dence cannot, in the nature of things, be supplied without some necessary delay. The chief of Scotland Yard sent a cablegram to the chief of the detective force at New York that four other larcenies were committed at the same hotel on the same night, and that the thief was, no doubt, one and the same. When the larceny is established, the possession by the prisoner of the fruits of the crime recently after its commission is prima facie evidence of guilty possession. 1 Greenl. Ev. (14th ed.) § 34; Goldstein v. People, 82 N. Y. 231; People v. McCallam, 103 N. Y. 587, 9 N. E. 502.

After Schrady and Cronin had testified, the people moved for an adjournment of the examination, which was granted until July 5th, and on that day a further adjournment was granted until July 7th. In the meantime the writ of habeas corpus was obtained for the purpose of procuring the prisoner's discharge on the grounds (1) that there was not sufficient proof to hold the prisoner; and (2) that the magistrate had no power to adjourn the examination to await further evidence. While there is not at present sufficient evidence to hold the prisoner, there may be ample before the examination is concluded. Section 191 of the Code of Criminal Procedure provides that:

"The examination must be completed at one session, unless the magistrate, for good cause shown, adjourn it. The adjournment cannot be for more than two days at each time, unless by consent or on motion of the defendant."

The meaning of this section is that the magistrate, for good cause shown, may continue the examination by adjournments of not more than two days at each time, so long as the necessities of the case and the ends of justice require. If this were not so, no prisoner could ever be placed on trial in a case like the present, where the larceny took place in a foreign country, and the witnesses to it were in the place where it occurred. Good cause is often furnished by the conditions that confront us. The statutes and constitutional provisions giving the right to a speedy examination or trial are intended to guard against the abuse of delay on the part of the prosecution, but not to shield a prisoner

from the consequences of delays for which the prosecution is not in any wise responsible. 15 Am. & Eng. Enc. Law, 164, 165. The people proved that every step necessary to obtain the required evidence had been taken, and that due diligence in regard thereto had been used. There was, therefore, good cause shown for the adjournments had; and there has been no arbitrary disregard of any right of the prisoner, and no abuse of discretion by the magistrate. These adjournments, in the manner pointed out by section 191 of the Criminal Code, may continue until unreasonable and unnecessary delay are attributable to the prosecution, when good cause for their continuance will cease. The prisoner may be discharged, pending the examination, on $2,000 bail. Neither the liberty of the subject nor the cause of justice will suffer in the slightest by this disposition of the matter.

The writ must therefore be dismissed, the prisoner remanded, and the magistrate directed to proceed with the examination in the manner indicated.

COOKE & COBB CO. v. MILLER et al.

[53 App. Div. 120; 99 St. Rep. 730; 65 Supp. 730.]

(Supreme Court, Appellate Division, First Department, July 17, 1900.)

TRADE-MARKS-APPROPRIATION OF WORDS-WORDS OF QUALITY.

In an action for infringement of a trade-mark, the evidence showed that plaintiff's letter file was labeled with a circle inclosing the words, "The

NOTE. WHAT WORDS ARE SUBJECTS OF TRADE-MARKS.

a. In general.

b. Names of places.

c. Party's own name.
d. Names of newspapers.
e. Names of corporations.
f. Foreign words.

a. In general.

In Selchow v. Baker, 93 N. Y. 59, which is a leading ease on this subject,

1900]

Cooke & Cobb Co. v. Miller.

Improved, Best, Favorite, Cheapest Letter and Invoice File." The label of defendant's letter file was on a plain sheet of diffrent color from plaintiff's, and contained only the words, "The Favorite Letter and Invoice File," and was entirely different in design and appearance from plaintiff's. There was no evidence that defendants sought to place their goods on the market as those of plaintiff. Held, that the word "Favorite" is not subject to exclusive appropriation as a trade-mark, even in combination with the words "Best and Cheapest."

Van Brunt, P. J., dissenting.

Appeal from special term, New York county.

Action by The Cooke & Cobb Company against Andrew Miller and another, doing business under the name of The Eclipse Company. From a judgment for defendants, plaintiff appeals. Affirmed.

WHAT WORDS ARE SUBJECTS OF TRADE-MARKS, --continued.

the general rule is laid down "that where a manufacturer has invented a new name, consisting of a word in common use which he has applied for the first time to his own manufacture, or to an article manufactured for him, to distinguish it from those manufactured or sold by others, and the name thus adopted is not generic or descriptive of the article, its qualities, ingredients or characteristics, but is arbitrary or fanciful and is not used merely to denote grade or quality, he is entitled to be protected in the use of the name." The above rule is not affected by the fact that the trademark has become so generally known that it has been adopted by the public as the ordinary appellation of the article.

In Caswell v. Davis, 58 N. Y. 223, Folger, J., in his opinion, says, "The general rule is against appropriating mere words as a trade-mark. An exception is of those indicating origin or ownership, having no reference to quality or use. When they are used to signify a fact, or when, with what purpose soever used, they do signify a fact which others may by the use of them express with equal truth, others have an equal right to them for that purpose."

Plaintiff's in the case last cited, gave the name of "Ferro-Phosphorated Elixir of Calisaya Bark” to a certain medicine prepared by them and so labeled the bottles containing it. The principal ingredients of said medicine were iron, phosphorus and elixir of calisaya bark. Held, that the plaintiffs had no exclusive right to this phrase as a trade-mark.

In The Congress & Empire Spring Co. v. High Rock Congress Spring Co. 45 N. Y. 291, the plaintiffs were the owners of Congress Spring. The water from that spring they sold extensively under the name of "Congress

Argued before VAN BRUNT, P. J., and HATCH, RUMSEY, PATTERSON, and O'BRIEN, JJ.

Wilton C. Donn (Adam Wiener, counsel), for appellant.

Wilson, Barker & Wilson (Philip L. Wilson, counsel), for respondents.

PATTERSON, J. The plaintiff is a corporation engaged in the business of manufacturing and selling stationery, and among other things a letter and invoice file, in connection with which it claims a trade-mark right to the use of the word "Favorite," printed upon a label claimed to have been adopted as a distinguishing mark, applied and affixed to their letter and invoice file and the wrappers thereof. They allege that they have built up a large business in the manufacture and sale of the files, and that

WHAT WORDS ARE SUBJECTS OF TRADE-MARKS, -continued.

Water" and "Congress Spring Water." It was held that the word "Congress" used in connection with the bottling and sale of such water was a proper trade-mark.

Folger, J., in his opinion in the above case, says: "All agree that a name may be used as a trade-mark when it is used as indicating the true origin or ownership of the article offered for sale; and that the owner may be protected in its exclusive use when it is appropriated as designating the true origin or ownership of the article to which it is affixed; and when others may not use it with equal truth and have not an equal right to employ it for the same purpose."

The word "hygieniques" as applied to suspenders is not descriptive in the ordinary sense and may therefore be used as a trade-mark.

Bailly v. Nashawannuck Mfg. Co. 10 Supp. 224.

Barrett, J., writing the opinion for the court in the above case, says: "Words which are but inferentially or remotely descriptive, indicating neither origin nor ownership, but merely some special quality or peculiarity of the article itself, may properly be regarded as fanciful or arbitrary in the legal sense."

In Stern v. Barrett Chemical Co. 29 Misc. 609; 95 St. Rep. 221; 61 Supp. 221. Freedman, P. J., writing the opinion of the court, says: "It has been established that a suggestive word may be none the less a valid trademark and that before a term or word will be held purely descriptive and

1900]

Cooke & Cobb Co. v. Miller.

the defendants have infringed their right by adopting for an invoice file made by them a label with the word "Favorite" displayed upon it in such a way as to deceive the public, and that they attempted to palm off their goods as those of the plaintiff. The ordinary allegations in actions for the infringement of trademarks are contained in the complaint. An injunction was sought, and a claim for damages is also made. The defendants admit that they manufacture letter and invoice files, and that they place upon their goods a label upon which the word "Favorite" is displayed, but they deny the charges of fraud and deceit.

The evidence in the case fails to show that the defendants designedly or fraudulently sought to place their goods upon the market as those of the plaintiff. Specimens of the labels used by both parties appear in the record, and it is apparent from an inspection that even a casual observer would not be deceived by, or mistake the defendant's label for, that of the plaintiff.

WHAT WORDS ARE SUBJECTS OF TRADE-MARKS,-continued.

The

insufficient as a foundation for a trade-mark, its description must import information as to the general characteristics and composition of the article to which it applies."

In the above case the word "Roachsault" was held to be an arbitrary word and properly used as a trademark by the plaintiffs, thereby reversing Stern v. Barrett Chem. Co. 28 Misc. 429; 92 St. Rep. 1129; 58 Supp. 1129.

In Hier v. Abrahams, 82 N. Y. 519, the plaintiff's had for three years before the commencement of the action used the word "Pride" as a trademark in the manufacture of their cigars. The court held that the word as applied to cigars was not merely descriptive but arbitrary, and therefore it could be properly used as a trade-mark and plaintiffs were entitled to an injunction restraining its use by the defendants.

The use of the word "Pride," as applied to cigars, in connection with different words or names from those in connection with which plaintiff used it does not sanction its being pirated.

Id.

In Waterman v. Shipman, 130 N. Y. 301; 29 N. E. 111, the court granted an injunction restraining the use by the defendants of the word "Ideal," as applied to fountain pens, on the ground that the term "serves to indicate