and the public: 3, Hutton v. Forster (24th December, 1833), in which an injunction was granted (also after opposition), to restrain the defendant from using on the wrappers of woollen goods, exported to the Gold Coast of Africa, certain fanciful devices of the plaintiff's, painted in bright and glowing colors, which had been found most effective in attracting the custom of the natives.

In addition to these traditionary authorities there have very recently appeared, in the Equity Reports, three other cases, which, considering the great importance of the subject, and the previously unsatisfactory state of the authentic records of the law thereon, cannot but be of essential service to the profession and the public. The first of these cases is Knott v. Morgan, 2 Keen's Reports, 213. Certain of the proprietors of the London Conveyance Company filed a bill for an injunction against the defendant, stating that their omnibuses were of a novel and superior construction, and that the defendant, with the view of fraudulently depriving the plaintiffs of custom, began to run an omnibus on the same line of road as the plaintiffs, on which was painted "Conveyance Company," and "London Conveyance Company," so as to resemble the same words on the omnibuses of the plaintiffs; and that certain symbols on the defendant's omnibus were also imitations of the plaintiffs. It appeared that the defendant had made some colorable variation in his inscriptions, and an injunction was granted to restrain the use on the defendant's omnibus of the above words, or any other names, words or devices, in such manner as to form or be a colorable imitation of the names &c., on the omnibuses of the plaintiffs.

The master of the rolls observed, "The only question is, whether the defendant fraudulently imitated the title or insignia used by the plaintiffs for the purpose of injuring them in their trade. It is not to be said that the plaintiffs have any exclusive right to the words, but they have a right to

call upon this court to restrain the defendant from fraudulently using precisely the same words and devices which they have taken for the purpose of distinguishing their property."

The next case is Motley v. Downman, 3 M. & Cr. 1. The facts were shortly thus.-The mark 'M. C.' had long beenused to distinguish tin manufactured at particular works in Carmarthen. The plaintiff had been a lessee of those works, and had used the mark there. He subsequently removed to other tin-works, about forty miles distant, and continued to use the mark M. C.' at the latter works during several years, while the Carmarthen works were unoccupied. Afterwards, the defendant took the Carmarthen works, and commenced using the mark on tin manufactured there. The vice chancellor granted an injunction to restrain the defendant from using the mark, but on appeal the lord chancellor reversed his honor's decision, on the ground that the mark, having been once attached to the Carmarthen manufactory, the real question was, whether the plaintiff had acquired a right to prevent the tenants of those works from enjoying it. His lordship said, if the case had stood upon the use of the mark by the plaintiff, and there had been nothing but the fact of another company, forty miles off, assuming the same mark, the injunction would have been granted, even though the defendants had made an addition to the mark, which was not sufficient to prevent deception. This case was not one of mere piracy, because there the defendant relied on an earlier title, which the plaintiff must supersede before he could establish an exclusive right in himself, and the lord chancellor clearly recognised the general right of the lawful owner of a mark to restrain the piracy of it. It is worthy of observation, that in the last case is to be found an element not contained in any of the preceding authorities; namely, that a mark may be attached to a particular manufactory, so as to be enjoyed as appendant or appurtenant thereto, and

that non-user for a considerable length of time, during which the manufactory was unoccupied, will not necessarily destroy the right.

Whatever doubts may have formerly prevailed, it may with confidence be said, that the foregoing investigation unequivocally shows that courts of equity will now interfere by injunction to prevent the piracy of marks or signs used in trade. This remedy is no less speedy that it is sufficienta bill is filed, praying for an injunction, and usually asking, at the same time, for an account of the profits made by the piratical use of the mark; the injunction is granted on motion, either ex parte or after notice to the defendant, according to circumstances. If the plaintiff files his bill immediately or without any unnecessary delay after he discovers the piracy, he may obtain his injunction at once; and it is curious to remark, that the court which has acquired the reputation of being proverbially cumbrous and tardy in its machinery and movements, is on these occasions made one of the most prompt and summary tribunals in the country; a few hours only being necessary for procuring its aid in matters involving interests and property of the greatest importance and value.

The spirit of rivalry now so extensively pervading every branch of trade, and the unfair means often resorted to by the unscrupulous and overreaching, has lately brought this subject into such general discussion as fully to justify these observations, which, it is hoped, have placed the law in a perspicuous light, although they are insufficient completely to exhaust the topic.

ART. X.-ON MISTAKES OF LAW.

THE question has been much considered in courts of justice and by writers on jurisprudence, whether a man should be

held bound by his acts, done under a misapprehension as to his legal rights and liabilities; but, we conceive, it has never yet been so definitively settled, as to render further discussion of it altogether unseasonable. This question has arisen most frequently at law, where actions have been brought to recover back money. In such cases, it has been sometimes laid down as a rule, that if a party pay money under a mistake of the law, he cannot recover it back; but if he pay it under a mistake of the facts, he may reclaim it.' It has also been stated to be a maxim of equity, that contracts shall not be set aside on account of mistakes of law, though they will be for mistakes in matters of fact.* In our present discussion, we shall pay no especial regard to the distinctive powers possessed by courts of law and courts of equity, our inquiry being, not what is the proper forum to resort to for redress, but whether mistakes of law may furnish a sufficient ground for relief in any tribunal.

It has been fitly said, the reason of the law is the life of the law. It is material, then, to inquire, in the outset, whether the alleged distinction between mistakes of law and of fact is capable of being sustained, on principle. And if, upon examination of the subject, we shall arrive at the conclusion that there is no substantial ground for such a distinction, then, in conformity to the rule, where there is the same reason there should be the same law, we shall submit, that the distinction ought not to exist.

It is the dictate of natural justice, that every man should be permitted to hold and enjoy what is his own, and that no other should be suffered to take or detain it from him, without cause. In accordance with this principle, if a party, intending to act upon his rights, has paid money, which facts, subsequently disclosed, show was not due, he is allowed to recover it back; for he has, contrary to his

1 Milnes v. Duncan, 6 Barnw. & Cresw. R. 671.

2 Marshall v. Collett, 1 Younge & Coll. R. 232.

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On Mistakes of Law.

[April, real intention, parted with his money when he was under no obligation to do so, and the other party has obtained what he is not entitled to; and he must, therefore, restore it to its rightful owner. Suppose, now, that in circumstances precisely similar, in other respects, he has paid the money purely under a mistaken notion in regard to his legal liability. Still, it is equally true as in the other case, that he intended simply to fulfil his real obligations; that no money was in fact due, and so his property has passed from him without consideration or cause; and that the other has received money to which he has no right.

How, in truth, do the two cases actually compare with each other, throughout? The immediate inducement to the payment, in both cases, was the party's misapprehension as to his liability. He paid the money, because, at the time, he thought himself bound to pay it. But it turns out, that he was under no such obligation, in either instance. Thus far the cases are alike. They differ in this. In the one case, the party subsequently learns, that the facts were not as he supposed them to be, when he judged himself liable. In the other, he ascertains that the law did not, as he had believed, hold him obligated. In one case, he assumed a wrong state of facts, from which, however, he drew a legitimate conclusion; in the other, he drew a wrong inference from a known state of facts.

We do not, then, perceive why, on the simple principles of reason and justice, the party should be deemed to have forfeited his right to reclaim and hold what is his own, more in the one case than in the other. Precisely the same considerations are equally applicable to both. If the distinction in question is to be sustained at all, the foundation of it must be sought in motives of policy, or in something else independent of the mere merits of the case.

The ground of the distinction between ignorance of law and ignorance of fact has been stated to be, that every