that it is calculated to injure the plaintiff, he gets an injunction to prevent a repetition of the injury. There is the case also of the Western Counties Manure Company v. Lawes' Chemical Manure Company. The head note is: "The defendants falsely, and without lawful occasion, published a statement disparaging the quality of plaintiff's goods, and special damage resulted from the publication." In the case now before me the disparaging of the quality of the plaintiff's goods is perfectly clear, because if there is only one place where, as I have already said, a genuine thing can be had, all other things must be spurious, and therefore it is just as much as if they said that that which the plaintiffs sell is a spurious article. Mr. Baron Bramwell says in his judgment: "In this case our judgment must be for the plaintiffs. The case may be shortly stated thus. The plaintiffs trade in a certain article of manure, and it is alleged that the defendants falsely and maliciously published of and concerning that manure and of and concerning the plaintiffs' trade and manufacture, a certain statement which contains in it this, that it was an article of low quality, and ought to be the cheapest of four, of which this is one, the others being mentioned. So far an action would not be maintainable, because it is not libelling an article to say that it is an article of low quality, and ought to be cheaper than others. That part is not specifically stated to be untrue, but having been published as it is said of and concerning the plaintiffs' manufactures and trade, the declaration goes ou and says, 'meaning thereby that the artificial manures so manufactured and traded in by the plaintiffs were artificial manures of inferior quality to other artificial manure, and that they specially are of inferior quality to the artificial manures of the defendants' I think if it stopped there, it would not be the subject-matter of an action, even with special damage resulting from it, because I do not see that it is injurious to an article to say that it is of an inferior quality. It may attract certain customers, and it is a very good thing that people can be found who will sell things of an inferior quality in order that they may not be wasted. But what makes the action maintainable is the allegation that follows: 'whereas, in truth and in fact, the said artificial manures so manufactured and traded in by the plaintiffs were not of inferior quality, and were not inferior in quality to the said articles of manure of the defendants;' and by reason of the premises, certain persons who, if they had not been told that which was untrue, would have continued to deal with the plaintiffs, are alleged to have ceased to deal with them. So that it appears there was a statement published by the defendants of the plaintiffs' manufacture which is comparatively disparaging of that manufacture, which is untrue so far as it disparages it, and which has been productive of special damage to the plaintiffs; and it is stated that that publicaion was made falsely and maliciously, which possibly may mean nothing more than that it was made alsely and without reasonable cause, calling for a statement by the defendants on the subject. But f actual malice is necessary, which I do not think

is the case, the allegation is sufficient. It seems to me, however, that where a plaintiff says, 'You have, without lawful cause, made a false statement about my goods to their comparative disparagement, which false statement has caused me to lose customers,' an action is maintainable. I do not go through the cases, but undoubtedly there is nothing in any of them inconsistent with the judgment we now pronounce. The only case I will refer to is Young v. Macrae. When examined, that case will be found to differ materially from this one. The disparaging statement there was not expressly said to be untrue; it was only said generally that the libel was untrue; which it might be if only so much of it was untrue as contained praise of the defendant's own goods. On the general principle, therefore, that an untrue statement disparaging a man's goods without lawful occasion and causing him special damage is actionable, we give our judgment for the plaintiffs."

I think these cases at law thoroughly establish this-I do not go into the general question of libel, but they have established this doctrine, which is, in my opinion, a most wholesome decision-that where one man publishes that which is injurious to another in his trade or business, that publication is actionable, and, being actionable, will be stayed by injunction, because it is a wrong which ought not to be repeated.

Now I have only one other authority to refer to which shows that a judge of this court takes the same view. A similar point was brought before the Master of the Rolls in Hinrichs v. Berndes; it does not seem to have gone on, and there is no final decision on the subject, and I refer to it only as showing his opinion. It was a motion on behalf of the plaintiff, who was a vendor of cigars, to restrain the defendants from publishing in the London Tobacco Trade Review, a circular which it was alleged that the defendants were about to publish in that journal. So there it was not actual injury done but an apprehended injury which the plaintiff considered would injure his trade. The indorsement on the writ claimed an injunction only, and not damages, and the master of the rolls ordered the motion to stand over to the hearing, and observed that he was not prepared to say that if, under the Judicature Act, a plaintiff could maintain an action for libel, this court would not at the hearing, while awarding damages for the libel, restrain a continuance of the publication. It seemed, therefore, that he dealt with it on the same principle-that, if the publication which is about to take place (and, if so, still more one which has taken place), is injurious to the business of the plaintiff, that is a case for the interference of the court, and an injunction will be granted.

Therefore upon principle I can not entertain a shadow of doubt that it is right and proper for this court to interfere where it sees that one trader is conducting an unfair mode of trading, representing that his article is the only genuine one, from which it follows that all others are spurious; that that is so calculated to injure the business of

another that this court, seeing it is a wrong which ought not to be repeated, will prevent it by injunction.

On principle, therefore, I think nothing can be more clear than that the court ought to interfere, and, from the authorities I have cited, it is very clearly established that where injury has been sustained, at all events, it will grant an injunction; and, moreover, the case of Riding v. Smith, shows that in the opinion of the Court of Exchequer, it is not necessary to prove damages if the thing is in itself calculated to be injurious.

Now I am of opinion, first of all, on the evidence of Mr. Eley, that damage has been sustained, because they have had their goods returned in consequence of this advertisement. Being, therefore, of opinion that it is calculated to injure, and being satisfied by the evidence that it has injured, if I were sitting as a jury it would be my duty to give a verdict for the plaintiffs. Sitting to a certain extent, as I do, as a jury, if it were necessary. I should find that the plaintiff has sustained damages, and, if necessary, I should award damages to him. Coming to the conclusion, as I do, first, that the materials produced by the plaintiffs and the defendants are identical as nearly as possible-I do not say for one moment that one box of goods is exactly the same as the other, but, as Professor Church put it, for all commercial purposes, and for all practical purposes, the two things are the same, and made from the same recipe, and there being no evidence whatever that any alteration was made after the death of Joseph Thorley, the advertisement is, in my opinion, improper, and a perpetual injunction against its repetition must be granted.

Now, there is one other circumstance I ought to mention. I have said already that there is no evidence that any alteration in the mode of making the article took place after the death of Joseph, or by Joseph himself after Josiah had left him. But even if there had been some minute alterations, that would not have prevented the plaintiff's right to make this food-the cattle food-and call it by his own name. He is as much Thorley as his brother was, and therefore it is cattle food made by Thorley, and it is Thorley's Cattle Food. I will adopt the well known sentence of Lord Justice Knight-Bruce, in the well known case of Burgess' Sauce, 3 De G. M. & G. 896, where he says: "All mankind are entitled to make fish sauce, and are not the less entitled to make it because their fathers and uncles have made it before them." So in this case all mankind are entitled to make cattle food, and every man is entitled to call the cattle food he makes by his own name. Josiah, therefore, is entitled to make cattle food and call it Thorley's Cattle Food. He is also entitled to make it from the recipe he had from Fawcett as well as his brother; it is the same thing which he makes, and there is no allegation that it is different. There is another circumstance which I think is material: that the defendants very much relied on that report made in 1858. They continued to publish it as containing a true description of what their cattle food is. But if it is the cattle food analyzed by Dr. Hassel in 1858, as they say it was,

then it follows that the two things are the same. On all these grounds, therefore, I come to the conclusion that the plaintiffs have established their right to the injunction which they ask. They must have that perpetual injunction, and the defendants must pay the costs of the suit.

NOTE.-See 9 Cent. L. J. 314; 8 Cent. L. J. 61; 4 Cent. L. J. 171; Life Association of America v. Boogher, 4 Cent. L. J. 40; 3 Cent. L. J. 355.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, Jan., 1880.]

PRACTICE WRIT OF ERROR- MISDEMEANOR APPELLATE COURT.-The offense for which defendant was indicted in the court below was a misdemeanor, viz. selling intoxicating liquors contrary to the form of the statute. A trial was had at the March term, 1879, when defendant was found guilty and sentenced. The transcript of the record made in the case was filed in the office of the clerk of this court on the 26th day of August, 1879, and although no writ of error or scire facias has in fact been issued, the parties have appeared and submitted the cause on briefs filed, intending to treat the cause as pending in this court on error. SCOTT, J., says: "That we think can not be done. The recent statute to amend the act in regard to 'practice in courts of record' was in force July 1, 1879, and provides among other things that appeals from and writs of error to the circuit court *

in all criminal cases below the grade of felony shall be taken directly to the appellate court.' Session Laws, 1879, p. 222. As the conviction in this case is for a misdemeanor, it follows that the writ of error should have be sued out of the appellate court for the proper district. Although no motion has been made for that purpose, this court of its own motion will dismiss the writ of error for want of jurisdiction."' Dismissed. Wright v. People.

ASSESSMENT OF TAXES-DESCRIPTION OF PROPERTY. This was an application for judgment for taxes for the year 1877 and 1878, due upon a tract of land described as "block 3, except south 100 feet of W 635 feet in Wrightwood, being a subdivision of S. W. 1-4 section 28, T 40 R 14." The owner appeared and objected to the entry of a judgment against such tract of land for taxes thereon for any year prior to 1878, for the reason that there was no tax due on said land for any tax prior to 1878. But objection was overruled and judgment entered. Defendant appeals. The only question made is whether the property assessed in 1877 is the same property assesssed in 1878. The description was different in the two assessments. SCOTT, J., says: "In Law v. People, 80 Ill. 208, it was declared, citing Colcord v. Alexander, 67 Ill. 581, that any description of property for the purpose of taxation by which the property might be identified by a competent surveyor with reasonable certainty, either with or without the aid of extrinsic evidence, will be sufficient. That is the case in point. Here the surveyor says he would have no difficulty in locating the land from either description, and that the two descriptions would in effect mean the same piece of ground. Un

der the authority cited that is sufficient." Affirmed.Fowler v. People.

PRACTICE-BILL OF EXCEPTIONS.-This was an indictment for an assault with intent to murder. The defendants were found guilty in the court below, and have prosecuted a writ of error to this court. It appears from the bill of exceptions that after the evidence was in and the argument had been closed, with the exception of the concluding argument on behalf of the State, one of the defendants through her counsel made application to the court for permission to make a statement to the jury, to which the court replied that the request was a little unusual, inasmuch as three arguments had already been made by counsel for the defendants, and that she had told her story upon the stand as a witness in her own behalf, but that if she had anything further that she desired to be given to the jury by way of statement, she could communicate the same to her attorney and he could state the same to the jury. Thereupon, on consultation between her and her counsel, the latter made some further remarks in her behalf to the jury. MULKEY, J., says: "Admitting that this amounted to a refusal on the part of the court to permit the accused to appear in person on her own behalf, and that she was thus deprived of constitutional right, still upon the record before us we can not say there was error. The record wholly fails to show that any exception was taken to the ruling of the court on the above point.

Counsel for defendant in error admitting the rule seek to avoid its application in this case by a claim that the bill of exceptions as prepared by the State's attorney and not by them, was signed by the judge, and that the former negligently failed to mark the exception taken. Assuming this to be true, is it not manifest that to act upon it would be a departure from all precedent, and a palpable violation of duty on the part of the court.

Even if the mem

bers of the court personally knew a fact important to the rights of the parties, which by innocent mistake or fraudulent design has been omitted in making up the bill of exceptions, they would be powerless to act upon such knowledge. We must, therefore, conclusively presume in this as in all other cases, that the bill of exceptions speaks the facts as they really exist." Affirmed.-Eastman v. People.

INDICTMENT-EMBEZZLEMENT-VARIANCE. - This is an indictment against plaintiff in error under section eighty of the Criminal Code, charging him with em. bezzlement of money in his possession by virtue of his office as county treasurer. The defendant was found guilty and appeals to this court. It appeared in evidence on the trial that certain county orders were issued, signed by the clerk and left with the treasurer for his signature, and that defendant having countersigned these orders as treasurer took them to a bank and sold them for about their face value in money, failing to charge himself with that amount. This evidence was admitted by the court against the objection of the accused, and after all the evidence on the subject was given a motion was made to exclude the same as inadmissible under the indictment, and this motion was denied. DICKEY, J., says: "This we hold was error. The indictment charged the embezzlement of money and did not charge the embezzlement of county orders. If the disposition of the county orders was made criminally it constituted either the larceny or the embezzlement of county orders and not of money. * If a man steal a horse and sell him to a stranger he may be convicted of stealing the horse but not of stealing the money received as the price of the stolen horse. Upon the proofs this transaction did not fall within the descrip

tion in the indictment. The evidence relating thereto ought to have been excluded from the jury.

After the evidence was closed the accused applied to the court to put the prosecution to their election as to which act of embezzlement they would claim a conviction, and moved the court to limit the prosecution to some one act of embezzlement. This the court refused to do. In misdemeanors the prosecution may in the discretion of the court be required to confine the evidence to one offense, or where evidence is given of two or more offenses may be required to elect one charge to be submitted to the jury, but in cases of felony is the right of the accused, if he demand it, that he be not put upon trial at the same time for more than one offense, except in cases where the several offenses are respectively parts of the same transaction. 1 Whart. Cr. L. sec. 423; 1 Bish. Cr. Pr. 459. This doctrine is recognized by this court in Lyons v. People, C8 Ill, 275. It was therefore error to refuse the application of the accused for the benefit of this rule." Reversed. SCOTT, J., dissents.-Goodhue v. People.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January, 1880.

WILL-REMAINDER-CONSTRUCTION.-A testator gave by a clause in his will: To Alexander Dewson (my servant) a house to be purchased not exceeding in cost one thousand dollars. The house to be held in trust by W and to be so legally placed as not to be liable for his debts, but to revert to his family on his decease." Said Dewson died during the life-time of the testator. Held, 1. That the gift in remainder to "his family'' did not lapse by said Dewson's death in the testator's life-time. 2. His family," in the absence of words manifesting a different intention,must be taken to mean his widow and child and not to include his step-son. 3. That no provision being made as to the proportions in which his widow and child shall take, and the reasons for investing the money in a house having ceased with his life, the sum of one thousand dollars is to be paid to them in equal shares. Opinion by GRAY, C. J.-Bates v. Dewson.

MONEY DEPOSITED IN SAVINGS BANK IN TRUST. -The plaintiffs' testator, after depositing in the defendant's bank in his own name and on his own account all that he was allowed to by the rules of the bank, made three other deposits as trustees, one in trust for his only son by name, and the others in trust for his two granddaughters by name. For these three deposits he took separate bank books containing entries of the same, which, after his death, were found among his effects, having never been delivered to the parties or to any one else for them. The testator con-tinued while living to collect, receipt for and use as his own all dividends declared upon these deposits. In an action against the bank by the plaintiffs as executors to recover those deposits, to which the cestuis had been made parties defendant, it was held, that statements of the testator to each of his cestuis at different times. "that he had put this money into the bank for them; that he wanted to draw the interest during his life, and that after he was gone they were to have the money," were admissible and competent,. and that upon all the evidence a jury would be justified in finding that the testator had fully constituted himself a trustee for the cestuis. Opinion by COLT, J.-Gerrish v. New Bedford Bank.

SUPREME COURT OF INDIANA.

January, 1880.

MIDDLE NAMES - INITIALS. The purpose of a › name is to identify the person. By the common law, - since the time of William the Norman, a full name consists of one Christian or given name, and one surname, or patronymic. The two, using the Christian name first and the surname last, constitute the legal name of the person. Any one may have as many middle names or initials as are given to them, or as he chooses to take; they do not affect his legal name, and they may be inserted or not in a deed or contract without affecting its legal validity. 52 Ind. 347; 59 Ind. 74: 4 N. Y. 862, 2 Hill, 566; 31 Tenn. 260. Judgment affirmed Opinion by BIDDLE, J.-Schofield v. Jennings.

on

PROMISSORY NOTE- WANT OF CONSIDERATION— "GOOD WILL."-This was a suit on a note given by Smock & Ransdell to Smith for his "good will," the dissolution of the firm of S S & R, S & R continuing in the business. The answer was want of consideration. NIBLACK, J., said: "The good will of a trade or business was called by Lord Eldon "the probability that the old customers will resort to the old place." This probability results from an estab>lished business at a particular place, indicating to the public where and in what manner it is carried on. The good will of a business like a trade mark is a species of property subject to sale by the proprietor. 1 Par. Cont. 153, 61 N. Y. 226; 14 Cal. 146. In estima<ting the value of a thing as the consideration for a promise, there is a manifest distinction between property of a certain and determinate value and things which have but a contingent and indeterminate value. But in any event mere inadequacy of consideration is not sufficient to defeat a promise. It is sufficient that the consideration shall be of some value. It may only be of slight value or such as could be of value to the party promising. 1 Chitty Cont. 29. When a party gets all the consideration he voluntarily and knowingMy contracts for, he will not be allowed to say that he received no consideration.,' Judgment affirmed. Smock v. Pierson.

-

ON OFFICIAL BOND CAN NOT BE SET-OFF DISCHARGE IN BANKRUPTCY DOES NOT AFFECT CLAIM OF STATE.-1. A who held the office of jailor applied to the State auditor for allowance of the sum of $76, which he had disbursed as such officer and which had been allowed by the court. Prior to his election as jailor a judgment had been rendered against A as surety on an official bond, which judgment remains unsatisfied. The auditor refused to draw his warrant for the amount, relying upon sec. 6, art. 2, ch. 108, Gen. Stats., which provides "No money shall be paid to any person in his own right, or as assignee of another, when such person or his assignor is owing the Commonwealth; and such claims when presented shall be liquidated and settled by a credit for the amount thereof upon the accounts of the public debtor, so far as may be required to pay the amount; and for any balance due after settling the whole demand of the Commonwealth payment may be made." Held, that the statute must be construed to apply to "public debtors," whose duty it is to collect and pay over funds to the Commonwealth, and who have failed to discharge the trust; and not to those persons who, without any fault of their own, have become indebted as sureties for defaulting officers. 2. Subsequent to the rendition of the judgment against A he obtained his discharge in bankruptcy and now claimed to plead this discharge in satisfaction of the claim of the State. Held, not allowable. The rule is that the authority of the sovereign is not bound by the words of a statute, unless named therein, if the statute tends to restrain or diminish the powers, rights or interest of the sovereign. United States v. Herron, 20 Wall.; Com. v. Hutchinson, 40 Pa. St.; Sanders v. Com., 10 Gratt. Contra, Jones v. State, 20 Ark. It follows that the debt due by A to the Commonwealth is not relieved by the discharge in bankruptcy, but can not be used to set off the claim against the auditor. Reversed. Opinion by HINES, J.- Johnson v. Auditor.

QUERIES AND ANSWERS.

COURT OF APPEALS OF KENTUCKY.

January, 1880...

BREACH OF THE PEACE-CONVICTION FOR, A BAR TO PROSECUTION FOR MALICIOUS WOUNDING.— The prisoner was arrested, tried by a jury, convicted, and fined before a justice for the offense of breach of the peace committed by assaulting and beating another. Afterwards he was indicted by the grand jury for malicious wounding. The acts alleged in the indictment to constitute an offense were the identical acts for which he was arrested, tried and fined for the breach of the peace. The accused interposed a plea of former conviction, in which he disclosed the fact as stated. A demurrer to the plea having been overruled, the Commonwealth confessed the faets stated in the plea to be true; the indictment was dismissed, and the Commonwealth prosecutes this appeal to reverse that judgment. Held, that the first trial is a legal bar to another prosecution for the same acts. Judgment affirmed. Opinion by HINES. J.-- Com. v. Bright.

MONEY DUE FROM STATE TO OFFICER-JUDGMENT

[*** The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

18. A gives B a note due in one year. B, before maturity, sells and transfers the same to C, and writes this guaranty on the back: "I guarantee the within, note payable, B." Is B liable as guarantor of payment, or does he guarantee the collection of the note, or what is his liability? P. K.

ANSWER.

17. [10 Cent. L. J. 198.] Upon foreclosure of a mortgage securing notes maturing at different dates, the notes are to be paid in the order in which they mature; 1865, Mitchell v. Ledew, 36 Mo. 526; 1866, Thompson v. Field, 38 Mo. 320. And this, too, though all become due upon default in payment of the first. 1870, Hurck v. Erskine. M. THOMPSON. St. Louis, Mo.