That amount of grain is credited to the consignee. The warehouse receipt is given to consignee as his voucher that he has in that warehouse not the grain of the consignor nor any particular grain but a certain number of bushels of grain of the kind and grade mentioned in the receipt, subject to his order and disposal."

INJUNCTIONS TO RESTRAIN STATEMENTS AS TO FORMER EMPLOYMENT. II. We come now to the important case generally cited in questions of this nature, and from the judgment in which some extracts have been already given-Glenny v. Smith, 2 Drew & Sm. 476. One of the employees of Thresher, Glenny & Co., of the Strand, having left their service and opened a shop in Oxford street, placed his own name over the door, but put on the awning and on the door-plates the words, "From Thresher & Glenny." The word "from" was in very small letters so as not to be likely to attract the attent'on of customers, and on the whole case the learned judge came to the conclusion that deception was probable, and that an injunction must be granted. The fact that the defendant had cautioned one of his shopmen not to permit customers to buy under the impression that they were buying from Thresher & Glenny, so far from being regarded as favorable to the defendant, was held to be against him, as showing that he had contemplated the possibility of deception by the use he was making of his old employers' name.

Very similar to Glenny v. Smith was the American case of Colton v. Thomas, 7 Phila. 257, in which a person who had been in the employ of "The Colton Dental Association" set up in business on his own account as a dentist, and began to describe himself as "Dr. F. R. Thomas, late operator at the Colton Dental Rooms." The words "late operator at the" were in very small letters, so that the distinction between ex-employer and ex-employee was practically obliterated, and an injunction was the inevitable result. Williams v. Osborne, 13 L. T,. (N.S.), 498, was another case before Lord Hatherley, in which he held that former servants of R. Hendrie, a perfumer, were entitled to place on their shop, established after his death, the words "from the late R. Hendrie," and to style themselves on placards "managers and manufacturers to the late R. Hendrie," and to use Hendrie's name on their labels in conjunction with their own, if there were no unfair or untrue statements made; but his lordship pointed out that a certain course of conduct which was begun with no fraudulent intention would be continued with such an intention if no change were made after it had been pointed out that the public were deceived.

In Labouchere v. Dawson, L. R. 13 Eq. 322, the defendant was one of the vendors of a brewery

business who, after the sale, set up in business elsewhere, and endeavored to draw away to his new business the old customers of the business he had sold. The same principle as that followed in Burrows v. Foster was adopted, and Lord Romilly held that, while the defendant was entitled to publicly advertise his business, he was not justified in seeking to destroy the value of the business he had sold by drawing away the customers to his new one.

Another of the better-known cases is Hookham v. Pottage, 21 W. R. 47, which came before the lord's justices of appeal in chancery. There, after the firm of "Hookham & E. & S. Pottage" had been dissolved, and the last two partners paid out, so that the business was retained by the senior partner, who began to trade as “Hookham & Co." S. Pottage set up near him, and placed over his shop the words "S. Pottage, from Hookham & Pottage," and as in Foot v. Lea, Glenny v. Smith and Colton v. Thomas, the words denoting the relation between the old business and the new one-i. e. "from" and "and"-were in small letters. It was held that the defendant had acted so as to divert to himself custom intended for the plaintiff, and that an injunction must be granted, though if he had confined himself to a fair statement of his connection with the old firm, he could not have been interfered with.

The plaintiff in Robineau v. Charbonnel, V. C. M., May 4, 1876, was a Parisian confectioner, trading at the "Maison Boissier," and the defendants were persons who, after having been in his service, came over to London and opened a shop in Bond-street, and placed in the window the words "Ex 1 eres de la Maison Boissier de Paris." The plaintiff having no shop in England no injury could be done him by the defendants' conduct, and no injunction could be granted, but the words Ex 1 eres de la" were in very small letters, and the vice-chancellor was of opinion that, on the whole, the conduct of the defendants had not been such as to entitle them to their costs, and no order in that respect was made.

In Dence v. Mason, V. C. M., Feb. 12, 1878, the vice-chancellor held that a former servant of Messrs. Brand & Co., would not have been entitled to represent himself as the original maker of the essence of beef manufactured by that firm, even if he had been the first to discover the recipe, since whatever essence of beef he had prepared had been made by him in the plaintiff's service; but his lordship held that the defendant was at liberty to state fairly that he had been in the plaintiff's service, and that he had become acquainted with the recipe during that period.

In Selby v. Anchor Tube Company, V. C. B., July 19, 1877, the parties had been in partnership as tube manufacturers, carrying on business at Birmingham as "The Imperial Iron Tube Company," and at Smethwick as "The Birmingham Patent Iron and Brass Tube Company." The partnership was dissolved, and the plaintiff thereupon became entitled, under the partnership deed, to the premises at Smethwick and to the styles and goodwill of the firm, and the defend

ants became entitled to the Birmingham premises. The plaintiff then carried on business alone at Smethwick and also at new works at Birmingham as "The Imperial Iron Tube Company," and the defendants, carrying on business at the old premises in Birmingham, began to put out circulars headed "The Anchor Tube Company (late) the Works of and Partners and Manager in the Imperial Iron Tube Company, Gas street, Birmingham," and to solicit the customers of the old firm. This was held to be an interference with the plaintiff's rights, and an injunction was granted. The last case to which attention need be directed is that of Fullwood v. Fullwood, 26 W. R. 435, where the plaintiff was carrying on at Somerset place, Hoxton, an annatto business, established, under the name of "R. J. Fullwood & Co.," in 1785, and the defendants, one of whom had formerly been the plaintiff's partner, but had sold his interest to the plaintiff, began to carry on a similar business under the name of "E. Fullwood & Co., and to describe themselves in advertisements as "late of Somerset place, Hoxton, Original Manufacturers of Liquid and Cake Annatto," and to state that their business had been "established in 1785." Mr. Justice Fry held that the course taken by the defendants would probably have the result of causing their business to be mistaken for the plaintiff's, and he granted an injunction, notwithstanding that the plaintiff had delayed commencing his action for a year and a half after he became aware of the defendants' conduct, since the period fixed by the statute of limitations had not expired before the action was brought, which was intended to assert a legal right.

From a comparison of these cases it will be seen that the principles to which we adverted at the outset are well established in practice. Although the circumstances under which those principles have had to be applied have varied in very many particulars, effect has nevertheless been given to those principles, and while a fair use has been allowed to be made of the fact of former employment, fraudulent servants have not been allowed to appropriate their masters' business by the skilful manipulation of that fact. There is no need to establish a fraudulent intention; if the defendant has acted so as to bring about the consequences of fraud it is sufficient, and there is no necessity to inquire further into motives. In examining the circumstances of each case, however, the motives by which the defendant has been actuated will generally be discussed, and it is impossible not to notice in how many cases differences of type have been held to weigh heavily against defendants. No doubt a retired servant is entitled to use his late master's name for the purpose of informing the public that he comes before them recommended by the fact of having been employed in an establishment of admitted reputation, but when he places that name on his door or over his window, he is bound to take special care not to let it be supposed that the name is there placed as being that of the proprietor of the shop. The safest plan in such cases would evidently be to give such words as “from,”“late with,” “former

ly of." in characters of equal size with those in which the name of the late firm appears. Unless probability of deception is avoided, an injunction is to be anticipated even though there has been delay, short of the period fixed by the statute of limitations, and if the proceedings fail on some special ground, still the wrongful conduct may be punished in costs. A former proprietor of a busi-ness which has passed to others is legally as well as morally bound not to interfere with the enjoyment of the business and its goodwill by the new proprietors, and the law will not allow him to regain, by private solicitations, the business with which he has publicly parted; though, on the other hand, there is nothing to prevent him from establishing a similar business, if he can do so, independently of his former connection.

FALSE PRETENSES-OBTAINING CONSENT TO JUDGMENT.

COMMONWEALTH v. HARKINS.

Supreme Judicial Court of Massachusetts, November Term, 1879.

An indictment under a statute which provides tha "whoever designedly, by a false pretense, or by a privy or false token, and with intent to defraud, obtains from another person any property * * shall be pun

ished," etc., will not lie against one who by false pretenses obtains the consent of a city to the entry of a judgment against it in an action then pending in his favor, and receives a sum of money in satisfaction of such judgment.

COLT, J., delivered the opinion of the court: The defendant was indicted for obtaining money from the City of Lynn by false pretenses. He moves to quash the indictment, on the ground that it did not set forth an offense known to the law.

It is alleged in substance that the defendant falsely represented to the City of Lynn, through its agent, the city solicitor, that a street which the city was bound to repair had been suffered to be out of repair, and that the defendant while traveling thereon with due care, was injured by the defect; that the defendant at the same time exhibited an injury to his foot and ankle, and represented that it was caused by the alleged defect. It is further alleged that the city and its solicitor were deceived by these representations, and being induced thereby, agreed to the entry of a judgment against the city in a suit then pending in favor of the defendant in this case; and upon the entry thereof paid the amount of the same to him It is not alleged that the suit was to recover damages on account of the defendant's injury from the alleged defect, but we assume that this was so, for otherwise there could be no possible connection, immediate or remote, between the pretenses charged and the payment of the money in satisfaction of the judgment rendered.

In the opinion of a majority of the court this

indictment is defective. The facts stated do not constitute the offense of obtaining money by false pretenses. The allegations are that an agreement that judgment should be rendered was obtained by the pretenses used, and that the money was paid by the city in satisfaction of that judgment. It is not alleged that, after the judgment was rendered, any false pretenses were used to obtain the money due upon it and, even with proper allegations to that effect, it has been held that no indictment lies against one for obtaining by such means that which is justly due him. There is no legal injury to the party who so pays what in law he is bound to pay. Com. v. McDuffy, 126 Mass. 467; People v. Thomas, 3 Hill, 169; Rex v. Williams, 7 C. & P. 354. A judgment rendered by a court of competent jurisdiction is conclusive evidence between the parties to it that the amount of it is justly due to the judgment creditor. Until the judgment obtained by the defendant was reversed the city was legally bound to pay it, notwithstanding it may have then had knowledge of the original fraud by which it was obtained; and with or without such knowledge it can not be said that the money paid upon it was in a legal sense obtained by false pretenses which were used only to procure the consent of the city that the judgment should be rendered.

The indictment alleges the fact of a judgment in favor of the defendant which, if not conclusive as between the parties to this criminal prosecution. is at all events conclusive between the parties to the transaction. To hold that the statute which punishes criminally the obtaining of property by false pretenses, extends to the case of a payment made by a judgment debtor in satisfaction of a judgment, when the evidence only shows that the false pretenses were used to obtain a judgment, as one step towards obtaining the money, would practically make all civil actions for the recovery of damages liable in such cases to revision in the criminal courts, and subject the judgment creditor to prosecution criminally for collecting a valid judgment, whether the same was paid in money or satisfied by a levy on property.

Exceptions sustained.

GRAY, C. J., AMES and SOULE, JJ., dissented.

CONTRACT - PERFORMANCE WHEN EX

CUSED-ACT OF GOD.

DEWEY v. UNION SCHOOL DISTRICT.

Supreme Court of Michigan, April, 1880.

To excuse the non-performance of a contract, the act of God must be of such a nature as to render its performance impossible; that it renders it difficult or dangerous is not enough. Therefore where a teacher was hired for a certain term, during a portion of which the school was suspended on account of the prevalence of small-pox: Held, that he was entitled to recover for the ull time.

Error to Alpena County.

Holmes & Carpenter, for plaintiff in error; Turnbull & McDonald, for defendant in error.

GRAVES, J., delivered the opinion of the court: The plaintiff was regularly hired by the district to serve as teacher in its public schools for ten months, for $130 per month. He entered on his duties on the second of September and continued up to the tenth of December, at which time the district officers closed the schools, on account of the prevalence of small-pox in the city, and kept them closed thereafter, for the same reason, until the seventeenth of March. They were then reopened, and the plaintiff resumed his duties. He was subsequently hired for the next school year, and his compensation was increased $100. The district refused to pay him for the period of suspension, and he brought this action to recover it.

The claim was resisted on two grounds: First, that on the second hiring it was mutually agreed that the addition of $100 to his compensation for incoming service should stand and be allowed and accepted in full satisfaction of all claim for pay during the time in question; and, second, that the suspension was the effect of an overruling necessity, or, in other words, the act of God, and that all parts of the contract were suspended for the time being.

The circuit judge submitted to the jury both questions in a very clear manner, and instructed them to find against the plaintiff in case they were satisfied the alleged compromise was in fact entered into, or in case they should find that the small-pox was so prevalent that it became obligatory on the board to close the schools as a necessary step to prevent the spread of the disease and save human life. The jury returned a verdict in favor of the district, but we can not know with legal certainty whether they determined only one of these questions in favor of the district, or whether they so determined both, and, of course, if one only was so decided, it is impossible to say which one. The evidence on the compromise was conflicting, and as it appears in the record the advantage was with the plaintiff. Still, if no other ground of defense had been made, the verdict must have been conclusive. As just explained it is not so now.

The second objection must be briefly considered. Beyond controversy the closing of the schools was a wise and timely expedient; but the defense interposed can not rest on that. It must appear that observance of the contract by the district was caused to be impossible by act of God. It is not enough that great difficulties were encountered, or that there existed urgent and satisfactory reasons for stopping the schools: but this is all the evidence tended to show. The contract between the parties was positive and for lawful objects. On one side school buildings and pupils were to be provided, and on the other personal service as teacher. The plaintiff continued ready to perform, but the district refused to open its houses and allow the attendance of pupils, and it thereby prevented performance by the plaintiff. Admitting that the circumstances justified the officers. and yet there is no rule of justice which

will entitle the district to visit its own misfortune upon the plaintiff. He was not at fault. He had no agency in bringing about the state of things which rendered it eminently prudent to dismiss the schools. It was the misfortune of the district, and the district, and not the plaintiff, ought to bear it.

The occasion which was presented to the district was not within the principle contended for. It was not one of absolute necessity but of strong expediency. To let in the defense that the suspension precluded recovery the agreement must have provided for it. But the district did not stipulate for the right to discontinue the plaintiff's pay, on the judgment of its officers, however discreet and fair, that a stoppage of the schools is found a needful measure to prevent their invasion by disease, or to stay or oppose its spread or progress in the community, and the contract can not be regarded as tacitly subject to such a condition.

The judgment must be reversed, with costs, and a new trial granted.

CAMPBELL and COOLEY, JJ., concurred.

Supreme Court of Indiana, March, 1880.

1. Where a chattel mortgage provides that the mortgagor may retain possession of the mortgaged property and use the same, and it is apparent from the nature of the property that the only reasonable use the mortgagor can make of it is to sell it, such mortgage is void on its face as to other creditors of the mortgagor. But if such permission applies only to a portion of the mortgaged property the mortgage will be valid as to the portion not so affected.

2. If by any arrangement, express or implied, the mortgagee. allows the mortgagor to continue to sell the mortgaged goods at retail for his own benefit, the mortgage will be unavailing against judgment creditors of the mortgagor.

NIBLACK, J. delivered the opinion of the court: The complaint in this case averred that on the 6th day of July, 1875, the defendant, John T. Davenport, executed two promissory notes, for $325.00 each, to the plaintiff, John F. Foulke.payable, one in one year, and the other in two years from date; that to secure the payment of said notes the said Davenport executed to the plaintiff a chattel mortgage upon a fire-proof combination lock safe, certain show cases, trays, fixtures and tools, in a silversmith shop and jewelry store, together with many other miscellaneous articles consisting of merchandise pertaining to the business of a silversmith and jeweler and such as are usually exposed to sale as a part of such business, said mortgage containing a proviso as follows: And provided also that until default of payment of said notes, or one of them, I am to keep possession of said granted property and to use and

enjoy the same. but if the same or any part thereof shall be attached or executed at any time by any of my creditors, or if I should attempt to remove the same from the City of Richmond without the assent of the said John F. Foulke, then it shall be lawful for the said John F. Foulke, his executors, administrators or assigns, to take immediate possession of the whole of said property and place the same in the hands of the marshal of the City of Richmond or some constable of Wayne township, to be advertised and sold,” etc.; that at the time of the execution of said mortgage the said Davenport was a resident of Wayne county, and that said mortgage was duly recorded in said county within ten days after its execution; that afterwards and within less than a year several persons obtained judgments against the said Davenport and caused executions to be issued upon their judgments and to be levied upon the mortgaged property, the defendants, Augustus B. Gillett and George W. Jennison, being two of such judgment creditors; that the said mortgaged property was then in the possession of the said Gillett and Jennison and one David J. Dozier, who was also made a defendant, from all of whom the possession of such property had been demanded. Wherefore the plaintiff demanded a foreclosure of his mortgage and sale of the mortgaged property.

A demurrer to the complaint having been interposed and overruled, Davenport answered separately in general denial, and Gillett, Jennison and Dozier answered jointly in three paragraphs: 1. Specially denying that Davenport was a resident of Wayne county when the mortgage was executed. 2. Alleging that they had purchased the mortgaged property of Davenport with the assent of the plaintiff. 3. Setting up special matter having the supposed tendency to establish the fraudulent character of the mortgage. Issue was joined on the second paragraph of this lastnamed answer and a demurrer was sustained to the third paragraph. The cause having been submitted to a jury for trial there was a general verdict for the plaintiff. After overruling a motion for a new trial, the court rendered judgment against Gillett, Jennison and Dozier for a foreclosure of the mortgage and a sale of the mortgaged property, but refused to render any judgment, either personal or otherwise, against Davenport. All the defendants below have appealed. Errors are properly assigned.

The appellants contend that by the terms of the mortgage sued on. Davenport was authorized to sell the mortgaged property and apply the proceeds to his own use, and that for that reason the mortgage was void as to other creditors of Davenport, and hence insufficient as the foundation of a cause of action.

In the case of Mobley v. Letts, 61 Ind. 11, it was held that where it was provided in a chattel mortgage that the mortgagor should retain possession of the mortgaged property and use the same until default be made, and where it was apparent from the nature of the property that the only reasonable use the mortgagor could make of

it would be to expose it to sale and to sell it, such mortgage was void on its face as to other creditors of the mortgagor; because under such provision, as applicable to such property, the mortgagor would be authorized to sell the property and apply the proceeds to his own use. That case is well sustained by the authorities referred to in the opinion, as well as by numerous other authorities in Herman en Chattel Mortgage, commencing with page 238. Voorhis v. Longsdorf, 31 Mo. 451.

In the well-considered case of Burnett v. Fargus, 51 Ill. 352, the Supreme Court of Illinois recognized the doctrine that a chattel mortgage which permits the mortgagor to sell the mortgaged property and apply the proceeds to his own use is void, but at the same time held that such a permission to sell only a portion of the mortgaged property did not necessarily render the mortgage void in toto; that the mortgage might be valid as to that portion of the property which the mortgagor was not authorized to sell. The rule laid. down in this last named case impresses us as being both a just and reasonable rule and as one which we ought to follow. State v. Tasker, 31 Mo. 445; State v. D'Oench, Id. 453.

Under the rules of construction laid down as above, the mortgage before us was evidently void as to the articles of merchandise enumerated in it against other creditors, but as to those other articles which were such as are commonly in daily. and permanent use in a silversmith's shop and jewelry store combined, and not ordinarily for sale, we think the mortgage was prima facie valid. As to the articles last named, the reservation of the right to the mortgagor to use and enjoy them until default, did not necessarily carry with it by implication the right of the mortgagor to sell and convert those articles to his own use.

The mortgage being valid on its face as to a portion of the mortgaged property, the court did right in overruling the demurrer to the complaint.

The third paragraph of the answer of Dozier and others, to which a demurrer was sustained, was substantially as follows: That after the execution of the mortgage, the said Gillett and Jonnison, being wholesale dealers, residents in the City of Indianapolis in this State, and having no actual knowledge of such mortgage, sold to Davenport, goods, wares and merchandise on credit, to the aggregate sum of nearly $900, for which they obtained judgment against the said Davenport and levied an execution on said mortgaged property; that to secure the payment of their judgment, they, the said Gillett and Jennison, were compelled to purchase such property and to pay off prior execution liens upon the same, all of which was done with the knowledge of the plaintiff; that after the execution of the mortgage the said Davenport retained possession of the mortgaged property and, with the knowledge and consent of the plaintiff, kept said property in his store exposed to sale and sold portions of the same every day, applying the proceeds to his own private use and benefit. and not to the payment of the debt secured by the mortgage. Wherefore

it was claimed that the mortgage set out in the complaint was fraudulent and void as to the said Gillett and Jennison as well as to the said Dozier.

Herman on Chattel Mortgages, at page 235, says: “If, by any arrangement, express or implied, the mortgagee allows the mortgagor to continue in the sale of the mortgaged goods at retail, for his own benefit, the mortgage will be unavailing against a judgment creditor of the mortgagor,and such arrangement or permission may be shown by circumstances. It is not the simple fact of possession by a mortgagor that will avoid the mortgage, but it is the possession with the power of sale which defeats the instrument, and the effect will be the same although neither expressed nor necessarily implied from its terms. If the right to possession and power of sale in the mortgagor appear upon the face of the instrument it will be fraudulent in law, but if it do not appear upon its face, but in evidence at the trial, it will be fraudulent in fact." What is thus said by Herman is also well sustained by authority. Ogden v. Stewart, 29 Ill. 122; Horton v. Williams, 21 Minn. 187. State v. Tasker, supra.

The facts set up in the third paragraph of answer in this case amount, as we construe them, to an allegation that the plaintiff had waived all right of lien on the mortgaged property and that by reason of such waiver such property had, in good faith and for a valuable consideration, passed into the hands of other creditors of Davenport.

As thus construed and in the fight of the authorities lastly above cited, we are of the opinion that this third paragraph of answer was well pleaded and was consequently erroneously held bad upon demurrer. For this error the opinion will have to be reversed. Judgment reversed.

CONSTITUTIONAL LAW-STATUTORY EXEMPTION FROM JURY SERVICE.

NEELY V. STATE.

Supreme Court of Tennessee, April Term, 1880.

The exemption by statute of directors in a railroad company from jury service is unconstitutional, as granting a peculiar privilege or exemption which is not extended to the members of the community generally. Hawkins v. Small, 7 Baxt. 193, overruled.

DEADERICK, C. J., delivered the opinion of the

court:

Neely was regularly summoned as a juror at the January term, 1880, of the Criminal Court at Memphis. He failed to attend as required, and was fined $25, from which judgment of the court he has appealed to this court.

The defense relied on is that Neely was when summoned and still is a director in the Memphis and Charleston Railroad Company, and that the charter granted in 1848 exempts the directors from jury service. It is admitted that be