Schulman v. Whitaker (La.), 7 L. R. A. (N. S.) 274, where the picture is not necessary for identification of the person or for detection of crime.

Damages for loss of baggage by a carrier are held, in Turner v. Southern R. Co. (S. C.), 7 L. R. A. (N. S.) 188, not to include the trouble and expense of trying to locate it, or in purchasing other wearing apparel to replace that lost, in the absence of notice to the carrier, at the time of delivering the baggage to him, of facts which would render special damages probable.

A divorce granted because of the conviction of the defendant of an offense involving moral turptitude and a sentence of imprisonment is held, in Holloway v. Holloway (Ga.), 7 L. R. A. (N. S.) 272, not to be affected by an executive pardon granted after the sentence has been imposed.

The poles and wires of a long-distance telephone, strung along a public road, are held, in Hobbs v. Long Distance Teleph. & Teleg. Co. (Ala.), 7 L. R. A. (N. S.) 87, not to constitute an additional burden which will entitle the fee owner to compensation, unless he shows that there will be an actual and substantial injury to his property.

That a street railway company has not in fact secured its right of way and necessary franchises is held, in State ex rel. Harland v. Centralia-Chehalis Electric E. R. & P. Co. (Wash.), 7 L. R. A. (N. S.) 198, not to prevent an exercise by it of the power of eminent domain to secure power to operate the road, if it is proceeding diligently with the enterprise, and has proceeded far enough to demonstrate that its immediate purpose is to apply the power sought to a public use.

A municipal corporation which fails to assert its title to a street dedicated to public use, and permits an abutting property owner to improve his property. at large expense, with reference to what he supposes, in good faith, to be the true street boundary line, and to maintain the improvements for a period of thirteen years, is held, in Oliver v. Synhorst (Ore.), 7 L. R. A. (N. S.) 243, to be estopped from asserting a title which will practically destroy the value of the abutting property for residence purposes and work irremediable injury to the owner.

Where a valid warrant is placed in the hands of an arresting officer, and there are two persons bearing the name appearing in the warrant, and the officer, after diligent inquiry and in good faith, arrests a person of that name whom he honestly believes to be the person named in the warrant, but who in reality is not that person, it is held, in Blocker v. Clark (Ga.), 7 L. R. A. (N. S.) 268, that he is not liable in an action for false imprisonment founded on the

mere fact of arrest, although, if he detains such person in custody after he has received information that a mistake has been made and that the person arrested is not the one for whom the warrant issued, he will be liable in an action for false imprisonment for such detention.

The coupling of a future promise with a false p.etense is held, in State v. Briggs (Kan.), 7 L. R. A. (N. S.) 278, not to relieve the false pretense of its criminal character.

The depot grounds of a railway company, within an exception in the fence laws, are held, in Wilmot v. Oregon R. & N. Co. (Ore.), 7 L. R. A. (N. S.) 202, to be the place where passengers get on and off the trains and where freight is loaded and unloaded, and to include all grounds reasonably necessary and convenient for that purpose, together with the necessary tracks, switches, and turnouts thereon or adjacent thereto for handling and making up trains, the stor age of cars, and the like, and so much of the main track outside the switches as is requisite for the proper handling of trains at the station. The ques tion, what are depot grounds, within the meaning of fence laws, is the subject of a note to this case.

The right of a woman to recover for physical injuries resulting from fright caused by a wrongfal trespass on the homestead of herself and husband is | sustained in Lesch v. Great Northern R. Co. (Minn., 7 L. R. A. (N. S.) 93.

One who causes nervous excitement in a pregnant woman by his wrongful trespass upon her home, to such an extent as to cause her miscarriage, is held. in Engle v. Simmons (Ala.), 7 L. R. A. (N. S.) 96, to be liable to her for the bodily pain and suffering endured in direct line of causation from the wrongful act, although no physical violence is done to her person.

The liability of a municipal corporation for injury to abutting property by alteration of the natural surface of a street in bringing it to the first establishel grade is denied in Leiper v. Denver (Colo.), 7 L. R. A. (N. S.) 108, where the change is not unreasonable or carelessly made, even under a constitutional pro vision that private property shall not be damaged for public use without compensation.

That the identity of a corpse found partly con sumed in a fire may, for the purpose of proving the corpus del cti in a prosecution for murder, be established by circumstantial evidence, such as the size of the remains, and the finding, at and near the spot where the body was found, of articles known to have belonged to a person who is alleged to have been killed, is held, in State v. Barnes (Ore.), 7 L. R. A. (N. S.) 181, the weight and sufficiency of the evidence for that purpose being for the jury to determine.

rich far differently from the poor; the guilty poor do not stand in the same category with the rich. While the poor man gets the full penalty of the law, the rich man is almost never convicted. "We hear a lot of glittering generalities," the speaker said, "about the law treating all men alike. It does treat all poor men alike and it does treat all rich men alike, but it treats the rich far differently from the man without money." While in some quarters this language may cause the raising of a protest, it can hardly be denied that there is a great deal of truth in Judge Baldwin's strictures. Money is power and it gives an additional power to a man accused of crime which his poorer brother does not posses. But what as to the remedy? Some of the leading thinkers of the country have advocated the restriction of technical defenses, the simplification of practice and procedure and the legal prohibition of reversals for error that is not substantial and serious in character. It is thought by many that these reforms would to a large extent deprive rich criminals of their unfair advantages. At all events, they would seem to be much more practical than the proposed restriction or limitation of attorneys' fees, as has been proposed by a committee of the National Prison Association, which would no doubt be open to the objection of clear unconstitutionality an undue interference with personal liberty of contract.

as

Should there be a board of pardons in this State to take the place of the time-honored system which gives such power to the executive? A great many leading thinkers believe so and point out the experience of other States of the Union. For example, the State of Minnesota not long ago established a board of pardons, and the results have been all that had been expected. Instead of the influence brought to bear upon ambitious and sentimental governors, the appeals and tears of females and the political wide-pulling, which have been incidents of the system in vogue in this State in times past-although we must

confess, with less scandal than in many other jurisdictions— we have the calm and dispassionate consideration of every application for clemency and a just decision in accordance with the facts and circumstances in each particular case. It is without doubt true that several men sitting together are better able to resist emotional appeals to sympathy than any one man. No doubt the average executive would welcome the innovation, as relieving him of one of the most onerous and disagreeable duties of his high office. Perhaps the singular freedom from scandal of the operation of the existing method in this State has been one of the causes of its retention, but there would seem to be no reasonable doubt that the time is ripe for a change that will take from the Governor the power to pardon condemned criminals and place it in the hands of a board constituted for that purpose.

: 0:

Trade-Marks.

CIRCUIT COURT OF THE UNITED STATES, for the District of New Jersey.

VACUUM OIL COMPANY, Complainant, v. Eagle Oil COMPANY OF NEW YORK ET AL., Defendants.

and C. Schuyler Davis, of counsel for complainant; Eugene Mackey and Cornelius G. Scully, solicitors, and F. W. Hastings, of counsel for defendant.

Osgood & Davis, solicitors, and Edmund Wetmore

CROSS, District Judge.-The pleadings in this case

are voluminous, but as we shall see subsequently the issue is very narrow. Stated in the briefest terms, the bill of complaint alleges the adoption, use and registration by the complainant in the United States of several words as "Vacuum," "Arctic," "Etna," "Viscolite" and marks, they have become, nevertheless, by extensive

trade-marks, for instance

"Electra," that even if these are not good trade

use and advertisement, known to consumers as trade

names; that complainant sells its products directly to consumers in several foreign countries, naming them, under said trade-marks or trade-names; that said words have become generally known and recognized plainant. The bill of complaint charges the defendants with fraudulently, and for the purpose of deception, using said words for goods sold in the United

in other countries as indicating products of the com

States, with placing said brands in the United States upon goods intended to be transported and sold in foreign countries, with causing to be transported to foreign countries for sale therein, packages of oil bearing said brands, with causing oils to be transported to foreign countries from the United States, for the purpose and with the intent of branding them in such foreign countries with said brands, with placing such brands upon packages of oils in said countries, and with selling oils in said countries in packages having upon them said brands. In addition to the allegations that the words above used are registered trade-marks or trade-names, in this and some other countries, the bill contains all of the allegations necessary to charge, and does charge, the defendants with unfair competition in trade. Jurisdiction has been obtained over the defendants, Eagle Oil Company of New York, F. W. Hastings, Jr., and George F. von Krogh; the persons named are made parties defendant individually, as well as in the capacity of officers and directors of the defendant corporation. The defendants, Eagle Oil Company of New York, and F. W. Hastings, Jr., as secretary and treasurer of said corporation, and as an individual, have filed a joint plea and answer herein, and the defendant, George F. von Krogh, as director and individually, has filed a separate plea and answer. pleas and answers are the same. The insufficiency of the pleas was alleged by the complainant, and that question was set down for argument before the late Judge KIRKPATRICK, by whom the objection was overruled and the pleas sustained. Subsequently the answers were excepted to for insufficiency, but the exceptions were also, for the most part, overruled, whereupon replications were filed joining issue upon the matters set forth in the pleas and answers. Testimony has been taken as to the truth or falsity of the plea, and that question is now before the court. The substantial parts of the pleas are as follows:

The

"That such acts or deeds, if performed or done at all, and not admitting hereby that such acts and deeds were done or performed by it, were wholly done or performed without the borders and boundaries of these United States and wholly within the borders and boundaries of some foreign country or nation, and that of such acts and deeds only the courts of such foreign country or nation and not this court or any court within these United States has jurisdiction, and further

"That this plaintiff has heretofore instituted legal proceedings in a court of competent jurisdiction in the German Empire to restrain the respondent, Eagle Oil Company, of New York, from the commission of the very acts and deeds done and performed in the German Empire, with regard to the use of the word "Vacuum," which the plaintiff now asks relief against and discovery of in this suit, true transla- | tions of the plaintiff's bill, defendant's answer, and the decree of the court in such proceedings are hereto

attached, marked respectively, Exhibit A," "6 Exhibit B," and "Exhibit C," and made part hereof, and that notwithstanding such decree, the complainant has appealed therefrom to a higher court, where the same is now pending, and further

"That this plaintiff has also instituted legal proceedings in a court of competent jurisdiction in the Kingdom of Denmark to restrain in that country the use of the word Vacuum on petroleum oils and products, sold for a purpose similar to that for which plaintiff sells its oils and products, and in advertisements, statements, publications and writings, relating and referring to such oils and products."

Upon the argument as to the validity of the plea, one of the objections was multifariousness, but it was held that the facts pleaded tended to but the one conclusion, which was that the court had no jurisdiction over the subject matter of the suit. In the course of his opinion Judge KIRKPATRICK says:

“The bill charges infringement of the complainant's trade-marks and unfair competition in trade by their use. As to the former, the complainant concedes that neither its 'Trade-marks registered in the United States nor its common law trade-marks afford protection against acts committed wholly in foreign countries.'

"This must be so, for to hold that the branding of goods in a foreign country with a trade-mark registered in the United States constitutes unfair competition in trade would be but another way of extending the trade-mark rights of a citizen of the United States beyond the borders of the country."

Of course, the judge, as the question was then presented, had nothing to do with the truth or falsity of the pleas, and if the pleas have been shown to be true, I shall acquiesce in, and be governed by, the law as he has laid it down. Referring back to the pleas, however, it should be kept in mind that they aver that the acts and deeds which were set forth in the bill of complaint, were wholly done or performed without the borders and boundaries of the United States, and wholly within the borders and boundaries of some foreign country, and that consequently this court has no jurisdiction. The case, as already intimated, now comes before the court on the truth or falsity of the pleas, and the only question for solution is, were the acts complained of wholly done or performed without the United States.

At the hearing upon a plea in equity and a general replication, no fact is in issue, but the truth of the matter pleaded. Farley v. Kittson, 120 U. S. 303; Dalzell v. Dueber Mfg. Co., 149 U. S. 315, 326; United States v. Land Co., 148 U. S. 31.

The complainant insists that the pleas are affirm. ative and that therefore the burden of proof rests upon the defendant. An affirmative plea is one that sets up some matter dehors the bill. A negative plea denies some material allegation in the bill. In the former case the burden of proof rests upon the de

fendant, in the latter upon the complainant. Although the plea under consideration is in form an affirmative plea, it is at least doubtful whether it is such in fact. The bill of complaint has set out facts tending to show that the acts complained of were done both in this country and in foreign countries. It seems to me, therefore, that a plea which set up that the acts were wholly done within the borders and boundaries of some foreign country or nation does not set up new matter. It merely denies a part of the allegations made in the bill. The bill says the acts were done here and elsewhere; the plea says they were not done here, but were done elsewhere. The plea amounts to a denial, in other words, of facts which the complainant has set up, but which, if no plea has been interposed, it would have been compelled to prove in order to obtain the desired relief. The complainant further contends that in any event the pleas must be taken as admitting that the acts complained of were in fact committed by the defendants in foreign countries, but it is unnecessary to pass upon this question, since I have reached the conclusion that the evidence shows that the acts complained of, and for which relief is sought, were not wholly done outside of the United States and in foreign countries, as the pleas allege. The pleas must stand or fall upon the truth or falsity of that allegation. The acts complained of are charged to be fraudulent. If the evidence shows that essential parts of these fraudulent acts were committed within the United States, the pleas must be overruled. The complainant's contention is that the fraudulent acts were not only conceived, but material parts thereof were consummated, in the United States, and that but for the acts done here, the acts performed in the foreign countries would have been impossible. It claims that the facts present a situation not unlike that of a man who, after procuring and loading a fire-arm, aims it across the boundary line between the State in which he is and another State in which his victim is, and then firing the gun, kills him. So much of the evidence offered to show the falsity of the plea is of a documentary character that it is well nigh impossible, within the limits of this opinion, to refer to it in detail, consequently I will be compelled to give my conclusions thereon, rather than establsh them, by any complete reference to the testimony. The defendant, von Krogh, in 1899, was a resident of Germany, and engaged in buying and selling petroleum oils at Hamburg, under the name of The Eagle Oil Company. Sometime during that year he opened negotiations with the defendant Confer, for a supply of oils. Confer was at that time engaged in refining oil at or near Oil City, Pa., under the name of The Empire Oil Works, of which he was the sole proprietor. Following up the foregoing proposition, von Krogh visited Mr. Confer at his place of business and made a contract whereby he, von Krogh, as the Eagle Oil Company, agreed to pur

chase from Mr. Confer, and Mr. Confer agreed to supply, all the oils that that company would require for five years, except that during the first year The Eagle Oil Company was given the privilege of buying oils elsewhere; it was further then and there proposed by Mr. von Krogh that a corporation should be organized under the laws of New Jersey, to be known as The Eagle Oil Company of New York, and Mr. Confer was induced to join the project, as were F. W. Hastings, Jr., one of the defendants (who was the attorney afterwards employed to organize the company) and the defendant Brockway, from whom von Krogh had previously bought oils. The defendant, The Eagle Oil Company of New York, was thereupon incorporated on the twenty-fifth day of November, eighteen hundred and ninety-nine. Its officers were Brockway, president; Confer, vice-president; Hastings, secretary and treasurer, who, with von Krogh, composed the board of directors. The new company took over the business which the defendant, von Krogh, had, prior to the incorporation of the new company, carried on in Germany under the name of The Eagle Oil Company. On the thirtieth day of the same month in which the defendant company was incorporated it, by a written instrument under its seal, signed by its president, and attested by its secretary, appointed von Krogh its general manager for the sale and marketing of oils and their products, "in Europe, Asia, Africa, Australia, North and South America, and all and every country or countries in the world," with the fullest powers with reference to the collection of moneys for such sales, in the making and transfer of all kinds of commercial paper, in effecting insurance, in purchasing and arranging for cars, tanks, warehouses, barges and building for the transportation and storage of oils, and in the employment of all necessary help; it also conferred upon him power to sue and to be sued; and to register and establish the corporation in Hamburg. It also bound itself for all consequences arising out of said power of attorney, especially in respect to the business done by its manager, von Krogh, at Hamburg. and agreed to submit itself in the person of von Krogh to the courts of law at Hamburg, and further authorized him to do all and singular the things specified, as fully as The Eagle Oil Company could have done if personally present, by its president and directors. It will be seen from the foregoing abstract of the power of attorney, that von Krogh was to all intents and purposes substituted for the corporation; wherever it could act he could act; whatever it could do he could do, and whatever he did, it was bound by. Mr. Confer, one of the defendants, who at first was vice-president, but later president of the corporation, and connected with it from its inception, says that it was organized for the purposes of supplying von Krogh with oils for sale in foreign countries. Although he was a stockholder, director and officer in the company for over two