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    The Amoskeag Manufacturing Co. v. Spear & Ripley.
    Every manufacturer, and every merchant for whom goods are manufactured, has an unquestionable right to distinguish the goods that he manufactures or sells, by a peculiar mark or device, so that they may be known as his in the market, and he may thus secure the profits which their superior repute as his may be the means of gaining.
    He is entitled to the protection of the law, in the exclusive use of the trade-mark thus appropriated by him. The public interests, as well as his own, require this.
    One who affixes to his own goods a copy or imitation of the trade-mark of another, commits a fraud upon the public and upon the owner of such mark. As to the latter, there is a damage which may be such as not to admit of compensation.
    Equity will restrain the wrong doer by injunction, upon the grounds of protecting the owner in the exercise of a legal right, the suppression of fraud and the prevention of irreparable mischief.
    An injunction will be granted with great caution, and not where the legal right is disputed and doubtful, nor so as to create or risk the creation of a monopoly.
    The wrong in these cases, consists in the sale of the goods of the fabric of one person, as being those made by another ; and it is only to the extent in which the false representation is directly or indirectly made, that an injunction ought to be granted.
    The imitation may be complete, or may be limited or partial. In the latter event, though the proprietor’s name may bo omitted, and the imitator’s substituted, yet if the peculiar devices or symbols be so copied as to manifest a design to mislead the public, and will probably produce that effect, an injunction will be granted.
    There is no exclusive right in the use of marks, symbols or letters, which merely indicate the appropriate name, mode or process of manufacture, or the peculiar or relative quality of the fabric manufactured, as distinguished from those marks which indicate the time, origin or ownership of the fabric.

      Thus, where the letters “AC A” were used by a manufacturer of tickings, as-designating the first quality of his fabrics, and the same letters were subsequently used by another manufacturer of the same article for the same purpose, it was held, that the latter could not be restrained from so using the letters.
    An acquiescence by the owner of 'a-trade-mark, in its use by another, is revocable, and confers no right after the license is withdrawn.
    (Before Duer, J., at Special Term.)
    July 12, 13 ;
    July 28, 1849.
    This was a motion to dissolve or modify an injunction, which had been granted ex parte on giving security.
    The plaintiffs are a corporation in the state of New Hampshire, engaged in manufacturing cotton goods at or near Amoskeag Falls, since 1831. The complaint, verified June 16, 1850, stated that a principal article of their manufacture has always been ticking, which by care, skill, and at great expense, they had brought to a state of great perfection, and the best quality had deservedly acquired a great reputation throughout the United States. That for thirteen years past, they have used a printed paper ticket or label, devised by them for the purpose, to designate such first quality of their ticking, which printed ticket, mark, stamp or label, they placed conspicuously on the outside of each piece of ticking of the best quality before offering it for sale. That this mark has become identified with their first quality of ticking, and such ticking is commonly called and designated, among dealers in the article, as the “ACA ticking.” (The plaintiffs annexed two specimens of their label, one engraved on wood, which they used till within two or three years past; the other on copper, now in use. The words and letters, and their arrangement, and the fancy border on each are the same; the latter being square externally, and eliptical or oblong within, and both labels are printed in red ink. The arrangement was thus :
    “ Amoskeag Manufacturing Company
    Power Loom.
    Yds.--

      A € A

    Amoskeag Falls, N. H.”
    The words in the upper and lower lines being printed in an elliptic line on the label.)

      The complaint stated that the capital letters ACA, (which were printed very large and conspicuous,) signified as follows: “ A C,” Amoskeag Company; “ A” first quality. That their ticking thus marked had acquired a very extended and enviable reputation.
    That the defendants, in 1844, fraudulently caused to be prepared a stamp or label similar to the plaintiffs, having the letters A C A thereon in capitals, in a corresponding position with, a similar border and color, showing the same general appearance; which was intended to be an imitation of the plaintiffs mark or label, and designed as a fraud upon the plaintiffs and an imposition on the public.
    (A specimen of the defendants label was attached. The size, color, fancy border, position, arrangement, and general size of the letters, corresponded with those of the plaintiffs. The face of the letters was quite different. The “AC A" larger than in the plaintiffs engraved plate, and very similar to their wood plate. The words upon it, were as follows:
    “ Lowell Premium Ticking
    Power Loom.
    Yds.-
    ACA
    Warranted Indigo Blue.”)
    The complaint further stated, that the defendants for five years past had been extensively engaged in the city of New York in selling tickings, not manufactured by the plaintiffs, with a stamp or label on each piece, as last above described, in imitation of the plaintiffs, and used so as to sell such tickings as tickings made by the plaintiffs, and that the defendants have sold and do sell them as being the genuine tickings of the plaintiffs manufacture. That those so sold by the defendants, are of inferior quality to the plaintiffs, and the effect has been to depress the price and injure the reputation of the latter. Other damages were stated, and the loss to the plaintiffs estimated as at least $10,QUO ; while the defendants were charged to have realised by their sales, a profit of at least $4000 a year.
    The complaint prayed for an injunction against the defendants making, purchasing or procuring any marks, stamps, labels or tickets, of the kind so used by them ; and from using the same on any tickings in their possession, under their control, or offered or kept for sale by them or for their benefit; and from selling, offering for sale or keeping, any tickings with such label thereon; and from making, procuring or using, upon any tickings, any label similar to the plaintiffs, or an imitation of it, or having thereon the letters ACA; and from selling, keeping or offering for sale, any tickings so labelled, as the real ACA, which were not so, &c.
    The complaint prayed an account and judgment for profits made by the defendants, and for the plaintiffs other damages.
    Affidavits were attached to the complaint, in support of the facts stated, and showing that the defendants sold their tickings as the real ACA tickings, upon application for the plaintiffs A C A tickings.
    An injunction was granted, in the terms prayed by the complaint.
    The defendants answer, duly verified, admitted the plaintiffs manufacture, use of their labels and quality, of their goods. It stated that the designations of the various styles or kinds of domestic manufactures, shirtings, sheetings, drillings, tickings, &c., are usually made by the use of the letters of the alphabet; sometimes by one, sometimes by more than one, and in various combinations ; the same letters being used to denote one quality. The answer denied, that as to the plaintiffs or any other manufacturer, the letters used were understood, or deemed or reputed to be initials or abbreviations of the maker’s name, or the place of manufacture ; or that the letters A C A in reference to the plaintiffs tickings, were ever understood by the defendants, or as they believe by the trade or dealers generally, to mean “ A C,” the plaintiff’s name, and “ A,” first quality; or that their tickings are, or for five years past have been, known or spoken of as the ACA tickings, without the addition of the description Amoskeag ACA tickings, in the same manner as the defendants are known as the “ Lowell Premium ACA tickings.”

    That in all manufactures, articles found to suit the public, are made by as many as can find it profitable, and are made to resemble what has proved acceptable, in quality, surface, strength, beauty, &c. Such articles, when extensively made, require and derive designating names, which for public convenience, and without suspicion of unfairness, are used by all making the same style of goods. That every manufacturer of tickings, as well as the plaintiffs, makes tickings designated by the letters (A A) (A) (B) (C) (D); and in all cases the name of the maker or place of manufacture is the means of enabling purchasers and the public to choose between articles of similar quality derived from different manufacturers. That there are other tickings, known in the trade as Á O A tickings, besides those manufactured by the plaintiffs and defendants, and distinguished by the name of the establishment where made.
    The answer stated the defendants to be extensive sellers of domestic goods, as agents and otherwise. That from the fall of 1844, they have used the label on tickings, as set forth in the complaint, until May, 1850, with the full knowledge of the public and the plaintiffs, and without any complaint of the latter, until December, 1849. They deny that its use was intended as a fraud or imposition, or to sell their tickings as being made by the plaintiffs, or that any such effects were ever produced, or that they ever sold, or offered to sell them as the plaintiffs mark. They have sold theirs as the genuine ACA tickings, but with the designation always perfectly understood that they were Lowell, and not Amoskeag tickings. They traverse the inferiority or any injury from that cause, admit that the competition may have lessened plaintiff’s sales, and deny any liability for damages. They insist plaintiffs acquiescence since 1844. in their use of the label, ought to preclude the maintaining the action.
    That in December last, on being applied to by some one on behalf of the plaintiffs, not to use the label in question, as being similar to, and displeasing to the plaintiffs ; the defendants, notwithstanding their clear right to use it, at once consented to change it. Not deeming the matter urgent, and being pressed with business, they neglected it until early in May last, when, being reminded of it, they ordered a new label, which has been prepared, and they have used none of their old label since the 4th of May, nor sold any goods labelled with it since, except a small quantity labelled before the new one was procured. And that all this was known to the plaintiffs before they verified their complaint.
    (Fac-similes of the form of the defendants new label were subjoined. They are in red ink, with square borders, and the upper and lower lines printed parallel to the top and bottom. The words used are the same as in their former label. The letters used in the centre were as follows: one label with the letters A C A in large capitals, as before; one with A. A, in similar capitals ; one with A, and one with B; the two latter having smaller letters. The general appearance of the label ACA, independent of the words, was altogether unlike the plaintiffs label.)
    The answer further stated that the exposition of their former label in a conspicuous place on the pieces of ticking, made any attempt at deception idle, and no’such was ever made or thought of by the defendants.
    On this answer, a motion was made to dissolve the injunction. The plaintiffs read in opposition, numerous affidavits, to the effect that many dealers in tickings had been deceived by the defendants’ label, and tending to support the allegations of the complaint.

      D. Lord, for the defendants.

      A. F. Smith and W. Kent, for the plaintiffs.
   By the Court. Duer, J.

I am satisfied that this injunction ought not to be wholly dissolved, and equally so that upon the case, as it now stands, it cannot be sustained in the full extent to which it has been granted.

I shall first state the general rules that, as I conceive, belong to the subject, and then endeavor to apply those rules to the special facts in this case.

It has been said, that the doctrine of an exclusive property in trade-marks has prevailed from the time of the year books, (2 Keen, 218 ;) but it is certain that the jurisdiction, in relation to such marks, that courts of equity now exercise, is of recent origin. Originally the party claiming to be the owner of a trade-mark, was left to establish his right and seek his remedy in a court of law. Lord Hardwicke refused an injunction, in a case in which, at the present day, one would certainly be granted, and he accompanied the refusal with the remark, that he knew of no instance of granting an injunction to restrain one trader from using the trade-mark of another, and that, in his opinion, it would be of mischievous consequence to do so.” (Blanchard v. Hill, 2 Atk. 284.) The apprehension of mischievous consequences that this eminent judge felt and expressed, experience has shown to be groundless, and the doctrine which he rejected, is now established, and established, as all admit, upon just and rational grounds.

Every manufacturer, and every merchant for whom goods are manufactured, has an unquestionable right to distinguish the goods that he manufactures or sells, by a peculiar mark or device, in order that they may be known as his in the market for which he intends them, and that he may thus secure the profits that their superior repute as his,-may be the means of gaining. His trade-mark is an assurance to the public of the quality of his goods, and a pledge of his own integrity in their manufacture and sale. To protect him, therefore, in the exclusive use of the mark that he appropriates, is not only the evident duty of a court as an act of justice, but the interests of the public, as well as of individuals, require that the necessary protection shall be given. It is a mistake to suppose that this necessary protection can operate as an injurious restraint upon the freedom of trade. Its direct tendency is to produce and encourage a competition by which the interests of the public are sure to be promoted ; a competition that stimulates effort and leads to excellence from the certainty of an adequate reward. When we consider the nature of the wrong that is committed when the right of property in a trade-mark is invaded, the necessity for the interposition of a court of equity becomes still more apparent. He who affixes to his own goods an imitation of an original trade-mark, by which those of another are distinguished and known, seeks, by deceiving the public, to divert and appropriate to his own use, the profits to which the superior skill and enterprise of the other had given him a prior and exclusive title. He endeavors by a false representation, to effect a dishonest purpose ; he commits a fraud upon the public, and upon the true owner of the trade-mark. The purchaser has imposed upon him an article that he never meant to buy, and the owner is robbed of the fruits of the reputation that he had successfully labored to earn. In his case there is a fraud coupled with damage, and a court of equity in refusing to restrain the wrong doer by an injunction, would violate the principles upon" which a large portion of its jurisdiction is founded, and abjure the exercise of its most important functions, the suppression of fraud and the prevention of a mischief that otherwise may prove to be irreparable.

The principles that have now been stated as the foundation of the jurisdiction of the court, are clearly expressed or necessarily implied in nearly all the decisions ;|ánd I refer especially to j the language of the judges in Blofield v. Payne, 4 B. & Ad. 410, and in Crawshay v. Thompson, 4 Man. & Gr. 357; and to / the lucid opinions of the master of the rolls in Knott v. Cologan, 2 Keen, 213 ; and in Croft v. Day, 7 Beavan, 84. It is not, however, to be denied that the power of granting an injunction to restrain an unauthorized use of trade-marks, ought to be exercised with great caution, so as not to transgress the limits that a just regard to the rights of individuals and the interests of the public must be admitted to prescribe. It is not to be exercised where the legal right is disputed and is doubtful; it is not to be exercised so as to involve a violation of the principles upon which it is founded; it is not to be exercised so as to create a monopoly unjust to other manufacturers, and, of necessity, prejudicial to the public. The owner of an original trade-mark has an undoubted right to be protected in the exclusive use of all the marks, forms or symbols that were appropriated as designating the true origin or ownership of the article or fabric to which they are affixed; but he has no right to an exclusive use of any words, letters, figures or symbols, which have no relation to the origin or ownership of the goods, but are only meant to indicate their name or quality. He has no right to appropriate a sign or symbol which, from the nature of the fact which it is used to signify others may employ with equal truth, and therefore have an equal right to employ, for the same purpose. Were such an appropriation to be sanctioned by an injunction, the action of a court of equity would be as injurions to the public as it is now beneficial ; it would have the effect in many instances of creating a monopoly in the sale of particular goods, as exclusive as if secured by a patent, and freed from any limitation of time. The importance of the distinction that I have endeavored to explain, in its application to the present case will hereafter appear. At present, it is sufficient to say, that in all cases where a trademark is imitated, the essence of the wrong consists in the sale of the goods of one manufacturer or vendor, as those of another, and it is only when this false representation is directly or indirectly made, and only to the extent in which it is made, that the party who appeals to the justice of the court can have a title to relief.

It is evident, however, that in order to convey a false impression to the mind of the public as to the true origin or manufacture of goods it is not necessary that the imitation of an original trade-mark shall be exact or perfect. It may be limited and partial. It may embrace variations that a comparison with the original would instantly disclose, yet a resemblance may still exist that was designed to mislead the public, and the effect intended may have been produced; nor can it be doubted that whenever this design is apparent, and this effect has followed, an injunction may rightfully be issued, and ought to be issued.

To select a case of a very partial imitation. No person can be justified in affixing to his own goods, whether by stamp, label, or otherwise, the name or style of another person, firm, or company known to be the manufacturers of similar goods; although all other particulars contained in the real trade-mark of those manufacturers, may be wholly omitted. Such a use of the names or style of other manufacturers, is, generally speaking, conclusive evidence of a fraudulent intent; but even where no fraud can be justly imputed, where the use of the name or style originated in mistake, and not in design, although the party may be exempted from damages and costs, the continuance of the use may be justly restrained, since it involves a violation of a right of property, that if persisted in with a knowledge of the fact, would be fraudulent. In Millington v. Fox, 3 Mylne & Craig, 338, the defendants had stamped upon the steel which they sold, the words “ Crawley,” or “ Crawley Millington ;” not knowing or believing that these were the names of other manufacturers, and were stamped by them upon steel of their own manufacture ; but supposing that the words were descriptive of the particular kind or quality of the steel. Their mistake, however, was rendered apparent by the evidence, and upon this ground Lord Cottenham, while he wholly acquitted them of any fraudulent design, decreed a perpetual injunction. Such, I conceive, is the true explanation of a decision, the authority of which the learned counsel for the defendants strenuously denied, while on the other hand it was urged by the counsel for the plaintiffs as supporting a doctrine much broader than it appears to warrant.

Nor is it by any means necessary, in order to render the imitation of a trade-mark culpable, and justify the interference of the court, that it shall contain any forgery, (for as such, the act when intentional, deserves to be branded,) of the name of the owner of the original mark, or of the person from whom he derived his title. In addition to the name of the proprietor, the original mark may exhibit some peculiar device, vignette or symbol, stamped, printed or engraved, which he had a perfect right to appropriate, and which, as well as the name, was intended as a declaration to the public of his right of property, and was adopted as an additional security against its invasion. In an imitation of the original mark upon an article or goods of the same description, the name of the proprietor may be omitted, another name, that of the imitator himself may be substituted, but if the. peculiar device is copied, and so copied as to manifest a design of misleading the public, the omission or variation ought to be wholly, disregarded. Its objects, we may be certain, was not to communicate the truth, but to escape the penalty of falsehood; a fraud is intended, an unlawful gain is meant to be realized, but it is believed or hoped that an injunction may be avoided, and a claim for profits or damages be repelled. The fraud, however, if a court of equity is true to its principles, will be suppressed and its fruits be intercepted or restored.

My conclusions on this branch of the subject are, that an injunction ought to be granted, whenever the design of a person who imitates a trade-mark, his design apparent or proved, is to impose his own goods upon the public as those of the owner of the mark, and the imitation is such that the success of the design is a probable or even possible consequence ; and that an injunction must be granted whenever the public is in fact misled, whether intentionally or otherwise, by the imitation or adoption of marks, forms or symbols which the party who first employed them had a right to appropriate, and this for the plain reason that when a right of property has been thus acquired, it mxrst be protected.

It must not, however, be inferred from these remarks, that an injunction ought to be granted whenever there exists such a resemblance between trade-marks as may induce a belief in the mind of the public that they belong to, and designate the goods of, the same trader or manufacturer. It is not enough that the public may be misled, or has been misled. As already intimated, the resemblance must arise from the imitation or adoption of those words, marks or signs, which the person who first employed them had a right to appropriate as indicating the true origin or ownership of the article or fabric to which they are attached; and the resemblance, where it induces error and gives a title to relief, must amount to a false representation express or implied, designed or accidental, of the same fact. A trade-mark is frequently designed to convey information as to several distinct and independent facts, and therefore contains separate words, marks or signs, applicable to each, thus indicating not only the origin or ownership of the article or fabric to which it is attached, but its appropriate name, the mode or process of its manufacture, and its peculiar or relative quality. It is certain, however, that the use by another manufacturer of the words or signs indicative only of these circumstances, may yet have the effect of misleading the public as to the true origin of the goods ; but it would be unreasonable to suppose that he is therefore precluded from using them as an expression of the facts which they really signify, and which may be just as true in relation to his goods as to those of another. Purchasers may be deceivedj they may buy the goods of one person as those of another, but they are not deceived by a false representation: they are deceived because certain words or signs suggest a meaning to their minds, which they do not in reality bear and were not designed to convey. We may draw an illustration from the present ease. The goods of the defendants, to which their trade-mark is attached, are certainly tickings,” they are woven by a power-loom, and they are the first quality of the tickings which they manufacture or sell. Hence they have a perfect right to print or stamp upon their label the words 11 Tickings,” “ Power-Loom,” and “ First duality,” or “ Superfine,” nor can I believe that their right to do so would in the slightest degree be impaired or affected, were it proved that the plaintiffs had previously, and for a long series of years, used the same words in their own trade-mark upon similar goods, and had founded upon such use a claim of exclusive property. Nor would the case, in my judgment, be altered, should it appear that owing to these circumstances the plaintiffs tickings had become generally known in the market as “ Power-Loom Tickings,” or “ Superfine Tickings,” so as to induce a general belief that all tickings upon which these words were labelled, were in reality their manufacture. This error, however general, could never confer the right of property which it supposes to exist. The counsel for the defendants strenuously insisted that names cannot he appropriated, that a just title to their exclusive use can never he acquired, and he doubtless referred to those names, general or specific, of things, modes or qualities, which form a part of our common language, and which all of us therefore, have a right to employ when we wish to communicate the facts they are used to signify; and thus explained, the proposition, so far from being at all doubtful, is a certain, and in its application to cases like the present, a luminous and a guiding truth.

'" The positions that have been thus stated and illustrated, appear to me so evidently true, as not to require any support from authority; but the authorities are, in fact, numerous and decisive, and to a few of the cases I shall now refer.

The earliest case is Singleton v. Bolton, 3 Doug. 293. The plaintiff’s father, and after his death the plaintiff had been, for a long time, in the practice of selling a particular medicine, under the name of “ Dr. Johnson’s Yellow Ointment;” the defendant had commenced selling the same ointment under the same name, and for this supposed invasion of his exclusive right, the plaintiff brought his action. Although these facts were proved upon the trial, the plaintiff was non-suited, and the non-suit was ■confirmed by the court of king’s bench. Lord Mansfield, in giving the opinion of the court, said, that it was not pretended that the plaintiff had any exclusive right in the medicine itself, and the defendant had, therefore, an equal right to prepare and sell it under the same name that the plaintiff used, there being no evidence to show that he sold it as if prepared by the plaintiff; in other words, there being no false representation. In this case, the words Doctor Johnson” were the name of the inventor of the medicine, but by long use they had become a part of the proper name of the medicine itself, which name all persons had, consequently an equal right to employ.

The case of Canham v. Jones, 2 Ves. & Beames, 218, was decided by the vice-chancellor, (Sir Thomas Plumer,) upon the same principle. The bill was filed to restrain the defendant from preparing and selling a medicine called “ Yelno’s Vegetable Syrup,” and it asserted that the plaintiff had acquired an exclusive right in the medicine itself, and in the use of the name by which it was generally known. To this bill there was a general demurrer, and upon the argument the plaintiff’s counsel did not attempt to maintain his case upon the ground that he could justly claim an exclusive right in the medicine, but they insisted that he had acquired the right, by a prior occupation, of using exclusively the particular name by which the medicine was called, and that the defendant was guilty of a fraudulent invasion of this right, in selling the composition prepared by himself by the same name. The vice-chancellor was, however, of opinion that, as the plaintiff had no exclusive right in the medicine, it was a necessary consequence that he could have none in the use of its name, and therefore allowing the demurrer.

In Perry v. Truffit, 6 Beavan, 66, the plaintiff was the original vendor of a medicine which he labelled as “Perry’s Medicated Mexican Balm.” The defendant afterwards prepared and sold the same or a similar medicine, which he labelled as “ Truffit’s Medicated Mexican Balm.” The bill was in the usual form for an injunction and an account. An injunction was denied, but although the master of the rolls, when he refused it, retained the bill for the purpose of enabling the plaintiff to establish his right by an action at law, he was evidently of opinion that his legal right could never be established. His opinion evidently was, that as the words “ Medicated Mexican Balm” might be just as true a description of the medicine of the defendant as of that of the plaintiff, the former had an equal right to use them. This opinion seems to cover the whole ground. “ Balm” was the general, “ Mexican Balm” the specific name of the medicine, and the word Medicated” indicated its quality and the mode of its preparation. No action at law was brought by the plaintiff, plainly from the conviction of his counsel, that he could not succeed, and the bill was finally dismissed, with costs.

In Millington v. Fox, had the defendants been right in then-supposition that the words “ Crawley” and “ Crawley Milling-ton,” were descriptive only of the kind or quality of the steel upon which they were stamped, it is manifest, both from the arguments and admissions of the counsel, and the reasoning of the chancellor, that a perpetual injunction would not have been decreed.

I shall now proceed to apply the observations that have been made to the facts in this case. When I compare the original trade-mark of the plaintiffs with that set forth in the complaint, of which the defendants have' now relinquished the use, I find it impossible to doubt that the latter is a designed, elaborate imitation of the former. They are the same in form, size and color ; it is only by a very close inspection) that the ornamented border can be at all distinguished. In the centre of each we find the same words and letters in the same relative positions, “Power Loom”; “ yds.”; “ACA”; and the only differences are, that at the top, immediately under the vignette, the words “Lowell Premium Tickings,” are substituted, in the label of the defendants, for the words “ Amoskeag Manufacturing Company,” in that of the plaintiffs, and at the bottom the words “Warranted Indigo Blue,” for “ Amoskeag Falls, N. H.” ; variations scarcely impairing, far less sufficient to destroy, a general resemblance that was calculated to deceive the public, and by which the evidence is abundant and conclusive to show that many dealers have been, in fact, deceived. Under these circumstances, I cannot attach any importance to the denial by the defendants in their answer, of any intention to injure or defraud the plaintiffs. They acted with a design, and it would be absurd to suppose that this design had no further object than the mere imitation of the trade-mark which they copied. In attaching their simulated label to tickings resembling in appearance and quality those of the plaintiffs, they undoubtedly meant to gain an advantage in the sale; they meant to secure to their goods a preference in the market that they would not otherwise have commanded; nor can I understand how this advantage could be gained, unless their tickings were to be sold and purchased as those of the plaintiffs. Had they only wished to secure a preference to their goods, as their oivn, an imitation of the trade-mark of the manufacturers was worse than useless. It had a direct tendency to defeat that object, and it is manifest that had' such been their object, no such imitation would have been attempted or thought of. It would not have been attempted or thought of, but from the hope of gains it was to be the means and instrument of realizing. I cannot, therefore, escape from the conviction that the real motive of the defendants was an expectation of the benefits to result to themselves from the error of purchasers, and from the imposition upon purchasers that subordinate dealers would be tempted and enabled to practice; and I assent entirely to the observations of the vice-chancellor, in Coales v. Holbrook, 2 Sandford’s Ch. Rep. 586, that even where no false representation is directly made, the imitation of a trade-mark, prompted by such motives, is, in judgment of law, a fraud, the profits of which must be accounted for, and the continuance of which a court of equity is bound to inhibit.

It is said, however, and was strongly pressed upon the argument, that the defendants had provided an effectual security against the imposition of dealers, and the mistakes of purchasers, by substituting upon their label the words “ Lowell Premium Tickings,” in place of “ Amoskeag Manufacturing Company,” in that of the plaintiffs; but I cannot think so. I cannot think that this security is provided, or was meant to be provided, for not only may the substituted words, as is proved to have been the case, from their position, wholly escape the attention of purchasers, but when read, they may not have the effect of altering the belief that the general resemblance of the labels is calculated to produce. The words are exceedingly ambiguous ; they are not a declaration that the tickings are not manufactured by the plaintiffs, but are entirely consistent with the supposition that they are. As the label upon which they are found is, in other respects, that of the plaintiffs, they may well be construed as an assertion that tickings belonging to the plaintiffs, corresponding in quality with those to which the label is attached, had gained, at Lowell, the premium to which the words refer; nor is it at all improbable that many purchasers have thus understood them, and have believed that the very fact that such a premium had been gained, was the cause of an alteration in the label. If the defendants were personally asked, whether the tickings which they sell are the manufacture of the plaintiffs, it would be an equivocation to reply, abstaining from a positive negative, “ They are Lowell Premium Tickings.” And it is this equivocation which they stamp upon their label, and which they utter to all who purchase the tickings to which that label is attached. I do not pretend to know the exact meaning of the words “ Lowell Premium Tickings,” nor have the defendants or their counsel attempted to explain them. Their apparent meaning, that which at once strikes the mind, is, that tickings of the same fabric as those which the words are used to designate, in a competition at Lowell, had gained a premium, as the best quality of American tickings; and if this assertion is untrue, whether injurious or not to the plaintiffs, it is a fraud upon the public. It is possible that the defendants may attach a different meaning to the words, and that the meaning which they attach to them may be true : but if so, as the words are equivocal and are calculated to deceive the public, their use, until their true meaning is explained, ought to be discontinued, and, I hope, will be discontinued.

Were it in my power, however, to view the conduct of the defendants in a more favorable light than I am now able to do, could I wholly acquit them of any fraudulent intent, it still remains true that they have imitated and adopted those parts of an original trade-mark which the plaintiffs had a right to appropriate for the purpose of securing their own title as manufacturers, and that the public had been misled by the resemblance in the labels thus produced, and I have already stated that the concurrence of these facts is alone sufficient to render it the duty of tire court to interfere by an injunction.

The allegation that there has been such an acquiescence for some years on the part of the plaintiffs in the conduct of the defendants, as to bar the former from the relief they now seek, I cannot regard ; not only is the allegation sufficiently disproved, but I am satisfied that the doctrine of acquiescence operating as an absolute surrender of an exclusive right, is inapplicable to the case. The consent of a manufacturer to the use or imitation of his trade-mark by another, may, perhaps, be justly inferred from his knowledge and silence; but such a consent, whether expressed or implied," when purely gratuitous, may certainly be withdrawn, and when implied, it lasts no longer than the silence from which it springs ; it is in reality no more than a revocable license. The existence of the fact may be a very proper subject of inquiry in taking an account of profits, if such an account shall hereafter be decreed; but even the admission of the fact would furnish no reason for refusing an injunction.

As a necessary consequence of what has been said, I must retain all that part of the injunction which precedes the words “ or having thereon the letters A O A’,” to which I add the words u or being a colorable imitation thereof.” I borrow these last words from the form of the injunction which was granted and framed by the master of the rolls in Knott v. Morgan, and which he afterwards followed in Croft v. Day; and I adopt them, in the sense in which he doubtless employed them, as denoting such an imitation as is designed and calculated to mislead the public as to the true origin or ownership of the article or fabric to which it is attached.

I pass now to the question which the parties evidently consider as practically the most important, namely, whether the residue of the injunction shall be stricken out or retained? The injunction, as it now stands, prohibits the defendants from using any stamp, mark, or label, for or upon any tickings having thereon the letters “AC A,” and the propriety of continuing this prohibition in force, depends upon the fact whether the plaintiffs have shown an exclusive title to the use of these letters upon their own tickings as declaratory of their right of property as manufacturers. If they have, the prohibition must be retained, but if the letters “AC A,” as used by them, are merely an indication of the relative quality of their tickings, it must be expunged. As the plaintiffs could not have acquired by their prior occupation, an exclusive right in the use of the words “ First Quality,” or “ Superfine,” they cannot have acquired a right by similar means to an exclusive use of any letters, marks, or other signs, which are merely a substitute for the words, and intended to convey the same meaning. It is immaterial whether words, or letters, or figures, or any other signs, are used, if the' single fact which they are used to indicate or declare, is a truth that other manufacturers or dealers have an t qual right to express and communicate.

The complaint avers that the letters “ A C A” signify as follows : “A C,” Amoskeag Company, and “A,”best quality—and several of the witnesses, whose affidavits are produced, swear that the letters are so understood by them, and as they believe, are so generally understood. On the other hand, these allegations are explicitly denied by the defendants, who aver in their answer that it is the universal practice of manufacturers to distinguish the various qualities of their goods by one or more letters of the alphabet, and that the letters “AC A” in the label of the plaintiffs, are only used and intended to be understood as a declaration to the public, that the tickings to which the label is attached, are the best quality of those which they manufacture. Such are not the exact words, but such is the substance of the averments in the answer, and the conclusion to which my reflections have led me, is that these averments are true. I was doubtless of importance to the plaintiffs to make known to the public by a declaration in their label, that they are the manufacturers of the excellent tickings which they send into the market, and for this reason the name of their corporation Amoskeag Manufacturing Company,” appears. in full upon their label. The purchasers of the tickings either read these words or they do not; if they do, the letters “AC A,” even if they understand them as indicating the name of the company give them no additional information; if they do not, the meaning of the letters, if such is their meaning, will not be understood. To the first, the letters thus interpreted are useless, and to the second unintelligible ; it is a self-evident truth, that initial letters can never communicate the knowledge of a name to those who were previously ignorant of it. The only purpose they can answer. is that of recalling a name already known. Nor is this all; the letters “ A C,” considered as initials, would not probably have the effect even of recalling the name which they are said to signify; to answer this purpose, it is plainly necessary that the initial letter of each word comprising the name, whether of an individual or of a corporation, should be given, and this, where initials are used as the substitute for a name, is the universal practice. Here the letter “ M” is omitted, yet the word “ Manufacturing” is an essential part of the corporate name ; it is therefore highly improbable that the letters “ A C” were used by the plaintiffs in a sense in which it was most unlikely that others would understand them. They probably adopted these letters because they were partly the initials of their corporate name, but it is not, I am persuaded, for the purpose of signifying that name, and thus indicating their ownership that they employ them; their value and meaning is wholly different. The final letter “ A,” we are told, is alone used to designate the quality of the tickings; it alone signifies that they are the best quality of those which the plaintiffs manufacture; but if this were true, the letters “ A C” might be erased, and the final “ A” as a designation of that quality, would alone be sufficient. It is, however, admitted that such is not the fact. Another label which the plaintiffs attach to their tickings was produced upon the hearing, resembling in all respects that set forth in the complaint, except that the single letter “A” is found in the same place as the three letters “AC A,” and it was admitted that this label is only attached to tickings of the second quality—while that containing the three letters is reserved and is used exclusively for those of the' best. The conclusion is not to be resisted ; it is to designate the best quality of tickings that the three letters are used, it is this purpose which they answer, and none other.

The plaintiffs aver in their complaint that they have invented a stamp or label, the same which they set forth “ by which to designate the best quality of their tickings but how have they effected this object 1 Strike from their label the letters “ A C,” there is no such designation ; restore them, it is found. As the use of the three letters conjointly is therefore necessary to express the meaning which the plaintiffs admit that they intended to convey, I am forced to believe that it was for this purpose that they were first adopted, and are alone employed. It is doubtless true, as is stated in the complaint, and sworn in many of the affidavits, that the tickings of the plaintiffs, to which their ACA label is attached, have for many years been known in the market as the “ACA Tickings,” but this fact neither alters the meaning of the letters, nor takes from others the right to employ them. If the letters designate only the quality of the goods and not their origin or ownership, the tickings of the defendants, if the best quality of those which they sell, are as truly “ACA Tickings” as those of the plaintiffs. The words “ Power Loom” are found. upon the label of the plaintiffs, yet it is not contended that I could restrain the defendant from using the same words as they have done upon their own. If there exists a distinction, I am unable to perceive it. The claim of an exclusive right rests in both cases upon the same grounds; it is valid in both, or in neither.

Were my opinion upon this question less clear and decided than it actually is, I should still be unable to retain the injunction in its present form. The rule is fully settled and is recognized in nearly ail the cases that in suits of this nature an injunction is never to be granted in the first instance, if the exclnsive title of the plaintiff is denied, unless the grounds upon which it is denied are manifestly frivolous. When the title is disputed, the course is to let the motion for a,n injunction stand over until the plaintiff has established his legal right in an action at law. The obligation of following this general rule, was distinctly admitted by our late chancellor, in Partridge v. Menck, 2 Sandf. Ch. R. 622, 625 ; S. C. 2 Barb. Ch. R. 101. In Motley v. Downman, 3 Mylne & Craig, 14, where the rule was followed, Lord Cottenham uses the strong expressions that “ he cannot conceive a case in which the court will interfere at once by an injunction so as to prevent the defendant from disputing the plaintiff’s legal title.” The legal title of the plaintiffs in the present case to the exclusive use of these significant letters A C A, is denied, and certainly not upon frivolous grounds, since I have not understood the counsel for the plaintiffs to deny, that if the averments in the answer shall he sustained by proof, the title as claimed cannot be supported. By our present practice, I cannot direct an action at law to enable the plaintiffs to establish their right, for if I rightly understand the provisions of the code, the present suit is such an action, and in reality every complaint, whatever the nature of the facts set forth, or the relief that is sought, is at once a declaration at law, and a bill in equity. I can give to the defendants, however, the benefit of the general rule, by so modifying the injunction as not to restrain them from using the letters A 0 A, until the legal right of the plaintiff shall have been established by the verdict of a jury in this suit, and I am satisfied that it is this course that I should be bound to follow even were my opinion as to their legal right widely different from that which I have expressed. The injunction must therefore be modified by striking out all that part of it which commences with the words “or having thereon,” and ends with the words “ ticket or otherwise.” No costs are given to either party, and I presume none are desired.

I ought not to close this opinion without expressing my thanks to the counsel of the parties for the singular ability, learning, and candor with which they conducted the argument. The task of a judge, when thus assisted, is comparatively light and his errors hardly to be excused.

       The injunction was thereupon modified so as to leave the defendants at liberty ic use the letters A C A in their labels.


source: Caselaw Access Project

author: Vanderpoel, J.

license: Public Domain

text:
    Lee v. Averill.
    Under the act to abolish imprisonment for debt, a warrant for the arrest of the defendant, issued before the service of the summons by which the suit is commenced, is void.
    On discharging a party arrested under such a warrant, the judge cannot impose as terms, that he shall not bring an action.
    Nov. 1848.
    Motion before a justice of the court at chambers, to discharge a defendant from arrest upon a warrant issued under the act of 1831, to abolish imprisonment for debt in certain cases. The summons and complaint were delivered to the sheriff to be served on the defendant, before application was made for the warrant, but the warrant was issued, before either the summons or complaint were served. In fact the sheriff served all three at the same time.

      J. W. Gilbert, for the defendant.

      P. Reynolds, for the plaintiff.
   Vanderpoel, J.

The warrant was clearly void. Section 106 of the code (of 1848,) applies, and the suit was not commenced when it was issued. The 79th section relates merely to saving the statute of limitations. The defendant must be discharged. I am asked to impose as a condition that he will not sue for false imprisonment, but I have no control over the matter.

Defendant discharged.


author: By the Court.

text:
    The Spring Valley Shot and Lead Co. v. Jackson & Robins.
    Where a plaintiff, claiming over four hundred dollars, on the proof in the cause appears to be entitled to less than two hundred dollars, and by reason of set-offs recovers less than fifty dollars, he is not entitled to the costs of the suit.
    The words “ claim established at the trial,” in the statute regulating costs, mean a claim so proved and established that it will entitle the plaintiff to judgment, unless it be reduced by a set-off. Establishing the claim presumptively, will not suffice, where it is defeated by counter-proof.
    December 30, 1848.
    Appeal from the decision of one of the justices at chambers, awarding the costs of the suit to the defendants. The suit was upon a guaranty dated April 27, 1847, by which the defendants became liable for all sums of money which might be received by Robins & Allen, of Boston, the plaintiffs agents, as the net proceeds of shot or other property which might be consigned to that firm for sale, by the plaintiffs. The agency terminated January 25,1848, and the plaintiffs claimed that there was due to them a balance of $414 51, for shot sold and unaccounted for by Robins & Allen. The cause was tried before referees, who reported $41 76 as due from the defendants to the plaintiffs.
    On the trial, the plaintiffs proved by the accounts rendered by Robins & Allen, that there was a balance of shot to the above amount, unaccounted for. The principal item which went to constitute this balance, was a parcel of 248 bags of shot of the net value of $347 20.
    On the other hand, the defendants proved that the proceeds of sales accounted for by Robins & Allen, within the period covered by the guaranty, exceeded the entire amount of the consignments within the same period, by the sum of $98 38. From the account thus proved, an item of $120, claimed to their credit by Robins <fc Allen, was disallowed by the referees.
    It was proved by the defendants, that the 248 bags of shot were forwarded before the date of the guaranty, and were not in Robins &. Allen’s hands at or after the date of the guaranty; and the plaintiffs’ claim for the same was disallowed by the referees.
    Besides the $120, with which the referees charged the defendants, they disallowed a claim of 20 14 for commissions, made by Robins & Allen.
    The result was, that the plaintiffs, claiming a balance of $414 51, succeeded in having allowed to them $120, and the defendants claiming $98 38, were allowed $78 24 ; and for the balance, $41 76, the plaintiffs recovered.

      J. C. Smith, for the plaintiffs,
    referred to 2 R. S. 226, § 4, subdiv. 4; 2 lb. 614, § 9.

      A. Williams, for the defendant,
    cited Matteson v. Bloomfield, 10 Wend. 555, and note to that case.
   By the Court.

The statute allows costs to the plaintiffs, where he shall recover any sum in a court of record, if it appear that his claim, as established at the trial exceeded two hundred dollars, and the same was reduced by set-offs ;—or that the debts, demands and accounts of both parties established on the trial, exceeded four hundred dollars. (2 R. S. 614, § 9.) The act regulating courts of justices of the peace, precludes those courts from taking cogniza ce of matters of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars. (2 lb. 226, § 4.)

This expression does not differ essentially from that used in the act respecting costs. The right to costs in this case, turns upon the construction of the word “ established,” in the statute. The plaintiffs made out by their opening pi oof, a claim to the amount of over four hundred dollars, but the proof on the part of the defendants showed that their claim was in fact less than one hundred and fifty dollars. It was not reduced by set-oils ; and the accounts of both parties claimed at the trial, as actually made out by all the evidence, were less than four hundred dollars.

The spirit of the cases cited from 10 Wendell, and the language of the acts, show that the expression “ established at the trial,” do not mean, a claim that shall be proved prima facie merely, but one so proved and established, that a judgment will be given upon it, unless a set-off prevents. If a claim presumptively made out, be defeated by counter proof, it is not established within the meaning of the statute ; whether such defeat be occasioned by contesting the claim itself, or by proof of payment. If the claim proved were over two hundred dollars, and were reduced by set-offs, the plaintiffs would be entitled to costs.

The appeal must be dismissed.


text:
    Gouverneur and another v. Warner.
    The plaintiff in a judgment, who has filed a creditor’s bill, and obtained a receiver of the defendant’s property, will not be permitted to levy an alias execution on personal property covered by such receivership.
    A levy made thereon, will be set aside on the defendant’s application, unless the plaintiff will waive his receivership and dismiss his creditor’s suit.
    Dec. 30, 1848.
    Appeal from an order made by one of the justices at chambers. The affidavits disclosed these facts: On the 29th of November, 1848, the plaintiff issued an alias fieri facias on the judgment in this cause, to the sheriff of the county of Putnam, by virtue of which the sheriff levied on certain household furniture, and other chattels, formerly belonging to the defendant, but which he had some years before transferred to F. L. Warner, in whose possession they were.
    In March, 1848, on the return of a previous execution wholly unsatisfied, the plaintiffs exhibited a creditors bill against the defendant in the supreme court in equity, which was put at issue by answer and replication in June. The usual order for a receiver was made in the suit, and a receiver was appointed, to whom the defendant, on the 13th of April, under the direction of the referee, executed the customary assignment of all his property and effects of every description. The plaintiffs proceeded in the creditor’s suit, and examined the defendant at great length, before the referee, touching this personal property, and also in like manner examined F. L. Warner as a witness on the same subject. After this, the reference was no farther proceeded in, and the creditor’s suit had been suspended for some time before the alias execution was issued.
    Upon this state of facts, the defendant moved to set aside the execution, or for other relief. The justice at chambers made an order that the levy be set aside and the execution stayed as to the furniture and chattels in question, unless the plaintiffs should elect to dismiss their bill in equity and vacate their receivership of the property. The plaintiffs appealed-

      Jona. Miller, for the plaintiffs.

      H. H. Warner, for the defendant.
   By the Court.

As we understand the effect of the plaintiffs proceedings in equity, the assignment to the receiver vested in him all the title and interest which the defendant had in this personal property, when the bill was filed. If the defendant had any interest, upon which an execution could then be levied, it was transmitted to the receiver. The alleged fraudulent transfer of the goods, though valid against the defendant, could not prevent his creditors from proceeding to vacate it in the name of any person to whom his title was passed by operation of law. An assignee in bankruptcy or insolvency, as well as a receiver in a creditor’s suit, may proceed to set aside the fraudulent transfer. In this case, the plaintiffs had two remedies under their equity proceeding, to reach the property in question. They could amend their bill and make F. L. Warner a party to the suit; or they could institute a distinct suit in the name of the receiver, to set aside the alleged fraudulent conveyance.

We think they were not at liberty to go back, and treat the property as being still vested in the defendant, and resort anew to-an execution at law, pending their suit in equity.

The authorities to which the plaintiff’s counsel referred, are not applicable, for the reason that in them there had been no-transfer to a receiver, and the plaintiffs, by their suit in equity, had acquired no more than an equitable lien.

It was objected to the motion, that the defendant, has no interest in the matter, and that a motion in his behalf ought not to be entertained. In this the plaintiffs are clearly mistaken. A motion to set aside an execution for irregularity, can only be made by the defendant. The court will not hear a stranger on such an application. And there may be very good reasons why in this case, the defendant should not have two distinct remedies pursued against him for the same matter, at the same time.

The defendant insists that the order at chambers should have been absolute, for the reason that the plaintiffs had already made their election to proceed in equity. We need not review the order on this point, as the defendant has not appealed.

Appeal dismissed.


author: By the Court. Sandford, J.

text:
    Fuller v. Emeric and others.
    The writ of ne exeat, or equitable hail, is abolished by the code of procedure.
    Arrest and [bail, as provisional remedies in civil actions of an equitable nature, can be obtained only in the cases, and in the manner, prescribed by the code.
    Jan. 13th ;
    Jan. 20th, 1849.
    ' This was a motion to discharge the defendant Emeric from arrest, &c., under an order made by Sandford, J., on the 10th day of August last, in the nature of a writ of ne exeat. After •the defendant was arrested, and on the 17th of August the same justice made an order discharging Emerie from custody, on his executing an undertaking, in $2000, with surety, conditioned as provided in respect of bail in the code of procedure. The defendant gave an undertaking accordingly.
    The complaint set forth the existence of a partnership between Emerie and Fuller, in merchant tailors goods ^ that the firm and the partners had become insolvent; that Emerie, at the same time, had conducted an extensive mercantile business on his sole account; and on the failure, had, without Fuller’s ■consent, and against his wishes, executed an assignment of all his own property and of all the property of Fuller and Emoric, to one St. Felix, in trust for his creditors, giving a preference to debts contracted by him in his sole business. That since the assignment, Emerie had taken off two thousand dollars of the property of Emerie and Fuller, with the avowed intention of applying it to his own use; and he had also declared that he would remove with his family to Havanna, if any legal proceedings were instituted against him.
    The residence of Emerie was at Rahway, New Jersey; his place of business was in the city of New York.
    The affidavits in support of the defendant’s motion denied the ■taking of any property after the assignment, and denied that he had ever intended or threatened to remove his family to Havanna, or elsewhere. He also denied that the arrangement between Fuller and himself, constituted F. a partner.

      E. C. Benedict, for the plaintiff.

      E. Sandford and F. R. Tillou, for the defendant.
   By the Court. Sandford, J.

The code of procedure declares that it is expedient to abolish the distinction between legal And equitable remedies, and thereupon enacts that all remedies in courts of justice, shall consist of two classes, viz., actions and ■special proceedings. Actions are divided into civil and criminal,

This suit is therefore a civil action, as defined andestablishsdi by the code of procedure.

The seventh title of the code is devoted to “ the provisional remedies in civil actions,” and three are treated of at large. These are, 1. Arrest and bail; 2. Claim and delivery of personal property -f and, 3. Injunction. Under the first head, section 153, provides that “no person shall be arrested in a civil action, except as prescribed by this act.” Some exceptions are made, which are not applicable to this case. The' chapter then proceeds to define the cases in which the defendant may be arrested, and the manner of obtaining such arrest. The complaint in this case was not framed to set forth either of the cases defined in the cede, and in sustaining the arrest made, but little reliance was placed upon this ground.

The defendant’s arrest was upon an order of a justice of the court, in the nature and form of a writ of ne exeat, as practised in the late court of chancery. It directed the sheriff to cause the defendant to come before him and give sufficient bail or security in two thousand dollars, that' he would not depart out of the jurisdiction of the state, &c., and in default of such bail, to commit him to the common jail until he should do it of his own accord.

The effect of the order was, to arrest the defendant, in a civil action, and as we will assume, in a case for which the chapter of the code, touching arrest and bail, does not provide.

It is contended that chapter fourth of the same title (Code, ^ 200,) left the practice of issuing ne exeats in full force, and the order in question was made upon that understanding. The chapter is entitled “ Other provisional remediesand it enacts, that until the legislature shall otherwise provide, the court may appoint receivers, &c., “ and grant the other provisional remedies now existing, according to the present practice,; except as otherwise provided in this act.”

On full consideration of the point, we are all agreed that this section dqes not save the process of ne exeat. That process was one for the arrest of a party in a civil action. The 153d section is'positive that no such arrest shall be made, except as prescribed by the code. The code does not prescribe a ne exeat, and it prescribes the specific cases in which parties may be arrested, not including the case made by this complaint. The reservation of other provisional remedies, in § 200, seems to be intended for remedies other than those provided by the code itself; and if that be not the necessary inference, the concluding paragraph, “except as otherwise provided in this act,” is a plain declaration that where the act gives a provisional remedy, and makes it applicable to all cases in which such remedy is permissible, the corresponding existing remedy according to the practice when the act took effect, is superseded.

The first report of the Commissioners on Practice and Pleadings, (page 161,) shows that it was their intention by the code, to abolish the writ of ne exeat, or equitable bail, not at a future time, but manifestly by the bill accompanying their report. We think the act, as enacted by the legislature, carried this intention into effect. We find no good reason for supposing that the provisions for arrest and bail, were intended for legal rights and claims, to the exclusion of those which are of an equitable character. They apply to all “ civil actions,” which term embraces an equity suit between partners, as well as a case of trover and conversion.

The defendant must be discharged, and his undertaking returned to him to be cancelled, on his relinquishing all supposed rights of action growing out of his arrest.


text:
    Allen v. Johnson.
    On an appeal from an order made by a justice at chambers, it is not necessary to execute an undertaking under the code of procedure.
    January 20, 1849.
    On an appeal from an order made by one of the justices at chambers, the respondent insisted that the appeal was irregular and should be dismissed, because no undertaking had been filed. The order appealed from, struck out parts of the answer in the cause, as redundant and immaterial.

      N. B. Blunt, for the respondent.

      L. R. Marsh, for the appellant.
   By the Court.

If it be necessary in appeals under the 299th section of the code of procedure, to give the security prescribed on appeals from judgments, it is quite apparent that it will be extremely inconvenient, and greatly embarrass the business of the court. The orders made by a justice at chambers, are often necessarily made without much discussion or time for deliberation, and we have been in the habit of reviewing them very freely before the whole court.

We have come to the conclusion, on examining the code, that it is not necessary to give security on such appeals. The section says these appeals may be taken “ in like manner''' as those from final judgments. This language has full effect, if we apply it to the appeal itself, as distinguished from giving the security. The section regulating appeals from judgments, (s 297,) plainly recognises this distinction. So the 275th section declares how appeals in general shall be made, and the giving of security is no part of the requisition. That is required in certain classes of appeals, by distinct sections.

We think there is no occasion for extending the giving of security to appeals from orders made by a single justice, and that a true interpretation of the code does not require it.


text:
    Sheldon v. Allerton and others.
    The allowance in addition to the costs, under section 263 and 264 of the code of procedure of 1848, will be what the court deem a reasonable and moderate counsel fee in the cause.
    January 20, 1849.
   In this case the suit was for the foreclosure of a mortgage. There were numerous parties defendant, three of whom put in separate answers. The cause was noticed for trial, and finally an inquest was taken for about three thousand five hundred dollars as the amount due. The plaintiff claimed an allowance under the code in addition to the costs, and the court, after hearing the defendants’ counsel, allowed him two per cent, on the amount recovered. The court held, that in making these allowances, it would be governed by what appeared to be a reasonable and moderate counsel fee under the circumstances of each case.

H. P. Hastings, for the plaintiff.

A. L. Pinney, for the defendants.


author: The Court

text:
    Duffy v. Morgan.
    On an appeal from a justice’s court, it is not proof of the non-residence of the respondent, to show that she could not be found at her place of residence, and it could not be ascertained where she was staying.
    January 20, 1849.
    Motion to dismiss an appeal from one of the assistant justice’s courts, on the ground that the copy of the affidavit for the appeal was not served on the respondent, within the time limited by section 304 of the code of procedure. The copy was served" on the attorney for the respondent, within that time ; and it was stated in the affidavits of service, that the appellant used great diligence to make the service on the respondent. That he called at the respondent’s place of residence in this city, and could not find her there ; was referred to another house, ivhere it was said she had gone to service, and on calling there, was told they did not know where she was ; and finally that she could not be found within the twenty days.
   The Court

held this evidence to be insufficient to show that the respondent was not a resident of the city of New York, and dismissed the appeal.


text:
    Williams v. Cunningham.
    An appellant from a justice’s court, must in his affidavit, point out specifically, on what point or ground, he alleges the judgment to be erroneous.
    January 20, 1849.
    Motion to dismiss an appeal from an assistant justice. The affidavit of the appellant stated the proceedings and the testimony in the court below, but did not specify any particular ground on which he appealed.
   The Court

said, the code requires this expressly. (Code of 1848, § 303.) The appellant must put his finger on the point relied upon, or distinctly inform his adversary on what ground he alleges that there is error in the judgment.

Appeal dismissed.

         In a subsequent case, Sullivan v. McDonald, April 28,1849, the affidavit set forth Various objections as having been taken at the trial and overruled, but did not'state the grounds on which the party appealed.
      The bouRT dismissed the appeal because of this omission.


author: By the Court. By the Court.

text:
    Gardner v. Kelly. Ahsbahs v. Coussin.
    A plaintiff residing out of the city of Hew York, though within this state, must give security for costs, notwithstanding the court may issue executions against property to any county in the state.
    This rule applied to a certiorari brought to reverse a justice’s judgment.
    The code of procedure does not repeal the revised statutes relative to security for costs.
    A defendant who has been let in to defend, after a default and judgment, the latter standing as security, may require security for costs from a non-resident plaintiff.
    Jan. 27, 1849 ;
    also March 10, 1849.
    These were motions for security for costs, heard at bar. In Ahsbahs v. Coussin, the case was pending on a certiorari to the marine court The plaintiff in error resided in the city of Brooklyn.

      C. A. Rapallo, for the defendant in error,
    cited Laws of 1828, ch. 137, § 5, 13, 14, 22 ¿ Laws of 1840, ch. 386, § 29, 30 ; Laws of 1844, ch. 104, § 5, 7; Code of Procedure, § 39, 241 to 243, 246 ; 2 R. S. 620, § 1.

      J. T. Brady, for the plaintiff in error.
   By the Court.

This motion presents the question whether a person residing in the city of Brooklyn, is bound to give security for costs, on prosecuting a certiorari in this court, to reverse a judgment against him in one of the inferior courts. Formerly there was no question about it, but it is supposed that the change made in the law as to issuing executions from this court to the other counties of the state, has worked a change in the application of the revised statutes to plaintiffs prosecuting in She court, though residing out of the city of New York. We do not see that these provisions in the act of May 14,1840, affect the case. The act has made no change in the jurisdiction of the court, properly so called. The jurisdiction is precisely as it was before. Certain remedies have been added, for the enforcement of its judgments. But no remedy against the person of judgment debtors has been added. We think the practice must remain as it has always been considered, and non-residents of the city must give the security if required.

Motion granted.

In the other cause, Gardner v. Kelly, March 10, 1849, the question was presented to the court again, in an action commenced by a non-resident, and it was contended that by the code of proceedure, the statute requiring security for costs, was repealed or abolished.

By the Court.

The code of procedure, (section 258,) repeals all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions. The provision for security for costs, is a title of a chapter of the revised statutes entitled, “ Of costs and fees of officers —which chapter establishes the rate of costs in civil actions. Is this provision entirely swept away by the code, or is the latter confined to such parts of the previous statutes as regulate costs, as between the parties, and in respect of attorney and counsel fees 1 The repealing clause does not apply to this title by name ; and we think the title is not affected by the code. A provision for security for costs, does not affect costs themselves, or regulate them. It is a distinct and independent subject. Although there has been a default and judgment, and the latter stands as security, while the defendant is let in to defend; we think he is entitled to require security for costs. It is not an application to the favor of the court, but a statute right. It might have been imposed at the time, as terms of opening the default, that he should not require security, but it is too late now.

Rule accordingly.

       In a subsequent case, Phœnix v. Townshend, the plaintiff, who resided in the county of Cayuga, at the commencement of the suit, subsequently assigned the demand in suit to a resident of the city of New York, and this fact was set up in opposition to a motion for security for costs. Campbell, J., nevertheless decided that the plaintiff must give security for costs.


text:
    Whitney v. Bayard.
    On an appeal from a justice’s court, the judgment will be reversed by default, if the respondent do not appear to argue the appeal.
    Jany. 27, 1849.
    In this case, the respondent did not appear, on the appeal being moved, and the question was raised, whether under the code of procedure, this court would reverse the judgment below by default, or must look into the case on an argument ex parte.

   The Court

said the appeal is a mere substitute for the former certiorari, to bring up the judgment for review. On the certiorari, error was assigned in form, and judgment was always reversed by default, if the defendant in error did not appear. In the affidavit for the appeal, there is a regular assignment of errors required by the statute. The legal effect of the proceeding is the same as before. The nature of the case is not changed, and the practice must be the same.

Judgment reversed by default.


author: Vanderpoel, J.,

text:
    Warner v. Wigers.
    Where there are issues of law and fact, and the cause is brought on for trial of the latter, the court will then determine whether it shall be tried before the issue of law is disposed of.
    Ilf tried without objection, it will be deemed to have been first tried by the order of the court.
    February 9, 1849.
    There were issues of law and of fact in this case. Both parties noticed the cause for trial at the trial term, and it was tried on the issue of fact, without objection. It was now contended that this was irregular, and that the verdict should be set aside, because the issue of law was not first disposed of, pursuant to section 206 of the cede of procedure. (Laws of 1848.)
   Vanderpoel, J.,

after advisement with his associates, held that both parties having concurred in bringing on the trial of the issue of fact, thus consenting to that course; it must be deemed to have been tried first by the order of the court, within the meaning of the code.

He said that it was the opinion of all the justices of the court, and such will be the practice in future, that whenever a cause was moved on the trial calendar, in which there was an issue of law pending, the court will then determine whether the issue of fact shall be first tried or not. And it is not necessary to obtain a previous order on the subject.


text:
    Dunham v. Nicholson.
    An action in the nature of the former creditor's suit, may be maintained, where an execution was issued and returned unsatisfied before July 1, 1848, when the code of procedure took effect.
    Such a suit is not an action on the judgment, within the meaning of the prohibition in the code.
    A frivolous answer in such a suit, stricken out on motion, and an order for judgment made, with a direction for the examination of the defendant touching his property.
    February 24, 1849.
    Appeal by the defendant, from an order made by one of the justices at chambers,' striking out the answer of the defendant as frivolous, directing that the plaintiff have judgment, and that the defendant appear before one of the justices of the court, and submit to an examination on oath touching his property and the judgment to be given, with léave to the plaintiff to examine witnesses thereupon. The complaint was in substance the same as the former creditor's bill in the court of chancery, on a judgment and the return of an execution unsatisfied.
    The execution was issued May 13th, 1848, after the enactment of the code of procedure. The points made appear in the decision.
    J. T. Brady, for the appellant.

      J. S. Sandford and M. Porter, for the respondent.
   By the Court.

It is insisted that under the code of procedure, a complaint in the nature of a creditor’s bill, will not lie. We find however, that the supplemental act, (Laws of 1848, ch. 380, § 2,) does not apply the provisions of the code for proceedings after execution, to. existing suits, except where the execution was issued after the code took effect. The language is, “ executions hereafter issuedwhich means, not after April 12, 1848, the date of the passage of the act; but after July 1, 1848, when the act went into operation and from which date it speaks.

It is quite clear therefore, that there could be no proceeding had under the code, for the examination of the defendant, founded upon the return of this execution. As to the argument founded on the abolition of bills of discovery, (Code of 1848, 5 343;) that provision does not apply to the examination of a debtor touching his property, but to the ordinary discovery sought by bills and made by answer. This proceeding is in aid of an execution on a judgment already obtained. The creditor’s suit in respect to existing cases, is not in terms abolished, and there is no other remedy open to the plaintiff. All existing remedies not inconsistent with the code, were retained.

' Again, it is said this is an action on a judgment, which is prohibited by section 64 of the code of 1848. We think it is not such an action, within the meaning of that section. Though it assumes the form of an action, it is really a proceeding to carry out an existing judgment, and to aid the process issued upon it. We have no doubt the suit was properly brought.

The answer put in was clearly insufficient as an answer under the old system, and it was properly stricken out. As to the examination directed, there is no reason for applying a different rule from that formerly prevailing. There might be a personal examination of the defendant under the code, if the answer had stood, and no more is directed by the order.

Order affirmed-


author: By the Court. Oakley, Ch. J.

text:
    McCafferty v. Kelly.
    On an appeal from a justice’s court, the court below must make a return of all the testimony and proceedings, where a return is ordered. It is not sufficient to make a return as to the particulars in which the affidavits are conflicting.
    February 24, 1849.
    This was an appeal from the marine court. On moving the cause for argument, it appeared that the affidavits were conflicting in some particulars, and a return had been ordered. The return made by the court below, set forth only the testimony in respect of which the parties differed in their affidavits.

      P. Mulvey, for the appellant.

      Nash & Donohue, for the respondent.
   By the Court. Oakley, Ch. J.

The court below must make a return of all the testimony and proceedings, when a return is ordered, although the affidavits conflict only in a few particulars. Such is the provision of the code. When a return is made, we look solely to that. We cannot look into the affidavits also. If the return here, be insufficient to present the whole case, the parties must call for a further return.

A further return was ordered.


text:
    Gihon v. Fryatt & Campbell.
    On a motion to set off one judgment against another, the effect of which will be to deprive the attorney of one of the parties of his costs, the court will dispose of the motion according to its views of what is right, under the circumstances.
    Where the judgment sought to be extinguished in such a case, was for costs only, the court refused to order a set-off.
    March 10, 1849.
    This was a motion by the plaintiff to set off a judgment for costs, about to be entered in favor of the defendants, against judgments held by the plaintiff against those parties. The facts appear in the judgment of the court.
   By the Court.

Gihon sued Fryatt & Campbell, and a judgment in case of a nonsuit was rendered against him. The judgment is not yet entered, or the costs taxed. It appears that Gihon is the owner of former judgments obtained by him against Fryatt & Campbell, and now moves to set off enough of those judgments, against the one about to be entered in this suit for costs, to extinguish the amount of the latter. The motion presents the question how far the court, in such a case, will protect or regard the attorney’s costs of suit. The subject was before us some time since, in Smith v. Lowden, 1 Sand. 696, and the principle was stated that where the application is by way of motion to set off the judgments, we will dispose of each case according to our own views of what is right upon the circumstances.

When the question arises on pleadings in a suit, the rules of law must govern ; but where the application is to the discretion of the court, we will decide it as shall be just. The court cannot fail to see, that although technically the costs belong to the party, yet in point of fact they belong to the attorney, and we mean to adhere to the rule giving effect to the substantial rights of the parties.

Here all the judgment (it being a judgment in case of nonsuit,) really belongs to the attorney.

Motion denied.


text:
    Short v. May.
    The court will permit a plaintiff to file a reply, after the time limited in an order to file it or that the same be deemed abandoned, where the omission is explained. So, where a copy was inadvertently filed instead of the original.
    March 10, 1849.
    The defendant obtained an order that the plaintiff file his reply within ten days, or that it be deemed abandoned. The plaintiff inadvertently filed a copy, instead of the original reply, and the defendant thereupon applied for an order that the reply be deemed abandoned. The plaintiff asked leave to file the original reply. The defendant contended that the court had no power to relieve the plaintiff, and that the statute was imperative.
   The Court

held that such a strict construction was not requisite. The statute established a general rule, which must be conformed to; but it did not deprive the court of a discretion to remedy the consequences of such an inadvertence. That the provision was in its nature directory. Plaintiff allowed to file the reply on the payment of costs.


author: Oakley, Ch. J.,

text:
    Brockway v. Stanton.
    A party residing out of the state may be examined as a witness, on a commission, at the instance of the adverse party.
    March 17, 1849.
    Motion by the defendant, for a commission to examine the plaintiff as a witness; the latter residing in the state of Pennsylvania, more than one hundred miles from this city. It was contended that the code does not authorise such a commission.
   Oakley, Ch. J.,

after advising with his associates, decided, that as the code provides for the examination of a party as a witness, and that he may be compelled to testify in the same manner as any other witness, either at the trial, or conditionally or on a commission; there is no doubt that the commission ought to issue in this case.


text:
    Swift v. Falconer and Jewett.
    In an assistant justice’s court, the plaintiff must prove his demand although the defendant interposes no defence. The default does not admit the plaintiff’s claim.
    March 10th;
    March 7th, 1849.
    Appeal by the defendants from a judgment in one of the assistant justices courts ; where the plaintiff recovered in an action upon a previous judgment. The amount of the latter was set forth in the complaint below. The defendants pleaded three pleas, which the justice on a subsequent day, struck out as frivolous on the plaintiff’s motion, and thereupon without any testimony or proof being given or offered, rendered a judgment for the amount of the plaintiff’s claim.

      E. C. Gray, for the appellants.

      S. Jones, Jr., for the respondent.
   By the Court. Oakley, Ch. J.

It is claimed in support of this judgment, that under the code of procedure, the complaint is admitted, in a justice’s court, if the defendant suffer a default or otherwise fail to make a defence to the action; and that the plaintiff is thereupon entitled to a judgment for his demand set forth in his complaint, without any evidence or proof whatever. In short, that in this respect justice’s courts are put upon a footing with courts of record.

We think this is not the law. No copy of the complaint is served with the summons, and it would not be safe to permit the practice insisted upon. If, as we are told, such a practice has prevailed to some extent in this city, we can only say, it is time that it ceased. We think the code has wrought no change in this respect.

Judgment reversed.


author: By the Court. Sandford, J. By the Court. Oakley, Ch. J.

text:
    Renouil v. Harris.
    In the city of New York, where each party names a referee under the code, and those two referees name a third; the latter becomes a referee and may act without any rule or order of the court.
    A defective appointment of referees, is waived by proceeding to trial before them without objection.
    An order referring “ the cause,” refers the whole cause, including the issues of law and fact.
    If the report omit any one issue, an amendment will be allowed.
    The prevailing party may enter judgment on the report of a referee, without any notice of the report to the adverse party, or any notice other than that of adjusting the costs by the clerk.
    The attorney has nothing to do with making up the judgment roll. That is th& duty of the clerk, and an irregularity, such as omitting a pleading, will not vitiate the judgment or execution.
    The judgment roll is not irregular because it omits the case made by the referees %• where there is no stay, the roll will be perfected before the case is made. If necessary, the court will order it to be annexed to the roll subsequently.
    The court cannot directly or indirectly, enlarge the time limited by the code for appealing from an order or judgment.
    A motion to set aside a judgment for irregularity, does not suspend the time foir appealing; and if the time elapse before the motion be decided, the right to appeal is lost.
    April 28 ;
    and again, Nov. 24, 1849.
    (Before Oaxlet?, Cb. J., and Vanhertoel and Sandfoiq, Justices.)
    Motion to set aside report of referees, the judgment and the judgment roll, and the execution issued thereon.
    " The suit was commenced in July, 1848, for an account and payment of a balance claimed by the plaintiff from the defendant as his late co-partner. The answer set up various defences, and a replication was filed, taking' issue.
    The cause was referred by an order of the court appointing two referees; one selected by each of the parties. The two referees thus appointed, united in choosing a third referee, hut there was no rule or order of the court, on his appointment.
    The referees proceeded to hear the cause, and on the 14th of February, 1849, a majority of them reported a balance of $251 46, due to the plaintiff. The report determined several distinct matters of fact and law, which were put in issue or presented by the pleadings ; but it was contended by the defendant, that there were other questions of law raised on the pleadings, upon which the referees ought to have reported specifically.
    Ho notice of the signing or filing the report, and no copy thereof was served on the defendant or his attorney; but on the 22d of February, service was made on his attorney of a notice that the plaintiff would, on the 24th, apply to the clerk of the court, to adjust the bill of costs and incorporate it in the judgment obtained in the suit. The defendant’s attorney attended on the taxation of the costs. On the same 24th of February,'the plaintiff fifed the report of the ieferees, and the clerk entered the judgment. He also attached together, the complaint, summons, report, and all the other papers required by the code, to constitute the judgment roll, (which roll had then been prepared in form,) except the answer, which the clerk could not find on file; and filed the same as a judgment roll. The clerk furnished to the plaintiff’s attorney, a transcript of the judgment as entered in the judgment book, who filed it with the county clerk, and on the same 24th of February, issued an execution thereon, against the personal and real property of the defendant.
    It appeared by the affidavit of the defendant’s attorney, that the answer had been filed with the clerk at the proper time, but the cleric did not find it; and pending the motion, a copy was substituted in the judgment roll.
    The grounds upon which the motion was made, are stated in the opinion of the court.

      J. G. McAdam and D. W. Clarke, for the defendant.

      H. A. Mott and B. Galbraith, for the plaintiff.
   By the Court. Sandford, J.

The first class of objections arises upon the reference and the report. It is contended, 4. That the third referee must be appointed by a rule or order of the court, after he is named by the two referees first selected. This, we think, is not the meaning of the code. The selection of the third referee, is made exclusively by the two chosen by the parties. If those two cannot agree, he is to be •selected by drawing a name from the jury box. The court has ao agency in the matter, and no rule or order is necessary. (Code, § 229.) 2. u The cause” was referred, and it is said the order of reference did not indicate that the issues of law were embraced in it, or that the referees were to report upon the At whole issue,” We think that when an order is made referring the cause, without any limitation ; all the issues formed by the pleadings, are necessarily embraced in the reference, and that the referees therefore must report upon the whole issue. (Code, § 225, 227.)

3. It is said the report does not state all the facts found and the conclusions of law upon them. On looking into the report, we find sufficient conclusions both of law and fact stated, to dispose of the material issues in the cause, and to sustain the damages reported. For the purposes of a review of the decision of the referees, the defendant will require a great deal more than the report would furnish him, which he claims ought to have been made. He will need a report in the nature of a case or bill of exceptions. (Code, § 227)

As to the two first of these objections, we may add, that the parties having gone to trial before the three referees, and contested all the questions involved; neither party should now be permitted to raise such objections; and as to the third, if the report had omitted some one issue, it would be almost of course, to permit an amendment.

Second. The next class of objections, is upon the entry of the judgment. 1. Because no copy of the report was served on the defendant before its entry. It is true, our 45th rule required a copy of the report to be served, before entering the rule for judgment. But under the code, there is no rule for judgment; and the practice for which the rule of court provided, is superseded by the provisions of the code as to proceedings upon references. A sufficient notice to guard against surprise, is contained in the provision requiring two days notice to be given of the application to the clerk to adjust the amount of costs. (Code, § 266.) The notice to cut off an appeal, is-, given after the decision or judgment. (§ 223.)

2. It is strenuously contended, that the judgment is irregular, because it was entered without the direction of a single judge. The defendant relies on section 233, which requires all judg;ments on issues, “ to be entered in the first instance upon the direction of a single judge.” (The court examined the point at large, and held, that no direction of a judge was necessary, and that the clerk must enter judgment at once upon filing the report. The|amended code, (1849,) having made express provision for the case, the reasons assigned are omitted.)

Third. The regularity of the execution is next attacked; and 1. Because the judgment roll was wrong in omitting the defendant’s answer, and thus there was no legal judgment roll to sustain the docket, on which the execution issued.

As to this, the duty of the prevailing party ends, when he has filed the decision of the court and adjusted the costs. It is the clerk’s duty to enter the judgment, and make up the judgment roll. (Code § 234 to 236.) The party has no control of the proceedings, nor any thing to do with it, beyond seeing to it that all the papers he is bound to furnish, are on file. We therefore think, that when on the entry of the judgment and the request of the party to docket it, the clerk furnishes to him a transcript of the docket, it is not his province to ascertain whether the clerk has performed his own duty in attaching together the pro-, per papers, and filing the judgment roll. Whether a total omission of the clerk in that behalf, would impair the docket and execution ; or whether we would order it filed by relation, so as to protect both ; we need not now determine. Here there was a judgment roll filed. It may have been irregular, for want of the answer. If it were, it was not the plaintiff’s fault; the roll was not a nullity; and we would sustain it, by directing the original answer or a copy to be attached, as of the date when the roll was filed. A copy was in fact attached, before the motion was brought on, and we hold that the roll is sufficient as it stands. (See Clute v. Clute, 4 Denio, 241.)

2. It is said the judgment roll must contain the case showing the proceedings before the referees, and that the defendant was entitled to ten days notice of the entry of the judgment, before the roll could be regularly filed. This we think is an entire mistake, as to the judgment entered on the referees report. In the judgment roll made up after the decision of the entire court on an appeal, the case should be inserted, unquestionably. The 223d section of the code, which provides for making a case, does not require it to be prepared sooner than within ten days after notice of the entry of the judgment, and it is the duty of the clerk to make up the roll immediately after entering the judgment. Of course, a judgment so entered and enrolled, could not contain the case ; and there is nothing in the code requiring the prevailing 'party to wait any length of time, before filing the decision and entering judgment, whether it be of one judge or of referees. The only restraint, is the two days notice of adjusting the costs. The 220th section, cited by the defendant, relates to questions reserved for consideration before the judge who tries the cause ; not to cases made for review in the first instance before the entire court, at the general term.

The plaintiff’s proceedings have been regular, and the motion must be denied.

Nov. 24th, 1849.—The case was presented to the court again, on a motion to dismiss the appeal taken by the defendant from the judgment entered on the referees report. Notice of the entry of the judgment was given to the defendant’s attorney on the 24th of February 1849 ; and notice of the appeal was not served until the 8th day of May. The delay was owing to the pendency of the foregoing motion to set aside the judgment, which was not decided at chambers till March 24th. The defendant appealed from the decision, and it was affirmed by the general term on the 28th of April. The defendant served his proposed case on the 25th of April, and it was settled on the 4th of June.

By the Court. Oakley, Ch. J.

The code of 1848 requires appeals to be made in ten days after written notice of the entry of the judgment (§ 280;) and if this appeal can be sustained, it must be on the ground, either that the motion to set aside the judgment, enlarged the time for appealing, or that this court may enlarge it. We have considered the matter, and conclude that neither ground is tenable. Where the time for appealing or the like, was regulated by a rule of court, in the former practice, it was in the power of the court at all times to relieve parties in default, so that there should be no failure of justice. But where the law directs anything to be done within a specified period, the court cannot interfere to extend it.

The provision in the code of 1848, was very stringent and very plain; and that part of the code which gave to a judge power to enlarge the time in certain cases, expressly excepted the time within which an appeal was to be taken. (§ 366.) The only mode in which we can extend the time for appealing, is by an order suspending the entry of the judgment on good cause shown.

The defendant supposed the judgment could not be entered, until the case was made and settled. This is an error, there being no stay of proceedings. We think moreover, the case when settled may, by an order, be annexed to the judgment roll at any time ; as was frequently done with bills of exceptions under our former practice.

The motion to set aside the judgment did not affect the time for appealing. The party took the hazard of losing that remedy, in the event of failing in his motion. We regret very much the position in which this defendant is placed, but the appeal is too late, and it is not in our power to relieve him.

Appeal dismissed.


text:
    Webb v. Clark.
    Where the affidavit verifying the complaint is defective, the remedy of the party . is by a motion to set it aside, and not by demurrer.
    June, 1849.
    Demurrer to a complaint, for the reason that it was verified by a book-keeper, and no cause stated why it was not verified by the plaintiff.
    G. Clark, for the defendant.
    G. W. Morell, for the plaintiff.
   By the Court. Sandford, J.

The defendant has mistaken his remedy. He should have moved to set aside the complaint for irregularity. The verification forms no part of the pleading which can be considered on a demurrer.

Demurrer overruled.