Where the proprietor of a medicine transfers the right to use his trade-mark and formula without transferring the place of manufacture, or plant used, or the good-will of the business, and there is no exclusive right to manufacture the medicine in any one, and there is nothing in the trade-mark to indicate that the medicine comes from a particular manufactory, the grantee cannot restrain another person from using it, as the only effect of the trade-mark is to indicate a class of goods which any one who knows how may manufacture.

A manufacturer of medicines which are not patented has no exclusive right to the use of his formulas, except as against one who obtains his knowledge of the ingredients by means of a breach of trust or contract.

REPORT from Superior Court, Bristol County.

E. L. Barney, for plaintiff.

E. Avery and T. F. Desmond, for defendant.

HOLMES, J. This is a suit brought for an injunction and damages in respect of the defendant's manufacture and sale of certain medicines under the name of "Dr. Spencer's Queen of Pain," and "Spinal Paste or Salt Rheum Cure," and his use of alleged trade-marks for the same. Issues were framed for the jury on the question whether the plaintiff was the owner of the formulas for the medicines and of the trade-marks used by Dr. Spencer, and the case came on for trial upon them. As the whole case was pending in the Superior Court, it is hardly to be supposed that it was understood that every question, except those raised by the issues in their narrowest sense, was left for trial at another time. It seems plain, at the least, that the rulings of the judge were made on the footing that the question before him was whether the plaintiff had such an exclusive ownership as she alleged in her bill, and as entitled her to an injunction, and that the judge was right in that understanding. If the issues were construed more narrowly than that, the trial by jury was a waste of time.

cer's recipes and trade-marks for these medicines, excepting rights, not specified, theretofore granted by Spencer, Mrs. Spencer or himself, and it seems, had sold him moulds for bottles for the Queen of Pain, at a much earlier time. The defendant made and sold the medicines with labels like those used by Dr. Spencer. The judge ruled that the evidence would not support a decree for the plaintiff, directed the jury to answer the questions in the negative, ordered the bill to be dismissed, and reported the case.

So far as the right to manufacture and sell the medicines goes, the plaintiff's case may be disposed of in a few words. Dr. Spencer had no exclusive right to the use of his formulas. His only right was to prevent any one from obtaining or using them through a breach of trust or contract. Any one who came bonestly to the knowledge of them could use them without Dr. Spencer's permission and against his will. Peabody v. Norfolk, 98 Mass. 452, 458; Morrison v. Moat, 9 Hare, 241, 263; Williams v. Williams, 3 Mer. 157. The defendant got his knowledge honestly.

Having the right to make and sell the medicines, the defendant had the right to signify to the public that the medicines were made according to the formulas used by Dr. Spencer. The only question is whether the plaintiff has the right to restrain him from using Dr. Spencer's trade-marks. The defendant argues that au executor or administrator has no right to give away the estate coming to his hands, and therefore that the plaintiff got no title to any property of Dr. Spencer by Mrs. Spencer's dealings with her, since those dealings were, at most, a mere gift. But there has been no attempt to avoid the transaction on behalf of any one interested. The creditors of the estate have all been paid, and the next of kin assented to the gift. So far as this objection goes, we shall assume, that even if the gift was a breach of duty on the part of Mrs. Spencer, it gave the plaintiff a title as against third persons, to any thing which it was otherwise competent to give her. Myers v. Meinrath, 101 Mass. 366.

We assume for the purposes of our decision, but without expressing an opinion on either question, that what took place between Mrs. Spencer and the plaintiff purported to be a present gift of the trade-marks. and that if the gift of a trade-mark in gross would have been good if by deed, it would be equally good at common law when made by parol. The old rule was that every thing that is not given by delivery of hands must be passed by deed." Noy Max., p. 62, chap. 33; Fairfax, J., in Y. B., 21 Hen. VII, 36, p. 1, 45; Shep. Touch. 229. But the formalities required by the early common law have been broken in upon a good

may be that later forms of property not admitting of delivery, but unknown to the old law, or not then the subject of transfer, are free from the restraints of the ancient rule; just as at Rome, later forms of property could be conveyed without the comparatively early ceremonies of mancipation. It may be that even a parol gift of incorporeal property would be sustained although delivery is impossible, from the nature of the case. But that question we leave undecided. Browne Trade-Marks (2d ed.), § 361 and note; Low Tr. Stocks, § 43; 2 Kent Com. 439; Grover v. Grover, 24 Pick. 261, 263; Bond v. Bunting, 78 Penn. St. 210, 218.

The plaintiff's case, on her evidence, is as follows: Dr. Spencer, of New Bedford, made and sold these medicines according to certain secret formulas of his own, under the names mentioned. The plaintiff became intimate with him; and after his death Mrs. Spencer, his administratrix, said to the plaintiff that it was the doctor's wish and her wish that the plain-deal, although more in England than in this State. It tiff should have the formulas of the Queen of Pain and the Spinal Paste, and the trade-marks, and the circulars and labels, and every thing that went with the Queen of Pain and the Spinal Paste, and that was her reward for her kindness. These formulas were written on paper. Mrs. Spencer handed them to the plaintiff and she took them. At that time, the plaintiff took some of the Queen of Pain that was manufactured and on hand. There was not any Spinal Paste made then. She took none of the labels at that time. Three days later Mrs. Spencer died, and a teamster carried the rest of the medicine to the plaintiff's house. After that the plaintiff began to manufacture and sell the medicines. The sisters and next of kin of Dr. Spencer, and his administrator de bonis non, subsequently signed papers purporting to ratify the transaction; the administrator using words implying that she had a right, but not necessarily an exclusive right. The administrator also sold the plaintiff two dies used by Spencer for stamping packages of the Spinal Paste. After these transactions, the administrator de bonis non conveyed by deed to the defendant, for $200, Spen

See

We also refrain from considering whether the sale of the two dies to the plaintiff would not be sufficient to give her the right to use the marks upon them (Stevens v. Gladding, 17 How. 447, 452), and pass to what seems to us the insuperable difficulty in the case.

What is the plaintiff's position when she seeks to prevent the defendant from selling his medicine by the name of Dr. Spencer's Queen of Pain?" She is not Dr. Spencer. She is not the owner of a manufac

BILL

Julien T. Davies, Arnold Green and Patrick J. Galvin, for complainants.

Francis B. Peckham and Darius Baker, for respon

ent.

DURFEE, C. J. This bill is brought by the complain. ants as abutters on certain streets in the city of Newport, along and over which the tracks or rails of the defendant company's street railway have been laid. The object is to have the company enjoined from

erecting or maintaining certain poles and wires in the the repairs of the streets where the tracks are and to streets in front of their estates. Said poles were erected to support said wire over said tracks for the conduction of electricity, which is used as a motor for the passenger cars traversing said tracks. The poles are placed along the margins of the sidewalks of said streets about one hundred and twenty feet apart, and were placed so by permission of the city council of the city of Newport given by ordinance. The case was submitted on bill and answer, no replication having been filed. The bill alleges several grounds of relief. We will consider them severally as alleged.

The first ground is that the company did not give notice as required by section 2 of the act of incorporation. Said section provides for notice to abutters to be given by publication and posting at least fourteen days before the location of tracks proposed to be laid. The bill alleges that the purpose for which the notice was required was to apprise the abutters "of the nature and extent of the proposed use of the streets and highways," and to afford them an opportunity to appear before the city and town councils having power over the matter and be heard in relation thereto. The bill admits that a notice was given in August and September, A. D. 1888, but avers that it was defective in that it did not set forth that any other than horse power was intended to be used. The answer states that said notice did not refer to the matter of power and maintains that any reference to it therein was unnecessary, since section 2 prescribes notice only before action in regard to the location of the tracks. This is so. It is section 5 that relates to the power. That section provides that "said tracks or road shall be operated and used by said corporation with steam, horse or other power, as the councils of said city and towns may from time to time direct." No notice is required before such direction. The ordinance in regard to location was passed January 24, A. D. 1889. It permitted the use of horse power only. The ordinance permitting the use of electricity was passed March 5, A. D. 1889. It seems to us that the latter ordinance was clearly authorized by section 5 in the words above quoted. The previous location of the tracks was not affected thereby.

The second ground alleged is that the right to use electricity is not given. The language in regard to the power to be used is that above quoted; namely, that the road shall be operated with steam, horse or other power as the councils of said city and towns may from time to time direct." The complainants contend that the word "steam" must be struck out because it has been decided that steam cannot be used without compensation to the owners of the fee for the new servitude imposed, and no compensation is provided for, and because "steam "being struck out, "other power" must be construed to mean other power similar to horse power, i. e., other animal power. We do not find the argument convincing. Allowing that "steam" must be struck out for the reason given, it does not follow in our opinion that "other power" must be construed to mean other animal power. Horse power is the only animal power which has ever been used for the traction of street railway cars in our northern cities, and it is the only animal power which could have occurred to the General Assembly as fit to be used. The suggestion that "other power may mean mules cannot be entertained. The act of incorporation was passed in the winter of 1885, when the idea that electricity might be brought into use as a motor was already familiar, and nothing seems more probable than that the words "other power" were inserted with a view to its possible employment. We do not think the second ground valid.

The third ground is that the erection of the poles on the sidewalks is in effect prohibited by the act of incorporation. The seventh section, which relates to

damages for negligence on the part of the company, concludes as follows, to-wit: "And said corporation shall not encumber any portion of the streets or highways not occupied by said tracks." The poles are certainly in a portion of the streets not occupied by the tracks; but do they encumber that portion, in the meaning of the word as it is used? To encumber, according to Webster, is "to impede the motion or action of, as with a burden; to weigh down; to obstruct, embarrass or perplex." To encumber, as used in said section 7, doubtless means to obstruct or hinder travel by putting things in the way of it. The poles are very | slightly in the way of travel, being placed as hitching posts, lamp posts, electric light poles, telegraph aud telephone poles are placed, near the front margins of the sidewalks. We are not inclined to say however that they do not encumber because they are placed, as they are, but only that it does not follow that they encumber because they are so placed. Take for instance a lamp post or an electric light pole. It is slightly in the way and if it served no useful purpose in regard to the street, might justly be deemed to encumber it. But it supports a lamp, or an electric light, which illuminates the street at night and so improves the street for its proper uses. It is not therefore an incumbrance in any proper sense of the word. The real question is, as it seems to us, whether the words "and said corporation shall not encumber any portion of the streets or highways occupied by said tracks," were intended to restrain the city council of the city of Newport from authorizing the use of electricity for a motor in the manner in which it is used by the company. We have already decided that the council has power by section 5 to authorize the use of electricity, so that the question relates only to the manner of using, and is, whether the council has power to authorize the use in said mauner. It seems to us that the provision that the tracks or road shall be operated by steam, horse or other power, as the councils of said city and towns may from time to time direct," is broad enough to empower said councils not only to authorize the use of electricity as a motor, but also to authorize its use by means of any system of application which it approves as suitable; and it further seems to us that the concluding words of section 7 have their full meaning when applied to the company acting of itself, without extending them to city and town councils acting under section 5 or to the company acting under said section as authorized by such councils. It appears that said concluding words were copied from charters of street railway companies which were only authorized to use horse power, and in which of course they could have had no such application as is here contended for. It also appears from the allegations of the answer that the mode of using electricity which has been adopted is the only mode in which it can be successfully used by the company for the operation of the road. These are things which confirm our views. Our conclusion is that the power conferred by section 5 is not qualified by the concluding words of section 7, and that the poles complained of, having been erected under section 5 as part of the apparatus for supplying the railway with its motive power, are to be regarded not as encumbering the streets but as ministering to their uses, and as increasing the facilities for travel which they afford to the public.

The fourth ground alleged is that if the act of incorporation authorizes the use of electricity for the operation of said street railway and the erection of the poles as ancillary thereto, it is unconstitutional and void because it authorizes the imposition of an additional servitude upon the streets without providing for any additional compensation to the owners of the fees of said streets. We think it is settled by the greater weight of decision that a railroad constructed in a

ternal force, alarm and frighten horses. This, 80 far as it is alleged in the bill, is denied in the answer. We see no reason to suppose that this form of danger is so great, that on account of it, the railway should be re

that a great many street railways, operated by elec tricity, in the same manner as the railway of the defendant is operated, are in use in various towns and cities in different States, and that many others are in process of construction.

Reference has been made to cases which hold that telegraph or telephone poles and wires erected on streets or highways constitute an additional servitude, entitling the owners of the fee to additional compensa tion, and from these cases it is argued that the railway here complained of is an additional servitude by reason of the poles and wires which communicate its motive power. There are cases which hold as stated and there are cases which hold otherwise. But assuming that telegraph and telephone poles and wires do create a new servitude, we do not think it follows that the poles and wires erected and used for the service of said street railway likewise create a new servitude. Telegraph and telephone poles and wires are not used to facilitate the use of streets where they are erected for travel and transportation, or if so, very indirectly so; whereas the poles and wires here in question are directly ancillary to the uses of the streets as such, in that they communicate the power by which the street cars are propelled. It has been held, for reasons which we cou sider irrefragable, that a telegraph erected by a railroad company within its location for the purposes its railroad, to increase the safety and efficiency thereof, does not constitute an additional servitude, but is only a legitimate development of the easement originally acquired. Western Union Telegraph Co. v. Rich, 19 Kans. 517.

street or highway and operated by steam in the usual manner imposes a new servitude and entitles the owner of the fee to an additional compensation; but that a street railway operated by horse power, as such street railways are ordinarily operated, does not im-garded as an additional servitude. The answer alleges pose any new servitude and does not entitle the owner of the fee to any additional compensation. Mills Em. Dom., § 205, and cases cited; Augell High., §91 d, n. 1, and cases cited; Newell v. Minneapolis L. & M. Railway Co., 35 Minn. 112; also 25 Am. Law. Reg. (N. S.), 431, and cases cited in the note. The distinction is often stated as a distinction between steam and horse railroads, but the [distinction properly rests not on any difference in motive power, but in the different effects produced by them especially on the highways or streets which they occupy. A steam railroad is held to impose a new servitude, not because it is operated by steam, but because it is so operated as to be incompatible with the use of the street in the other usual modes, or in other words, so as practically to exclude the usual modes of use. Pierce Railr. 234. A steam railroad on a street so operated as to be consistent with the use of the street in the usual modes has been held not to impose a new servitude. Newell v. Minneapolis L. & M. Railroad Co., supra; Fulton v. Short Route Railway Transfer Co., 85 Ky. 640. It is not the motor, but the kind of occupation, whether practically exclusive or not, which is the criterion. Briggs v. Lewiston & Auburn Horse Railroad Co., 79 Me. 363. A steam railroad, as ordinarily operated, it has been said, comes into serious conflict with the usual modes of travel, and is a perpetual embarrassment to them, in greater or less degree according as the business of the railroad is greater or less, or as the running of the trains is more or less frequent; whereas the ordinary street railway instead of adding a new servitude to the street operates in furtherance of its original uses, and instead of being an embarrassment, relieves the pressure of local business and local travel. Grand Rapids & Indiana Railroad Co. v. Heisel, 28 Mich. 62. See also Attorney-General v. Metropolitan Railroad, 125 Mass. 515; Citizens' Coach Co. v. Camden Horse Railroad Co., 33 N. J. Eq. 267; Elliott v. Fairhaven & Westville Railroad Co., 32 Conn. 579; Hobart v. Milwaukee City Railroad Co., 27 Wis. 194. The only considerable privilege which the horse car has over other vehicles is, that being confined to its tracks, it cannot turn aside for other vehicles, while they are forced to turn aside for it, but this is an incidental matter, insufficient to make the horse railroad a new servitude. Shea v. Potrero & Bay View Railroad Co., 44 Cal. 414.

The street railway here complained of is operated neither by steam nor horse power, but by electricity. It does not appear however that it occupies the streets or highways any more exclusively than if it were operated by horse power. The answer avers that "electricity besides being as safe and as easily managed as horse power for the propulsion of street cars, is more quiet, more cleanly and more convenient than horses, both for residents on the streets used by said cars and for the public generally, and also causes much less wear and injury to the streets and highways than is occasioned by street cars, of which horses are the motive power." These averments, the case being heard on bill and answer, must be taken as true. We see no reason to doubt their truth. It is urged that electricity is a very dangerous force and that the court will take judicial notice of its dangerousness. The court will take judicial notice that electricity developed to some high degree of intensity is exceedingly dangerous, and even fatally so, to men or animals when it is brought in contact with them, but the court has no judicial knowledge, that as used by the defendant company, it is dangerous. The answer denies that it is dangerous to either life or property. It is also urged that the cars, moving apparently without the application of ex

Our conclusion is that the complainants are not entitled to the relief prayed for on the grounds alleged, and that the bill be dismissed with costs.

NECESSITY OF CODIFICATION.

[From an address by Hon. Henry C. Caldwell at the dedica tion of the Hot Springs County Court-House, Malvern, Ark., Feb. 4, 1889.]

As an emblem of civil justice the court-house fails to inspire entire confidence. For the chief cause of this the courts are not and the people are responsible; because the courts cannot codify the law, and the people, through their representatives and a commission, cau. It is a popular notion that the people make the law, but it is a popular delusion. Ninety-five percent of the disputed questions of law which arise in the trial of a lawsuit, and upon the decision of which the result of the suit depends, are determined by a species of law outside of your written statutes and Constitution, and which you had no hand in making. You ask me to tell you who made this large body of law by which your rights are determined and where you can find it?

Your questions are easily answered. The judge made it; it is "judge-made law." A considerable portion of it was made by judges in England about a thousand years ago, and the remainder has been made since that time by judges in that country and this, as occasion called for it. When judge-made law gets to be very old it is called "common law."

You want to know where you can find it?

You will find it in six thousand volumes of law reports, which average seven hundred pages to the volume, making four million two hundred thousand

pages.

If you read fifty pages every day in the year, includ

An enterprising firm of lawyers in the East, who have access to the six thousand volumes I have mentioned, advertise to furnish, on short notice, a brief of authorities supporting any view of a legal question that is desired; they are by no means false pre-invitation, because I expected to meet the judges of tenders they can come very near doing what they promise.