and also that of the Kentucky case so far as that might apply to mistaken trespassers.

The third rule is that where the defendant is a knowing and willful trespasser the measure of damages is the full value of the property at the time and place of the demand with no deduction for labor and expenses of defendant.

This is somewhat at variance with the rule

laid down by the Supreme Court of Illinois in Robertson v. Jones, 71 Ill. 405; McLean Co. Coal Co. v. Long, 81 Ill. 359 and McLean Co. Coal Co. v. Lennon, 91 Ill. 561; which were cases the first in trespass and the others in troverfor mining coal on plaintiff's land. The court in those cases held that the measure of damages was the value of the coal at. the mouth of the mine less the expense of conveying it from the place where it had been detached from the soil.

The Illinois rule seems to be the same as that laid down by the English courts in Morgan v. Powell. 43 Eng. Com. L. 734; Martin v. Porter, 5 Mees & Wels 302, and Wild v. Holt, 9 Mees & Wels 672.

We can only reconcile the principle of these decisions by noticing that the Supreme Court of the United States would seem to hold that the time of conversion was the time of the demand, while the other courts must to be consistent hold that the time of the conversion, was when the tresspasser did some act implying a claim to the property after it became a chattel, and assume that no demand was necessary to constitute a conversion; and this would seem to be more in accordance with the general rule of law that the assumption of ownership by one in possession of personal property which has come to him by his own wrong, constituted a conversion ipso facto without a demand.

If this be so, the decision of the supreme court of this state in the Hutchings case is unquestionably the better law as no one would hold that an innocent purchaser could be held to greater damages than his wrongful vendor. -O. W. A.

MASTER AND SERVANT.

The case of John A. Stewart against the Brooklyn and Crosstown Railroad Company, decided a few days ago by the court of ap

peals, is of much importance to railroad companies and all common carriers of passengers, and seems, to some extent, to place their liabilities to their passengers on a different basis from that of some of the old cases. The case referred to was brought in the city court of Brooklyn to recover damages sustained by the plaintiff for being assaulted and cruelly beaten by the conductor of one of the defendant's cars. The railroad company defended the action on the ground that although their liability for the negligence or unskillfulness of their servant was unquestionable, yet, when the servant departed from the duty he was hired to perform and committed a wanton and malicious trespass on the rights of another, the company could not be held responsible. A motion was, therefore made at the close of plaintiff's evidence at the trial term to dismiss the complaint. The defendant relied on the cases of Isaacs v. The Third Avenue Railroad Company (47 N. Y., 122) and Rounds v. The Delaware & Lackawanna Railroad Company (64 N. Y., 129). The trial judge denied the motion to dismiss the complaint, the cause went to the jury and the plaintiff had a verdict. A motion for a new trial having, been made and denied, the defendant went to the general term, where the judgment was reversed and a new trial ordered. On the second trial the plaintiff again presented his evidence, but at the close the defendant moved to dismiss the case on the ground that it appeared by plaintiff's own testimony that the conductor's assault was wilful and malicious, and not within the scope of his employand dismissed plaintiff's complaint, wherement. The trial judge took that view of it upon plaintiff appealed to the general term, which affirmed the order dismissing plaintiff's complaint, who thereupon appealed to the court of appeals.

Judge Tracy, who wrote the opinion, after stating the facts, shows the difference between the ordinary liability of the master for the acts of the servant which result in an injury to one whom the master owes no duty, and the liability that attaches to the master for the same or similar acts to one whom he is bound by an implied contract to protect; and on this point he says: "By the defendant's contract with the passenger it had undertaken to carry him safely aud treat him respectfully, and while a common carrier does not undertake to insure against injury from every possible danger, he does undertake to protect the passenger from the negligence or wilful misconduct of its servants, while engaged in performing a duty which the carrier owes to the passenger."

It will be seen how radically different this decision is from those cases that excuse the

master because the act of the servant was wilful and malicious.

The learned judge cites with approbation the case of Commonwealth v. Powers (7 Met.) and several other cases, one of which says: "A common carrier is bound, so far as practicable, to protect his passengers, while being conveyed, from violence committed by strangers and co-passengers, and he undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract."

From an examination of his opinion it is obvious that the dictum of the court places the liability of the master upon the contract he made with the passenger to carry him safely, rather rather than upon the relation that exist between master and servant, which has embarrassed the courts in so many cases. The subtle distinction between what is and what is not within the scope of the servant's employment is about as difficult in some cases to determine as to decide when a boy ceases to be a boy and becomes a man. This seemed to be the difficulty in the court below, but was disposed of in a summary way by the court of appeals, who placed the liability of the defendant as the result of a different rule of the law. The case of Isaacs v. Third Avenue Railroad Company must now be considered as overruled, and a new precedent established.-Daily Reporter.

TRADE NAME.

The decision of the House of Lords on the thirteenth of December, in the case of the Singer Manufacturing Company v. Loog, has at last determined a question which has been viewed with the deepest interest by the large class of persons engaged in the manufacture of sewing machines, and by that still more numerous class who daily use them, and at the same time a finishing touch has been put to a litigation which has been protracted over some eight years, and has occupied no small share of the space afforded by the various series of law reports. The really substantial question was but a short one, viz., whether the plaintiff company was or was not entitled to the exclusive use of the name "Singer" as applied to sewing machines, but in the course of the litigation the important point of law was decided that a trade name stands on precisely the same footing as a trade mark in respect o fits not being necessary to an injunction to produce evidence of an actual intention to deceive, so long as what has been done is likely to produce that result. In the first instance the company took proceedings against a Mr. Wilson, and after the Master of the Rolls, affirmed by the Court of Appeal (2 Ch. Div. 434), had dismissed the action without

hearing the defendant's evidence, on the ground that the plaintiff had shown no intention to deceive, the House of Lords, on the thirteenth of December, 1877, took a different view of the point of law, and remitted the case to the court below to be reheard on all the evidence: 3 App. Cas. 376. This action was, however, fated to end in no result, for the defendant ceased to be in a position to contest the matter any further, and the company turned their attention to a new antagonist, the London agent of a Berlin firm. The trial before Vice-Chancellor Bacon lasted this time all but twenty days, and a judgment entirely in favor of the plaintiff was obtained, but that judgment was reversed by the Court of Appeal (18 Ch. Div. 395), and the House of Lords has now finally held, on the fifth anniversary of its former decision, in the language of the Lord Chancellor, that the phrase "Singer system" of sewing machines, whether scientific or not, whether exact or loose, is used commonly by the sewing machine trade to describe a fact, and that, while other manufactures have no right to invade the reputation of the company, as manufacturers, so neither has the company, now that its patents have expired, any right to claim a monopoly of a particular pattern of machinery, or the reputation acquired by it. The result is, that any one who chooses to adopt the manufacture of machines having the same principle of working and the same external arrangement of parts as those described in the Singer patents, is at perfect liberty to say that he manufactures them on the Singer system. He will, of course, not be entitled to use such a trade mark, or to describe his machines in his catalogue and price lists in such a way as to represent to even an unwary purchaser that they are the production of the successors in business of the inventor.-London Law Times.

Reported Cases.

KRAUS ET AL. v. THOMPSON.

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(Minnesota Supreme Court. December 15, 1882.) RESCISSION OF SALE Judgment for value of goods sold does not always prevent.-The fact that a vendor of goods, in ignorauce of fraud on the part of his vendee constituting a ground for a recission of the convendee for the purchase price of the goods, will not tract of sale, has proceeded to judgment against the

amount to an affirmance or ratification of the contract of sale so as to preclude him from rescinding upon subsequent discovery of such fraud.

Appeal from order of districts court, county of Hennepin, refusing a new trial. MITCHELL, J.

The question presented by this case for consideration is this: Does the fact that a vendor of goods, in ignorance of fraud on the part of

his vendee sufficient to authorize a rescission

of the sale, has obtained judgment against his vendee for the purchase price of the goods, amount to an affirmance or ratification of the contract of sale so as to preclude him from subsequently rescinding upon discovery of the fraud? It is proper to remark that the court below, in deciding this question in the affirm ative, fortifies his decision by the suggestion that, although the evidence tended to show that the attorneys, on whose motion the judgments referred to in this case were entered, had no notice of the fraud, yet it did not appear that their clients, the vendors, were at the time in ignorance of the facts. We do not think that the language of the bill of exceptions, when considered in connection with the pleadings, will sustain this suggestion.

The complaint alleges that the vendors did not discover the fraud until on or about July 10th, (the judgments by confession were obtained by the attorneys July 2d,) and that upon discovery of the fraud they rescinded the contracts of sale, and that after such discovery they have done nothing to affirm the sales. The bill of exceptions shows that the plaintiffs introduced evidence tending to prove all the issues in the action, and particularly evidence tending to show a rescission of each and every of the sales of goods mentioned in the complaint. The expression " that plaintiffs introduced evidence to prove all the issues in action" is perhaps not a very happy one, but we think it must be construed as meaning, "to prove their side of the issues;" that is all the material allegations of their complaint put in issue by the answer. But the point made in this suggestion was clearly not the ground upon which the learned court rested his decision. The real ground was the supposed conclusiveness of the judgment per se as res adjudicata, or, to put it in the words of the court himself," a judgment regularly entered, settles the ultimate rights of the parties, and, being a security of a higher nature than other contracts, merges all claims of the parties respecting the matters on which it rests," and "if the vendor's rights to rescind were ended by their entries of judgment, they could not be revived by opening or setting aside the judgments on their applications."

With all due deference to these views of the very able judge who decided this case, we think that his conclusions rest upon a misapplication of the doctrine of the conclusive effects of judgments as res adjudicata. Of course, it is elementary that an issue, once determined in a court of competent jurisdiction, is an ef fectual bar to any further litigation of the same matter by parties and privies, and that a judgment is conclusive upon the parties

thereto in respect to the grounds covered by it, and the law and facts necessary to uphold it. But we fail to see how the right of a vendor to rescind a sale is in issue or determined in an action brought to recover the purchase price of the goods sold, or how an attempted rescission after judgment in such a case is any collateral attack upon the conclusiveness of such judgment as to any matters determined by it. There never has been a judgment as to whether the goods were obtained by the vendee by fraud, such as would give the vendor the right to rescind. The judgment for the purchase price determines that there was a sale in fact, and as to that it is, of course, conclusive. But a rescission of the sale controverts none of the facts in issue in an action for the purchase money, but, in fact, admits them.

The

A rescission proceeds upon the theory that there has been a sale, but voidable at the option of the vendor on the ground of the fraud of the vendee, and that, having discovered this fraud, the vendor elects to avoid it. invariable rule is that this right to rescind may be exercised upon discovery of the fraud, and that no acts in recognition of the existence of the contract of sale, done before such discovery, will amount to an affirmance or ratification, so as to preclude the vendor from rescinding when the grounds for rescission are discovered. Affirmance in ignorance of the facts authorizing rescission will not prevent the affirming party from afterwards rescinding. Pratt v. Philbrook, 41 Me. 132. Accepting part of the purchase money in ignorance of the fact has been often held no ratification. So as to the commencing an action under the contract to recover the goods. Clough v. London & N. W. R. Co. L. R. 7 Exch. 26.

Any act of ratification of the contract, after knowledge of the facts authorizing a rescission, amounts to an affirmance and terminates the right to rescind; but if done before such knowledge it will have no such effect. And, in our opinion, the act of obtaining judgment against the vendee for the purchase price stands in that respect on the same footing as any other act recognizing the existence of the contract of sale, and must be governed by the same rules. The fact that the original claim against the vendee for the price of the goods is extinguished by the judgment. is not material. The case is not different in that regard from what it would have been if the vendor had taken from the vendee his own note or the note of a third party, in payment of the original claim.

The point made by respondent, that a notice of rescission and a demand for the goods could not be made until after these judgments were vacated and annulled, is founded upon the

same mistaken theory as to the conclusiveness of the judgments to which we have already referred. See Lloyd v. Brewster, 4 Paige, Ch.

537.

In our judgmeut, therefore, the court below erred in excluding the evidence tending to show that these judgments were, on motion of the vendors, after discovery of the fraud, vacated and set aside, and instructing the jury that as to the plaintiffs first, fourth, eighth, and twelfth causes of action they could not recover. This should have been submitted to them for determination upon the facts under proper instructions.

Order denying a new trial reversed, and a new trial granted as to the first, fourth, eighth and twelfth causes of action set up in the complaint.

an

PHILADELPHIA, W. AND B. R. R. Co. v. BITZER. (Maryland Court of Appeals. April Term 1882.) RAILROADS-Negligence-Agreement between Companies. Employee-Co-employe. 1. Whatever effect agreement between the several companies owning connecting lines of railroad may have upon the parties thereto, it cannot have any upon strangers to it, nor alter nor change the relations of either of them towards third parties, nor have the effect of making those who were employed and paid wages by either of the contracting parties, the co-employes of the agents and workmen of the other parties, or make the. others liable either severally or jointly for any loss or damage caused by the neglect of any one of them even were the agreement silent in this respect. 2. Where an injury to the employe of one of the companies occurs on the road of another of the companies, and is caused by the imperfect condition of the road, the principle that every employe assumes the risk of the negligence of his co-employes is not applicable to him.

Appeal from Carroll Circuit Court.

The

Action in damages for personal injuries sustained by an employe, whereof he died. defendant company appealed.

GRASON, J.,

In delivering the opinion of the court, said: The appellant's second prayer seeks an instruction that the appellee was not entitled to recover for the various reasons especially assigned therefor. They are all based on the theory, that if the appellant's track was out of repair and imperfect through its own neglect, and that in consequence of such imperfect condition of its track Samuel Bitzer lost his life, that still the appellee was not entitled to recover, because the said Bitzer was a co-employe of the appellant's employes. This theory is based upon the agreement, set out in the record, between the New Jersey Railroad and Transportation Company, the Camden and Amboy Railroad and Transportation Company, the Philadelphia and Trenton Railroad Company, parties of the first part, the Philadelphia, Wilmington, and Baltimore Railroad Company, the appellant, of the second part and the Baltimore and Ohio

Railroad Company of the third part. This agreement was entered into for the purpose of securing comfort, speed, and safety in the through passenger travel between New York and Washington, and to secure harmony of action between said parties to accomplish that object. Whatever effect this agreement might have upon the parties to it, it could not have any upon strangers to it, nor alter nor change the relations of either of them towards third parties, nor have the effect of making those who were employed and paid wages by either of the contracting parties the co-employes of the agents and workmen of the other parties, nor make the others liable, either severally or jointly, for any loss or damage caused by the neglect of any one of them, even had the agreement been silent in this respect. But in order to guard against any such result the agreement itself expressly provides that "if an accident shall happen whereby damages to persons or property shall be incurred, the party on whose road the same shall happen shall alone be responsible." The road on which the accident, which is the cause of this suit, happened, is admitted to be the road of the appellant. The principle invoked in favor of the first prayer is that every employe assumes the risk of the negligence of his coemployes. Samuel Bitzer was not employed or paid by the appellant, but was employed by the Baltimore and Ohio Railroad Company, and therefore this principle is not applícable to him. Judgment affirmed.-Reporter.

WALTON V. BOOTH.

(Supreme Court of Louisiana. May, 1882.) DAMAGES-Mistake by Druggist-Injury to Patient. A druggist is liable in damages for injuries which occur by reason of a sale by him of a poisonous drug for a beneficial medicine.

Appeal from the Parish oi Last Baton Rouge.

The action is for $10,000 damages. The defendant is a druggist, and gave a dose of sulphate of zinc, a deadly poison, instead of epsom salts, to a customer who was then pregnant, and who, with the offspring, subseqently died, in consequence, as alleged, of the poison. The plaintiffs are the parents of deceased. The defendant had judgment, and plaintiffs appealed.

BERMUDEZ, C. J.

In delivering the opinion of the court, said: It may well be that plaintiffs' daughter did not miscarry and die from the effects of the administered sulphate of zinc; that those fatal results were occasioned by a severe attack of erysipelas, as was testified to by the physicians heard in the case: but it is no less true that, by reason of the taking of the dose of sulphate of zinc, she endured lasting

and great pain and suffering, retching, and vomiting, for which she would have been entitled to damages had she recovered.

That the defendant was greatly negligent is apparent. In the discharge of their functions, druggists and apothecaries, persons dealing in drugs and medicines, should be required not only to be skillful, but also exceedingly cautious and prudent, in view of the terrific consequences which may attend, as they have not unfrequently in the past, the least inattention on their part. Cooley on Torts, pp. 75, 76, 648, 649. All persons who deal with deadly poisons are held to a strict accountability for their use. The highest degree of care known among practical men must be used to prevent injury from the use of such poisons. A druggist is undoubtedly held to a special degree of responsibility, for the erroneous use of poisons, corresponding with his superior knowledge of the business. 6 N. Y. 397; 13 B. Monr. 219; Shearman & Redfield on Neg. $592. It is difficult to find an acknowledged correct standard by which damages, in cases like the present one, can be measured. Shearman & Redfield on Neg. § 606; C. P. 686. In McCubbin v. Hastings, 27 An. 713, which was a suit by a husband, and father of a minor child, against a druggist for substituting spirits of camphor for camphor water, used for the purpose of an enema, the court thought itself justified to allow $2,500. In the present case the sufferings of the plaintiffs' daughter, unmistakably occasioned by the taking of the sulphate of zinc, although not apparently as intense as those in the McCubbin case, were certainly considerable. 30 Ga. 241; 8 Gray, 45; 11 Foster, 119. From the evidence before us, we think the verdict of the jury manifestly erroneous in not allowing the plaintiffs reasonable damages, which, we think, should be asssesed at $1,000. Judgment ordered for plaintiff for $1,000.-Reporter.

DICKSON v. HARRIS. (Iowa Supreme Court.)

PROMISSORY NOTE-Parol Evidence of Contemporaneous Agreement not Admissible.-A defendant, while admitting that he executed a proimssory note with full knowledge of its terms, and of every fact connected with it, cannot by parol contemporaneous testimony transform such note into a mere memorandum or receipt for money. Where the receipt of the money, at the time of the execution of the note, is admitted, parol evidence to show a contemporaneous agreement that would transform the note into a receipt cannot be admitted under pretext of proving that the note was without consideration. Nor can the payment of the money at the plaintiff's request, according to the contemporaneous agreement, be shown to prove a set-off in a suit on such note.

The plaintiff brings this action to recover of the defendant the amount of a promissory note executed by the defendant to the plaint

iff for $200, dated December 21, 1870, payable twelve months after date, with interest at eight per cent., and upon which are several indorsements of credits, aggregating $136. The defendant answered, admitting the execution of the note, and alleging that on the day of its execution the plaintiff, on his own motion, gave the defendant $200, which he requested the defendant to carry from Ohio to Washington, Iowa, and apply it in discharge of a judgment against the plaintiff's son, and defendant took the money, promising that he would so apply it; that said note was executed as a memorandum to show that said money had been so received, and as a guaranty that it should be so applied; that defendant took said money to Washington, and applied it as requested in payment of said judgment; and that by his so applying it immediately after the execution of said note he fully satisfied the same. The defendant, for answer, says that near the time of the date of said note he paid for the plaintiff, at his instance and request, $200 on a judgment against the plaintiff's son, which should be applied in payment of the note, and as an off-set thereto. The cause was tried to a jury, which was directed by the court to return a verdict for the plaintiff. The defendant appeals. DAY, J.

1. The execution of the note and the receipt by the defendant of $200 from the plaintiff, at the time the note was executed, are admitted. The plaintiff's son is the defendant's son-in-law. The defendant's counsel produced the defendant as a witness, and proposed to prove by him that the plaintiff, having been informed by the defendant of the plaintiff's son's necessities, gave the defendant, at the time of the execution of the note in suit, $200, for which the note was executed, and requested the defendant to apply that amount of money for the plaintiff in discharge of a debt against the plaintiff's son in Iowa; that witness took the money and brought it to Iowa, and applied it as requested in payment of a judgment against the plaintiff's son; and that the note was given upon this consideration alone, and was not intended between the parties to operate as a note, but merely as a memorandum of the amount of money received, and that it was agreed at the time the note was made that the payment of the money in the way agreed upon should be a satisfaction of the note. This proffered testimony was rejected. It is to be observed that the defendant does not allege in his answer, nor propose to show, that the note never had any legal existence, by reason of fraud, accident, or mistake, or for want of due exccution and delivery, or for any illegality in the subject-matter.

The defendant, while admitting that he ex