cause. The county court held that the deed of separation was a defense to the petition. VEAZEY, J.

This is a libel for divorce on the ground of intolerable severity, and was dismissed by the county court, that court holding that the contract entered into between the libellee and the father of the libellant, acting in her behalf, after the separation, operated as a defense to the petition for the cause alleged, which had accrued before the contract was made.

The point is made in behalf of the libellant that the question should have been raised by plea instead of motion, as it was based on matters dehors the record. This would be a correct view, except that it appears that this contract was treated on the hearing in the county court as though properly in the case for consideration, and that there was no material dispute about it, and that the decision of that court was invoked by both parties as to the legal effect of that contract upon the petition. Under these circumstances we think the case should be treated here as the parties treated it in the county court, and be decided upon the merits, no technical question of pleading or practice appearing to have been raised in that court.

The question, as before stated, is as to the effect of this contract, under the circumstances disclosed upon this petition for divorce. It will be noticed that this contract was entered into after the separation and through the intervention of a person acting for the wife. It is not the policy of the law to encourage separations between husbands and wives. The rule as established in many cases is that articles calculated to favor a separation which has not yet taken place will not be supported. Durant v. Titley, 7 Price, 577; St. John v. St. John, 11 Ves. 526; Westmeath v. Westmeath, Jac. 126.

But as stated by Cooley, Ch. J., in Randall v. Randall, 37 Mich. 563; "When a separation has actually taken place, or it has been fully decided upon, and the articles contain a suitable provision for the wife and children, or on equitable and suitable division of the property, the benefits of which both have enjoyed during the coverture, no principle of public policy is disturbed by them; on the contrary if they are fair and equal, and are not the result of fraud or coercion, reasons abundant may be found for supporting them, in their tendency to put an end to controversies, to prevent litigation, and to give the wife an independence in respect to her support which without some such arrangement she could not have under the circumstances." Among the numerous cases that have settled the law as stated, may be found the following: Compton v. Collinson, 2 Bro. Ch. 377; Worral v. Jacob, 3 Meriv, 266; Jee ". Thurlow, 2 B. & C. 547; S. C., 4 D. & R. 11; Baker v Cooper, 7 Serg. & R. 500; Hutton v. Duey, 3 Penn. St. 100; Dillinger's Appeal 35 id. 357; Nichols v. Palmer, 5 Day 27; Baker v. Barney, 8 Johns. 73; Shelthar v. Gregory, 2 Wend. 422; Carson v. Murray, 3 Paige, 483; Chapman v. Gray, 8 Ga. 341; Wells v. Stout,

9 Cal. 494; Gaines v. Poor, 3 Metc. (Ky.) 503; Walker v. Walker, Exr., 9 Wall. 743., This contract is therefore one of a character that the court may recognize for some purposes. It is not necessarily and utterly void. În this case it is not invoked by the defendant as a bar to the restitution of the libellant to any of her conjugal rights. The separation grew out of trouble between the husband and wife. The alleged cause of divorce then existed in her favor, if it existed at all, and was known to her. In this situation, and after the separation, she, through the intervention of a trustee, agreed upon the terms as to property upon which she would live separate from her husband. This property (including the money specified in the contract), except, as is claimed, a portion of househeld furniture, was delivered or paid to and accepted by the trustee in her behalf. After all the other provisions as to what property and money she was to have, it was further provided in the contract as follows: "And the said parties further agree to and with each other that they will not molest, disturb or trouble each other, or in any way publish or speak or circulate slanderous matter of or concerning each other, but live separate and apart in a quiet and peaceable way, according to the true intent of these presents.' He has substantially performed on his part, and she has received the benefits. The question about the household furniture seems to be one of difference as to what the contract covered in that respect, not a refusal to perform by the husband. The contract was not strictly a condonation of alleged wrongs. The wife instead of forgiving her husband upon promise of better treatment, agreed with him upon terms of separation, which were satisfactory, and no complaint is now made in regard to them. Nearly two years afterward this petition was brought.

In the English Ecclesiastical Courts, it is held that a voluntary deed of separation between husband and wife is not per se a bar to a suit for restitution of martial rights or to a petition for divorce. Durant v. Durant, 1 Hagg. 733 (3 Eng. Ecc. R. 310); 1 Bishop, § 634. and n. 3. But there are other cases where the deed, taken in connection with the circumstances under which it was given, and under which the application

for divorce was made, and with the conduct of the parties, was held to constitute a defense, and the application was denied. Matthews v. Matthews, 1 Swabey & Trist. 161; Williams v. Williams, 35 Law J., decided in 1866. We think this case belongs to that class where the parties should be held to their own settlement; and that the deed of separation, under the circumstance, is a good defense to this petition. See Brown v. Brown, 5 Gill, 249; Hunt v. Hunt, 32 Law J., Rep. 168; J. G. v. H. G., 33 Md. 401.

The judgment of the county court is affirmed.

"What is your occupation?" asked the magistrate, as he beamed at the burglar through his spectacles. "Wot hom I, yer washup" replied the burglar in his most silvery tones, "why, a house cleaner, in course!"

1. Federal Enlistment-Minor-Validity. The contract of enlistment of a minor, who is old enough to understand the contract, and who was accepted in good faith as being of full age, is voidable only and not void. 2. Ibid.-Ibid.-Trial by Court-martial-Habeas Corpus. A minor under enlistment by virtue of a voidable contract of enlistment may be arrested for the military crime of desertion, and if a court-martial has been ordered to try the offence, he ought not to be discharged on habeas corpus.

Wall enlisted in the United States Marine Corps, taking the usual oath that he was upwards of twenty-one years old. He deserted from the navy-yard at Charlestown, and was arrested as a deserter. An order was issued for his trial by court-martial, and was received May 11, 1881, at nine A. M. At noon of the same day a writ of habeas corpus was served on the officer commanding the marines at Charlestown. Upon the hearing before Judge Nelson, in the district court, it appeared that Wall was under eighteen years of age when he enlisted, and was under twenty-one years when the trial took place. On appeal from the decision of the district court.

LOWELL, J.

The district judge decided that the enlistment of a minor who was old enough to understand the contract, and who was in good faith accepted as being of full age, was voidable only and not void; and that if he had committed the military offence of desertion, and was under arrest for that crime, and the court-martial had been ordered to try him, he ought not to be discharged on habeas corpus. This view of the rights of the parties is sustained by the authorities cited. See Commonwealth v. Gamble, 11 S. & R. 93; Ex parte Anderson, 16 Iowa, 595; McConologue's case, 107 Mass. 154, 170, per Gray, J.; Re Dee, 25 Law Rep. 538; Re Beswick, 25 How. Pr. 149. It is true that Commonwealth v. Gamble, 11 S. & R, 93, is doubted in a later case in the same court (Commonwealth v. Fox, 7 Penn. St. 336), but in this case the judges found that the statute made such an enlistment absolutely illegal, and for that reason held it to be void. I have not found a corresponding statute applicable to this case. It is illegal to enlist a marine between eighteen and twenty-one years old, without the consent of his parent or guardian, if any he have; and if an officer does this knowingly, he is liable to punishment; but this minor had neither parent nor guardian. His contract was voidable at common law; but I do not see how I can hold it to be void. McNulty's case, 2 Low. 270. If not, it seems to follow that if he commits a military offence, and is actually arrested and in the course of trial before the contract is duly avoided, he may be tried and punished. I do not mean to be understood as deciding that it would be desertion in a

minor to leave the service openly after demanding his release, nor that he could be tried and punished after a court had released him.

It appeared upon the cross-examination of a witness that Wall was actually tried and sentenced while in the constructive custody of the district court, the officer who had him in charge not thinking it worth while to inform the court that the proceedings in the district court were pending. This conduct was highly reprehensible. Whether the sentence is a valid one, under these circumstances, is a question not brought here by the appeal, which is merely for a review of the decision by the district court. If Wall or his friends should be so advised, they may probably be able to try this question upon new and independent proceedings. Appeal dismissed.

Trade-mark-Name of Factory-Sale of Factory. When a trade-mark consists merely in the name of the establishment where the manufacture is carried on, and becomes attached to the manufactured article only as the product of that particular establishment, a sale of the establishment will carry with it to the purchaser by operation of law the exclusive right to use the name it had previously acquired, in connection with his own manufacture at the same place of a similar article.

Bill for injunction and account and cross-bill for injunction. The complainant in 1874 was the owner of land on which his father, in his lifetime, had carried on a distillery, manufacturing whiskey which was known as "Old Crow Whiskey," and the distillery was known as Oscar Pepper's Old Crow Distillery. Complainant erected a new distillery and manufactured whiskey, branding the barrels: "Old Oscar Pepper Distillery; Hand-made Sour Mash; James E. Pepper, Proprietor, Woodford County, Ky.," and used the same as a trade-mark in circulars, bill-heads, etc. The complainant became bankrupt, and his premises, machinery. etc., were sold by his assignees as the "Old Oscar Pepper Distillery," and became the property of defendants, who manufactured whiskey there, and used the trade-mark adopted by complainant, substituting their own name as proprietors.

MATTHEWS, J.,

In delivering the opinion of the Court, said: The construction of the complainant is, that the words "Old Oscar Pepper," and the abbreviation of them, "O. O. P.," constitute a brand or mark originally adopted by him to designate whiskey as made by him, without reference to the place of manufacture; and that by use and recognition it has become associated in the minds of dealers and the public with the article manufactured by him, so as to constitute its name in the trade, whereby to distinguish it from a similar article made by any and all

others. On the other hand, the defendants claim that the words in question were originally used, and their use subsequently continued, merely to designate the fact that the whiskey contained in the packages so marked or spoken of in advertisements, circulars, signs, etc., on which the mark was burned or printed, was made at the distillery so designated; and that that was done because the distillery, or its predecessor on the same site, had acquired a reputation in connection with the manufacture of whiskey which was sufficient to recommend any article made at the same place.

That

The clear result of the whole evidence seems, in our opinion, to be that the complainant adopted the name of "Old Oscar Pepper Distillery as the name of his distillery, in order that the whiskey manufactured by him there might have the reputation and whatever other advantages were to result from that association. distillery having now become the property of the defendants by purchase from the complainants, can they be denied the right of using the name by which it was previously known in the prosecution of the business of operating it, and of describing the whiskey made by them as its product? Can the complainant be permitted to use the brand or mark formerly employed by him, to represent whisky made by him elsewhere as the actual product of this distillery? Both these questions, in our opinion, must be answered in the negative. Amoskeag Manuf. Co. v. Trainer, 101 U. S. 51; Canal Co. v. Clark, 13 Wall. 311; Amoskeag Manuf. Co. v. Spear, 2 Sandf. (Sup. Ct.) 599. It would seem that the trade-mark claimed by the complainant cannot be sustained as a designation of whiskey manufactured by him without reference to the place of its production, and that it is not, therefore, a lawful trade-mark at all, in the proper sense of that term. It is rather the trade-name of the distillery itself, of which he was at one time the proprietor, but which now is the property of the defendants. Neither by its own meaning, nor by association, does it indicate the personal origin or ownership of the article to which it is affixed. It does not seem to give notice who was the producer. It could be applied by him, with truth, to his goods only while he was the owner of the distillery named, and then only, not to all whiskey of his manufacture, but only to that actually produced at that distillery. It can now be used without practising a deception upon the public only by the defendants. It points only at the place of production not to the produce. If a trade-mark at all, in any lawful. sense, it is cnly in its use in connection with the article which it truthfully describes; that is, whiskey which is actually manufactured at the Old Oscar Pepper Distillery, in Woodford County. Hall v. Barrows, 4 De G., J. & S., 157; Kidd v. Johnson, 100 U. S. 617. It is a fair inference from these authorities that when, as in the present case, the trade-mark consists merely in the name of the establishment itself where the manufacture is carried on, and becomes attached

to the manufactured article only as the product of that particular establishment, a sale of the establishment will carry with it to the purchaser the exclusive right to use the name it had previously acquired, in connection with his own manufacture at the same place of a similar article, by operation of law. Congress Spring case (N. Y.), Cox's Trade-Mark Cases, 599; Manuf. Co. v. Hall, 61 N. Y. 229; Carmichael v. Lattimer, 11 R. I. 407; Booth v. Jarrett, 52 How. Pr. 169.

This was an action brought by the widow and minor children of George Schartel, deceased, to recover damages for injuries resulting in his death. The declaration alleges that said injuries were occasioned by the negligence of the Philadelphia and Reading Railroad Company, defendants below. The jury having found the negligence, the cause has been removed to this court, and several errors have been assigned to the rulings of the court below. As the seventh and last assignment, if well taken, renders a discussion of the others unnecessary we will

consider it here.

By the defendant's ninth point, the court was called upon to pass upon the sufficiency of the evidence, the point being: "That under all the evidence in this case the plaintiffs cannot recover." The learned judge declined to so instruct the jury upon the ground that it would withdraw the case from their consideration. This was the object of the point. It was not error to refuse it if there was sufficient evidence of the negligence of the defendant company to submit to the jury. On the other hand it is equally clear that if there was no evidence, or at most a scintilla, it was the duty of the court to withdraw the case from the jury and give a binding instruction to find for the defendant. The authorities upon this point are numerous; it is sufficient to refer to a few of the later ones: Howard Express Co. v. Wile, 14 P. F, S., 201; Hoag v. The Railroad Co., 4 Norris, 293; Pennsylvania Railroad Co. v Fries, 6 Id., 234, and Mansfield Coal and Coke Co. v. McEnery et al., heretofore decided by this court.

I have looked in vain through this record for any evidence of negligence on the part of the defendant company. There is not even a scintilla. The deceased was at the time of the accident, and had been for years prior thereto, a

could hardly be expected that she was obliged to go to New York to demand payment. In view of the fact that she was entitled to the money at the time she handed over the policy, it was proper to consider whether she could have understood it was to be withheld from her for an indefinite time in the future. The fire occurred thirteen days after the evidence of indedtedness was given, yet the money was not paid. Is it reasonable to assume that she understood there would be, or assented to, such delay? The length of time required for communicating between New York and Hawley is about five hours. Under all the circumstances shown in regard to the transaction we think there was enough to justify the submission of these facts to the jury. Whether Mrs. Tighe did in fact accept the due bill in payment was properly submitted to the jury. A clear distinction exists between taking it as a payment or as an admission of indebtedness. To extinguish the liability of the company for the insurance, actual payment of the sum to be refunded must be made. Hathorn v. Germania Ins. Co., 55 Barb. 28; Van Valkenberg v. Lennox Fire Ins. Co., 51 N. Y. 465; Etna Ins. Co. v. Maguire, 51 Illinois, 242; Holden ". Putnam Fire Ins. Co., 46 N. Y. 1. It is unnecessary to discuss the other assignments in detail, what we have said sufficiently covers them. We discover no error therein.

Judgment affirmed.

THE BURDEN OF PROOF OF CONTRIBUTORY NEGLIGENCE.

In an action for personal injury through negligence, the Federal courts put upon defendant the burden of showing contributory negligence of the plaintiff. In the courts of Iowa the plaintiff is required to show affirmatively his own freedom from negligence. Here are two rules very unlike each other. Which is the better of the two? Suppose a house to stand close by a narrow street. The owner, for the purpose of repairing the house, puts a pole across the street. Another man comes riding along on horseback at a violent speed and runs against the pole without seeing it. He is injured and sues the owner of the house.

Now it is evident that both are to blame. If the plaintiff had been riding carefully, he would have seen the onstruction and avoided the injury. If the defendant had not put up the pole the accident would not have happened. Since both contributed to the injury, it would seem unjust that one alone should bear the damage. In strict justice the defendant ought to compensate the plaintiff and so share the damage resulting from their joint negligence. Thus each would suffer for his wrong.

If there is no compensation, the defendant does not suffer for his wrong, and he may even profit by that which was the occasion of the injury. But, from the difficulty of determining to what extent the negligence of each party was instrumental in producing the injury, it has become a well-settled rule that the law will not apportion the damages.

Hence the doctrine that in order to maintain an action in such a case, two things must concur: 1. Negligence of the defendant causing the injury. 2. No want of ordinary care on the part of the plaintiff.

How, then, shall these two essentials be determined? All agree that the burden of proving the first should be upon the plaintiff. But must be go still further and assume the burden of showing his own freedom from negligence? In applying the rule that the plaintiff cannot

recover, if his own want of care has contributed to the injury, some courts overlook the reason of the rule. They quote the maxim "No one shall profit by his own wrong," or the maxim "Volenti non fit injuria," and then attach the entire blame to the plaintiff.. They require him not only to show the fault of the defendant, but also to anticipate a possible defense; and if he fail in this, they compel him to bear the whole damage.

By the rules of pleading the plaintiff should not be required to set up that which would more properly come from the other side. Even just defenses are left for the defendant.

Much more, then, should we leave for the defendant the unjust defense which is to cxcuse him from compensation, not because he deserves to be excused, but because. the law is inadequate to apportion the damages. If we analyze a cause of action in tort, we find but two elements: a wrong by one person, resulting in a damage to another person. To make out these two elements prima facie, is all that should be required of the plaintiff in the first instance. "But," it is said, "the casual connection between defendant's negligence and the injury is broken by the intervention of plaintiff's negligence, and hence the latter can not make out a prima facie case without showing his own due care." How can it be said that the casual connection is broken as to either party, when the fault of both contributed to the injury.

But suppose it were broken. Suppose plaintiff saw the obstruction and ran against it willfully. The burden should still be upon the defendant to show this fact; and if plaintiff, without showing his own fault, could show the negligence of the other party, and an injury to himself apparently resulting therefrom, he would have a good prima facie case. The burden of proof rests upon the party maintaining the affirmative. A negative is notoriously hard to prove. Yet, when we require the plaintiff' to show no want of ordinary care on his part, we require him to establish a negative. 'But," some will say, "this is an essential element in the case." If that were true, the law has already established this negative before the suit began. The common law presumption is that everyone does his duty, until the contrary is proved. Every person is presumed innocent of crime, or fraud, or trespass; why not negligence? These things are presumed because they occur in a majority of cases. They are in accordance with the natural order and general state of things. It is a contradiction in terms to say that the majority of men do not use ordinary care. Ordinary care is just that care which the majority of men do use under like circumstances to avoid injury and preserve life. All the instincts of his nature lead him to do this.

Now, the presumption of ordinary care is always recognized in favor of the defendant. Considering the great strength of the motives for care on the part of the plaintiff, since the personal injury threatens him alone, how much more should the presumption of care exist in his favor.

But what do we presume when we require him to allege and prove ordinary care on his part? Such a rule can proceed only on the presumption of plaintiff's negligence. This is contrary to all reason and common sense. We presume defendant's care, and compel the plaintiff to show the contrary. Then we presume plaintiff's negligence in excuse of defendant's negligence and compel the plaintiff to rebut this presumption. There is no principle of law or justice on which to ground such a rule. If the presumption of ordinary care exists in favor of the defendant, it exists also in favor of the plaintiff, and he must