such imprisonment, probably few would oppose this; but bearing in mind that capital punishment can only be justified on the ground that it is necessary for the protection of the community, and that the average of life sentence in Massachusetts is seven years and a half, it would be difficult to imagine a case where the protection of the community more imperatively demands the infliction of the death penalty than this. If the boy's impulse is under his control, there is surely no reason for sparing his life. If it is not, how does he differ from a wolf, except that he has the intelligence of a man, and is therefore even more dangerous? If he is executed, the world is rid of one whose life is of no value to himself, and who is dangerous to the community. If he lives, no one can say how soon the mistaken clemency of some governor may turn him loose upon the public, to commit new enormities like those for which he is now confined.

NEBRASKA.

NEGLIGENCE. MEASURE OF DAMAGES TO FATHER FOR CAUSING DEATH OF SON. UNITED STATES CIRCUIT COURT, DISTRICT OF NEBRASKA. Sullivan v. Union Pacific R.R. Co. — Plaintiff's son, seventeen years old, was employed at $2.00 per day by defendant, and was crushed by defendant's negligence so as to die in six or seven hours. Plaintiff claimed as damages the value of his son's services from the time of injury to the time he would have come of age. There is no statute in Nebraska giving any right of action; and the question was whether the plaintiff could maintain his action, and, if so, whether he could recover the wages of his son to the time of his death, or, as claimed, to the time when he would have become of age. Judge Dillon bravely discards the doctrine, derived, as he says, from an unreasoned decision of Lord Ellenborough at Nisi Prius, in 1808 (Baker v. Bolton, 1 Campb. 433), and since followed blindly in England and this country; and holds squarely that the father has the right of action, and may recover as damages the value of the services of the son to the time when he would have become of age.

NEW YORK.

LIABILITY FOR JUDICIAL ACT. SUPREME COURT OF NEW YORK.

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Lange v. Benedict. · Our readers will remember the case of Mr. Lange, who, having been sentenced by Judge Benedict to fine and imprisonment, when the statute only authorized fine or imprisonment, was brought before him on habeas corpus, and the first sentence being vacated, was resentenced to imprisonment, and that this second sentence was held to be void by the Supreme Court of the United States on habeas corpus. 18 Wallace, 163.

Mr. Lange has now brought suit against Judge Benedict for false imprisonment, and the case has been argued on demurrer to the plaintiff's declaration. The question thus raised is not free from difficulty, and its decision will be awaited with interest. We give an abstract of the arguments on the demurrer, which is taken from the New York Herald:

General Tracy presented an able and interesting argument, in which he con

tended that the courts have invariably protected the judges of the courts of record from any actions that might be brought against them by private suitors for any errors they might have committed in the judgments pronounced by them, and that this immunity was so complete and sacred that such suit could not be maintained even when malice and corruption could be shown; that this immunity was due to the proper administration of justice, and that the wrong sustained by the suitor would be infinitely less than the injury that would result in the administration of justice, if the contrary view should prevail. Illustrating this part of his argument, General Tracy cited the famous case brought against the Recorder of London. The philanthropist, William Penn, was arrested and brought before the recorder for streetpreaching. The jury, contrary to the charge of the recorder, acquitted the accused, and thereupon the recorder fined the jury and imprisoned the plaintiff, who refused to pay the fine; he was discharged on habeas corpus, and then sued the recorder for the false imprisonment. The court said that the maintenance of such an action would be more subversive of justice than the illegal act of the recorder. General Tracy also contended that the original sentence was valid, and still in force, if the subsequent act was illegal; that the original sentence covered a fine for one count in the indictment, and the imprisonment for another count, and that the payment of the fine was illegally made, having been made to the clerk without any rule, and that the decision of the Supreme Court of the United States was based on an error in assuming that the fine was duly paid.

Mr. Arnoux, of counsel for Mr. Lange, opened his argument by ailuding to the position of counsel who attacked the illegal action of those in power, and then gave a history of the case from its commencement until the hearing before the Supreme Court. Mr. Arnoux then proceeded to show that the unbroken current of English and American decisions was, that in courts of limited jurisdiction, the judge was not protected when he exceeded his jurisdiction, which was conceded by the defendant's counsel, an 1 that every court had used language broad enough to cover the case of the acts of judges in courts of record who knowingly act without jurisdiction. To the glory of the judiciary, it appears that no judge of a court of record in America, and but one in England, had ever been successfully sued. The whole question in the case turns upon the legal effect of the second sentence. The Supreme Court declared that when the first judgment was pronounced and had been executed, the power of the court that sentenced Mr. Lange was ended, and, therefore, Mr. Arnoux contended that the second sentence was wholly without jurisdiction and void; that the first sentence, although illegal, was valid until reversed or vacated, and that made the case of the recorder a parallel case; but the second sentence was wholly coram non judice, and afforded no protection whatever to the court or officers in any respect.

ATTEMPT TO COMMIT AN OFFENCE. Our contemporary, the Albany Law Journal, gives the following account of an unknown loop-hole in the criminal statutes of New York, although to any one but a modern legislator it would seem obvious enough to have been closed up on the first reading : :

A person was recently convicted, in the Court of General Sessions of New York, of an attempt to commit arson in the first degree; but the judge, when he came to impose sentence, found himself in something of a quandary. Prior to 1873, the punishment for arson in the first degree was imprisonment for not less than ten years. 2 R. S. 659. In 1873 (Laws 1873, ch. 644,) the punishment was changed to imprisonment for life. The Revised Statutes further provide that the punishment for an attempt to commit any crime punishable by imprisonment for four years or more

shall be imprisonment for half the term prescribed for the crime. It was of course difficult to determine what half of a life term would be. We have not learned what disposition was made of the convict. This reminds us of the case of Commonwealth v. Dennis, 105 Mass. 162, where the defendant was indicted for an attempt to commit suicide. The statute provided that the punishment for an attempt to commit an offence should be half that which might have been inflicted if the offence had been committed; and the court held that the defendant could not be convicted, inasmuch as he could not have been punished had he committed the crime.

OHIO.

THE COMMON SCHOOLS. THE CITY AN AGENT FOR THE STATE. — Mary Diehm, by her next friend v. The City of Cincinnati. —Judge Yaple delivered the opinion. On the 14th of March, 1872, Mary Diehm, a scholar attending the Eleventh District School, was injured by the falling of a temporary doorframe leading into the school, the school-house at the time undergoing repairs. The plaintiff, who had her left leg broken, asked a judgment against the city for $10,000. A general demurrer was interposed by the city.

Held, a pupil attending a common school, who has been injured in consequence of the unsafe and dangerous condition of the building, cannot maintain an action for such injury. The common schools in Cincinnati stand upon the same legal grounds as common schools do in the several districts throughout the state. The law does not vest the care and control of common schools in the city of Cincinnati as a municipal corporation, but merely as a fit and appropriate agency of the state. It was a question (not necessary to decide here) whether the legislature, under art. 6, sec. 2, of the constitution which requires the state to secure a thorough and efficient system of common schools throughout the state, could divest itself of such duty in a suit by casting the burden and responsibility of maintaining the same as a corporate duty upon the city.

Demurrer sustained.

LEASING RAILROADS. LIABILITY IN THE CASE OF WRONGFUL INJURIES. The Cincinnati and Springfield Railway Company v. Herman Sleeper. - In this case the court (Judge Yaple announcing the opinion) held that

At common law a railroad corporation, without power given in its charter, cannot lease and give possession and control of its road to another railroad corporation or person, and be exempt for wrongful injuries inflicted by the lessee upon persons or property upon the road, but will be held liable for the act of the lessee.

By statute in Ohio this may be done where both the lessor and lessee are corporations created by the laws of the state, but not if the lessee be a coporation created by the laws of another state.

Where an Ohio railroad corporation leases and gives possession of its road, rolling stock, &c., to another Ohio railroad corporation to operate and manage, but has a stipulation put in the lease that the road is to be efficiently and economically managed, and the direction and management to be under an advisory committee of three railroad men, one to be chosen by the lessor and one by the lessee, and the other by another railroad corporation whose line is to form a continuous line, the road of the lessor and lessee, for the common benefit of all the parties, and it is further stipulated the lessor is to receive the gross receipts for local passengers on its road, and the net local freight earnings; a passenger injured in going upon the cars from one

station to another on the leased road by the negligence of the conductor employed and paid by the lessee can maintain an action against the lessor corporation. The action being one of tort, he may sue either one or both companies, as both have a voice in the control of the road as a matter of right, and are principals.

PENNSYLVANIA.

TRADE-MARK.-COURT OF COMMON PLEAS. Morse v. Worrell. The plaintiffs in this case claimed to be the manufacturers of an article known as "The Rising Sun Stove Polish." It was put up in packages of the form known as parallelopipeds, about four inches in length, by an inch and a quarter in diameter; and covered with a wrapper of red paper upon which was printed certain letters and a device of a rising sun, which the court say "is almost a fac-simile of the one at the head of the editorial columns of the New York Daily Sun," adding, "It does not appear in this proceeding who is entitled to the credit of originating it, nor is it perhaps material.”

The defendant devised a preparation which with sincere flattery he termed "The Rising Moon Stove Polish," which he put up in packages of the same size and shape as those of the plaintiff, wrapped in paper of the same color, with a device of a moon rising over a sheet of water printed thereon.

The plaintiff brought his bill to restrain an infringement of his trademark; but on motion a preliminary injunction was refused, the court giving an opinion (which we find in the Legal Gazette), from which we make the following extracts :

A careful examination of the two articles in question certainly discloses a strong general resemblance. Placed side by side upon the shelf of a country store and viewed at some little distance, the similarity is striking. But when we come to analyze this general resemblance, it will be found to consist mainly of the color of the wrapper and the shape and size of the article. It is almost needless to say that the plaintiffs cannot have a trade-mark in red paper or parallelopipeds. I do not mean to say that even the color of the paper and the shape and size of the package are not to be considered in any case in settling the question of the 'imitation of a trade-mark. When there is an imitation, with only colorable differences, the fact of the use of a similar wrapper, and the same sized shape for the article itself, may add great strength to the charge of an intent to deceive and mislead purchasers. But of themselves they are not enough to constitute an infringement.

Leaving out these two points of resemblance, what else is there? It is not pretended that upon the second, third, and fourth sides of the parallelopiped there is any imitation. They are distinctly and radically different. Both the style and the matter of the printing are dissimilar. If there is any infringment at all, it must be upon the first side, containing the vignette.

We will consider first the lettering. The words "stove polish are clearly no part of the trade-mark. They constitute the name by which the article is known to commerce. It is a principle too well settled to need the citation of authorities, that no one can appropriate as a trade-mark the commercial name of any article known to trade. Nor do the plaintiffs claim a trade-mark in the word "rising," except in its application to the word " sun," and that is not used by the defendant in his label. He uses the word "moon," which is of entirely different sound and signification.

The real point in the case is the vignette. The plaintiffs allege that the defend ant's moon is an imitation of their sun. Yet the defendant's device resembles the

moon quite as well as the plaintiff's device resembles the sun. Neither is executed in the highest style of art. There is, however, a marked difference between them; and when it is considered that the one is appropriately labelled a sun, and the other is appropriately labelled a moon, there ought not to be any serious difficulty in distinguishing the one from the other. The embarrassment of this branch of the plaintiff's case consists in the fact that they have taken for a device one of the heavenly bodies, which in shape closely resembles another of the heavenly bodies. They may, perhaps, be entitled to use the " sun as a device or symbol for their trade-mark, but it does not follow that they may in the same manner appropriate the entire planetary system, with its attendant moons, rings, and comets.

The court concludes by saying, "The defendant's label, in my judgment, is very close upon the border," an opinion with which we entirely concur; and, should the judgment ultimately be for the defendant, it might become an interesting question of legal lights and shadows whether a Setting Sun Stove Polish" could safely be exposed for sale.

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THE JUROR AND HIS EDUCATION. The acumen of the Philadelphia Bar has long been proverbial, and seems at last to have reached such a pitch that it has become necessary to educate the juries before whom they practise, so that they may be able to follow them. A manual has accordingly been prepared which is a curiosity in legal literature, if we may judge from the following advertisement which we find in the Legal Gazette :

:

The Juror being a Guide to Citizens summoned to serve as Jurors. Containing information as to the manner of drawing and selecting Jurors; their rights, privileges, liabilities, and duties; reasons for exemption from service, and mode of arriving at and rendering verdicts. By Andrew Jackson Reilly, officer of the District Court for the City and County of Philadelphia. Revised by E. Cooper Shapley, Esq., of the Philadelphia Bar, and secretary of the Board for Selecting and Drawing Jurors for the City of Philadelphia. Philadelphia: John Campbell & Son, Law Booksellers and Publishers, 740 Sansom Street. 1873.

In connection with The Juror it is proposed to have an appendix containing a directory of the principal practising attorneys of the State of Pennsylvania, as information needed by jurors when favorably impressed with the learning, skill, or eloquence of those before them. The circulation of this work is already assured to the extent of five thousand copies the ensuing year, in different parts of the state. Members of the Bar will please

Address A. J. REILLY, Room No. 23, 727 Walnut St.

We take peculiar pleasure in the proposed appendix, and look forward to the time when every advocate, as he rises to address the jury, will observe each intelligent and highly educated juryman turn to the proper page in the manual and read the history of his life while he follows his argument, and will feel that the favorable impression produced by his "learning, skill, or eloquence" will not be suffered unduly to affect the minds of a panel, who observe that he has always enjoyed a great reputation for skill in handling juries."

We would suggest to the enterprising author, as an addition to his series, a quarterly review, giving the histories and reputations of all parties having suits likely to come on for trial during the quarter, which would be almost invaluable to juries in enabling them to arrive at verdicts, and would also be a prolific source of income to its meritorious founder.