The Albany Law Journal.

ALBANY, JANUARY 23, 1892.

CURRENT TOPICS.

THE death of Chief Judge Ruger, although rather

The fifteenth annual meeting of the New York State Bar Association was held on Tuesday and Wednesday of this week. The public exercises on Tuesday were attended by an unusually small audience, owing in a large measure probably to the unfavorable weather. The address by President George M. Divin was well conceived, and dealt chiefly with matters concerning the regulation of the association. He advised the formation of a State commission of three to consider all legislative enactments and advise the governor concerning them. This is a good proposition. His proposal that one of the commission should be nominated by the association however does not seem advisable, for the association is not a part of the government, but is a mere private corporation, and there is no certainty that like Tennyson's Brook it will "go on forever." An excellent portrait of the late Homer A. Nelson was presented to the association, by the Dutchess county bar, with an appropriate address by Mr. Frank B. Lown. The annual address was delivered by Prof. Melville M. Bigelow, of Boston, on "Respect for the Law; Responsibility of the Profession." It was a remarkably noble and elegant performance, with some passages of striking beauty, and pervaded by a peculiar air of originality and raciness. It was received with as much outward demonstration of favor as the few persons present were capable of expressing. Some of its suggestions struck an agreeably accordant note in ourselves, as for example the remarks on the mediævalism and over-elaborateness of the law in its present state and tendencies. The advanced thought of the speaker in recommending the unfettering of the judges from precedents was admirable for its boldness and its wisdom. Many years ago one of our State senators - Tracey, we believe - recommended burning all the law books, and while we would not go so far as to burn them all — Dr. Bigelow's certainly should be saved - we believe it would be better to burn than to publish nine-tenths of the opinions every year. It is a great pity that the speaker's admirable address should not have had a larger audience. Indeed it was too bad to ask a gentleman of his distinction to prepare a long and labored address, and travel the whole length of Massachusetts to deliver it, and greet him with an audience of two score lawyers and two or three score outsiders. There was an unintentional satire in the eminent speaker's comparing himself to crying in the wilderness." The association elected Mr. J. Newton Fiero president for the coming year. This gentleman, who has lately become a resident of this city, is one of the oldest and most efficient members of the association, and one of the few lawyers who devote any time to the endeavor to promote the reform of the laws and advance the interests and influence of the legal profession. We shall publish Mr. Bigelow's address in full next week, and we earnestly commend its perusal to every reader of this journal. It is fraught with wise suggestions, which every lawyer, in view of the undeniable diminution of popular respect for law and lawyers, should lay seriously to heart.

health had been gradually but perceptibly failing for several years. In his judicial service of nine years he evinced most of the characteristics essential to his high office. Industry, patience, dignity and courtesy were noticeable; there has never been a suspicion of his integrity and impartiality; his learning was sufficient, if not remarkably wide or profound. But he was not a great lawyer, and nature had not made him great in any sense. Unlike such rare chiefs as Waite and Church, he did not atone for certain deficiencies by a massive common sense and mastery of principles which makes up for lack of book-learning. His mind was slow and heavy, and his temperament was extremely conservative and unprogressive. His opinions were always labored and long, and almost always too long, evincing sometimes almost a pedantry of learning crammed for the occasion from the books and briefs, which frequently was out of proportion to the subject. It would be difficult to recall an opinion of his which may reasonably be described as great or which will ever be referred to among the monuments of judicial pre-eminence. There have always been members of his court far superior to him in learning, experience, mental grasp, force, alertness and literary style. In short, he was simply a highly respectable judge and not a chief except in name. But all things are not to all men, and the State will gratefully recall his conscientious devotion of his time and his powers to her service, even while suffering through a long period from physical debility; and the bar will cheerfully acknowledge the patience with which they were always heard a patience which sometimes perhaps amounted to over-indulgence. He was somewhat of a political partisan before his election to the bench, but we have never heard any complaint of his carrying his old party-feeling to the bench, nor of any indecent mixing up in party matters-not even in the late election decisions. It is earnestly hoped that the governor will appoint a successor free from party bias and influences. The selection of Judge Earl, who has had the longest judicial experience of any of the court, or of Judge Andrews, who is the only surviving member of the court as originally constituted in 1870, and who once held the post by appointment, but was defeated by Mr. Ruger at the election, would give complete satisfaction until the election next fall. Since the foregoing was written the governor has appointed Judge Earl to the vacant place. He has also appointed Mr. Isaac H. Maynard to Judge Earl's place.

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wrote his essays with a cat on his shoulder. Dr. Johnson fed Hodge, his cat, with oysters. Halevy, the dramatist, is pictured at his desk with a big black cat on the corner of it. Mr. Dana is said to have a cat, which seems to have an antipathy against Mr. Cleveland and a strange fondness for Mr. Hill. We hope the Justice will recover his cat, and that it will live long to amuse his leisure.

NOTES OF CASES.

him against the continuance of such encroachment upon his rights. But the difficulty in the way of the plaintiff's case is that there is no such resemblance between the defendant's publications and those of the plaintiff's as to prevent the ordinary and natural use of one's senses in ascertaining the difference before buying. And unless that actually exists, in a similarity in their caption and appearance, there is no just reason for the interference of equity. The difference in the caption of the story, as well as the difference in the name of the series and in the illustrations upon the covers,

Munro v. Tousey, New York Court of Appea.s, should indicate to the most ordinary intelligence

IN Munro v. Tousey, New York Court of Appeas,

exclusive literary property in the word "sleuth." The court, by Gray, J., said: "The defendant's publications, which are especially aimed at by name in this action, were variously entitled as Young Sleuth, the Detective, in Chicago,' or as 'Young Sleuth, the Keen Detective;' or as 'The Broken Button;' or 'Young Sleuth on the Trail,' and by other titles which contained the words 'Young Sleuth' or 'Sleuth.' The foundation for plaintiff's claim to an exclusive right to the use of the word or name 'Sleuth' in any application of it to the title or authorship of a work of fiction seems to consist in his having selected and made use of the name 'Old Sleuth Library' to designate a series of pamphlet publications of detective stories. Previously, he had published a story called 'Old Sleuth, the Detective,' which proved so unusually attractive to some portion of the reading public as to cause the plaintiff to start an 'Old Sleuth Library' series, and to suggest to his author that in his future contributions of detective romances to that library he should describe their authorship as being by 'Old Sleuth.' The plaintiff now contends that Sleuth,' as a word or name, has become his property and a trade-mark, etc. "That the plaintiff would be entitled to the protection of the law against the use by others of the words 'Old Sleuth Library' as used to describe a series of publications, or against the use of the name 'Old Sleuth, the Detective,' for a work of fiction, must be conceded. That is plainly right, and, in order to afford a protection more adequate than would be afforded by an action at law, the equity power of the courts might be successfully invoked to restrain a similar use by others of such names and to prevent a species of literary piracy. This power is exerted upon the same principle upon which the court acts in trade-mark cases, in restraining the unauthorized use of the label or sign constituting the trade-mark. The theory upon which a court of equity has long acted is that a resemblance in, or an imitation of, the names, signs or marks, under which another conducts a business, is a deception practiced upon the public and an injury to the proprietor, in the loss of custom and patronage, to redress which an action at law for damages is not a sufficiently satisfactory remedy. So that, if there was such a simulation of the plaintiff's publications for the fraudulent purpose of imposing upon the reading public, a court of equity would protect

that the defendant's publications were not of tales of Old Sleuth, the Detective, or parts of the 'Old Sleuth Library.'"

In Paine v. Baker, Supreme Court of Rhode Island, July 18, 1885, it was held that under a statutory provision relative to conveyances of a wife's real estate that "in every such case the wife acknowledging such deed or instrument shall be examined privily and apart from her husband, and shall declare to the officer taking such acknowledgment that the deed or instrument shown and explained to her by such magistrate is her voluntary act," etc., it is essential to the validity of the deed that the certificate of acknowledgment show that the deed was "shown and explained to her" by the magistrate. The court said: "The certificate of the acknowledgment of Amey A. Jacoy does not show that the deed was shown and explained to her by the magistrate. The question is whether the omission is a fatal defect. The question is one which has been much mooted at the bar. It has been once or twice presented to the court, but not decided. Lippitt v. Huston, 8 R. I. 415; Kavanaugh v. Day, 10 id. 393, 397. It is said the omission is of frequent occurrence, especially in the earlier deeds, and that if necessary we ought, for the security of titles, to apply the maxim, communis error facit jus. We are not convinced of that, though we have no doubt that the omission is common enough to make it our duty to be circumspect. There are a few cases under similar statutes which hold that it is not necessary for the certificate to show that the deed was shown and explained. Gregory's Heirs v. Ford, 5 B. Monr. 471, 481; Nantz v. Bailey, 3 Dana, 111; Tod v. Baylor, 4 Leigh, 498; Chestnut Shane's Lessee, 16 Ohio, 599; Stevens v. Doe, 6 Black f. 475. But in these cases the chief ground of decision was that the statutes, while they were express that the other matters should be certified, made no mention of this. Our statute does not expressly prescribe any certificate. It is well settled however that an acknowledgment, to be good, must be certified, and that in all other respects the cer tificate must show a complete compliance with the statute. Why must it not show it in this respect? Clearly it must show it unless there is some good reason why it may omit to show it. The complainants find such a reason in the manner in which the direction to show and explain is given, the direc

V.

her free act, and giving the form of a certificate in APPEAL from Supreme Court, General Term, fourth which compliance is stated in the words, 'having

such examination, and this decision has been followed by the courts of several of the Western and Southern States, and in others the power has been denied. The same question was considered in the United States Supreme Court in the recent case of Railway Co. v. Botsford, 141 U. S. 250, decided in May, 1891, and the court (two judges dissenting) decided adversely to the claim that the court had power to compel such examination. The opinions of the several courts which have passed upon the question present very fully the considerations bearing upon it. We concur in the view taken by the Supreme Court of the State and the Supreme Court of the United States, and we can add very little to the full discussion to be found in the opinions of those courts. The powers of courts are either statutory or those which appertain to them by force of the common law, or they are partly statutory and partly derived from immemorial usage, which latter constitutes their inherent jurisdiction. They are organized for the protection of public and private rights and the enforcement of remedies.

tively therefore whatever judicial procedure is essential to enable courts to exercise their function is authorized. The maxim that there is no right without a remedy justified the courts, in the earlier periods of the common law, in inventing writs and modes of procedure adapted to present for adjudication in proper form every question of judicial cognizance. The pow ers and jurisdiction of the courts of common law and chancery in England are to be found in the English statutes and in the rules, precedents, decisions and procedure of the courts.

its origin, it seems repugnant to common right, and the fact that in this instance only have the courts of England exercised the power to compel the examination of the person in a civil proceeding tends to show that the power is not there regarded as general, but special and peculiar, and limited to the particular case. The doctrine of the cases in chancery (Briggs v. Morgan, 2 Hagg. Const. 324: Devanbagh v. Devanbagh, 5 Paige, 554; Newell v. Newell, 9 id. 25) that in an action to procure a decree of nullity of marriage on the ground of impotence or sexual incapacity the chancellor may compel the defendant to submit to a surgical examination, is a graft from the civil and common law, and, as has been said, "rests upon the interest which the public, as well as the parties, have in the question of upholding or dissolving the marriage state, and upon the necessity of such evidence to enable the court to exercise its jurisdiction." Gray, J., in Railway Co. v. Botsford, supra.

When we examine the history of the power of comPresump-mon-law courts to compel the production and inspection of books and papers in possession of the opposite party in a civil action, we find that originally the courts disclaimed any power in the matter, and the remedy by bill of discovery was the only resource of the party desiring such discovery. Finally the common-law courts assumed a limited equitable jurisdiction over the subject, and in addition to the rule that a party pleading a deed should make forfeit of the instrument which enabled the other party to demand over, the courts by order compelled a party who in bis pleading relied upon a written instrument, not a deed, to give inspection to the other party if required, and so in other special cases. The courts in this State, prior to any statute, exercised a limited equitable jurisdiction of the same character. Lawrence v. Insurance Co., 11 Johns. 245; Denslow v. Fowler, 2 Cow. 592, note. But this limited jurisdiction was exercised sparingly and with hesitation, and it was not until statutes were enacted in England and in this State conferring upon common-law courts the same power to compel the discovery and inspection of books and papers which was exercised by courts of chancery on bills of discovery, that courts of common law claimed or exercised full power over the subject. Stat. 14 & 15 Vict., chap. 99; Stat. 17 & 18 Vict., chap. 125; Rev. Stat., p. 199, § 21. The limited jurisdiction exercised by these courts before the statute was in the nature of a usurpation, and so far as we can discover, it was never considered that they possessed an inherent power in aid of justice to grant relief in cases outside of the narrow limit mentioned. The power to compel an inspection of books and papers relevant to the controversy, in possession of either party, is of a similar nature to that invoked in the present case, and if the inherent power of the court did not extend to the one case, it is difficult to suppose that it embraced the other. The power to compel a party to submit to an examination of his person has never been conferred by any statute. The provisions of the Revised Statutes authorizing the court to compel the production of books or papers have been re-enacted in the Codes of Procedure. The statutes also contain specific provisions for the examination of a party on oath before trial, at the instance of the other party. The omission in these statutes of any reference to the power not under consideration is quite significant. We cannot say that the exercise of the power claimed might not in some cases promote the cause of justice, and prevent the consummation of fraud.

The power which the courts actually exercised, supplemented by statutory powers, constitutes in a general sense their jurisdiction. Upon the organization here of the Federal and State governments, courts were constituted, and in this State they succeeded to the powers theretofore exercised by the courts of law and chancery in England, so far as they were applicable to our situation. It is a significant fact that not a trace can be found in the decisions of the common-law courts of England, either before or since the Revolution, of the exercise of a power to compel a party to a personal action to submit his person to examination at the instance of the other party. If the power existed, it is difficult to suppose that it would not have been frequently invoked. Actions for assault and battery, for injuries arising from negligence, and generally for personal torts, were among the most common known to the law, and yet, so far as we can discover, in no case was it supposed or claimed that the court was armed with this jurisdiction. The non-exercise of a power is not conclusive against its existence, but it is inconceivable that if the power in question existed, it should have been unused for centuries, and never have been called into activity. In two cases cited by Justice Gray in his opinion in Railway Co. v. Botsford, supra, the Court of Common Bench in Englaud refused an order for the inspection of a building, on the application of the plaintiff in an action for work and labor performed by him thereon, on the ground of want of power. Newham v. Tate, 1 Arn. 244; Turquand v. Strand Union, 8 Dow. 201. These cases tend to negative the existence of the power in the English courts, claimed for our courts in the case at bar. The ouly authority in the English common law courts in any degree analogous is found in the power which the courts of England have occasionally, though rarely, exercised to issue, on the application of apparent heirs, the writ de ventre suspiciendo, to compel a widow claiming to be with child by her deceased husband to submit her person to examination. The practice in England is sui generis and has never been adopted here. It may have originated in the peculiar favor shown to heirs by the law of England, but whatever

On the other hand, unless carefully guarded, it would be subject to grave objections. But we have to deal only with the question of the power of the courts in the absence of any legislation. It is very clear that the power is not a part of the recognized and customary