cised against her by any of the employes of the the very grossness of the act itself malice may be defendant. 66 It seems to us, when we consider the situation of the plaintiff, that she was in the store of the defendant surrounded by persons who were employed by the defendant to detect crime, substantially accused of being a thief and with the statement made to her, You will have to be searched," that this was the exercise of such a dominion over her as that the jury might very properly find that restraint was exercised, and that the subsequent proceedings were simply carrying out the threat that they would search her. Under such circumstances the plaintiff certainly was not required to offer physical resistance to this unjustifiable proceeding against her. The jury having resolved this question in her favor, there seems to be no ground whatever for this court to interfere. The authority of the employes of the defendant is established beyond peradvanture by the testimony of the defendant himself. These were the agencies employed by him for the protection of his property; and these people in the proceedings taken by them were acting clearly within the scope of the authority which had been conferred upon them. The next question we are called upon to determine is whether the learned judge in his charge gave any erroneous directions to the jury or refused any request to which the defendant was entitled. The exception of the defendant to that portion of the charge wherein it is stated that the plaintiff must prove that there was an absence of probable cause for arrest, is clearly no ground for a new trial, because, if the court was in error, as it probably was, in the proposition enunciated, it was placing an additional burden upon the plaintiff, and in no way operated injuriously to the defendant. Equally immaterial was the exception to that part of the charge which stated that false imprisonment is the unlawful restraint of a person contrary to his will either with or without process of law; and that it comprises two elements first, the detention of the person, and second, the unlawfulness of such detention. There was no question of process in this case. It was a question of detention and of the unlawfulness of the detention, and that only; and the proposition excepted to was entirely immaterial and had no relation to the facts of the case. There was also an exception to the submission to the jury of any question of malice in the case. The proposition of the court in that regard was entirely correct. The law imputes malice to an unlawful act. There is undoubtedly a difference between malice which the law infers from the act itself and malice which is the product of a proved mental operation. The court had the right to submit the question of malice in this case. From inferred. Here, without the slightest evidence that this plaintiff was in any way connected with the disappearance of the watch in question, it is proclaimed to her that she must be searched; in other words, she will have to submit to a search; and surrounded as she was by the servants of the defendant, possessing authority to act, she submits. It is clear that from an act of this kind the jury might infer legal malice. There is also an exception to that part of the charge in which the court said that the defendant might be liable for acts of injury or insult if they occurred in the course of the employment. It seems to be hardly necessary to discuss an exception of this character. We now come to the requests to charge. There are a large number of these requests, which the court refused to charge further than he had already charged. Upon an examination of these requests it will be seen that they are all embraced within one proposition, namely, that the plaintiff cannot recover unless she proves that she was detained. Various requests were made, among them "that the plaintiff had sworn that she went willingly to the room where she claims she was searched." In regard to this proposition, it is apparent from the evidence that it was a question for the jury to determine whether the plaintiff was detained or not. The jury were not bound to find that she went willingly to the room to be searched, simply because she did not actually resist. She was surrounded by superior force, to contend against which was beyond her physical powers, and she had been told what she had to do, and she surrendered unconditionally; and that is all there is as to her submission and willingness to be searched. The jury found such to be the facts, as they probably were. Under these circumstances the court was justified in refusing to charge such a request. The court had expressly charged that the claim against the defendant was for false arrest and imprisonment, and that the first question to be decided by the jury was whether there was an arrest. Then the court defines what false imprisonment is, namely, unlawful restraint of a person contrary to his will; and further charges the jury that if a person insists upon proving her innocence of an accusation expressed or implied, by exhibiting the contents of her pockets or her satchel, and goes voluntarily to a room for that purpose, the mere act of accompanying her there for such purpose by one or more persons would not constitute either arrest or imprisonment. Here was clearly placed before the jury the fact that there must be a detention against the will of the plaintiff in order that there might be a recovery. Under these circumstances it seems to me the court was entirely justified in refusing to charge further upon such proposition. The exception to the refusal to charge that if the jury believed as testified to by Miss Cantwell, by Mr. Carpenter, the officer Hannon and the other witnesses for the defendant, that she was at perfect liberty to leave the store at any moment they must find a verdict for the defendant is clearly untenable. The other witnesses of the defendant did not swear to that effect; and it is a little doubtful whether the construction of the evidence given by all the witnesses named is of the character described in the proposition. It is further urged that there was no ground for awarding punitive damages; in other words, that there was no express malice proved, and therefore no foundation for punitive damages. It will be seen, when we consider the nature of punitive damages, that the case falls within the rule permitting them to be awarded. Punitive damages are given not only as a punishment to the defendant for a wrongful act, but also as a warning to others. Although there was no evidence of any express malice against this plaintiff individually, the act was done in pursuance of a system which had been adopted in that store; and if this system was such as to place an innocent customer in the position in which the plaintiff's evidence shows that she was placed, the jury had the right to say that the results of this system were of such a character as to require rebuke by way of punitive damages, in order that innocent people should not be placed in the position which this plaintiff was placed without any fault upon her part. Judgment and order should be affirmed, with costs. All concur. A TRESPASS ON HIGHWAY. N owner of land crossed by a highway, and of the soil of the highway, used part of the land for training horses. A racing tout walked to and fro on the highway observing the horses exercise, and published notes of his observations. The landowner sued the tout for trespass to the highway (Hichman v. Maisey, 48 W. R. 385). The jury were directed by Mr. Justice Day that if the defendant had frequented the highway, not for the purpose of passing and repassing along it as an ordinary wayfarer, but for the purpose of carrying on his business there by watching race horses, it was a trespass; but that if the defendant had only used the highway for the purpose for which it was dedicated to the public that it, as a wayfarer, to pass and repass along it - it was not a trespass. The jury found that the defendant did not use the highway as an ordinary wayfarer, and judgment was entered for the plaintiff. This direction to the jury was affirmed on appeal by A. L. Smith, Collins and Romer, L.JJ. Lords Justices Smith and Romer held that it was a trespass to use the highway (the plaintiff's freehold) for the purpose of interfering with the law ful user by the plaintiff of his adjoining land. Lord Justice Collins said that the public's right of user is to pass and repass, with legitimate and reasonable extensions; as an example of which Lord Justice Smith instanced sketching on the side of the road. "Then," said Lord Justice Collins, "if we find a person using the highway outside the purpose for which it was dedicated to the public, that throws us back on the intent with which he entered," referring to the Six Carpenters' case. Both Lords Justices Smith and Romer held the case before them to be covered by Harrison v. Duke of Rutland (41 W. R. 322; 1893, I Q. B. 142). In Harrison v. Duke of Rutland the trespass consisted in being on the highway for the purpose of preventing the owner from lawfully using it and his adjoining land for sporting. Lord Justice Kay in his judgment reviews many of the cases. The language of Crompton, J., in Reg. v. Pratt (4 E. & B. 860) is: If a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser." This, said Kay, L.J., must be read with the obvious qualification that the trespass referred to must be a purpose of using the soil of the highway itself otherwise than by merely passing and repassing. He meant, we take it, that the ulterior reason for which the man wants to get over the ground is immaterial. That he is traveling in order to commit a burglary does not make him a trespasser. But that he is on the highway to use it as a resting place, or a gazing place (lawful things in themselves), or for depasturing cattle (unlawful as against the owner of the soil), would make him a trespasser. It is easy to appreciate such law if the highway is used for some collateral purpose which interferes with the owner's rights or property on or over the way itself, as in Harrison v. Duke of Rutland, beyond the extent to which passing and repassing would interfere with them. The duke, in the case referred to, was sporting and driving his game across his own freehold of the highway, and the trespasser went on the road solely to prevent this being done. When, however, there is no such interference, curious refinements arise. In the case of the racing tout, the owner's property in the highway was not disturbed; the soil or growth of the road was not injured; the owner's use and enjoyment of his freehold was not interfered with. The offense was the bare one of using the way for gazing or observation; as if a man were on the road for the purpose of loitering or lying down, or of standing to observe stars, or listen to a nightingale, or look at a waterfall. It is true that Romer, L.J., says that the tout came on the highway for the purpose of interfering with the lawful user by the landowner of his own land, and the other lords justices seem to mean the same thing. But, with unfeigned respect, we fail to see in what may the landowner's use of his land was interfered with. Assuming of the license to enter because it was not an absolute license, but only a license to enter for the purpose of being a customer. The right of passing on the king's highway is a right irrespective, we should submit, of purpose or object. To say that the right to use the road for the purpose of passing and repassing excludes any other purpose or object appears to be mere juggling with words. To use for the purpose of passing means to pass and means nothing else. Solicitors' Journal. TH WHAT IS AN ACCIDENT? Mr. Justice Crompton's dictum to be sound, the law appears to be that any use of a highway beyond passing and repassing, and what is incidental to passing and repassing, is unauthorized and a trespass. A right of footway may, as has been held, justify a nursemaid wheeling a perambulator along a footpath, as an ordinary appendage to nurses out walking. So a man passing on a highway may pause, or rest, or look about him, incidentally to the main pursuit of journeying. But he could not justify going on the road for the purpose of resting, gazing, or the like. As Lord Esher (quoted by Collins, L.J.) said in Harrison v. Duke of Rutland: “Things are done upon high-branch of the common law of torts deals with the ways by everybody which are recognized as being rightly done, and as constituting a reasonable and usual mode of using a highway as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think he will be a trespasser. But if he goes on the highway, not for the purpose of using it as a high-dent has introduced it in a new connection in way, but for some other purpose, lawful or unlawful, he is committing a trespass against the owner of the soil." If there is a highway adjoining a racecourse, or a. football field, or a nurseryman's flower garden, and people go there to view the races, or the match, or the flowers, from the road, and stand on the road for that purpose, they are trespassers. Supposing the owner of the soil of the road to own also the racecourse, football field, or garden, and that a profit by gate-money or charge for admission to view is made on the racecourse, or field, or grounds, the case would be hard to distinguish from Hickman v. Maisey. Practically, where the element of nuisance, annoyance, or damage is wanting, the law of trespass with regard to highways seldom comes into question. It is indeed quite possible that the system of watching pursued by a tout may be an annoyance in the nature of a nuisance. If pursued by a number of persons it might amount to an actionable nuisance. Where this element of nuisance is absent, we confess to doubting the soundness of the law which says that the public has a right to pass and repass, but no more, and no right to interfere with the soil or the owner's rights therein, beyond such interference as is incidental to passing and repassing; that passing and repassing along the road for the purpose of looking at some view or spectacle in the adjoining country is an unauthorized extension of the user. The difficulty is, why should the right to pass be affected by the motive or object which the wayfarer has in passing, or the incidental advantages he gets by passing, so long as he does nothing with regard to the way itself except pass over it? In the Six Carpenters' case, there was an abuse HE word " accident" holds a very important place in legal phraseology. An important liability for injury caused by "accident." Then the growth of accident insurance has given rise to many cases in which the word "accident" has been judicially considered and interpreted. Further, recent legislation relating to the liability of employers for injuries to their workmen by acci which it is capable of receiving yet another distinctive interpretation. It will, therefore, tend to clear up some doubtful points to trace the word to its origin, and to try and classify its different legal significations, with special reference to its use in that difficult piece of legislation, the Workmen's Compensation Act. 1897. * The primary meaning of the word "accident" is, according to Murray's Oxford English Dictionary, anything that happens," an occurrence, incident, event." In this sense it is used by Shakespeare in "Othello" (I, iii, 135): "* Of moving accidents by flood and field." But in its secondary and popular sense it means, according to the same authority, "anything that happens without foresight or expectation," and more particularly an unfortunate event, a mishap, and hence more abstractedly implying an element of chance, something fortuitous. Further, when used popularly, the word accident usually imports an injury, however caused, and without special reference to legal liability. At common law, however, the word "accident" is used in a much narrower sense. It connotes negligence and only includes such events as result in injury caused by negligence. The common law term "accident" therefore implying legal liability, excludes "accidents" used in the true sense of the word, and this is what is meant by saying that no one is liable at common law for injury caused by "inevitable accident." By “inevitable accidents" are meant accidents which cannot be avoided by the exercise of reasonable human care and foresight, and this very definition negatives negligence. It is only, then, for "avoidable" accidents (accidents, that is, which would not have occurred had reasonable care and foresight been exercised) that a person is liable at common law. Strictly speak- used, it must be remembered that the injury must ing, however, to speak of avoidable accidents" be the result of an accident. The event which is a contradiction in terms, since, as we have seen, causes the injury must have the attributes of an the word "accident" imports something that hap-accident. Although the injury arise out of and in pens without foresight or expectation that is, the course of the employment, the employer will could not be avoided. not be liable unless it results from an accident -that is, have an element of the fortuitous and unexpected. This point is well illustrated on both sides by the recent group of cases, Hensey v. White, Lloyd v. Sugg, and Walker v. Lilleshall Coal Co. (1900, I Q. B. 481). In Hensey v. White a man died from injuries caused by a strain arising out of and in the ordinary course of his employment. The court refused The numerous cases decided upon the construction of policies of insurance against injury and death by accident throw considerable light upon the meaning of the word accident. For although the actual decision has often turned upon the particular form of the policy, yet the word accident has frequently been judicially interpreted. In Hamilton, Fraser & Co. v. Pandorf (12 App. Cas. 518) Lord. Halsbury said that something “fortui-compensation on the ground that the primary tous and unexpected" is involved in the word. Again, in many cases the question has arisen whether death was the result of disease or of an accident. In such cases the decisive factor has been the answer to the question, Was the immediate cause of death the disease or was it the introduction of some fortuitous, unexpected element? The case of Laurence v. Accidental Insurance Co. (7 Q. B. D. 216) well illustrates this distinction. A man, who was insured under a policy excluding fits, had a fit on a railway platform and fell off under a passing engine. It was held that the accident of being run over by the engine was the cause of death and not the fit. The engine was the extraneous, fortuitous element. It cannot cause of death was his weak state of health, and that there was no fortuitous or unexpected element which had caused the injury. In other words, the injury had not been caused by an accident. A still more heroic attempt was made in Walker v. Lilleshall Coal Co. to include in the word accident a case in which a man had suffered injury while working in the ordinary way of his trade. It was argued that "accident" was used in its primary sense of "anything that happens," so that the fortuitous element, necessary to the secondary and popular sense of the word, need not be present. But the court adhered to its decision in Hensey v. White. In Lloyd v. Sugg, however, where a workman was injured on his hand by a mishit from the The liability of employers for accidents to their hammer of a fellow-workman, the court held that workmen was in the first instance governed by the the injury was caused by an accident, although it ordinary common-law rule - that is, the employer was aggravated by the fact that the workman sufwas only liable for his personal negligence (Tar- feied from gout. Thus it is clear that the act does rant v. Webb, 18 C. B. 787). Even this liability not include cases in which the workman suffers was curtailed by the doctrine of common employ-injury owing to the dangerous character of his ment. The Employers' Liability Act, 1880, did trade, apart from any extraneous cause. not make any change in principle, but merely be said that such injury is "without foresight or abolished in certain cases the operation of the expectation." It is not an accident. It is somedoctrine of common employment. The word acci- what curious that this defense - namely, that the dent is not used throughout the act. Up to this injury was not caused by an "accident," has not point, then, the employer was not liable to combeen more frequently invoked. It might ofter pensate his workmen for accidents in the true succeed in cases which approximate, but do not sense of the word at all. It was left for the Workamount to, serious and wilful misconduct. men's Compensation Act, 1897, to give the word 'accident' a legal signification far wider than it had ever had before. That act, in the employments to which it applies, makes an employer liable to compensate his workman for every injury by accident arising out of and in the course of his employment, unless caused by the serious and wilful misconduct of the workman. The act does not define the word accident, which is used in its widest sense, and must therefore include accidents in the true sense of the word, that is, inevitable accidents, and accidents in the common-law sense of the word, that is, accidents arising from negligence, even though that negligence be the workman's negligence. But wide as is the sense in which the word is If a man is guilty of gross negligence or recklessness, he must be presumed to know the probable consequences of his acts, and, if injury is caused by such negligence or recklessness, it cannot be called the result of an accident. Again, in several cases it has been held that disobedience to orders does not amount to serious and wilful misconduct so as to exempt the employer from liability under section 1 (2) (c) of the act. But if a man knows that the orders were given to avoid en obvious danger, and yet disobeys them and gets injured, his injury is certainly not the result of an accident. There is no element of the unexpected about such an accident. The man could probably have foretold exactly why and how the accident would happen. The act is a very sweeping one, and affords very few defenses to the employer. More attention. might probably profitably be given to this line of defense, which arises out of a consideration of the true meaning of the word "accident." - Solicitors' Journal. UNFAIR COMPETITION. a place of origin cannot become a valid trademark of goods and products, and that "Oxford" here is merely the name of the city of the plaintiff, and could not be exclusively used to distinguish the plaintiff's Bibles. But this word is a part of the plaintiff's name, and as such has given name to the plaintiff's Bibles, and has to be a means of showing their origin. The defendant has no connection with the place or name, and this use of PROTECTION OF USE OF ADJECTIVE OF LOCALITY the name by the defendant can be for no purpose but to represent the defendant's Bibles as coming from the plaintiff. The plaintiff has no copyright of this work, and any one would, of course, have a clear right to print and publish it, but no one would have a right in any false manner to represent such a product as the work of the plaintiff. The use of the name upon the defendant's Bibles had a tendency to so represent, and to confuse the plaintiff's use of its name in its business. That the plaintiff prints and publishes this work in America as well as at the university makes it none the less the plaintiff's product, and confers no right upon others to publish it in the name of the plaintiff, or to use the plaintiff's name in publishing it in America or elsewhere. The evidence does not show acquiescence of the plaintiff in use by others amounting to an abandonment of right by the plaintiff, nor establish that the name has thereby or otherwise become merely descriptive of the Bibles instead of representing their origin; nor that an Oxford Bible is merely the "Divinity Circuit." The case shows sufficient interference by the defendant to furnish ground for commencing the suit, and the ceasing of the interference by the defendant does not take away the right of the plaintiff to a decree, with costs; sufficient perception of profits does not, however, appear to warrant an accounting (Rahtjen v. Holzapfel, C. C. A., Second Circ., April 11, 1900). Decree for a perpetual injunction, with costs. WHEELER, J.-The University of Oxford, England, is a body corporate known by the name and style by which this suit is brought. Books appear to have been printed by it as early as the fifteenth century, and letters patent for printing books of all kinds, including Bibles, to have been granted to it by King Charles I in the seventeenth century. It has printed Bibles of many kinds prepared by its officers and scholars with great care, which are generally known as Oxford Bibles; no other Bibles are published at Oxford, and these are ordered, sold and bought by that name. Among the kinds is the Teachers' Bible, first published in 1876, which contains, besides the text, a Manual of Helps to the Study of the Bible, full of reliable information respecting the authors and books of the Bible and Palestine, a concordance, indices, tables and maps. This, with new editions, has since been published and sold by that name continuously in this country and throughout the world. The defendant has printed and published a Bible specified on the title page as an "Oxford Bible, the S. S. Teachers' Edition," and on the back as a Holy Bible, Oxford, S. S. Teachers' Edition." This suit is brought against this use of that name. The defendant denies any right of the plaintiff to the exclusive use of the word "Ox-ciation looking to the celebration of John Marshall ford upon Bibles and alleges that this name as applied to Bibles is used to designate and describe a style of Bible otherwise known as the "Divinity Circuit," bound in soft flexible leather with overlapping edges; that the plaintiff has lost any right it may have had to the use of this word by permitting others to use it; that the Bible with which the defendant's is claimed to interfere was printed in this country; and that the defendant has altogether ceased using it. 66 JOHN MARSHALL DAY. To the Bench, Bar and Students of Law of the State of New York: The time seems appropriate for calling your attention to the action of the American Bar Asso Day, February 4, 1901. The occasion is the one The chairman of the committee appointed for this celebration is Judge William Wirt Howe, of New Orleans. With him are associated one member from every State. I have the honor to represent the State of New York on that committee. The general plan for the national celebration at It is insisted for the defendant that the name of Washington is to hold a meeting on the day |