NOTES OF IMPORTANT DECISIONS. TRADE-MARKS CONSISTING IN ᏢᎪᎡᎢ OF DESCRIPTIVE WORDS MAY BE REGISTERED WHEN ACCOMPANIED BY DISCLAIMER.-The Supreme Court has corrected an unwarranted practice of the Patent Office in refusing to register trade-marks which contained words descriptive of the goods or devices represented by the trade-mark. Estate of Beckwith v. Commissioner of Patents, 40 Sup. Ct. Rep. 414. In the Beckwith case the plaintiff sought to register a trade-mark in the form of a seal containing the face of an Indian in the center, with the encircling words, "Round Oak Moistair Heating System." This was enclosed in a circular border of oak leaves. The Commissioner found that the trade-mark was lawfully registrable except for the words, "Moistair Heating System," which petitioner was required to delete before the Commissioner would register the trade-mark. The Court of Appeals sustained the Commissioner of Patents but were in turn reversed by the Supreme Court. The Court of Appeals based its decision on Section 5 of the Trade-mark Registration Act which reads as follows: "Provided that no mark which consists * * merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, * * shall be registered under the terms of this act." * The Supreme Court calls attention to the fact that this section of the trade-mark law is only declaratory of the rule previously announced by the Court. After citing many authorities to prove the older rule, the Court said: "Thus the proviso quoted, being simply an expression in statutory form of the prior general rule of law that words merely descriptive are not a proper subject for exclusive trade-mark appropriation, if the application in this case had been to register only the words 'Moistair Heating System,' plainly it would have fallen within the terms of the prohibition, for they are merely descriptive of a claimed property or quality of the petitioner's heating system-that by it moisture is imparted to the air in the process of heating. But the application was not to register these descriptive words 'merely,' alone and apart from the marks shown in the drawing, but in a described manner of association with other words, 'Round Oak,' which are not descriptive of any quality of applicant's heating system, and as a definitely positioned part of an entirely fanciful and arbitrary design or seal, to which the Commissioner found the applicant had the exclusive right. Since the proviso prohibits the registration not of merely descriptive words but of a 'trade-mark which consists * ** merely' (only) of such words the distinction is substantial and plain -we think it sufficiently clear that such a composite mark as we have here does not fall within its terms." Previous to the decision of the Court of Appeals denying registration to any trademarks containing any matter which was merely descriptive, it was the custom of the Patent Office to register such trade-marks on petitioner filing a disclaimer as to the purely descriptive matter. This practice, although unauthorized by statute, is commended by the Supreme Court in the following terms: "While there is no specific provision for disclaimers in the trade-mark statute, the practice of using them is commended to our judgment by the statement of the Commissioner of Patents that, so far as known, no harm came to the public from the practice of distinguishing, without deleting, nonregistrable matter in the drawing of the mark as registered, when a statement, forming a part of the record, was required that the applicant was not making claim to an exclusive appropriation of such matter except in the precise relation and association in which it appeared in the drawing and description. It seems obvious that no one could be deceived as to the scope of such a mark, and that the registrant would be precluded by his disclaimer from setting up in the future any exclusive right to the disclaimed part of it." juries received by the plaintiff two years before while the plaintiff was in the employ of the defendant Railway Company in the City of Humboldt, Saskatchewan, Canada. This judgment was reversed by the Circuit Court of Appeals for the reason that by the laws of Canada, this action should have been brought in one year from the time the injury was sustained. The reason for the decision of the Court of Appeals was a statute of Minnesota providing as follows: "When a cause of action has arisen outside of this state, and, by the laws of the place where it arose, an action thereon is there barred by lapse of time, no such action shall be maintained in this state unless the plaintiff be a citizen of the state who has owned the cause of action ever since it accrued." The general rule in this class of cases is that the law of the forum will govern as to the time in which an action can be brought unless the limitation is imposed specially in the law creating the right of action. In other words, as to the general statute of limitations the lex fori rather than the lex delicti controls, since in such a case it is a question referable to the remedy rather than to the substantive right created by the foreign law. In Minnesota, the limitation on actions of this character is six years. The decision of the Court of Appeals, therefore, would be correct if the statute quoted above, applying a different rule to non-residents, infringes, as the Court of Appeals declares it does, the plaintiff's constitutional right to the "privileges and immunities" enjoyed by citizens of Minnesota. The Supreme Court, however, takes a different view of the question and holds that Article 4, Section 2, of the Constitution is not violated by the statute relied upon by the defendant railroad company. The Court in its opinion makes a very important declaration as to the power of a state to discriminate against non-residents in respect to the right of access to the courts of the state. Court said: The "This constitutional requirement is satisfied if the non-resident is given access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens. The power is in the courts, ultimately in this court, to determine the adequacy and reasonableness of such terms. A man cannot be said to be denied, in a constitutional or in any rational sense, the privilege of resorting to courts to enforce his rights when he is given free access to them for a length of time reasonably sufficient to enable an ordinarily diligent man to institute proceedings for their protection." It is interesting to note that from a time very early in our history, it has been customary to impose different requirements upon non-residents than upon residents as a Condition of resorting to the local courts. This is particularly true in the case of security for costs which is very generally required of a non-resident, but not of resident citizens. So also in cases of attachment where a nonresident's property may be attached for reasons which would not justify an attachment of the goods of a resident. Of such requirements it has been said by the Supreme Court that "it has never been supposed that regulations of that character materially interfered with the enjoyment by citizens of each state of the privileges and immunities secured by the Constitution to citizens of the several states." Blake v. McClung, 172 U. S. 239, 256, 19 Sup. Ct. 165, 172. WHAT IS A "HIGHWAY?”—A DISCUSSION OF ENGLISH DECISIONS. In a case lately before the Divisional Court (Mr. Justice Darling) the authorities cited disclosed an interesting series of attempts by our judges to frame a sufficiently wide definition of the term "highway." Such a task might be deemed comparatively simple, but our readers will form their own conclusions after a perusal of what is underwritten, as to the success or otherwise of the attempted definitions. Lord Hale in Austin's (Katherine) Case1 said: "If a way lead to a market or were a way for all travelers and did communicate with a great road, etc., it is a highway." In 1 Hawkins C. P.,2 it is defined as a way "which is common to all the king's people whether it lead to a market town or only from town to town." Lord Coleridge in 1876: "The common definition of a highway that is given in all the text "A books of authority is that it is a way lead- | Bateman v. Bluck, however, the question ing from one market town or inhabited place to another inhabited place, which is common to all the Queen's subjects." passage which is open to all the King's subjects," says Smith's Leading Cases.* And in "Pratt on Highways," it is laid down that a highway comprises all portions of land over which every subject of the Crown may lawfully pass. This summary by the leading text-books on the subject of highways is no doubt wide, but in this, as in all the definitions, there exists one common factor, namely, that the way or place, whatever it may be, is open to all the King's subjects, and not merely to a limited or privileged few. It is an essential element of a highway that it should be open to all members of the public. It, therefore, excludes a way over which a right of passage is given by license or in exercise of a right of ownership or occupation of adjoining land whereby an easement over such way is granted or possessed. Roads commonly called "occupation" roads laid out for the accommodation of the occupiers of adjoining properties do not come within the definitions. Nor, again, do village greens, parks, or fields, over which the inhabitants of a particular district have by custom or otherwise obtained a right of recreation. Though a way to be a highway must be open to all and sundry it need not be a thoroughfare. "If it were otherwise, in such a great town as this (London) it would be a trap to make people trespassers." So said Lord Kenyon, C. J., in Rugby Charity Trustees v. Merryweather. The subject, however, has not rested there, as subsequently to this pronouncement there was considerable discussion on the matter and views were expressed contradictory to the above. Since the case of has been at rest. In that case the plaintiff brought an action for trespass for entering the plaintiff's close and pulling down a wall therein. The plea was stated that the close was a public pavement within the Metropolitan Paving Act; that the plaintiff unlawfully and contrary to the Act erected therein the said wall, and because the wall encumbered the pavement and plaintiff refused on defendant's request to remove the same, defendant entered and pulled it down. It was held, on motion for judgment, non obstante veredicto, that the plea was bad for showing that it was absolutely necessary for defendant, in order to exercise the alleged right of passage, to remove the wall. And it was further held that a public highway may in law exist over a place which is not a thoroughfare. Lord Campbell, C. J., thus delivered judg ment: "On the issue raised by the fourth plea, I think the defendant is entitled to a verdict. That plea alleges that there was a public highway through the locus in quo, and that it was impossible for the defendant to pass along the highway without removing the wall. The jury found that this was such dublic highway; and we are bound to assume that finding to be good, unless, as is contended, there cannot in law be a highway through a place which is no thoroughfare. It seems to me that such a doctrine is incorrect. There may or may not be a highway under these circumstances. Take the case of a large square with only one entrance, the owner of which has for many years permitted all persons to go into and round it; it would be strange if he could afterwards treat all persons entering it, except the inhabitants, as trespassers. In the Trustees of the Rugby Charity v. Merryweather, Lord Kenyon laid down that there might be a highway through a place which was not a thoroughfare, and seems to have left it to the jury whether there was such highway or not. In Woodyer v. Haddon (1813), 5 Taun 126, the Court did not decide that there could not be a highway under such circumstances, but only that in that particular case there was none; and I do not find anything decided there which is necessarily inconsistent with what was laid down by Lord Kenyon." There are three kinds of ways which can be highways and which have been classified by Lord Coke." "There be three kynds of wayes whereof you shall reade in our ancient bookes-first a footway which is called iter quod est jus cundi vel ambulandi hominis; and this is the first way. The second is a footway and horseway, which is called actus ab agendo; and this vulgarly is called pack and prime way, because it is both a footway, which was the first or prime way and a pack or drift way also. The third is via aditus, which contains the other two and also a cartway, etc., for this is jus cundi, vehendi, et vehiculum et jementum ducendi; and this is twofold, viz., Regia via, the King's highway for all men, et communis strate, belonging to a city or town or between neighbour and neighbours." To designate a footpath as a highway certainly would appear rather grandiloquent, but on principle guided by the considerations and definitions quoted above, there is no reason why it should not be so called. The question, however, has been debated more than once. In 1836, in the case of Davies v. Stephens,10 it was decided that if in an action for trespass the defendant pleads a footway his plea is supported by proof of a carriageway, as a carriageway always includes a footway. A gate being kept across a way is not conclusive that it is not a public way, as the way may have been granted to the public with a reservation of the right of keeping a gate across it to prevent cattle straying. The case before Mr. Justice Darling, referred to at the commencement of this article," was an appeal from a decision of the Justices, who had convicted Dennis and Sons under section 72 of the Highway Act, 1835, of unlawfully destroying the surface of certain highways, the highway being public footpaths in two fields belonging to Dennis and Sons, and they had been destroyed by being ploughed up. Dennis and Sons sought to justify their action on two grounds, (1) that the footpath was not a highway; and (2) that they had acted under a notice from the war agricultural executive committee of Holland County Council, which required them to plough and convert into arable the grass land in question so as to provide a good crop for the harvest of 1918. The conviction was upheld. But Mr. J. Darling had some doubt whether a footpath could be a highway. In his judgment he says: "An ordinary person would not call a footpath a highway, and I was at first inclined to think that the appellants had committed no offense, but the decision in Mercer v. Woodgate, went upon the assumption that a footpath was a highway, and therefore the Justices were right in holding that the appellant had infringed the statute.” The case referred to by Mr. J. Darling decided that there may in law be a dedication to the public of a right-of-way such as a footpath across a field subject to the right of the owner of the soil to plough it up in due course of husbandry and delete all trace of it for the time. This case, apart from assuming a pathway may be a highway, also deals with the point raised and decided in Davis v. Stephens referred to above, that a way can be dedicated to the public with a reservation as to the enjoyment thereof. In the year 1869 there was another case very similar to Mercer v. Woodgate, namely, Brackenborough v. Thorseby (1869), 33 J. P. 565. In this case, during the course of the argument, Mellor, J., says: "Surely a footway may be a highway and why should a footway not be protected as well as a carriageway?" DONALD MACKAY. Glasgow, Scotland. (12) 1869, L. R. 5 Q. B. 26. SUFFICIENCY OF SERVICE OF NOTICE TO VACATE BY LANDLORD. Introductory. At common law and by weight of authority in most states, under statutes relating to the subject, a notice by a landlord to a tenant terminating the tenancy need not of necessity be served personally on the tenant. Of course, if the statute prescribes the manner of service, its provisions must be complied with. As a general rule, any mode of serving a notice to quit is sufficient, where it can be traced to the hands of the party for whom it was intended in due time. Whenever service upon the party in person is practicable, it should be the mode adopted; but in the absence of the tenant, the notice may and should be served in the manner best calculated to reach him.1 It has been stated in a Missouri case: "Service by copy may be liberally viewed for certain purposes. But it is not so viewed in all cases. One may be presumed to remember that he has indorsed a note, and to expect notice about a certain time. But in proceedings to terminate a tenancy by notice, whilst to require personal service might put it in the power of the adverse party to make it impossible to terminate a tenancy in the absence of some statutory provision, the rule as to service by copy should be applied with some strictness, and it should appear that there has been reasonable diligence, and that the mode adopted is reasonably likely to give actual notice where there is no appearance of attempt on the part of the one to be served to evade notice."2 If the tenant is personally served, service may be made on or off the premises.3 (1) Alworth v. Gordon, 81 Minn. 445, 84 N. W. 454. (2) DeGiverville v. Stolle, 9 Mo. App. 185. (3) Epstein v. Greer, 78 Ind. 348; Minard v. Burtis, 83 Wis. 267. Notice properly served on a tenant is binding on a sub-tenant coming in after the service of the notice. By Mail-In England it has been held that sending the notice to the tenant by registered mail is sufficient service. Service of notice by mail, so as to cast upon the tenant the risk of receiving it, is not authorized. However, it is held in Minnesota, that if such mode of service is adopted, and the notice is actually received by the tenant within the required time, it is sufficient." Reading Notice to Tenant.-When the notice is required to be in writing it must be delivered; a mere reading of it to the tenant being insufficient." If the tenant receives the notice after it has been read to him, the service is sufficient. This is true although the notice is addressed to him and another.8 Delivery to Person Other Than Tenant. -Leaving the notice at the lessee's house, off the demised premises, and calling the attention of a person, not an agent of the lessee nor a member of his family, to it, was held insufficient, unless it were shown that the lessee actually received the notice." Delivery to Wife of Tenant. By the weight of authority, it is a sufficient service of notice to quit to leave it at the tenant's home on the premises with his wife, in the absence of the tenant from home; it not being necessary that it should be served personally on him.1o (6) Alworth v. Gordon, 81 Minn. 445, 84 N. W. 454; Prendergast v. Searle, 81 Minn. 291, 84 N. W. 107. (7) Langan v. Schlief, 55 Mo. App. 213; Jenkins v. Jenkins, 63 Ind. 415. (8) Langan v. Schlief, 55 Mo. App. 213. (9) Hodgkins v. Price, 137 Mass. 13. (10) Doe v. Gray, 2 Houst. (Del.) 135; Bell v. Bruhn, 30 Ill. App. 300; Blish v. Harlow, 15 Gray (Mass.) 316; Clark v. Keliher, 107 Mass. 406; Steese v. Johnson, 168 Mass. 17, 46 N. E. 431; Hazeltine v. Colburn, 31 N. H. 466; Cadwallader v. Lovece, 10 Tex. Civ. App. 1, 29 S. W. 666, 917. |