transcript of the proceedings of the United States court in the case of Blackburn vs. Railroad Co. was necessary as testimony for defendant on the hearing of this cause, not as a part of defendant's muniment of title, but a.s evidence to defeat complainants' title. Defendant did not claim title through the proceedings in that case, and was not required to show any title in itself, if it could show a want of title in complainants. I am therefore satisfied that this item is properly taxed as part I")f the costs of the cause. The statute of the state made the certified list of lands sold by the sheriff for non-payment of taxes filed with the auditor a sufficient instrument to pass the title to the land sold from the delinquent taxpayer to the state, and for that reason it is presumed that the defendant has in its possession a certified copy of these lists, and so much of the item charged for a copy of these lists must be disallowed for the reasons stated. The defendant is not presumed to have in his possession a scriptoHhe proceedings of the levee boards, which wereptoperevidence on the hearing of the cause; but the bill of costs, as made out, does not show'what amount was paid for these transcripts. Therefore this item Inust be but with leave to retax the costs, so as to show the amount paid for these transcripts.' The result is that the matters arising upon complainants' motion will be referred to the clerk of this court to' retax the costs, as stated in this opinion.
CEMENT Co. f1. COPLAY CEMENT
(e'ircuit Oourt, E. D. PennBylll'anw. February 13, 1891.)
TRADE-MARXS......MANUll'AC'l'trRES-N.U'lE OF CITY.
While an exclusive right or property in a trade'mark or trade-name need not be confined to a single perllon, yet a trade-mark cannot exist in the name of the city in Which a thing is made by-manufacturers in that city, for anyone is at liberty to go to the 'City aDd manufacture. and falsely,d6signating the article made as coming from that city is e. fraud only. Aftlrwing (4 Fed, Rep. 277. . ,
Bill in Equity to Enjoinlnfringement of Trade-Mark. Motion for reargument. Roland for complainant. " Preston K· .F}rdman and Ohas. Howson, for defendant.
BRADLEY, Justice·.. While we have no hesitation denying the, motioQ for a rehearing in this case, being entirely satisfied with the conclusion at whicp we arrived on the argumerit.of the cause, it may be proper to add a few worQ..El in explanation ofour formeropiniop. Inholding that is necel;lsary to the. validity ora trade-mark, or ,trade-name that, the claimof it be entitled to ,an exclusive right to it, Or property in it, :we do not mean to say that it may not belong to more. than person,
Reported by :Mark Wilks
Esq., of the Philadelphia Dar.
FLll:'I'CHER V. UNITED STATES.·
to be enjoyed jointly or severally. Copartners, upon a dissolution of
partnership, may stipulate that each of them may use the trade-marks of the firm, and there may be many other cases of joint and several ownership; but such co-owners will together be entitled to the exclusive use of the trade-mark, and perhaps· each of them will be entitled to such exclusive use as to all other persons except their associates in ownership. But this is very different from a claim by a resident of New York city, in common with all the other residents of that city, to the designation of an article as a New York article,-for example, New York soap, New York flannels, New York whisky, etc. Such a trade-mark cannot be maintained. A cigar manufacturer of Havana cannot maintain a claim of trade-mark in "Havana Cigars." If a dealer in New York sell cigars as Havanacigllrs which are not such, it may be fraud, but it is no viOO' Iation of a trade-mark which can be claimed by all the cigar-makers of Havana. It is open to all persons to go to Havana and manufacture cigars there; but It would be absurd to say that they would therebyac" quire a trade-mark in the name" Havana Cigars." So all cement manfacturers in Rosendale and its vicinity may rightly call their manufactured article "Rosendale .Cement," but any other. per50nmay go ·too Rosendale and manufacture cement there, and have the same right." There is no exclusive property in the name, even in those who now 1"6;Elide. there, or carryon the manufacture there. It is open to all the world. In our judgment there is not, there cannot be, any trade-mark' in the name of the place. .
FLETCHER fl. UNITED STATES.
(O#C1J,U Oourt, E. D. A.rkansas, W. D.lfebruary 2lI, 1891.)
UNITED STATE$ MARSHAL-FEllS-PURSUIT OJ' Fu&I'rIVES.
W here a marshal, according to the practice in .his district as allowed by the government, pursues into another distnct fugitives from justice, acts as witness in identifying the fugitives and making prima fdcie proof of their gUilt] and arrests them as Rpecial deputy of the marshal of the Qther district, who relInq,Uisbes all claim for fees for such arrest, suchmarsbal is entitled to compensation for his serv· ices in pursuing, arresting, and bringing back such· fugitives, even though the practice of the department in that respect has changed since the services were rendered. .
,Act COI/-gi Feb. 22 1875, (18 Bt.ll84,) which provides that no marshal shall be paid ; , for trav.el not. actu;Jly and performed, does not prevent a marshal from . recovermg mileage on each wnt served, even though· several writs are served on . different persons at the Same time and place. Following Ha1'71UYn V. U. S., 43 Fed. . Rep. 560. . . . The fact;tliat the 5th of·July.was generally celebrated as IndependenCe day,· the 4th falling on SundaY,does pot disentitle a marshal to his per diem fo/.' attendlDIt court on that day, where the record shows that the court was open and transacted business. .." .; ..
ISSUED BEJ'ORE MARSHAL .QUALIJ'IIft>. . .. ' . .;. ;
:11. SAME-PER DIIliM-LEGAL HOLIDAY.
. Where writs is'sued before. the marshal who served them qualified for we/.'8 . '" turned over to him b:¢ his· predecessor, under arrangemeut that he shoUld have the·