.

An intention to deceive may be established from an endless variety of circumstances, but among the most usual of such circumstances may be reckoned a general resemblance of the cover, or wrapper, or title-page of the defendant's work to that of the plaintiff's, including it may be similarities in color and other like details (Spottiswoode v. Clarke, 2 Ph, 154; Clowes v. Hogg, W. N. 1870, p. 268, 1871, p. 40; Tallcot v. Moore); a similarity in the general style and arrangement of the contents of the book itself (Mack v. Petter, 20 W. R. 964, L. R. 14 Eq. 431; Corns v. Griffiths, W. N. 1873, p. 93); a claim of certain attributes which are known to belong to the original work (Chappell v. Sheard, 2 K. & J. 117; Chappell v. Davidson, Id. 123); a pretense that the defendant's work is a continuation or new series of the plaintiff's (Hogg v. Kirby, 8 Ves. 215; Constable v. Brewster, Ct. of Sess. Cas. 1 ser. III. 215); a sudden change from an unobjectionable title, style of publication, and arrangement of contents to a style more closely resembling the plaintiff's (Corns v. Griffiths, W. N. 1873, p. 93); a resemblance in the style in which the name is printed (Chance v. Sheppard, V. C. M. July 30, 1869); undue prominence in type given to a catchword. Metzler v. Wood, 26 W. R. 577, L. R. 8 Ch. D. 606.

Still, whether there are or are not any circumstances from which an intention to deceive may be reasonably inferred, where a reasonable probability of deception of the public can be established, the proprietor of the publication is entitled to his remedy. Thus, in Hogg v. Kirby, S

meaning of the act if it gives all the information required by the statutory form. I would go a step further and say that if the officers of the bank introduced a classification which going beyond the statute, created distrust and panic likely to depreciate the value of the stock, they would be overstepping the line of their duty and it would not be difficult to suppose circumstances in which they might expose themselves to indictment for a false return, as being injurious to the standing of the bank. In a word, the object of the law appears to me to be to oblige banks not to give a statement to show their weakness, as has been said, but to give certain details of information as to their affairs. In the present case it is not pretended that there is any, mis-statement as to the aggregate assets or liabilities of the bank. The charge is that the statement is false in this, that there is an improper classification of the items. It must be apparent that such a charge must give rise to questions of extreme nicety, unless the statutory form be constructed with logical precision, to which, I fear, it has no claim. These difficulties at once presented themselves in the presentation of this case, and induced the learned judge who presided at the trial to reserve four questions for the consideration of this court. It may not be out of place for me to say here that the reserved case is so ample and clear that it has rendered our duty comparatively easy, and that it offers no reasonable ground for the defendant to complain of hardship. Three of these questions are directed to inquire whether certain entries were mis-classed or not, and the last to inquire whether wilful intent can be gathered from the circumstances of the case without direct testimony. The first of these questions refers to certain loans by other banks which are represented in the return under item eight, as being "other deposits payable after notice, or on a fixed day." In the reserved case the learned judge says: "I ruled and directed the jury, as a matter of law, that the fact of the Consolidated Bank having in most instances granted deposit receipts payable on time, did not alter the character of the transactions, or make of these amounts deposits of sums which were in reality loans; and I further ruled and directed that these loans, notwithstanding these deposit receipts, were not legally or justly included, as they were under the head number seven of the bank's liabilities, 'other deposits payable after notice or on a fixed day,' but should have been represented under number eight, amounts due to other banks in Canada,' or under number eleven, 'other liabilities not included under the foregoing heads, both the latter headings being left in blank in the said statement and return." I fully concur with the learned judge in this ruling in so far that it decides that the nature of the receipt granted "did not alter the nature of the transactions." the transaction was a loan, and not a deposit, assuming that these transactions are distinguishable, the mere name given to it is wholly immaterial. But I must dissent from the ruling, inasmuch as I think it is matter of fact and not of law under

If

what heading these amounts should be placed. It was argued that the form is part of the statute, and consequently that its interpretation becomes matter of law. This is an ingenious contention, but I am not aware that the technical words, or words used with a special meaning, are more within the knowledge of the court when used in a statute than when used in a deed, and no authority has been produced to support such a distinction. If we were to treat the entry as matter of law, I am inclined to think I should be induced to arrive at a different conclusion from that of the ruling, and to say that the entry was strictly correct, and that within the meaning of the form all loans to banks are deposits. So Government loans are styled deposits, and through the eleven items of liabilities we don't find an allusion to any "loan" save deposits. It certainly could not have been placed under heading eight, using "due" in its legal signification.

To some extent the same objection existed as to the ruling set forth secondly in the reserved case, viz. "I ruled and directed the jury, as a matter of law, that these demand notes not having been discounted and current on the 31st January, 1879, should have been, in order to comply with the law, placed under No. 18, viz., 'other assets not included in the foregoing." I think it should have been left to the jury to decide whether these notes were discounted or not; and from the statement of fact in the case, it appears to me that these notes were discounted when passed to the credit of the owners, and when the owners had drawn the proceeds. One very good test is this, Who was the owner of the note after the customer drew the proceeds? Was it the customer or the bank? If it was not discounted it was clearly the property of the customer, and it is only on this supposition that the asset, which would then have been the personal indebtedness of the customer on an overdrawn account, could have appeared under heading eighteen, "other assets not included under the foregoing heads." There are many cases to be found of conflicting claims of the banker and his customer, but they all turn on bills remitted to the banker and where there is some ambiguity as to the use to which the bill was to be applied, or the object for which it was placed in the banker's hands. I don't believe any case can be found in which it was ever doubted that the property of a bill sent in for discount and passed to the credit of the person paying it in, and the proceeds of which were drawn by him, did not pass to the banker. The taking of a banker's acceptance in exchange for another bill indorsed to the banker is equivalent to a discounting of the bill, and though the banker's bill be dishonored the property of the bill will be passed to the assignee. Walker on Banking Law, p. 140. In the case of Hornblower v. Proud, 2 B. & Ald., p. 327, Abbott, C. J., said: "I am of opinion that in this case the non-suit was right. The case on the facts admitted appears to be that Gibbons & Co., on the 2nd of March, exchanged a bill on Esdaile & Co., for the three bills in question, and I think that the property

in the latter actually passed to them by this exchange of securities." Bayley, Holroyd and Best, JJ., emphatically expressed the opinion that the property was absolutely exchanged by the exchange of securities. The case was one of considerable hardship, for Esdaile & Co. actually got the three bills of plaintiff which were paid and they refused even to accept the bill Gibbons & Co. drew on them and given in exchange. On the third ruling I agree with the learned judge. As matter of law an over-draft is not current."

I also agree with him on the fourth ruling. I think the jury may infer the unlawful intent "from all the circumstances of the case proved to their satisfaction," and that misclassification is a fact from which such wilful intent may be inferred. This is substantially the opinion of the whole court.

Sir A. A. DORION, C. J., concurring, said that the questions which had been submitted to the court were not free from difficulty; but he believed the decision of the court-that the questions as to the classification of the loans and of the demand notes should have been left to the jury to decide was correct.

TESSIER, J., concurring, considered that it was fortunate that the questions had been reserved in so clear a manner. On the first point, which was the most important, he remarked that there were three heads under which the loans might have been placed. If there were any doubt as to the heading under which they should have been placed, it should have been left to the jury to say whether there had been any offense against the act. On the next point he also concurred in the opinion that it should have been left to the jury.

CROSS, J.. concurring, remarked that the matter came up on an indictment, and this indictment did not contain an averment of what the statement impugned was, but merely averred that in a certain statement there were certain material facts not true. In a case which turned on classification as this did, the defendant was placed at a disadvantage; because if it were averred that other deposits payable on demand amounted to so much, when in fact they did not amount to so much, the defendant would be warned of what he had to meet. In the present case it was not disputed that all the assets of the bank were in the statement, and all the liabilities were also there. The different classification of liabilities suggested at the trial would not make any difference as to the total. It was only a question of classification, and being such it came up for investigation as a matter of fact how far the classification was true. It was very doubtful, under the schedule, whether a classification that went considerably astray could be made a subject of indictment when the statement itself, as to the totals of liabilities and assets, was true. The classification made little difference because the real grievance (one not brought out at the trial) was that it was not disclosed that the bank was in such a state of embarrassment that it was necessary to borrow money; that they were not telling the public or the Government what had

been done. Now, was the bank bound to tell the Government? It seemed to him to be doubtful whether it was the intention to have a schedule framed that would tell that the bank was borrowing money. Therefore the prosecution missed in spirit the real grievances. He looked upon loans and deposits as convertible terms, and he thought that the loans in question were put under the proper head as deposits. It would not have made any difference as to the spirit of the statement if these loans had been put under the head of "due to other banks," because that would mean the balances on the transactions-what was called in England the clearing house balances. However, in this case he went no further than this, that the judge who presided at the trial ventured to give a ruling to which after consideration by the full court, it was not thought well to adhere strictly.

MONK, J., said it was not necessary for him to state that he did not intend or desire to dissent from the judgment which had just been rendered. With regard to the indictment the objection was taken on demurrer, but it was overruled, and the defendant's counsel did not think it desirable to have that point reserved. With regard to the questions reserved, no doubt the points involved were of some difficulty. As to the first point, he had felt doubts, but he did not think proper to communicate those doubts to the jury. He had told them it was a matter of law, but entertaining doubts as he did he had reserved his ruling for the opinion of the full court, and the court had held that this ruling in law was wrong; that it was not a pure question of law, but one of fact; or at all events, a mixed question of law and fact, whether the classification was right or wrong. On the second point he had also had doubts, and he had communicated his doubts to this court, and this court was of opinion that it was a matter of fact. It was proper, as he had no opportunity of consulting his colleagues at the time, that he should reserve these points, and he was satisfied that the ruling of this court on them was one that would command respect. Out of deference to his colleagues he would not enter a dissent, and though he would not go to the length of saying that his opinion was entirely altered, yet he appeared as concurring in the judgment of the court. Verdict set aside.

LIABILITY OF ATTORNEY EMPLOYED TO INVESTIGATE TITLE TO REAL ESTATEACTION-PRIVITY.

NATIONAL SAVINGS BANK v. WARD.

Supreme Court of the United States, October Term,

1879.

1. Attorneys employed by the purchaser of real estate to examine the title to the same prior to the conveyance, impliedly contract with their employer to exercise reasonable care and skill in the performance of the undertaking.

2. Reasonable care and skill is also required by law of an attorney when employed to investigate the title to