anchored it, attached a waif to the body, and then left it and went ashore at some distance for the night. The next morning the boats of the respondent's ship found the whale adrift, the anchor not holding, the cable coiled round the body, and no waif or irons attached to it. Held, that as the libellants had killed and taken actual possession of the whale, the ownership vested in them. In Swift v. Gifford, 2 id. 110, it was held that a custom among whalemen in the Arctic seas, that the iron holds the whale, was reasonable and valid. In that case a boat's crew from the respondent's ship pursued and struck a whale in the Arctic ocean, and the harpoon and the line attached to it remained in the whale, but did not remain fast to the boat. A boat's crew from the libellant's ship continued the pursuit and captured the whale, and the master of the respondent's ship claimed it on the spot. It was held by the learned judge that the whale belonged to the respondents." The only doubt in our mind about the indicia of appropriation and ownership is whether the taker ought not to have put a seal on it. It was queried in Commonwealth v. Sampson, 97 Mass. 407, whether to secure a whale driven ashore on Sunday might not be a work of "necessity.” NOTES OF CASES. IN ́N Fleischmann v. Schuckmann, New York Special Term, it was held last month by Van Vorst, J., that the plaintiff, who first applied the word "Vienna" to baked bread and other articles, having been engaged in the manufacture in the city of New York of an article known as "Vienna bread," and which he has for many years past sold with a label thereon containing the words "Vienna Model protected under the laws of their country if he was the first to apply 'New York' in such connection." This may be sound, but the case of the "Bismark collars" is certainly not in point. That appellation is clearly arbitrary, but the name, "Vienna bread," may be intended simply to denote bread made after the Vienna fashion, or particularly for the Austrian palate. Has any London brewer a right to come to this country and get a monopoly for the name, "London ale?" Newman v. Alvord, 51 N. Y. 189; S. C., 10 Am. Rep. 588, the case of the "Akron cement," is distinguishable, because the defendant's manufactured article purported to come from the Akron quarries, and the defendant did not live at Akron, while the plaintiff did live there. To the same effect are Braham v. Beachim, L. R., 7 Ch. Div. 848, and Lea v. Wolf, 13 Abb. Pr. (N. S.) 389. In the principal case there is no pretense that the bread came from Vienna, and the parties are on an equal footing, because neither lives there. As between residents of Brooklyn, "Brooklyn" cannot be monopolized as a trade-mark. Brooklyn White Lead Co. v. Masury, 25 Barb. 417. So of "Lackawanna,” as applied to coal. Canal Co. v. Clark, 13 Wall. 311. So of "Glendon iron." Glendon Iron Co. v. Uhler, 75 Penn. St. 467; S. C., 15 Am. Rep. 599. So of "Moline plows." Candee v. Deere, 54 Ill. 439; S. C., 5 Am. Rep. 125. Wotherspoon v. Currie, L. R., 5 H. L. Eng. & Ir. App. 508, the "Glenfield starch "Glencase, is distinguishable, because " field" is the name of a mere hamlet. In Connell v. Reed, 128 Mass. 477; S. C., 35 Am. Rep. 397, the question was of the use of "East Indian" on medicine bottles. The court said: "It is at least doubtful whether words in common use as designating a vast region of country and its products can be appropriated by any one as his exclusive trade-mark; but the case was decided on another ground. On the other hand, "Anatolia," the name of a coun Bakery," " can maintain an action restraining the use by other parties of a label in imitation of his own, and in particular from applying the word "Vienna " to baked articles. The court said: "It is, how-try, has been held a good trade-mark for liquorice. ever, suggested by defendant's counsel that the plaintiff can have no exclusive right to the use of the word 'Vienna,' the name of the capital of Austria, as a trade-mark. That suggestion, under the facts of the case, I cannot adopt. The plaintiff and his assignor were the first to use it here or else where, to distinguish a manufacture of bread. As a mark for bread it is purely arbitrary, and it is in no manner descriptive, either of the ingredients or quality of the article. The plaintiff, an Austrian, from Vienna, residing and manufacturing bread in this country, has clearly a right to call it, by way of distinction, 'Vienna bread.' By the use of the word Vienna' in that connection no deception is practiced, because the place of its manufacture is given, and it is known that bread cannot be imported from abroad for use here. The plaintiff has the same right to do that, as the makers of shirt collars had to call their article 'Bismark collars.' Messerole v. Tynberg, 4 Abb. (N. S.) 410. I presume that a baker in Paris or Vienna could manufacture bread there and introduce it under the name of New York bread,' and use it arbitrarily and be McAndrew v. Bassett, 10 Jur. (N. S.) 550. And so, in France, "Mount Carmel" has been sustained; but the latter is not the name of a place of habitation. As at present advised we should be inclined to lay down the following as the rule: Where two parties live in the same town, city, or country, neither can appropriate the name to the exclusion of the other. Where one party lives out of the town, city, or country, he cannot employ the name as against the other. And (with some hesitation) where both live out of the town, city, or country, although there are four millions of people in Loneither is at liberty to adopt the name. Otherwise, don who may brew and sell "London ale," there is only one person outside of London who has any right to do so. This, it now strikes us, can hardly be. See Moak's Underhill on Torts, 619; 10 Alb. L. J. 209. In County of Chester v. Barber, Pennsylvania Supreme Court, May, 1881, 38 Leg. Int. 325, it was held that a contract by county commissioners to pay an attorney a contingent fee of fifty per cent out of the amount to be recovered by litigation, is beyond their powers. Paxson, J., said: "We rest our decision upon the broad ground that the commissioners had no ground to bind the county by such a contract; that it was against public policy and therefore null and void. The learning and industry of the plaintiffs have failed to call our attention to any case which sustains such a contract, nor have I been able to find one. Wyley v. Cox, 15 How. 415; Trist v. Child, 21 Wall. 441; Wright v. Tebbits, 1 Otto, 252; Stanton v. Embrey, 3 id. 556; and McPherson v. Cox, 6 id. 404, are not in point. It is true these cases rule that a contract for a contingent fee in the prosecution of a claim against the government, when fairly made, may be enforced. They are all cases, however, in which the contract was made with a private claimant. That an attorney may make any contract he sees proper with his client in regard to his compensation, when the client is a private citizen, and acting in his own behalf and with reference to his own property, is not denied. All that the law will do in such a case is to scrutinize the transaction and see that it is fair, and that no unconscionable advantage has been taken, either of the necessities or the ignorance of the client." "The commissioners were acting in a fiduciary character. They were but trustees of the money when received for the use of the county. When therefore they contracted to give one-half of it to the plaintiffs for their services, they exceeded their power. They were giving what did not belong to them. As well might a trustee contract to give away one-half of the trust estate as compensation to counsel for services in connection therewith. And if he may give away one-half, why not three-fourths, or even a greater proportion? Can it be doubted that a court of equity would strike down such a contract as improvident and a legal fraud? We are not unmindful of cases in which it is held that county commissioners are clothed with the corporate powers of their respective counties and may contract therefor. This prin ciple is not denied when commissioners act in the line of their duty and within the scope of their powers. They exceed both when they attempt to give away the property of their county." Mercur, Gordon, and Green, JJ., dissented. In Allerton v. City of Chicago, United States Circuit Court, N. D. Illinois, June, 1881, 12 Rep. 290, it was held that under a statute authorizing a city to license hackmen, omnibus drivers, "and others pursuing like occupations," a city may require street railway companies to take out licenses for their cars. Drummond, J., said: "This was obviously intended as conferring a police power upon the city council in relation to the various classes named in the statute. This is a power that has been uniformly exercised, and construing the statute literally, cannot well be questioned. But it is claimed that it does not include the street railway, because it is not pursuing an occupation like any of those named. Omnibuses may be licensed. They may pass over even the same streets as those occupied by the horse railways, and they may carry passengers in the same manner. The only distinction which can be called substantial between the two classes of occupation is that one carriage goes upon iron rails, in a regular track, with wheels, and the other carriage goes with wheels upon the ordinary street way. The Supreme Court of Pennsylvania has held that these street railway carriages are of a like nature as omnibuses, and there can be no doubt, I think, of the right of the city to demand a license from all omnibus drivers, and to include every omnibus which may belong to a particular company or corporation, and to require the payment of a license for such omnibus that may be so owned and used. Mayor v. Second Ave. R. R., 32 N. Y. 261; Passenger Co. v. Philadelphia, 58 Penn. St. 119; Johnson v. Philadel phia, 60 id. 445; Provision Co. v. Chicago, 88 Ill. 221; S. C., 30 Am. Rep. 545. In view of these decisions and of several decisions of the Supreme Court of the United States within the last few years (Munn v. Illinois, 94 U. S. 113, and others), I think the weight of authority is in favor of regarding this as a police regulation." The license fee in this case was $50. In Mayor v. R. Co., supra, the fee was the same amount, and the ordinance, specially designed for such companies, was held to be for revenue only, and therefore invalid. ASSAULT IN ONE STATE RESULTING FATALLY IN ANOTHER. SOM OME question has been made whether Guiteau would be punishable for murder if the Presi dent should die from the wound, within a year and a day, out of the District of Columbia. The Washington Star asserts with great confidence, in an article evidently written by a lawyer, that at common law he would not, and that as the common law prevails in the District, he would go unpunished. The writer cites several authorities to sustain this view, among them, Riley v. State, 9 Humph. 646; Stoughton v. State, 13 Sm. & M. 255; State v. Carter, 3 Dutch. 499; Com. v. Linton, 2 Va. Cas. 476. There have been various views of the matter, according as it arises between different counties of the same State, or between different States or countries, or as it is regulated by statute, or as the English statutes have been adopted with the common law by constitutional enactment; but it is not the law that the offense is not punishable somewhere. In the Riley case, it was held that it was punishable in the county where the blow was given. In the Stoughton case, it was held that it was punishable, by statute, in the county where the death occurred. In the Carter case, it was simply held that it was not punishable where the death occurred, when the blow was given in another State. The same was held in the Linton case. Bishop says, as to the question be tween different counties of the same State: "The courts are said to have anciently doubted whether. if a blow were inflicted in one county, and death from it followed in another, the offense could be prosecuted in either." 1 Cr. Proc., § 51. Though the more common opinion was that he might be indicted where the stroke was given." 1 Hale P.C. 426; 1 East P. C. 361; id. § 51, note 2. "The difficulty, says Starkic (Cr.Pl. [2d ed.] 3,4 note)," was frequently avoided by carrying the dead body back into the county where the blow was struck, and there the jury might inquire both of the stroke and of the death." "But the true view appears to be that * * * in all cases an indictment lies in the county where the blow was given." 1 Cr. Proc. § 51. And as to the question between different States, he says (Cr. Law, § 115): "The mere death is not such a part of the offense as to furnish a just foundation for taking jurisdiction over the wrongful act which was committed under another government by persons in no way amenable to our own." In States which like our own have adopted the ancient English statutes with the common law as the fundamental law of the State, the matter, as between counties of the same State, is set at rest by the statute of 2 and 3 Edw. VI. which enacted that "the trial shall be in the county where the death happens.' The same result happens where a like provision has been made by special statute, as is the case of some fourteen or fifteen of the States of the Union. The latest examination of this subject is in Green v. State, Alabama Supreme Court, 1880, 2 Cr. L. Mag. 467, where such a statute is held constitutional, and the court also observe: "We need not rest the decision of the question however on this particular construction of the statute. Our view is that the crime of murder consists in the infliction of a fatal wound, coupled with the requisite contemporaneous intent or design which legally renders it felonious. The subsequent death of the party is a result or sequence, rather than a constituent elemental part of the crime. This principle is correct, we think, at least so far as affects the question as to jurisdiction. As asserted by Patterson, J., in Rix v. Hargrove, 5 C. and P. 170, 'the giving of the blow which caused the death constitutes the felony.' In Riley v. State, 9 Humph. 646, this question was learnedly discussed by the Supreme Court of Tennessee. It was here held that the offense was committed at the place of the blow, though the death occurred elsewhere. The Tennessee statute required all criminal cases to be tried in the county in which the offense may have been committed. Green, J., said: That (the blow) alone is the act of the party. He committed this act, and the death is only a consequence. Therefore when the Legislature enacted that the party shall be tried where the offense may have been committed, they intended where the active agency of the perpetrator was employed.' In the case of State v. Carter, 3 Dutch. 499, it was held by the Supreme Court of New Jersey, that an indictment charging a felonious assault and battery in New York, and that the injured party came into the State of New Jersey and there died from its effects, charged no crime against the latter State, but against the former. The Supreme Court of California, in the case of People v. Gill, 6 Cal. 637, decided that the crime of murder is committed at the time when the fatal blow is struck. There the statute had been changed between the time of the offense and the death of the victim, and provided that upon trials for crimes committed previous to the new enactment, the offender should be tried and punished under the laws in force at the time of the commission of the crime. These views are in harmony with the conclusions reached by the most approved text writers on criminal jurisprudence. 1 Bish. Cr. Law, §§ 112-116. We conclude then that the crime charged against the prisoner was, irrespective of the statute, one against the peace and dignity of the State of Alabama." The statute in question related to death out of the State. The writer in the Star says: "The question was also considered in North Carolina in Orrell's case, 1 Dev. L. 139, and in Tennessee in Riley's case, 9 Humph, 646, and in the year 1809 the old Circuit Court of the District of Columbia, sitting in Alexandria - which place was then a part of the district - gave judgment for the defendant in the case of the United States v. Bladen, 1 Cr. Circ. 548, in which case the prisoner had been indicted for manslaughter, and in which it appeared that the mortal blow was given in Alexandria, and the death happened in St. Mary's county, in the State of Maryland. Although the defendant had been found guilty as indicted, the court held that under the circumstances the offense was not complete within its jurisdiction. The prisoner was, however, held to answer an indictment for assault and battery. The common law as laid down in these decisions is the law of this district to-day." In Orrell's case the only question decided was that the indictment must show that death ensued within a year and a day. The court remarked obiter, that it was doubtful whether, at common law, where the blow was given in one county and the death occurred in another, the offense of murder was complete in either; but supposing the statute of Edward VI to be in force in North Carolina, it cannot be intended that the death took place in that State, and for aught that appears the death might have taken place out of that State. The only head-note given is on the former ground. This case therefore does not support the writer's conclusion. Riley's case, as we have seen, is quite contrary to that conclusion. The Bladen case was in the Federal Circuit for the District of Columbia, and no written opinion was given, but in a memorandum of six lines, it was held that the offense was not complete within the jurisdiction of that court, and no cases were cited but two from Coke's Reports. One of the cases cited has no connection with this question, and the other holds that it cannot be said that the murder was committed in the county where the blow was struck, but that it was committed in the county where the death occurred. This was so, of course, under the statute of Edward VI. The case therefore is no authority for the holding in Bladen's case. This, we believe is the only case in the books holding that at common law the offender cannot be convicted of murder in the State or county where the blow was struck, and it is a very slender authority. It is probable that it is a doctrine growing out of the peculiar constitution and jurisdiction of the Federal courts, and has no applicability to the courts of the District of Columbia. We have no doubt that in the President's case, while at common law Guiteau could not be convicted of murder in New Jersey, if the President should❘ die there, yet he may be convicted of murder in the District of Columbia, let the President die wherever he may. The common law is not quite such a stupid rule of action as some lawyers and most newspapers would have us believe. But New Jersey now has a statute under which Guiteau could be convicted in that State, and that statute was pronounced constitutional in Hunter v. State, 11 Vroom, 292. CONDITIONAL SALE OF CHATTELS-TITLE IN Stadtfield v. Huntsman, ante, 185, the Pennsylvania Supreme court have recently held: "Where chattels were delivered to C. who took possession of them by executing to the vendor a written agreement to pay for the same in installments, and that the chattels were to remain the property of the vendor until paid for, that a purchaser of such chattels without notice and in good faith from C. took title to the same against the vendor of C., although C. had not paid for them." In Wait v. Green, 36 N. Y. 556, the Court of Appeals of this State, in an opinion written by Judge Bockes, in which all of the other judges concurred, said: "Where chattels are sold and delivered conditionally, the vendor's right to the property remains good as against the vendee or his voluntary assignee, and others who purchase with knowledge of the condition, but not as against bona fide purchasers of the vendee." The judge cited several cases in this State in support of the above position, among others Smith v. Lynes, 5 N. Y. 41, and Crocker v. Crocker, 31 id. 507. In considering the facts in the above case the court contended that the sale and delivery was conditional, that the agreement was that the chattels should remain the property of the vendor until paid for, and that the defendant was a bona fide purchaser from the vendee. and the judge further says: "There was an attempt to distinguish Ballard v. Burgett from Wait v. Green, but with what success it is not necessary to consider, and whether there is any distinction in principle is not very apparent, and is not necessary to be determined here; that it is the latest utterance of the court, abundantly sustained upon principle and authority, and must be received as the law." The earlier cases of Smith v. Lynes, and Wait v. Green, above, seem to have been decided upon the principle that where any two innocent persons (i. e., the original vendor and the last purchaser) were to suffer, the last purchaser should be protected, and the original owner, who had voluntarily placed the goods in the hands of his vendee and made him the ostensible proprietor and clothed him with the possession and control of the property, should bear the loss, and that after actual delivery (although as between the parties to the sale such delivery may be conclusive), a bona fide purchaser from the vendee gets a perfect title; while the later case of Ballard v. Burgett was decided upon the theory that as the original owner had not made an absolute and unconditional delivery of the property to his vendee, that vendee had no title to the property, and hence was unable to pass title to a third person, and the last case of Austin v. Dye was decided substantially upon the ground that the question had already been passed upon in Ballard v. Burgett as the latest. In the Pennsylvania case reported by you the court say it is an established rule in that State that a sale and delivery of personal property, with an agreement that the ownership shall remain in the vendor until the purchase-money is paid, is fraudulent and void as to the creditors of the vendee and innocent purchasers. TROY, N. Y., September 5, 1881. JOHN H. COLBY. [NOTE. The doctrine of Ballard v. Burgett was approved in Singer Manufacturing Co. v. Graham, 8 Oreg. 17; S. C., 34 Am. Rep. 572, the court observing: This is too well settled now to admit of any doubt," and citing Ballard v. Burgett, Enlow v. Klein, 79 Penn. St. 488; Hirschorn v. Canney, 98 Mass. 149, and Kohler v. Hayes, 41 Cal. 455. This was the ordinary case of a lease of a sewing machine. The Massachusetts and California cases fully sustain the same doctrine. The California citation was the case of an ordinary piano sale on installments. The Pennsylvania citation was not the case of a bona fide purchaser, but that of a judgment creditor seeking to sell the property on execution. The property was held not to be sub In Ballard v. Burgett, 40 N. Y. 314, the plaintiffs sold a yoke of oxen to F. with the agreement that the oxen were to remain the property of the plaintiffs'ject to execution. The same court had a hard struguntil paid for; that F. had never paid the plaintiffs for the oxen, and that F. afterward sold the oxen to the defendant, who bought in good faith without any notice of the plaintiff's claim. Two of the judges, Jones and Murray, could not distinguish this case from Wait v. Green, cited above, but the other judges held that a bona fide purchaser of personal property other than commercial paper, although from one who has the possession, acquires no better title than that of his vendor, and that a sale with no other evidence of right than mere possession is not sufficient to divest the title of the true owner. In Austin v. Dy, 46 N. Y. 500, it was held that one having possession of personal property as a bailee for five months on executing a conditional agreement for its purchase, which conditions have not been performed, can give no title thereto to a purchaser, although the latter acts in good faith and parts with value without notice of the want of title of the vendor. The whole court concurred in this opinion written by Judge Allen, who states in his opinion that it was suggested that this was in conflict with Wait v. Green, gle in Stadtfield v. Huntsman to distinguish this case, and seem to us pretty effectually to have overruled it. In Cole v. Berry, 13 Vroom, 308; S. C., 36 Am. Rep. 511, and Goodell v. Fairbrother, 12 R. I. 233; S. C., 34 Am. Rep. 636, cases of a sewing-machine and a piano, respectively, it was held that the vendee got no interest subject to execution. The contrary doctrine, however, was held in Lucas v. Campbell, 88 Ill. 447; S. C., 31 Am. Rep. 81, the case of a piano lease, where an attachment was sustained. The New York doctrine is approved by Mr. Benjamin (Sales, § 320), and Mr. Perkins cites in support of it, in a note, the following additional cases among others: Clark v. Wells, 45 Vt. 4; Hotchkiss v. Hunt, 49 Me. 219; Baker v. Hull, 15 Iowa, 277; Hart v. Carpenter, 24 Conn. 427; Hunter v. Warner, 1 Wis. 141; Shireman v. Jackson, 14 Ind. 459; Fifield v. Ebner, 25 Mich. 48; Price v. Jones, 3 Head, 84; Little v. Page, 44 Mo. 412. Some of the cases hold such sales good as against creditors. Forbes v. Marsh, 15 Conn. 397. There seems to be no case sustaining the Pennsylvania doctrine. — ED. ALB. L. J.] REMOVAL OF INSURED PERSONAL PROPERTY. RHODE ISLAND SUPREME COURT, JULY 8, 1881. LYONS V. PROVIDENCE WASHINGTON INSURANCE Co.* A policy of insurance against fire was issued on articles of furniture described as "all contained in house No. McMillen street, Providence, R. I." The insured, without the knowledge of the insurer, removed these articles to a house in another street, where they were consumed. Held, that the insured could recover on the policy. EXCEPTIONS to the Court of Common Pleas. Simon S. Lapham, for plaintiff. John F. Tobey and Abraham Payne, for defendant. POTTER, J. The plaintiff procured from the defendant a policy of insurance against fire on certain articles of furniture described in the policy as "all contained McMillen street, Providence, R. I." At the time of the fire the articles had been removed and were in another house. The defendants had never been informed of this removal. The plaintiff testified she did not think it was necessary to tell them. in house On trial the judge nonsuited the plaintiff on the ground that the contract was that the goods should remain or be in the house on McMillen street. The question is were the words we have quoted merely a description of the property insured, or were they intended as a warranty that the goods should remain in the house where they then were, and that the liability of the company was limited to loss from fire at that house. The question seems to us to be how had a person of ordinary intelligence a right to understand it? And in deciding this it is to be considered that the officers of the companies are men skilled and practiced in a particular business, and are supposed to know how to express their meaning and to have used the language they deemed most adapted to the purpose. It would have been easy to have provided in plain language that the insurance should be void if the goods were removed without their consent or without notice to them from the house where they then were. The property being household furniture, it would have amounted in the plaintiff's case to an agreement not to change her dwelling place for five years without the insurers' consent. Whether it is probable she would have agreed to such a condition, if it had been plainly expressed, it is not necessary to consider. Was there any thing in the language which would lead her to believe the company meant to impose such a condition? We think not. There are many cases where the intention of the parties may be evident that the risk shall be confined to property in a particular building, as where a shopkeeper insures so much on a constantly changing stock of goods at his place of business. In such a case the property for which the insurers are liable can be ascertained only from the place. There are other cases where, from the very nature of the property, it must be in the contemplation of the parties that the insured is to have the right to remove it at least temporarily, as in the case of agricultural tools and machinery. The rule we think is very fairly stated in the case of Holbrook v. St. Paul Fire & Marine Ins. Co., 25 Minn. 229, cited on the defendant's brief: "Contracts of insurance are presumed, unless the language forbids it, to be made with reference to the character of the property insured, and to the owners' use of it in the ordinary way and for the purposes for which such property is ordinarily held and used." etc., etc. * To appear in 13 Rhode Island Reports. REGINA V. MOST, 44 L. T. Rep. (N. S.) 823. The defendant wrote and published an article in a newspaper in London, which was sold to the public and also circulated among subscribers, which article the jury found was intended to and did encourage, and was an endeavor to persuade persons to murder foreign potentates, and that such encouragement and endeavoring to persuade was the natural and reasonable effect of the article. Held, that the defendant was guilty of a misdemeanor within section 4 of the 24 and 25 Vict., ch. 100, which makes it a misdemeanor to endeavor to persuade a person to murder any other person. CA ASE reserved for the opinion of this court by Lord Coleridge, C. J. Johann Most was tried before me at the Central Criminal Court on the 25th May, on an indictment containing twelve counts. The first two counts contained charges of publishing a scandalous libel at common law; and on these counts a separate verdict of guilty was taken, and no question arises upon them. The remaining ten counts charged the prisoner with offending against 24 and 25 Vict., ch. 100, § 4. The subject-matter of all the counts was the same publication, which was treated as a common-law libel in the first two counts, and as an offense against the statute in the remaining ten. It was an article written in German in a newspaper entirely in that language, but published weekly in London, and enjoying an average circulation of 1,200 copies. The prisoner was proved to be the editor and publisher of the paper. Several copies of the paper were proved to have been bought at his house, and some copies of a reprint of the article in question were actually sold by the prisoner himself to one of the witnesses called on behalf of the Crown. It is not necessary to set out the article at length, but it contained amongst others the following passages: |