source: Caselaw Access Project

author: Clifford, J.:

license: Public Domain

text:
      (Circuit Court of CooTc County. In Chancery.)

    Charles H. Crawford, by his next friend vs. Hanna M. Crawford. Hanna M. Crawford vs. Charles H. Crawford.
    (May 2, 1899.)
    Annulment of Marriage on Ground that One of the Contracting Parties is Under the Age of Legal Consent. In Illinois the age of legal consent to marriage is seventeen years in males and fourteen years in females. The complainant was married to the defendant while he was under the age of seventeen years and ceased to cohabit with her before he arrived at that age. Upon a bill filed by him to annul such marriage it was held that the marriage was voidable, and that inasmuch as complainant had not cohabited with defendant after he arrived at the age of consent, he was entitled to disaffirm the contract of marriage and have the same annulled.
    Bill for annulment of marriage. Cross bill for separate maintenance. Circuit Court Gen. No. 178,361. Heard before Judge Richard W. Clifford.
    Statement of facts.
    The bill alleged that the complainant was a minor under the age of seventeen years. That on the 29th day of May, 1896, he was forced into a pretended marriage with one Hanna M. Swanson under threats of arrest on a charge of bastardy; that at the time of such pretended marriage he was but sixteen years of age and that he did not cohabit with said ■defendant after he arrived at the age of seventeen years. The ■defendant filed a cross bill for separate maintenance and proofs were taken upon the issues raised by such bill and cross bill. The court found the issues in favor of the complainant and entered the following decree:
    “This cause having come on to be heard upon the bill of •complaint and amendments thereto, the answer of the defendant thereto, and the replication of the complainant to-such answer, the cross bill of defendant, and answer to such, and upon evidence heard in open coiirt, and the court, having heard the arguments of counsel, and being now fully advised in the premises, and on consideration thereof, doth find:
    “That all the material facts alleged in said bill of complaint and amendments thereto are true.
    “The court further finds from the evidence that Charles H. Crawford, complainant in the above entitled cause, was a minor under the age of seventeen at the time of the pretended marriage with the defendant, Hanna M. Crawford, on the 29th day of May, 1896, and he never lived and cohabited with said Hanna M. Crawford after he, the complainant, reached the age of seventeen; that the said marriage was null and void and of no force and effect.
    “It is, therefore, ordered, adjudged and decreed by the court that the said marriage between the complainant and defendant be, and the same is hereby declared to have been and to be null and void and of no force and effect, and that the complainant be released from the obligations of said pretended marriage, and be restored to all and singular the rights and privileges of an unmarried man.
    “It is further ordered, adjudged and decreed by the court that the cross-bill filed in the above cause be, and the same is. hereby dismissed for want of equity.”

      Carey W. Rhodes, solicitor for complainant. Abraham-Meyer, of counsel.

      Burras & Wilcoxon, and Whitehead & Stoker, solicitors for defendant and cross complainant.
   Clifford, J.:

This is a case where the law is all one way and 1 am compelled to enter a decree for the complainant,

NOTE.

In Illinois the age of legal consent to marriage is seventeen-years in males and fourteen years in females. 2 Starr & Curtis Rev. Stat., p. 2687, title “Marriage.” Where the plaintiff is under the-age of legal consent at the time of marriage, such marriage may he-annulled upon the petition of the person under the age of consent. Canale v. People, 177 Ill. 219, 224; McDeed v. McDeed, 67 Ill. 545; Shafher v. State, 20 Ohio, 1, 3; People v. Slack, 15 Mich. 192, 198; People v. Bennet, 39 Mich. 208; Eliot v. Eliot, 77 Wis. 634, 640, 641; Holtz v. Dick, 42 Ohio St. 23, 29; McDowell v. Sapp, 39 Ohio St. 558; Fitzpatrick v. Fitzpatrick, 6 Nev. 63, 67; Koonce v. Wallace, 7 Jones (N. C.) 194; Smith v. Smith, 11 S. E. 496, 498; Stivers v. Wise, 46 N. Y. S. 9; Reeves, Domestic Relations, p. 200; Coke, Littleton, p. 79; Swinebourne, Spousals, pp. 34, 36; Tyler, Infancy and Coverture, p. 126. An infant incapable for want of age to enter into a valid contract of marriage is incapable also to estop himself by a fraudulent declaration of his age. Eliot v. Eliot, 81 Wis. 295. Alimony and solicitor’s fees pendente lite will not be allowed in an action to annul a marriage. Meo v. Meo, 2 N. Y. S. 569; Stivers v. Wise, 46 N. Y. S. 9. Separate maintenance cannot be had where there is not a valid marriage. Crymble v. Crymble, 50 Ill. App. 544.

Evidence as to Age op Minos. The testimony of the mother is the best evidence on the question of age. Herman v. State, 73 Wis. 248. But an infant may testify as to his own age. Comm. v. Phillips, 162 Mass. 504; Hill v. Eldridge, 126 Mass. 234; Commonwealth v. Stevenson, 142 Mass. 468; Reed v. State, 29 S. W. 1074; Watson v. Brewster, 1 Pa. St. 383; State v. McClain, 31 Pac. 790; Stevenson v. Kaiser, 29 N. Y. S. 1122; Hogan v. Aid Ass’n, 26 N. Y. S. 1081; Cheeves v. Corngdon, 34 Mich. 296; Morrison v. Emsley, 53 Mich. 564.—Ed.


author: Tuley, J.:

text:
      (Circuit Court of Cook County.)

    People of the State of Illinois ex rel. Dennis McCutcheon vs. Mallory, Superintendent of the State Reformatory of Pontiac.
    (December 22, 1904.)
    1. Indictment fob Assault with Intent to Mubdeb—Plea of Guilty—Sentence fob “Bubglaby, Etcetera”—Habeas Corpus. The petitioner was indicted for an assault with intent to murder, and upon a plea of guilty was sentenced for the crime of “burglary, etcetera,” to the Pontiac reformatory. Upon a petition for habeas corpus, held that this was a case where a party is indicted, pleads guilty to one crime and is sentenced by the court for another and a different and greater crime, and that the court had no jurisdiction to enter such judgment, and that the prisoner must be discharged.
    2. .“Burglary, Etcetera.” There is no crime within the statute _ known as “burglary, etcetera.”

    3. Sentence for Crime Not Upon the Record. Where a man is sentenced for a crime that does not appear upon the record, the jurisdiction of the court is lacking.
    4. Sentence for Crime to Reformatory Where Record Does. Not Show Age of Prisoner. The presumption of law is that the record being silent the prisoner was twenty-one years of age when he was sentenced to the reformatory. The relator was sentenced to the reformatory when there was nothing on the face of the record to show that his age was even inquired into, the law presuming him to be a man of twenty-one years of age when in fact he was eighteen. Held, that it is jurisdictional as to the right of the court to send the relator to the reformatory, and that this was a fatal objection to the right of the warden of the reformatory to hold the relator under such a mittimus.
    5. Amendment of Mittimus to Show Age of Prisoner. Relator was sentenced to the reformatory, the record not showing his age. Two years after he had been in the reformatory the relator was brought into court and the mittimus amended nunc pro tuna to show his age. Held, that it is going too far to hold that after a party had been in the penitentiary for two years he can be brought up and the judgment amended in his case by oral evidence, or that it can be corrected on account of an alleged misprision of the clerk after service of this' kind, and held that when that amendment was made the court was without jurisdiction, more than two years having elapsed, the party having served a portion of his sentence, and the court having no power to go back and make that legal which was illegal during the two years he was serving.
    Petition for a writ - of habeas corpus. Gen. No. 258,124. Heard before Judge Murray p. Tuley.
    The facts are stated in the opinion.

      W. G. Anderson, for petitioner.
   Tuley, J.:

In this case I dislike very much to interfere with the sentence of a prisoner under a penitentiary offense. The court ought to distinguish between error in the proceedings of the trial court and jurisdiction. It will scarcely be contended that on an indictment for larceny, or a plea of guilty for larceny, a man might be found guilty of murder and sent to the penitentiary for life.

I recollect a case of Judge McAllister’s discharging a party once who was tried by the court without a jury and sent to the penitentiary. He held that the court having no jurisdiction to try the party—there was a trial without a jury—that the judgment of the court to send him to the penitentiary was void.

In this case there was an indictment for an "assault with intent to murder; the party plead guilty to it, the court proceeded to sentence him for the crime of burglary to the penitentiary. I do not know whether it was for the crime of burglary, or for the crime of “etcetera.” (Reading). I do not know what that means, I do not know of any crime within the statute known as “burglary, etcetera.”

It is a plain case where a party is indicted, plead guilty to one crime and is'sentenced by the court to the Pontiac reformatory for another and‘a different and a greater crime. Now, has the court any such power? As I say, if he had been charged with larceny, the court might, if this had been sustained, have sentenced him for the crime of murder, sentenced him for life. I think the court had no jurisdiction to enter such judgment. It had jurisdiction to enter any judgment that was authorized by the crime for which he was charged, but not for another crime and another and different crime.

The court will take notice that the crime of burglary is punishable by a very much heavier punishment than the crime of assault with intent to murder. It may be a very great difference in the land of service. I would like to know how at Pontiac, which they will determine,—whether they will determine to hold this man until he serves out the maximum punisment for assault and intent to murder, or are they going to hold him until he serves out the maximum punishment for the crime of burglary?

Counsel says it is for the Pontiac reformatory directors to ■determine which crime he is there for. I think that it is a pretty difficult thing for this court to determine, or any judge to determine. I do not know that the directors of Pontiac-have more wisdom than the judges have.

The language of the judgment is emphatic. He is sentenced for the crime of “burglary, etcetera,” and they have no right to construe that to mean something else; because the assault with intent to commit murder is found in the mittimus and recites that he plead guilty to that charge, they have no right to say that the court shall not sentence him for the crime of burglary.

I do not know what may have possessed the judge there; he may have thought the crime of burglary came within the-crime of assault with intent to commit murder,—assault with intent to commit murder while in the act of burglary. I do not know what might have influenced the judge to do that, we are-outside, we can only go upon the mittimus itself and where they sentence a man for a crime that does not appear upon the record I think the jurisdiction of the court is lacking.

There is another thing in regard to this. Admit that that might be a misprision of the clerk,—I do not see how it can be held to be a misprision of the clerk. A misprision is a mistake, but you cannot say that it is a misprision of the clerk when the court definitely and specifically on its record charges-a certain crime, that it is a mistake that the clerk writes it that way, non constat, that the man was sentenced for burglary, as the mittimus says. '

I think too, it is jurisdictional as to the right, of the court to send him to Pontiac. The age should appear upon the record anyhow; the age appears nowhere on the record submitted to this court, except that the court, two years after this man had been serving a sentence for the crime of burglary, has him brought back here and amends his record to show that he is eighteen years of age and he had been serving-two years in Pontiac under the presumption that he was twenty-one years of age. Now, I know of no rule that will justify the court in holding that the criminal court had evidence before it of the age of this party, and they sent him to Pontiac-because he was eighteen years of age; the presumption of .law is that the record being silent, he was twenty-one years when he was sent there, and in that respect the court had no jurisdiction to amend its judgment.

As stated, if ,it appeared to the court, his whole record being before the court, that there was anything upon the memorandum of the clerk or even on the judgment to show the age of this party, there might be a different question raised, but there is nothing in this record to show that the question of age was ever inquired into by the court. He is held there upon a mittimus that in my opinion is void on the face of the whole record, and he is indicted for one crime, pleads guilty and is sentenced for another and a greater crime. He is sent to Pontiac and when the láw presumes that he is a man of twenty-one years of age, when in fact he is eighteen years of age, there is nothing on the face of the record to show that his age was ever inquired into. Both are fatal objections to the right of the warden to hold him under any such mittimus.

Now this mittimus,—two years afterwards the party is brought into court and this mittimus, which is a copy of the judgment, is amended, and it is amended nunc pro tunc as of the day on which he has already served two years. Now, to hold that after a party has been in the penitentiary for two years you can bring him up and amend the judgment in his case- by oral evidence, or that you cah correct it on account of an alleged misprision of the clerk after service of this kind, I think is going too far.

The cases cited here hold that the judgment in a criminal case can be amended for a misprision of a clerk, accidental slip of the pen, and misreading of a sentence, misreading even of the offense for which the party was indicted, where it is apparent that there might have been misreading, as, for instance, in one ease that was cited the party was indicted for rape, the clerk read it as an assault and intent to commit rape. That was a case where it might be held to be a misreading of the clerk, but no clerk could misread the crime of burglary for an assault with intent to kill.

When that amendment was made, the court was without jurisdiction; more than two years had elapsed, the party had served a portion of his sentence and the court has no power to go hack and make that legal which was illegal during the two years he was serving.

The petitioner will have to be discharged


author: Holdom, J.:

text:
      (Superior Court of Cook County. In Chancery.)

    New York Dental Parlors vs. Froon, et al.
    (July 6, 1899.)
    1. Trade-marks and Trade Names—Distinction'—Right to Exclusive Use of Trade Name. .. “Trade-mark” and “trade name” are nearly synonymous. There is no exclusive right in a trade name unless such name has the distinguishing qualities of a trade-mark and is used to distinguish the goods, wares and merchandise of the user.
    2. Trade Name—Infringement—Necessity of.—In the absence of fraud, deception or unfair competition, the user of a trade name cannot enjoin its use by others. (See note I—Ed.)
    3. Trade-marks—Geographical Name. A geographical name or term cannot be protected as an exclusive trade-mark. They must be supplemented by other words which import quality or standard.
    4. Trade-marks—Misleading Name. Where complainants use a geographical name which is misleading, the court will not protect such name as a trade-mark. (See note II—Ed.)
    Bill for injunction to restrain use of name similar to complainant’s. Heard before Judge Jesse Holdom.
    For statement of facts see opinion.

      Hoivard Ames, for complainant.

      James A. Fullenwider, for defendants, Froon and Simonds.
   Holdom, J.:

This bill is filed by the complainant, an Illinois corporation, against the defendants to enjoin them from using the name of complainant or what is alleged to be its trade mark,—which is in fact its corporate name—its form of advertisement, or from using any name or design similar to its name or trade mark, so-called, etc.

Froon and Simonds only have answered, the remaining defendants, (George S. Gagnon, New York Painless Dentists’ College, New York Painless Dental Company, Sophia Burton Gagnon), being names assumed by the answering defendants in their business as dentists.

It does not seem to me from the facts in evidence that this, is a case warranting the interposition of this court by its writ of injunction. Counsel for complainant bases his claim for relief on the ground that defendants’ conduct results in the infringement of complainant’s trade name, and attempts to make a legal distinction between it and a trade mark. In this he somewhat fails. “Trade mark” and “trade name”' are nearly synonymous, for the mark is the name, and its purpose is to protect the trade in the goods dealt in by the rightful possessor of either the mark or the name. It therefore-follows that an infringement mostly arises from the giving out to the public or the trade of some article in the similitude of that protected by the mark or name which deceives and is a fraud not only upon the purchaser, but on the owner of the name or mark. It does not appear that the name of complainant is attached in any way to its wares, viz.: false or artificial as distinguished from genuine or natural teeth, or that it has in any particular way or manner acquired any fame- or reputation personal to itself and not equally shared by others in the same line of business.

It nowhere appears that there is any deception working through the methods alleged to be practiced by the defendants which results in an injury to intending patrons of complainant by having their work done at the rival establishments of' defendants; neither does it appear that complainant has any established trade built up by reason of any superior merit either of goods or mechanical skill different from that of' others engaged in the same line of business.

This case is in no way similar to Sanders v. Jacobs, 20 Mo. App. 96, and neither the logic or reasoning of that ease applies here. There the name “New York Dental Rooms” was registered under the act of congress as a trade mark, and -entirely different rules and principles are applied for its regulation.

I cannot see that Rubel v. Allegretti, 76 Ill. App. 581, lends any light by which to solve the questions raised in this case. There Allegretti gave his name to a particular kind of candy, which became popular to the feminine taste, and there was a large demand for it. Rubel, by fraud, deceived the public by palming off his candy for that of the Allegretti brand. This was a fraud alike upon the original manufacturers and the consumer, but in the case at bar naught is shown of any particular merit in complainant’s goods, different from that of '-others, whereby any one patronizing defendants’ establishments could in any way be defrauded, even should they be lured there by similarity of the name.

It is well settled legal doctrine that a geographical name or term cannot be protected as an exclusive trade mark. Columbia Mill Company v. Alcorn, 150 U. S. 460. They must be supplemented by other words which import at least quality or standard in some commercial article. Neither of the other words in the corporate name of complainant fulfill this essential requirement.

The advertisements in themselves do not constitute a fraud in any way, and certainly not such as will justify awarding an injunction to suppress.

The geographical name of the corporation complainant is misleading, and to that extent a legal fraud, as there is certainly nothing in connection with its business or its wares to make the name “New York” more descriptively applicable than that of Boston or Kankakee.

A case has not been made out entitling complainant to the injunction or other relief prayed, and as the bill is primarily -one for an injunction, which is denied, the bill will therefore be dismissed for want of equity.

NOTE.

I.

Injunction Against the Use of Corporate Names. In Newby v. Oregon Central Ry. Co., Deady, 609; S. C., Fed. Cas. No. 10,144, the court, in its opinion, said: “The corporate name of a corporation isi a trade-mark from the necessity of the thing, and upon every consideration of private justice and public policy deserves the same consideration and protection from a court of equity.”

This language was entirely obiter, as a reading of the case demonstrates, yet it has been quoted approvingly in the later cases. See Publishing Co. v. Dobinson, 72 Fed. 603; Hopkins, Trade-marks (2d ed.) pp. 150, 151. There is, however, endless confusion upon this particular question. In general, courts of equity interfere to restrain infringement of names or trade-marks in two classes of cases: (1) To protect a technical trade-mark or trade name, and (2) to restrain unfair competition, as where one party simulates the marks, signs or labels of another. If, therefore, the corporate name constitutes a technical trade-mark, the court will award it protection irrespective of whether the action of the infringer is fraudulent or intentional or otherwise. Hopkins, Trade-marks (2d ed.) p. 44; Vitascope Co. v. U. S. Phonograph Co., 83 Fed. 30. If, however, a corporate name is applied or used to designate particular goods, or is used in "connection with the manufacture or sale of such goods, such name may be protected upon the principles applicable to- trade-marks. In this class of cases may be ranged the oft cited cases of Celluloid Mfg. Co. v. Cellonite Co. 32 Fed. 94; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462. Whether or not one corporation may restrain another corporation having the same or a similar name as the first corporation from using its name, where the name in question is not used in connection with the sale or manufacture of goods, presents a more difficult question. On the one hand, it has been held that the use of a corporate name similar to that used by another corporation cannot be enjoined if its adoption and use are in good faith and without fraudulent intent. Saunders v. Sun Life Ass’n Co., 1 L. R. Ch. Div. (1894) 537; Farmers’ L. & T. Co. v. Farmers’ L. & T. Co., 1 N. Y. S. 44; Investor Pub. Co. v. Dobinson, 82 Fed. 56; Hygeia Water Ice Co. v. N. Y. Hygeia Ice Co., 140 N. Y. 94; R. & B. Co. v. R. & M. Co., 8 N. Y. S. 52; The Merchants’ Banking Co. v. The Merchants’ Joint Stock Bank. 9 L. R. Ch. Div. 560; Commercial Advertiser v. Haynes, 49 N. Y. S. 938; Borthwick v. Evening Post, L. R. 37 Ch. Div. 449; Nebraska Loan & Trust Co. v. Nine, 43 N. W. 348; Employers’ Co. v. Insurance Co., 10 N. Y. S. 845; Hygeia Water Co. v. Ice Co., 45 Atl. 957; Continental Ins. Co. v. Fire Ass’n, 101 Fed. 255; L. & P. L. A. Society v. Assur ance Co., 17 L. J. Ch. 37; London Assurance v. L. & W. A. Corp. Lim., 32 L. J. Ch. 664; Colonial Co. v. Home Ass’n Co., 33 Beav. 548; Plant Seed Co. v. Michel Plant Seed Co., 37 Mo. App. 313. See also 7 Thompson, Corporations, p. 6,946; Elgin Butter Co. v. Elgin Creamery Co., 155 Ill. 127.

In Saunders v. Sun Life Assurance Co. of Canada, 1 L. R. Ch. Div. (1894) 537, the defendants were incorporated in Canada under the name of “The Sun Life Assurance Company of Canada,” and after carrying on business in Canada for over ten years they opened an office in London. “The Sun Life Assurance Society,” which had •carried on business in London for over eighty years, brought an action for an injunction to restrain the use of such name. It was held that, in the absence of fraud or dishonesty, the user by the defendant of its own corporate name without abbreviation, addition or other modification involved no misstatement of fact, and could not be restrained by injunction; but that the right of defendant did not extend to the use of the name of “The Sun” or “The Sun Life” without the addition of the words “of Canada.”

In Farmers’ Loan & Trust Co. v. Same, 1 N. Y. S. 44, plaintiff had transacted business in New York under the name of “Farmers’ Loan & Trust Company” for over fifty years. Defendant was organized in Kansas in 1885 under the name of “Farmers’ Loan & Trust Co. of Kansas.” It established an office in New York, and advertised, omitting from its name the words “of Kansas.” The court said that the name “Loan & Trust Co.” was not an uncommon name as applied to monetary institutions, and that the prefix “Farmers” had been applied to designate similar companies engaged in business in different states (there being evidence that there were no less than seven “Farmers’ Loan & Trust Companies” in the United States), and therefore the complainant’s name was not such an arbitrary and exclusive designation as would entitle it per se to be protected from infringement. The court, however, granted a preliminary injunction restraining defendant from using its name in any other way than in connection with the words “of Kansas.”

In Investor Pub. Co. v. Dobinson, 82 Fed. 56, it was held, that the complainant corporation was not entitled to an injunction restraining another corporation from using the same corporate name, or from publishing a periodical having a name similar to the one published by complainant, where the defendant was incorporated and its paper published, in a state distant .from complainant and the names were used with distinguishing characteristics which rendered injury to complainant therefrom improbable, in the absence of proof that such injury has actually resulted.

In Hygeia Water Ice Co. v. N. Y. Hygeia Ice Co., 140 N. Y. 94, the plaintiff sought to restrain the defendant from using its corporate name. The plaintiff was incorporated with a capital of $5,000 one month previous to the defendant, which was capitalized at $300,000. It appeared that the defendant had no knowledge of the existence of the plaintiffs, and also that the word “Hygeia” was in use previous to the incorporation of the plaintiffs as part of the corporate name of a water company. The injunction was refused.

In Richardson & Boynton Co. v. Richardson & Morgan Co., 8 N. Y. S. 52, it was held that the defendant corporation would not be restrained from using the name of the Richardson & Morgan Company on account of confusion arising from its similarity to the name of the plaintiff, the Richardson & Boynton Company, where there is no further evidence of confusion than the fact that correspondence addressed to plaintiff was delivered to defendant, and that in one instance credits were wrongfully posted, and that according to the testimony of a single salesman of plaintiff mistakes occur daily as to plaintiff’s locality. The, court further said that confusion in addresses was not equivalent to confusion in names.

In Merchants’ Banking Co. v. Merchants’ Joint Stock Bank, 9 Ch., Div. 560, a banking company established in 1879, having offices in Bloomsbury, and intended to deal chiefly with tradesmen in that, district, was registered with a name similar to that of a banking, company established in 1863, having offices in the city, and dealing' principally with wholesale merchants. Held, that since there was, no mala fides on the part of the new company in adopting the name-they had taken, nor a probability of their appropriating the plaintiff’s business, the old company was not entitled to an injunction restraining the defendant from using its corporate name.

A. A corporation will not be enjoined from using its corporate name because of the fact that it is customary in the trade to refer to it by an abbreviated title, which results in confusing its name with that of another corporation. In this case it was held that the United States Trust Company of New York could not restrain the use of the name “United States Mortgage & Trust Company,” even though the company! was commonly referred to as “The United States Trust Co.” In re United States Mortgage Co., 32 N. Y. S. 11, and cases cited.

B. A corporation using its corporate name is exercising a franchise conferred by law. Boston Rubber Co. v. Same, 149 Mass. 437; American Order of S. C. v. Merrill, 151 Mass. 558; 1 Thompson, Corporations, p. 199.

C. Every man has the absolute right to use his own name in his own business, provided he does not resort to artifice or contrivance for the purpose of producing the impression that his goods are those of another. Meneely v. Meneely, 62 N. Y. 427, and cases cited. And this rule should apply with equal force to corporations. Elgin Butter Co. v. Elgin Creamery Co., 155 Ill. 127; Celluloid Mfg. Co. v. Cellonite Co., 32 Fed. 94.

D. On the other hand, it has been held that a court of equity will protect a corporation in the use of its name upon the principle applicable to trade-marks. American Clay Mfg. Co. v. Same, 198 Pa. 189; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. 94; State v. McGrath, 92 Mo. 355; Newby v. Railroad Co., Fed. Cas. No. 10,144, S. C., Deady, 609; Rogers v. Rogers, 11 Fed. 495; Investor Pub. Co. v. Robinson, 72 Fed. 603; Ex parte Walker. 1 Tenn. Ch. 97; American Grocer v. Grocer, 25 Hun, 398; 1 Thompson, Corporations, secs. 296-299; 7 Thompson, Corporations, sec. 8192; Higgins v. Higgins, 144 N. Y. 462; Brewery Co. v. Same, App. Cas. (1899) 83; Roy v. Roy, 58 N. Y. S. 979; Brooklyn White Lead Co. v. Masury Co., Cox, Trademark Cases, 210, 25 Barb. 416; Philadelphia Trust Co. v. Same, 123 Fed. 534; Holmes v. Holmes, 37 Conn. 278. And see full list of cases cited in brief of counsel in International Trust Co. v. International Loan & Trust Co., 10 L. R. A. 758. In a number of the above cases there was evidence of unfair competition.

But to warrant such relief, the necessary facts must be established by very satisfactory proof. When the conduct complained of is that merely of a fair competitor in the same line of business, and the name assumed is not likely to mislead ordinary purchasers, a court of equity will not interfere. Plant Seed Co. v. Michel Plant Seed Co., 37 Mo. App. 313.

In Block v. Standard D. & D. Co. (C. C. S. D. Ohio, W. D.) 95 Fed. 978, it was held on demurrer that a bill which alleged that complainant and defendant were competitors in the same line of business; that defendant had assumed a corporate name similar to complainant’s trade name, and the public had been deceived thereby, and great confusion and injury had resulted to complainant’s business therefrom; that defendant’s incorporators, before it was organized, knew of the existence and character of complainant’s business and the trade name under which it had for a number of years been conducted, and that defendants had refused, on complainant’s request, to desist from the use of the name, states a cause of action against defendant for unfair competition. The above case was thereafter submitted on final hearing and is still under advisement by Judge Thompson.

The Iixihois Rtoe. The courts of Illinois have several times had the question under discussion.

In Elgin Butter Co. v. Elgin Creamery Co., 155 Ill. 127, the butter company filed a bill to restrain the creamery company from using its name. Both concerns were engaged in the same business. The court held that there was not sufficient similarity between the two names to deceive purchasers, and that even if the names of the two corporations were somewhat similar, yet, in the absence of any intent, act or artifice to mislead dealers in the market or the public at large as to the identity of the two corporations, each had the equal right to use its own name in its own business.

In Chicago Landlord’s Protective Bureau v. Koebel, 112 Ill. App. 21, the plaintiff corporation sued to restrain the defendant from using a name similar to the plaintiff’s corporate name. The court held that the imitation of a corporate name by others in a like business, in a manner calculated to deceive the public, will be restrained by injunction. It was also held that it was immaterial that the intention of the defendant in adopting the imitation name was not fraudulent or wrongful, and that it was no defense that at the time -of the adoption of such name the defendant was ignorant of the. plaintiff’s existence. Reliance was placed on Newby v. Railroad Co., Deady, 609, supra. The decision of the court is based upon the principle of the trade-mark cases, and irrespective of the principles of unfair trade. The decision of the appellate court was affirmed in 210 Ill. 176.

In the recent case of People ex rel. v. Rose, 219 Ill. 46, it was held that the United States Express Co. had the right to enjoin the use of its name as a trade name by other parties, whose intention is to deceive the public and thereby to fraudulently obtain business intended for the former company. An attempt was made to compel the issuance of a charter in the name of United States Express Co., but unsuccessfully. See also Allegretti v. Chocolate Cream Co., 177 Ill. 129; Hazelton Co. v. Tripod Co., 142 Ill. 494; Int. Comm. v. Y. W. C. A., 194 Ill. 194; Hopkins, Trade-marks (2d ed.) p. 150.

In this, connection it may be noted that the Act of May 16, 1905 (Sess. L. of Ill. 1905, p. 130), in reference to the organization of corporations, provides that “no license shall be issued to two companies having the same or a similar name, nor shall any foreign corporation having the same or a similar name as any domestic corporation be admitted to this state under any foreign corporation law.”

Although the question is not entirely free from doubt, the rule in Illinois probably is that the mere identity of names, with proof that their use leads or tends to lead to confusion in the minds of the purchasing public is sufficient to obtain relief. The case of Koebel v. Landlords’ Protective Bureau, supra, goes a long way toward establishing that proposition. True, in that case, although the evidence was conflicting, there was some evidence of a fraudulent purpose, and the language of the court should perhaps be read in that connection. If the two companies are engaged in an entirely different business, there can be no attempt to sell the goods of one company as the goods of the other, and therefore no relief could be had. But if the business of the two corporations is the same, and the identity of names results in confusion and induces the public to believe that the business of the one company is the same as the other, if there is some evidence of fraud, either actual or constructive, relief should and probably would be granted.

In some cases the mere adoption of the name of another corporation by a corporation engaged in the same line of business would be sufficient to obtain relief, as, for instance, if the name of the former corporation was well and favorably known to the public at large. Such a case is Philadelphia Trust Co. v. Same, 123 Fed. 534.

II.

There Can Be No Valid Trade-mark in a Name Which Deceives the Public, or 'Which Falsely States that the Goods Are Made or Produced in a Particular Place. The leading case is Manhattan Medicine Co. v. Wood, 108 U. S. 218. There Moses Atwood originated and made, at Georgetown, Mass., a proprietary medicine called “Atwood’s Vegetable Physical Jaundice Bitters,” and complainant, by assignments, acquired the formula and right to the name, and made the article at New York after Atwood’s death, using bottles and labels of the same style containing the words, “Atwood’s Genuine Physical Jaundice Bitters, Georgetown, Mass.” and made by “Moses Atwood, Georgetown, Mass.” On suit for an injunction against the infringer the relief was refused, on account of the misrepresentations. The court relied on The Leather Cloth Company (Limited) v. The American Leather Cloth Company (Limited), 4 De G., J. & S.. 137, 11 H. L. Cas. 523.

In Palmer v. Harris, 60 Pa. St. 156, protection was sought against, an exact counterpart of a trade-mark in the words “Golden Crown” for cigars. Relief was denied for the reason that the label falsely represented that the goods were manufactured in Havana, when in fact they were made in New York.

In Bolander v. Peterson, 35 Ill. App. 551; S. C., 136 Ill. 215, protection was denied to the name “Svenska Snus Magasinet," meaning “Swedish Snuff Magazine;” for the reason that the goods were actually made in Chicago.

In American Cereal Co. v. Eli Pettijohn Co., 72 Fed. 903 (affirmed, 76 Fed. 372), the complainant, as purchaser and assignee of the-business, sought an injunction to restrain an infringement, after it had ceased to manufacture the article at the original mill. The-injunction was denied.

In Coleman v. Dannenberg Co. (Ga.) 30 S. E. 639, the complainant sought to protect the words “Old Colony Shoe Company, Rockland, Mass.,” used upon shoes sold by complainant, but made in Boston, Mass., by the Commonwealth Shoe & Leather Company. The injunction was denied, although the reproduction was exact. To the same effect see:

Newman v. Pinto, 57 L. T. (N. S.) 31, 4 R. P. C. 508; Wrisley Co. v. Iowa Soap Co., 104 Fed. 548; Hobbs v. Francais, 19 How. Pr. 567, R. Cox, 287, 290; Krauss v. Peebles 58 Fed. 585, 595; Prince Co. v. Prince Co., 135 N. Y. 24, 31 N. E. 990; Stachelberg v. Ponce, 23 Fed. 430; Partridge v. Menck, 1 How. App. Cas. 547; Parlett v. Guggenheimer, 10 Atl. 81, 67 Md. 542; Royal Baking Powder Co. v. Raymond, 70 Fed. 376; Connell v. Reed, 128 Mass. 477; Joseph v. Macowsky, 96 Cal. 518, 31 Pac. 914; Kenny v. Gillet, 70 Md. 574, 17 Atl. 499; Heyde v. Wittkowsky, 5 N. S. Wales; L. R. (E) 75; Labott v. Trester, 7 Rev. Legale, 386, 2 St. Dig. 725; Candee v. Deere 54 Ill. 439; Siegert v. Abbott, 61 Md. 276, 48 Am. Rep. 401; Pepper v. Labrot, 8 Fed. 29, 39; Millbrae Co. v. Taylor (Cal.) 37 Pac. 235; Pillsbury Co. v. Eagle, 86 Fed. 608; Wilson v. Needermann, 19 Week. L. B. 268; Hilson v. Foster, 80 Fed. 896; Wood v. Lambert, 32 Ch. Div. 247; Solis Cigar Co. v. Pozo, 16 Colo. 388, 26 Pac. 556; California Fig Syrup Co. v. Stearns, 67 Fed. 1008, 73 Fed. 812; Ginter v. Kinney. 12 Fed. 782; Laird v. Wilder, 9 Bush. 131, 15 Am. Rep. 707; Wood v. Lambert, L. R. 32 Ch. Div. 247, 3 R. P. C. 81; Wolfe v. Burke, 56 N. Y. 115. But see The Fair v. Morales, 82 Ill. App. 499.

A. There can he no property in a name as a trade name where the name is a misrepresentation or is calculated to deceive, as where a copartnership uses a name which imports that it is a corporation. McNair v. Cleave, 31 Leg. Int. 212, 10 Phila. 155; Clarke v. Ætna Iron Works, 44 Ill. App. 510; Brown, Trade-marks, p. 502; Price & Stewart, Trade-mark Cases, p. 6; Seabury v. Grosvenor, 14 Blatchf. 262; Cotton v. Gillard, 44 L. J. Ch. 90; Bradley Fertiliser Co. v. South Pub. Co., 23 N. Y. S. 675; Hazelton v. Hazelton, 30 N. E. 339; Koehler v. Sanders, 25 N. E. 235; Crossley v. Dunn, 15 L. R. App. Cas. 252; Kohler v. Beeshore, 59 Fed. 572.

B. The Extent of the Deception. The presence of the word “Copyrighted” on a label, when in fact it had not been copyrighted, is not such a misrepresentation as would prevent the owner receiving protection against a pirate. Solis Cigar Co. v. Pozo (Colo.) 26 Pac. 556.

Fraud, such as to disentitle a plaintiff to relief against unfair competition in his business, cannot be predicated on statements which, owing to the brevity required by the limited space of a label, are not minutely accurate. Clark Thread Co. v. Armitage, 67 Fed. 896.

Where the words in a label adopted as a trade-mark are substantially true and contain nothing calculated to deceive the public, that they are not literally true will not deprive the merchant of the protection of the law. Conrad v. Brewing Company, 8 Mo. App. 278.

Statements contained in labels, which are not entirely accurate, but are entirely immaterial, are not such false representations as will disentitle a manufacturer to restrain an infringement. Tarrant v. Hoff, 22 C. C. A. 644; S. C., 76 Fed. 959.

Courts of equity will not protect trade-marks which deceive the public; but that deception need not be of such a character as to work a positive injury to purchasers, nor, on the other hand, will' the mere fact that some wrong impression may be received by the public be sufficient to destroy the validity of the trade-mark. If the representation of the trade-mark does not in fact mislead the public, and may be understood in any reasonable sense as substantially true, the trade-mark will be entitled to protection. Meriden Britannia Co. v. Parker, 39 Conn. 450.

If a trade-mark, or the label bearing it, untruly and fraudulently represents! an article as protected by a patent, it is prima facie the misrepresentation of an important fact and the owner of the trade-mark is generally for that cause disentitled to equitable relief against a pirate. Brown, Trade-marks, sec. 72; Cox Manual of Trademark Cases, Nos. 116, 142, 223, 267, 288, 304, 342, 384, 444 and 528; N. Y. Con. Card Co. v. U. P. C. Co., 39 Hun, 611; Cheavin v. Walker, L. R. 5 Ch. Div. 850; Nixey v. Roffey, W. N. (1870) 227.

A fraudulent intention or a tendency to mislead is essential. The untrue use of the word “patent," or an equivalent expression, does not necessarily disentitle to relief. If a fraudulent intention does not exist, and the use of the word may be explained in any reasonable sense consistent with truth and honesty, the plaintiff will not be prejudiced. Brown, Trade-marks, p. 88; Oil Tank Co. v. Scott, 33 La. Ann. 946.

If the patent has expired and the plaintiff continues the use of the word “patent,” he is not prevented from restraining defendants from so doing. Edelstein v. Vick, R. Cox, 119.

One who has fraudulently imitated the trade-mark of another and offered for sale hisi own goods as those of the owner of the trade-mark cannot be heard to raise the objection that the latter’s goods are injurious to health. Curtis v. Bryan, 2 Daly (N. Y.) 312.

An injunction pendente lite will be refused where plaintiffs mislead the public by falsely claiming that the form of their calces of soap on which the label was used and the title in the label were secured by a trade-mark. Brown v. Doscher, 20 N. Y. S. 900.—Ed.

       Affirmed 179 Ill. 129.—Ed.


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      (Superior Court of Cook County.)

    Silverstein, for use of Brewer and Company vs. Fred Gresheimer.
    (1900.)
    1. Assignment of Choses in Action at Common Law. At common law a chose in action, unless a negotiable instrument, was not assignable, unless the debtor assented to the assignment and promised to pay the assignee. •
    2. Same—Modern Rule. Under the modern authorities the gen- • eral test asi to whether a chose in action is assignable is whether or not it would survive and pass to the personal representatives of a decedent assignor if no assignment had been made. If it would so survive, it may be assigned so as to pass the interest assigned to the assignee; if it doés not so survive, it is not assignable either at law or in equity.
    3. Unearned Wages—Validity of Assignment of. Although the authorities are conflicting as to whether or not unearned wages may be assigned so as to be recoverable in an action at law, the better doctrine is that except as to wages actually due at the time of the assignment, such an assignment is an attempt to transfer a mere possibility of future earnings, and therefore as to such future earnings is not an existing chose in action.
    Judgment for plaintiff, motion for new trial granted. Heard before Judge Jesse Holdom.
    For statement of facts see opinion.

      Geo. Webster and G. E. Hurley, for plaintiff.

      H. M. Shajfner for defendant.
   Holdom, J.:

This is an action originally instituted before a justice of the peace upon an assignment by one Silverstein of his weekly wages of twenty-five ($25) dollars to Brewer & Company, said wages to be thereafter earned, from the defendant Gresheimer, in whose employment he was under a verbal contract from week to week, the consideration for such assignment being a loan from Brewer & Company to Silverstein of one hundred and thirty-five ($135) dollars. The cause comes to this court on appeal.

A trial before the court and a jury resulted in a verdict for the plaintiff, and the case is now before the court on a motion for a new trial made by the defendant.

The evidence tends to show that Brewer & Company served defendant with a copy of the contract of assignment, but that defendant refused to accept the same, or to acknowledge that it had’ any binding effect upon him. Neither at the time of the making or delivery of the assignment by Silverstein tq Brewer & Company was there any wages due Silverstein from Gresheimer, but on the contrary it is claimed and not disputed, that Silverstein was then overpaid in the sum of seventy-one .($71) dollars. Gresheimer ignored the assignment and Silverstein continuing in his employment, he paid him his wages regularly.

At common law a chose in action, except negotiable instruments, was not assignable, unless the debtor assented to the assignment and promised to pay the assignee, in which case an action might be maintained by the assignee on the express promise of the debtor to pay. 2 Black Com., 442; 2 Chitty on Contracts, 1357 (11th Am. Ed.); McKinney v. Alvis, 14 Ill. 33; Olds v. Cummings, 31 Ill. 188.

This rule of law has in these modern times, conforming to changed conditions, been much modified, so that the common law rule in its entirety now no longer prevails.

The general test to be applied in determining the assign-ability of a chose in action is whether or not it would survive and pass to the personal representatives of a decedent assignor if no assignment had been made. If it would so survive it may be assigned so as to pass the interest assigned to the assignee; if it does not so survive, it is not assignable either at law or in equity.

See cases, note 4, on page 1017 Am. & Eng. Ency. Law, second edition.

Applying this test to the assignment in the case at bar it is clear that it ivas not effective or binding upon the defendant.

The authorities as to whether or not unearned wages may be assigned so as to be recoverable in an action at law in a jurisdiction where the distinction between law and equity prevails are conflicting. I am, however, inclined to hold to what I consider the better doctrine enunciated in the case of Lightbody v. Smith, 125 Mass. 51, that except as to wages actually due at the time of an assignment, such an assignment is an attempt to transfer a mere possibility of future earnings and therefore as to such future earnings is not an existing chose in action.

Justice Cooley in Kane v. Clough, 36 Mich. 436, held to the doctrine announced in Lightbody v. Smith, and inferentially decided that where an action' could not be maintained on an assignment of demands having no actual existence at the time of the assignment, resort might be had to equity after the demands intended were subsequently brought into existence. This rule of law would be fatal to a recovery in this cause on the law side of the court, where we find it.

The verdict will therefore be set aside and a new trial granted.

NOTE.

In Maillin v. Wenham, 209 Ill. 252, affirming 103 Ill. App. 609, it was held that an assignment of wages to he earned under a subsisting employment is valid and enforceable, if made in good faith and for a valuable consideration, even though the employment is for an Indefinite time.—Ed.


text:
      (Criminal Court of Cook County.)

    City of Chicago vs. A. M. Forbes Cartage Company. City of Chicago vs. R. J. Mix Transfer Company.
    (February 11, 1901.)
    1. Common Carriers—Teaming Companies Are Not. Persons carrying on a general contract teaming business, and owning horses and wagons suitable for the hauling of "goods in and about the city of Chicago, who do such hauling for their customers under time contracts at a fixed price per ton, are not common carriers, and cannot be compelled to carry goods against their will.
    2. Sams—'Power of City to Control and License. As the business of such teaming companies isi not affected with a public interest, it is not subject to police control.
    3. Public Cart—Defined. A teaming company which carries goods within a city for certain customers under private contract at a fixed price per ton, and does not hold itself out as undertaking for hire to transport the goods of any person applying to them, is not a common carrier, and does not come within the meaning of a city ordinance regulating and licensing “public carts.”
    Appeal from police magistrate. Heard before Judge Jesse Holdom.
    Statement of facts by court.
    The defendants were fined by a police magistrate, for violation of section 521 of the Revised Code of Chicago (1897), article 3, and from the judgments of the police magistrate, the defendants each prosecuted an appeal to the criminal court of Cook county.
    The material sections of the ordinance in question are as follows:

      “507. Public Cart, Defined.—Every cart, truck, wagon, dray or other vehicle drawn by one or more horses or other animals, which shall be kept, used, driven or employed for the transportation or conveyance of goods, wares, merchandise, or other articles, from place to place, within the city of Chicago, for hire, wages, or pay for such transportation, shall be deemed a “public cart” within the meaning of this article, and every person who shall set up, or so keep, use or employ any such public cart, without first obtaining license therefor from the mayor of said city as is hereinafter provided shall be-deemed guilty of a violation of this article.
    508. License.—The mayor shall from time to time, license and appoint so many and such persons, companies, or corporations, as he may think proper to set up and keep public carts in said city, and he may revoke or suspend any or all such licenses at his pleasure. All persons licensed as aforesaid to keep public carts, shall be deemed to be public eartmen within the meaning of this article; but it shall not be lawful for any person to receive or hold a license to keep public carts or to be a public Cartman, unless he be a resident of the state of Illinois, and is the actual owner of the cart or carts so licensed to be kept as public carts; and the mayor may examine under oath, all persons applying for or holding any such license, touching their qualifications as aforesaid; and all licenses other than to persons so qualified shall be void.

      509. License Fees.—The city collector shall require and receive for the use of the city from every person to whom the mayor may grant a license:
    1. For all baggage, express and furniture wagons and vehicles drawn by two or more horses or other animals, shall be charged for license, each, the sum of five dollars per annum.
    2. For all baggage, express and furniture wagons and vehicles drawn by one horse or other animal, shall be charged for license, each, the sum of two dollars and fifty cents per annum.
    3. For all drays, carts, wagons and other vehicles running within said city for hire or reward, and not otherwise expressly provided for, shall be charged for license, each, the sum of two dollars and fifty cents per annum.
    4. For all wagons and other vehicles drawn by four or more horses or other animals, for the conveyance of any heavy article .or thing for hire, from place to place in said city, shall be charged for license, each, the sum of five dollars per annum r Provided, that nothing herein contained shall include omnibuses and baggage wagons running to and from hotels free of charge.
    521. License Number Displayed.—All public eartmen upon taking out a license, shall obtain from the city clerk two painted metal plates eight inches long and four inches wide, on which shall be stamped the number corresponding to the license, and also the words, “Chicago express,” together with the year for which the license is issued, which plates the said licensed eartmen shall cause to be securely fastened on the outside of each side of the box of his cart, so licensed, or in a conspicuous place, so that the same can be easily seen. The said licensed cartmen shall also at the same time obtain from the city clerk a metal badge one and three-fourths inches long and one and one-eighths inches wide, having a number thereon •corresponding to the number on the aforesaid plates; said badge shall be provided with a pin or other fastening, and shall be worn by such licensed cartman in a conspicuous place on the outside of the coat, so that it may not be hidden either by accident or design. Upon the expiration of the licenses the city clerk shall prepare new plates, similar in design, but of a different color, and with the proper year stamped thereon, and shall also prepare new badges for all applicants for license as cartmen. The driving or using of a public cart without the above described plates attached thereto in plain sight, and without the driver thereof having such badge, shall be deemed a violation of this article.”

      Collins & Fletcher, for defendants.

      James Donohue, assistant prosecuting attorney for the city •of Chicago.
   Holdom, J.:

The defendants are charged with a violation of chapter 19, article 3, Revised Code of Chicago, in operating a public cart without displaying a plate and badge, as provided in section 521 of said code.

The defendants are both incorporated under the laws of •this state, and are engaged in contract teaming—that is— they own horses and large and small trucks and wagons, suitable for the handling of various kinds of goods and merchandise in and about the city of Chicago: They each maintain a business office as well as stables for the keeping of their horses and housing their vehicles; all of the business of hauling is done by time contracts at a fixed price per ton with, •among others, such firms as Sprague, Warner & Co., Hibbard, Spencer, Bartlett & Co. and S. A. Maxwell & Co. Such teams and vehicles with drivers are sent out to such firms, and are entirely under their direction, and haul their goods to the freight houses, warehouses and other places as instructed, returning direct, either to the stables or to the company’s office for instructions. Many of the vehicles are lettered with the names and business of the firms for whom hauling is done, although as a matter of fact, none of such firms have any proprietary interest, either in the vehicles or the horses drawing-them. None of the vehicles have any stand or solicit trade on the streets, nor odd jobs of hauling are either solicited or taken, and no driver or other employe takes any order for-hauling except at the office.

These are substantially the facts proven, germane to this-inquiry.

It is conceded that the metal plates and badges directed by the ordinance to be fixed on public carts and worn by their drivers were not so done to either the drivers or wagons, the subject-matter of the contention in these prosecutions.

Two defenses are interposed:

1st. The ordinance is illegal and void, and

2nd. If valid, defendants are not amenable to it.

In the view I take of the case, it is unnecessary to decide-at this time, as to whether or not (in a proper case) the ordinance is valid.

Section 507 defines all vehicles coming within its scope as-“public carts.”

Section 512 sets apart certain territory in the city “as a public stand for trucks, wagons and teams.”

Section 513 makes it the duty of the superintendent of-police to “assign to the owner of each duly licensed public cart a stand where such cart may remain, waiting to be employed,, and also a stand where it may remain at other times.”

Section 515 provides that “it shall be the duty of every person driving or having charge of a public cart to give to any person requesting it, his name and place of residence, the number of the cart he is driving or in charge of, and the name and place of residence of the owner thereof, and a refusal to-do so shall be deemed a violation of this article. ®

Section 519 fixes a scale of charges and the manner of loading and unloading.

Section 525 makes it obligatory upon the driver of any public cart to haul goods when requested, at the rates -of compensation fixed by the ordinance, and provides a fine of five dollars for each violation of this section.

This ordinance, so far as it i& effective, finds warrant in clause 42, sec. 63, art. 5, chap. 24, R. S., entitled “Cities, Towns and Villages,” and is an exercise of the public power conferred upon the city by its charter.

The court will take judicial notice that Chicago is a great metropolitan city and that it is a railroad centre second to none, that vast numbers of people are continually passing through it to points beyond Chicago in every direction, that many foreigners newly emigrated from their fatherlands and strangers to our tongue are coming and going constantly, that in the great aggregation of people domiciled here there is much changing of habitation, and consequent hauling of the personal impedimenta of the mover from one place to another, from the maid servant with her small trunk to the man of family with his household goods. The public cartman stands with his vehicle in the public highway for just such employment. He is unknown to those who engage his services, the plate and the badge are the only means of identification in the events of disputes or a miscarriage of property, and the ordinance is enacted for their protection. Such are common carriers and subject to police control—they pursue a calling which is affected with a public interest. City of Chicago v. Collins, 175 Ill. 445; People v. Stitt, 14 Colo. 43, 59 Pac. 62.

These defendants are not common carriers within the common law definition of that character of enterprise. Their business is not affected with a public interest, and is not, therefore, subject to police control, any more so than that of any other business not so charged.

Neither of these defendants’ wagons or teamsters stand in the public highway, soliciting business, they are not seeking the transient or unknown with whom to do business. All their hauling and teaming is done with firms and .persons known to them, not at rates fixed by ordinance, but by an independent contract, as they have a legal right, imposing such terms as may be agreeable to themselves. This is not a departure from any former way of transacting their business; it has been the same from the beginning.

If they are public cartmen, they must change their mode of doing business, and comply with the ordinance, not only as to procuring a license and a plate and badge for each vehicle and driver, but by charging the prices fixed by the ordinance and no more, or subject themselves to the penalties imposed by section 525.

The canon of construction invoked as to clause 42, sec. 63, art. 5, chap. 24, confines its operation exclusively to common carriers. Cecil v. Green, 161 Ill. 265; City of Havana v. Vananingham, 17 Ill. App. 62.

It therefore follows that the common council of this city has no power under its charter to license or tax vehicles or their owners who are not common carriers. Farwell v. City of Chicago, 71 Ill. 269; Collinsville v. Cole, 78 Ill. 114; Joyce v. City of East St. Louis, 77 Ill. 156; City of St. Louis v. Grone, 46 Mo. 574.

Cooley on Torts, 283, lays down an axiomatic principle illustrative of the contention here made: “No man becomes a common carrier except with his own consent; but when he does so, he must conform to those principles of the common law under which the business has grown up.”

Neither of the defendants have given their consent to act as common carriers. No act done by them appearing from the evidence brings them, even constructively, within the legal definition of a common carrier. They do not hold themselves out as undertaking for hire to transport the goods of any person, applying to them, from place to place. No person can lawfully compel them to carry goods against their will, or maintain an action, for damages for their refusal so to do. This is the legal test. Illinois Central Ry. v. Frankenberg, 54 Ill. 88; 5 Am. & Eng. Ency. Law, 158 (2d Ed.).

I am of the opinion that neither of the defendants has been guilty of a breach of the ordinance- above referred to; that they do not come in any way within its fair interpretation; they are not amenable to it.

A finding will therefore be entered in each case in favor of the defendants, and' the clerk is ordered to refund to them or their counsel the costs severally advanced by them in the prosecution of their appeals in this court.