defendant, his son William H., on a salary in the business. Subsequently a difficulty arose between father and son, and the latter left the service of the former, and went into business for himself at another place, and commenced selling the same kind of fish sauce under the same name of "Burgess' Essence of Anchovies," at what he advertised as " Burgess' Fish Sauce Warehouse, late of 107 Strand," but at a lower price, and the bill charged that the sales were made as and for the article manufactured and sold by the plaintiff, and to deceive and defraud the plaintiff and the public. The vice-chancellor granted the injunction stopping the defendant, in so far as his advertisement indicated that he was the same man, and conducting the same business as "late of 107 Strand," but refused to restrain him from manufacturing and selling "fish sauce under the name of "Burgess' Essence of Anchovies;" and the appeal therefrom was dismissed. In giving the opinion of the court, Knight Bruce, L. J., said: "All the Queen's subjects have a right, if they will, to manufacture and sell pickles and sauces, and not the less that their fathers have done so before them. All the Queen's subjects have a right to sell them in their own name, and not the less so that they bear the same name as their father; and nothing else has been done in that which is the question before us. * * * He (the defendant) carries on business under his own name, and sells essence of anchovy as 'Burgess' Essence of Anchovy,' which it is. * * * The only ground of complaint is the great celebrity, which, during many years, has been possessed by the elder Mr. Burgess' essence of anchovy. That does not give him such exclusive right, such a monopoly, such a privilege, as to prevent any man from making essence of anchovy and selling it under his own name." S. C., 17 Jurist, 292.

In James v. James, L. R., 13 Eq. Cas. 421, it was held, per Lord Romilly, M. R., that "any person who has, without the use of unfair means, become acquainted with the mode of compounding a secret unpatented preparation, may, after the death of the original discoverer, make and sell the compound, describing it by the name of the discoverer, provided he does not lead the public to suppose that his preparation is the manufacture of the successors in business of the original discoverer; but he must not assert that his is the only genuine article, or suggest that the article manufactured by the successors or the original discoverer is spurious." S. C., 2 Eng. 365.

In Massam v. Thorley's C. F. Co., 6 Ch. Div. 574, it was held, per Malins, V. C., that " any person who has become acquainted with the process of manufacturing an article which is in general secret, is entitled to manufacture it; and if the name of the first manufacturer has become attached to the article, any person afterward manufacturing is entitled to describe it by the name of such original manufacturer, and if he happens to be of the same name as the original manufacturer he may use his name in describing his business, or allow it to be used by a company formed by him for the purpose of carrying on the business, notwithstanding that the representatives of the original manufacturers continue to carry on the old manufacture under the old name." S. C., 23 Eng. 175.

In Meneely v. Meenely, 62 N. Y. 427, it was held that "a person cannot make a trade-mark of his own name, and thus debar others having the same name from using it in their business. Every man has the absolute right to use his own name in his own business, even though he may thereby interfere with and injure the business of another bearing the same name, provided he does not resort to any artifice or do any act calculated to mislead the public as to the identity of the establishments, and to produce injury to the other beyond that which results from the similarity of the names.'

То

the same effect are Gilmore v. Hunnewell, 122 Mass. 139; Carmichel v. Latimer, 11 R. I. 395.

In Lea v. Deakin, 18 Am. Law Reg. (N. S.) 322, Judge Drummond refused to restrain the application of the word "Worcestershire" to sauce, on the ground that the name had become generic, and that persons residing at a place of that name in England, and who there manufactured the sauce and sold it by that name, did not thereby acquire the exclusive use of the same as a trade-mark.

In Chearin v. Walker, 5 Ch. Div. 850; S. C., 22 Eng. 513, S. Cheavin and his son G. Cheavin manufactured and sold filters, which had been patented by the father, S. C., under the title and marked with the label as "S. Cheavin's Improved Patent Gold Medal Self-Cleaning Rapid Water Filterers." After the father died, and the patent having expired, G. C. substituted his name in the place of his father's, and continued the manufacture and sale under the same name so modified, above which was a medallion containing the royal arms, surmounted by the words "By Her Majesty's Royal Letters Patent." The defendant left the employ of G. C., and began manufacturing and selling in the same town for himself filters similar in appearance to G. C.'s, and inscribed with "S. C.'s Patent Prize Medal Self-Cleaning Rapid Water Filters; Improved and Manufactured by Walker, Brightman & Co. ;" and it was held by the Court of Appeal, reversing the vicechancellor's decision-" First, that the label used by the plaintiff was not a trade-mark, but only a description of the article as made according to S. C.'s patent, which was common to all the public; secondly, that there was nothing in the defendant's label calculated to mislead the public by a fraudulent imitation of the plaintiff's label; thirdly, that the plaintiff's label, coupled with the medallion of the royal arms, constituted a false representation that the patent was still subsisting, and disentitled the plaintiff to relief by injunction."

In Singer Manuf'g Co. v. Wilson, 2 Ch. Div. 434; S. C., 16 Eng. 327, it was held, in effect, on appeal, affirming the decree of the master of the rolls dismissing the bill, that "when as manufacturer A. (Singer) has acquired a reputation in the market, so that the goods made by him are commonly known by his name, but is not possessed of any patent, a rival manufacturer, B. (Wilson), being entitled to imitate his goods, is entitled also, provided that he does not place his naine on his own goods, to advertise his goods and offer them for sale by the name of A. (Singer), if he takes care to state clearly at the same time that the goods which he sells are manufactured by himself." That case was subsequently reversed in the House of Lords, but without prejudice to any question in the case, in the event of further evidence being given, which was thereby authorized. 3 Appeal Cases, 376; S. C., 24 Eng. 272.

The syllabus of the case may seem to be in conflict with some of the cases cited, but it was really reversed on account of the irregularity of the proceedings, and because it was not essential for the plaintiffs to prove actual intent to deceive purchasers to make out a prima facie case; but that it was enough if the defendant's advertisements were calculated to mislead an unwary purchaser of the machines into the belief that he was purchasing those manufactured and sold by the plaintiffs then they were prima facie entitled to an injunction; and all other questions were expressly reserved by the lord chancellor until further evidence should be adduced.

Applying the rules governing the authorities cited to the case at bar, we are forced to conclude that any citizen had a perfect right to manufacture and sell the mixture or liniment formerly manufactured and sold by old Samuel Marshall. It is equally clear that

any of the Marshall children, or any other person by the name of Marshall, having acquired a knowledge of the compound, had a perfect right to manufacture and sell it, by himself or others, in his own name, even against the protest of old Samuel Marshall, provided he did not do it in such a way as to be likely to mislead ordinary purchasers, proceeding with ordinary caution, into the belief that they were purchasing the liniment manufactured and sold by old Samuel Marshall himself. If this could be rightfully done, contrary to his wish and against his protest, it most certainly could be done by his children, as it was, with his express approbation. If such right to manufacture and sell existed as against old Samuel Marshall himself, then it most certainly did as against any one of his children. If none of his children could, in the case supposed, be restrained by the father during his life, it is equally certain that they could not be restrained by another, or even his representative, after his death. It would also seem to follow, from the cases cited, that on the death of old Samuel Marshall (assuming that no one succeeded to the good-will of his business) any citizen would have the legal right to manufacture liniment composed of the same ingredients and made in the same way as he manufactured that sold by him, and also in making sales to describe it as such. Upon that assumption the words "Old Dr. S. Marshall's Celebrated Liniment" were merely descriptive of the compound, and if truthfully applied by the defendant in making sales, no one could rightfully complain, as no one had any patent upon or exclusive right to the use of any words which aptly described it. Upon his death, with no successor to the good-will of his business, those words would cease to indicate origin or ownership, and hence cease to be a trade-mark.

There is no pretense that old Samuel Marshall ever, in the manufacture and sale of this liniment, perpetrated any actual or constructive fraud or deceit upon the business of Charles H., but on the contrary Exhibit B, which Charles H. testified that he never used, and which it appears that the father and other children, under his authority, did use, closes with these words: "N. B. Dr. Marshall will hold himself responsible for the genuineness of no preparation which does not bear his own trade-mark of the horse's head." From this it would naturally be inferred that in the opinion of the father, Charles H. was not selling the genuine mixture; but the fact that Charles H. knew the formula or recipe would seem to indicate that he did sell the same compound. That postscript or notice does not seem to have been used by the defendant nor any of the children after the death of the father. There is nothing in the finding, and there seems to be no evi- | dence, which would warrant us in holding that the defendant did any thing in advertising or selling his mixture to lead the public to suppose that he was the successor of old Samuel Marshall, or that his was the only genuine article, or that the plaintiff's mixture was spurious, or that he was selling the same as and for the liniment manufactured by the plaintiffs; and without some of these things being done there would seem to be no ground for an injunction within the doctrine of the above authorities.

Again, the long delay of Charles H. to assert an exclusive right to use the words, "Old Dr. S. Marshall's Celebrated Liniment," would of itself, on a proper showing, seem to be an impediment to his protection in the exclusive use of them. Beard v. Turner, 13 L. T. R. 746; Flavell v. Harrison, 19 Eug. L. and Eq. 15; Lea v. Deakin, 18 Am. Law Reg. 322.

There is still another view of this case deserving notice. There is no claim that old Samuel Marshall, much less Charles H., actually discovered or invented the mixture or compound. There is no pretense that either had the exclusive right, during the life of the father, to manufacture and sell it under the name of

Marshall's Rheumatic Liniment," or "Old Dr. S. Marshall's Celebrated Liniment." These facts being admitted, it would seem to be at least extremely doubtful whether Charles H. ever acquired the exclusive right to their use as a trade-mark; and if such exclusive right was doubtful, it would seem to be contrary to the practice in equity to grant an injunction in the first instance.

In Farina v. Silverlock, 6 De Gex, M. & G. 214, it was held by Lord Chancellor Cranworth, that "in a case where the mark consisted of a label in a certain form, and it was shown that in very many instances labels the same as or similar to it might be sold for a legitimate purpose, the court, in the absence of any proof of actual fraud, refused to restrain the printing and sale of such labels until the manufacturer, who alleged that they were used for a fraudulent purpose, had established his case by an action at law."

In Spotteswoode v. Clark, 10 Jurist, 1043, it was held by the lord chancellor, on a bill to restrain the defendant from selling a mark alleged to be a fraudulent imitation of the plaintiff's, "that it not being perfectly clear that the plaintiff had a legal right, the injunction prayed by the bill ought not to be granted." This is especially the rule where the plaintiff is himself seeking to deceive the public. Pidding v. How, 8 Simmons, 477; Motley v. Downman, 3 My. & Cr. 1; Clark v. Freeman, 11 Beav. 112; Flavill v. Harrison, 19 Eng. L. and Eq. 15; Perry v. Truffit, 6 Beav. 66. Mr. Brown tersely states the true rule when he says: "The right to the use of the mark must be exclusive of all other persons. A trade-mark is an emblem of a man just as much as his written signature, and is used to denote that an article of merchandise has heen made by a certain person, or that it has been sold or offered for sale by him. If the same mark were to be used by different persons for the same species of goods, it would lead to inextricable confusion; and its true and only legitimate purpose would be overturn, for then it would lack the essential element of an indication of origin or ownership." $303. From this it would seem that Charles H. never had in himself any such exclusive right in the words in question as would authorize a court of equity to restrain others from nsing the same bona fide in the sale of their own goods, and without any tendency to deceive. The only remaining question is whether the wife of Charles H. got such exclusive right by way of the alleged purchase from the mother, and the discovery after her death of the existence of a last will left by the father, and the establishment of it as such, and the admitting of it to probate. As suggested on the argument, neither the mother Mary J. nor the plaintiff Mary W. could get any title to the personal property, business and good-will of the business of old Samuel Marshall, except through an administration upon his estate, and an order of distribution; and as no order of distribution was ever made, nor administrator or administratrix was ever appointed, it follows that the plaintiff Mary W. got nothing through the alleged purchase. Murphy v. Hanrahan, 50 Wis 485. To the same effect is Singleton v. Bolton, supra. As no exclusive right of either of the plaintiffs was invaded, they were not entitled to an injunction by reason of any mere absence of such right on the part of the defendant.

The judgment of the Circuit Court is affirmed.

MISTAKE IN MEDICAL TREATMENT CAUSING DEATH NOT MURDER.

IOWA SUPREME COURT, APRIL, 1881.

STATE OF IOWA V. SCHULZ. Defendant, who held himself forth as a physician, administered a medicine, of the component parts of which he was

ignorant, with the intention of curing a woman who was ill. The patient died. Held, that even if the medicine caused her death defendant would not be guilty of murder or manslaughter.

INDICTMENT for murder in second degree upon

which defendant was convicted of manslaughter. Sufficient facts appear in the opinion.

DAY, J. The only testimony which bears directly upon the circumstances of the death of Mary Rayer, and the defendant's connection with it, is that of the deceased's husband, and is as follows: "Mary died on the 26th of May last; was taken sick two weeks before she died; called in Dr. Kinthan; went to get Dr. Schulz on 23d of May; Schultz said she was pretty badly off; used his instrument all over her body; at about 12 o'clock on Tuesday he gave her something to loosen her bowels from the same vial he was using on her body; gave her eight drops; called it some kind of croton oil; she got worse; went for Dr. Schulz to tell him; he gave me some drops, and told me to give her fourteen drops; I did not give her fourteen drops; I thought it was too much; Schulz came out that night and stayed until nearly two o'clock; on Wednesday morning I told him not to call again; he answered that it would be better for him to go and see her; Mary died on Wednesday night." A post-mortem examination was made. The examining physicians testify that they found no traces of poison. The defendant on his own behalf testified as follows: "Am a Bauncheidist, and practice medicine according to the books of Baunscheidt; use an instrument and oleum Baunscheidtii in my practice; was called on to treat Mrs. Mary Rayer; I treated Mrs. Rayer according to my system, with instrument and oleum Baunscheidtii; on Tuesday I gave her four drops of the oleum internally; she was getting better under my treatment; on Wednesday morning Mr. Rayer came to my house and told me I need not call that morning; I told him she must have assistance, because her symptoms were very dangerous; he said that he had no other physician, and that he would come back to me; do not know what the oleum Baunscheidtii is made of; it is a secret of the inventor; I could have helped her I think if my instructions had been followed, and if I had been allowed to go on with my treatment."

The defendant introduced twenty-three witnesses, who testified that they employed defendant as a physician; that he treated them with his instrument and his oleum Baunscheidtii, and administered the oil internally, and that they got better. The abstract contains no evidence of any former bad results. The court instructed the jury as follows: (12) An express intent to take life is necessary to constitute the crime of murder under the statute law of this State; and if one holds himself out as practicing physician, or a specialist in the treatment of diseases, and through gross ignorance of the medicine he uses, and its composition, and its reasonable effects upon the human system, administers an irritant or corrosive poison in such quantities as would ordinarily and reasonably produce death, and death ensues therefrom, he would be guilty of the crime of murder. In such case the law presumes malice, and ignorance would be no excuse; nor would the fact, if such existed, that the intention was to cure. The gross ignorance in such cases creates the criminal intention. (13) A party, whether he be a physician or a specialist, has no right to hold himself out to the public as competent to treat diseases unless he knows what the medicine is he uses, and its reasonable effect upon the human system; and to do so, and administer internally poisonous medicines, in sufficient quantities to ordinarily produce death, and death is produced thereby, he would be guilty of murder; and if the defendant in this case, through gross ignorance of the medicine used, or its

reasonable effect upon the deceased, as she was at the time, caused her death by an overdose of poisonous medicine, he would be guilty as charged; but if he was not grossly ignoraut of the medicine he used, if any, and its reasonable effect upon the system, and administered it for an honest purpose, but made a mistake, he would not be guilty of the crime charged against him, and should be acquitted."

The defendant asked the court to instruct as follows: To constitute manslaughter the killing must have been the consequence of some unlawful act, and if the prisoner acted with an honest intention and expectation of curing the deceased by his treatment,although death, unexpected by him, was the consequence, he was not guilty of manslaughter, and you must acquit him."

In our opinion the court erred in the instructions given, aud in refusing to give the one asked. In 2 Bishop's Criminal Law (4th ed.) section 695, the law upon this subject is declared as follows: "From the relationship of physician and patient the death of the latter not unfrequently arises. On this subject the doctrine seems to have been held that whenever one undertakes to cure another of disease, or to perform on him a surgical operation, he renders himself thereby liable to the criminal law if he does not carry to his duty some degree of skill, though what degree may not be clear; consequently, if the patient dies through his ill-treatment he is indictable for manslaughter. On the other hand, a more humane doctrine is laid down that since it is lawful and commendable for one to cure another, if he undertakes this office in good faith and adopts the treatment he deems best, he is not liable to be adjudged a felon, though the treatment should be erroneous, and in the eyes of those who assume to know all about this subject, which, in truth, is understood by no mortal, grossly wrong; and though he is a person called by those who deem themselves wise, grossly ignorant of medicine and surgery. The former doctrine seems to be the English one, and so in England a person, whether a licensed medical practitioner or not, who undertakes to deal with the life or health of people, is bound to have competent skill, or suffer criminally for the defect. Now if a man thinks he has competent skill, and makes no misrepresentation to his patients concerning the amount or kind of medical education actually received by himself, he seems in reason to stand on exactly the foundation occupied by every person who honestly undertakes medical practice after full advantages, so far as concerns his state of mind, and it is the mind to which we look in questions of legal guilt. Any person undertaking a cure, but being grossly careless and thus producing death, is, for a different reason, liable to a charge of manslaughter, whether he is a licensed practitioner or not."

The case of Commonwealth v. Thompson, 6 Mass. 134, is a very interesting and instructive one upon this question. From the testimony in that case it appears that the defendant was a grossly ignorant quack. He had three remedies which he called coffee, well-mygristle and ram cats. He persisted in administering emetics to his patient until he died, to all appearances, from the effects of his treatment. In this case it was held that "if one assuming the character of a physician, through ignorauce administer to his patient, with an honest intention and expectation of a cure, but which causes the death of the patient, he is not guilty of felonious homicide."

The case of Rice v. State, 8 Mo. 561, is much like the preceding. The defendant in that case was a botanical physician, and administered lobelia, from the effects of which the patient died. It was held that "if a person assume to act as a physician, however ignorant of medical science, and prescribe with an honest intention of curing the patient, but through ignorance

of the quality of the medicines prescribed, or the nature of the disease, or both, the patient die in consequence of the treatment, contrary to the expectation of the person prescribing, he is not guilty of murder or manslaughter. But if the party prescribing have no such knowlege of the fatal tendency of the prescription, that it may be reasonably presumed that he administered the medicine from an obstinate, willful rashness, and not with an honest intention and expectation of effecting a cure, he is guilty of manslaughter, at least, though he might not have intended any bodily harm."

These cases seem to us to announce a correct rule. The interests of society will be subserved by holding a physician civilly liable in damages for the consequences of his ignorance, without imposing upon him the criminal liability when he acts with good motives and honest intentions.

Reversed.

ACCIDENT INSURANCE - ACCIDENTAL

DEATH.

ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, JUNE 22, 1881.

LAWRENCE V. ACCIDENT INSURANCE COMPANY. 44 L. T. Rep. (N. S.) 25.

An accident insurance policy provided thus: "This policy insures payment only in case of injuries accidentally occurring from material and external cause operating upon the person of the insured, where such accidental injury is the direct and sole cause of death to the insured, but it does not insure in case of death arising from fits, or any disease whatsoever, arising before or at the time, or following such accidental injury (whether consequent upon such accidental injury or not, and whether causing such death or disability directly or jointly with such accidental injury. The insured, while standing upon a railway platform, was seized with a fit, and falling on the railway track was killed by a passing locomotive. Held, that the death of insured was not within the provision of the policy, and the insurance company were liable for the amount of insurance specified in such policy.

SPECIAL case stated by order of a master, of which

the following are the material facts:

The action was brought by the administrator of James Lawrence, deceased, to recover 1000l, being the full amount of a policy of insurance against accidental injury effected on the 10th February, 1873, by the deceased with the defendant eompany.

The policy in question proceeded so far as material as follows: "Now therefore this policy witnesseth that the said Accident Insurance Company, Limited, doth hereby agree that if at any time before the expiration of one year from the date of this policy, or if at any time hereafter during his life, while the insured shall at the expiration of each year from the date when this policy is renewable pay the premium above specified, or any increased or decreased premium agreed to be received by the directors in consequence of change of occupation or otherwise, the said insured shall sustain any personal injury caused by accidental and external violence, within the meaning of this policy and the conditions hereto, and the direct effects of such injuries shall occasion his death within three calendar months from the happening thereof, then the funds and property of the company shall be subject to pay the full sum hereby assured (being the sum of 1000/) to the legal representatives of the insured within three calendar months after proof of such death satisfactorily to the directors of the said company shall be furnished."

The policy also (among other things) contained the following proviso: "Provided always that this policy insures payment only in case of the injuries acciden

tally occurring from material and external cause operating upon the person of the insured, where such accidental injury is the direct and sole cause of death to the insured or disability to follow his avocations, but it does not insure in case of death or disability arising from fits or rheumatism, gout, hernia, erysipelas, or any disease whatsoever arising before or at the time or following such accidental injury (whether consequent upon such accidental injury or not, and whether causing such death or disability directly or jointly with such accidental injury).”

While the policy was still in force, namely, on the 26th February, 1879, the insured, being at a railway station, was taken suddenly ill and fell forward in a fit off the platform on to the railway, and a locomotive engine with empty carriages, which was at that moment going through the station, passed over the neck and body of the insured, and instantly killed him. The falling forward of the insured off the platform was in consequence of his being seized with a fit or sudden illness, and but for such fit or illness he would not have suffered injury or death as before mentioned.

The question for the opinion of the court was, whether the death of the insured happening under these circumstances was caused in such a manner as to entitle the plaintiff, as administrator of the insured, to payment of the sum assured by the policy.

Hall, Q. C. (with him Pitt Lewis) for the plaintiff. This case is governed by the decision in Winspear v. Accident Insurance Co., 6 Q. B. Div. 42; 43 L. T. Rep. (N. S.) 459. The finding here is that the deceased had a fit and fell off the platform on to the rail, and was killed by an engine which was passing at that moment along the railway.

Gainsford Bruce, for the defendant, cited Ionides v. Universal Marine Ins. Co., 8 L. T. Rep. (N. S.) 705; 14 C. B. (N. S.) 259; 32 L. J. 170, C. P.; Smith v. Accident Ins. Co., 22 L. T. Rep. (N. S.) 860; L. Rep., 5 Ex. 302; 39 L. J. 211 Ex.; Sinclair v. Maritime Passengers' Ins. Co., 4 L. T. Rep. (N. S.) 15; 30 L. J. 77, Q. B.; Filton v. Accidental Death Ins. Co., 17 C. B. (N. S.) 122; 34 L. J. 28 C. P.; Reynolds v. Accidental Ins. Co., 22 L. T. Rep. (N. S.) 120.

DENMAN, J. I must say that during the argument I had considerable doubt as to the true meaning of this clause, and I am not even now sure that, but for Winspear's case, I should not be of opinion that the defendants were protected by the clause. I think, however, that the legitimate effect of that decision is to make the clause plain; and if that decision be correct, the facts in this case do not constitute a defense so as to prevent the plaintiff from recovering in this action. The facts are these: The deceased, while standing on a railway platform, was suddenly seized with a fit, which caused him to fall off the platform on to the line, and a locomotive engine, which at that moment was going through the station, passed over his neck and body, and instantly killed him. Now the immediate cause is not at all to be disputed, for if the deceased had not been on the platform, and had not been seized with a fit, he would not have fallen on to the line aud been killed; and in that sense the fit may be said to have occasioned his death. The question here is whether the fit was one of the several events which occasioned his death, or whether it was, within the meaning of this proviso, a thing which would prevent the policy from attaching. In Winspear's case, where a man who was fording a stream was seized with a fit and fell into it and was drowned whilst suffering from the fit, it was decided that the fit was not the cause of death within the meaning of the policy. That case, although not quite identical, is very like the present one. The policy here is somewhat different to the policy in that case,

and the words which appeared to me to be strongly in favor of the defendants in this case are, "Causing such death or disability, directly or jointly with such accidental injury." If the words had simply been that "this policy shall not attach in cases where death was caused by an accident jointly with the fit," I should have thought that it was a case in which the defendants would have had a defense to this action. But these words are in a parenthesis, and are put in to explain the class of cases in which the three previous lines of the proviso will apply, that is where disease is one of the things which has caused the death itself, directly or jointly with the accidental injury. The words "arising from fits ** ** or any disease whatsoever," which are defining words, have received a judicial interpretation in Winspear's case, and so far as that part of the present case is concerned, are identical with those in Winspear's case, where it was held that the death arose not from the fit, but from the drowning. So here the death arose from the accident of the engine passing over the man and so destroying him, and not from the fit having caused him to fall on the rail. I think the present case is governed by the case in the Court of Appeal, and the plaintiff is entitled to our judgment.

WILLIAMS, J. I also am clearly of opinion that the plaintiff is entitled to recover in this action. and I desire to put my decision upon principle, and not upon the cases which have been quoted. Now the question here is whether, upon the true construction of this proviso, this is a case of death arising from a fit. It seems to me that the first maxim of Lord Bacon is directly in point, in which it is said that it were infinite for the law to judge the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." Applying that maxim to the words of this proviso, we must look to the immediate and proximate cause of death, and that would be the injury caused by the engine passing over the deceased. I think that the true meaning of this proviso is that if the death arose from a fit, then the company would not be liable, but it is essential to that construction that it must be made out that the fit was the immediate and proximate cause of death. I put my decision on the broad ground that death in this case did not arise from the fit, but from that which happened afterward, and the plaintiff is therefore entitled to our judgment.

Judgment for the plaintiff.

PRESUMPTION OF MARRIAGE.

ENGLISH PRIVY COUNCIL, FEB 3, 1881.

SASTRY V. SEMBECUTTY.

The presumption of marriage is much stronger than the presumption raised with regard to other facts, and where a man and woman are proved to have lived together as man and wife, the law will presume, in the absence of clear proof to the contrary, that they were living together in consequence of a valid marriage. This presumption is not affected by the fact that concubinage was not considered as immoral in the district where the parties lived, and the onus of proving that the marriage was not legally performed lies on those who dispute it. On these points the Roman-Dutch law prevailing in Ceylon is the same as English law.

named respectively Sembecutty and Vaigalie, against three defendants, Sastry, Velaider and Arongary. The other facts appear in the opinion.

Gorst, Q. C., and Stock, appeared for the appellants. Dr. Phillimore and Dunham, for the respondents.

At the conclusion of the arguments their lordships gave judgment as follows: This appeal arises out of a suit brought by the plaintiffs, who are husband and wife, in which it was alleged that the second plaintiff was at the time of her marriage with the co-plaintiff the widow of one Pattenier. The suit was brought against the defendants to recover a share of the property of Pattenier to which it was alleged that the second plaintiff, as his widow, was entitled; the plaintiffs also claimed a share which it was alleged had descended to her from a deceased child of Pattenier by her. The question is whether she was lawfully married to Pattenier and the child legitimate. The first defendant is a brother of Pattenier, and was an executor under his will; the second defendant was a son of an uncle of the second plaintiff; and the third defendant was the wife of the second defendant and a daughter of Pattenier by a deceased wife. The learned judge of the First Court found that there was a valid marriage. Upon appeal to the Supreme Court of Ceylon that judgment was reversed by the learned chief justice. It appears to their lordships that the chief justice threw the onus of proof on the wrong parties, inasmuch as he held in substance that it was necessary for those who claimed by virtue of the marriage to prove what were the customs of the Tamils with regard to marriage, and that this marriage was legally performed. Their lordships have no doubt, upon the evidence, that Pattenier and the second plaintiff lived together as man and wife. It was proved that she visited with him and that she presented betel to their friends, which their lordships apprehend a concubine would not do. They not only lived together as man and wife, but there is strong evidence to show that there was a legal marriage. [His lordship went through the evidence, and continued:] Notwithstanding all that evidence and after the finding of the First Court, the chief justice in his judgment says: "A great deal of evidence was gone into on both sides, and the onus was on the plaintiffs to prove (1) what are the ceremonies necessary to constitute a valid marriage in the Tamil caste, to which the parties belong; (2) that these ceremonies were duly performed at the marriage in question. On the first point the evidence is so conflicting that it is impossible to gather an intelligible account of what are the ceremonies necessary to constitute a valid marriage amongst the Tamil natives of the Batticoloa district." He did not say that it had been proved to his satisfaction that the marriage was not according to the custom, but merely that the evidence was so conflicting that it was impossible to gather an intelligible account of what were the necessary ceremonies, and he threw the onus of proving what were the necessary ceremonies on the plaintiffs, and found that they had failed in making out that all the necessary ceremonies had been performed. He proceeded? So far as the evidence can be followed, the ceremonies seem to vary according to circumstances, such as the position and wealth of the bride and bridegroom, and whether a man or woman is married for the first time. The witnesses also differ as to what are essential ceremonies; and on a review of the whole of the evidence it appears clear that either there is not a well-recognized ceremonial to be observed on occasions of marriage, or that the witnesses were wholly ignorant of what they were called to prove. It is admitted that all the necessary ceremonies were not performed at the marriage in question, but it is alleged that they could not have been on account of the disturbance which took place when the marriage was