in this case directs the master to ascertain the profits diverted from the complainant which had been made by the defendant and such other damages, if any, as the complainant has suffered. It fails to take into account the fact that some of the damages may be due to the prospective profits of which the complainant has been deprived, and may be, to that extent, embraced also within the denomination of profits made by the defendant. This of itself would require a reversal of the decree in this respect. We think it is better to follow the rule of the English courts and of the United States supreme court and limit the accounting to the profits made by the defendant.

For these reasons the decree must be reversed.

1

1 Accord, Lee v. Alston, 1 Ves. Jr. 78, 82 (1789); Norton v. Colusa, 167 Fed. 202 (Mont., 1908), nuisance; Stevenson v. Morgan, 64 N. J. Eq. 219 (1902), same; Miner v. Nichols, 24 R. I. 199 (1902), same.

Contra, Baker v. Slack, 130 Fed. 514 (C. C. A., 7th, 1904), trade-name; Salton Sea Cases, 172 Fed. 792, 801 (C. C. A., 9th, 1909), nuisance; Sharpless v. Lawrence, 213 Fed. 423 (C. C. A., 3d, 1914), unfair competition; Carmen v. Fox Film Corp., 258 Fed. 703 (N. Y., 1919) interference with contract, p. 396, infra; U. S. v. Midway, 232 Fed. 619, 630 (Cal., 1916), trespass; Whaley v. Wilson, 112 Ala. 627 (1896), obstruction of easement; Lynn v. Auburn-Lynn, 100 Me. 461 (1905), 103 Me. 334 (1907), unf. comp.; Winslow v. Nayson, 113 Mass. 411, 421 (1873), trespass; Reese v. Wright, 98 Md. 272 (1904), obstruction of easement; Keppel v. Lehigh, 200 Pa. 649 (1901), nuisance; McMechan v. Hitchman-Glendale, 88 W. Va. 633 (1921), same. But exemplary damages will not be given, Karns v. Allen, 135 Wis. 48 (1908).

Profits as incident to an injunction, see 250n., supra.

Other relief as an incident to the injunction of a tort was given in Brooks v. Stolley, 3 McL. 523 (Oh., 1845), specific performance of contract for patent license; P. ex rel. Staats-Zeitung v. Chicago, 53 Ill. 424 (1870), ascertainment of statutory rights ordinarily enforceable by mandamus; S. v. Marshall, 100 Miss. 626, 642 (1911), statutory penalties for public nuisance. Codes: In the Code states, where there is only one form of civil action, damages may be obtained in the same proceeding as an injunction. See 1 Cook, Cases on Equity, 447n., criticizing adversely Ames, 571n., for including these Code cases under the heading, “ Compensation in equity for a nuisance." The criticism seems just with respect to those cases in Ames in which damages were assessed by a jury. Even these cases, however, have some weight in view of the interpretation of the Codes by courts which refuse to regard the distinction between law and equity as abolished, and do not allow cases to proceed as if there were one civil action. 261n.3 infra. At all events, Code cases in which damages were assessed by the court were properly cited by Ames. A jury trial was required by the Constitution unless at the time of its adoption equity had jurisdiction to assess compensation. Therefore, the assessment of damages by the court in a Code suit for an injunction is (unless jury trial was waived) inferentially a holding that equity had jurisdiction to grant damages as an incident to the injunction. Cases of this type are Courtwright v. Bear, 30 Cal. 573 (1866), nuisance; Trowbridge v. True, 52 Conn. 190 (1884); Weston v. Pope, 155 Ind. 394 (1900), same; Lynch v. Metropolitan, 129 N. Y. 274 (1891), same; Hunter v. Manhattan, 141 N. Y. 281 (1894), same; Fleischner v. Citizens' Investment, 25 Ore. 119 (1893), same; Atlantic, etc. Ry. v. Victor. 79 S. C. 266 (1907), trespass. So also, under the Massachusetts Practice Act, Forster v. Cutter

STATUTES AUTHORIZING SPECIFIC RELIEF AND SUBSTITUTIONAL REDRESS IN THE SAME PROCEEDING1 COMMON LAW PROCEDURE ACT, 1854, 17 & 18 Vic. c. 125, §79: "In all Cases of Breach of Contract or other Injury, where the Party injured is entitled to maintain and has brought an Action, he may, in like Case and Manner as herein-before provided with respect to Mandamus, claim

Tower, 215 Mass. 136 (1913), unf. comp.; Stevens v. Rockport, 216 Mass. 486 (1914), nuisance. Interesting points are raised by Chicot v. Dardell, 84 Ark. 140 (1907); Gilbert v. Boak, 86 Minn. 365 (1902); Paddock v. Somes, 102 Mo. 226 (1890); Bly v. Edison, 172 N. Y. 1 (1902); Comminge v. Stevenson, 76 Tex. 642 (1890). On the constitutional right to a jury trial, see McCarthy v. Gaston, 144 Cal. 542 (1904); Brown v. Solary, 37 Fla. 102, 114 (1896); Cowan v. Skinner, 52 Fla. 486 (1906); Miller v. Keokuk, 63 Ia. 680 (1883); Lynch v. Metropolitan, supra; 15 L. R. A. 287n. On jury trials in equity, see 13 Am. St. Rep. 447n.; 18 Colum. L. Rev. 610. On the constitutionality of statutes ordering trial by jury of questions of fact in equity, see Brown v. Buck, 75 Mich. 274 (1889).

In England, under Lord Cairns' Act and the Judicature Act, damages may be given in an action for an injunction, without jury trial. Pennington v. Brinsop, L. R. 5 Ch. D. 769 (1877); Hole v. Chard Union, [1894] 1 Ch. 293 (C. A.).

Legal monopolies: The rule in patent and copyright suits was formerly the same as in Martin v. Martin. Livingston v. Woodworth, 15 How. 546 (1853); Chapman v. Ferry. 12 Fed. 693 (Ore., 1882). The Act of July 8th, 1870, c. 230, § 55 (68, supra) allows damages to be given in a patent equity suit in addition to profits. The same rule is enacted for copyright by Act of March 4th, 1909, c. 320, § 27. See Gross v. Van Dyk, 230 Fed. 412 (C. C. A., 2d, 1916). In England, under Lord Cairns' Act, it has been held that the plaintiff must elect whether he will have an account of profits or an inquiry into damages. Neilson v. Betts, L. R. 5 H. L. 1, 22 (1871); De Vitre v. Betts, 34 L. J. Ch. 289 (1865); L. R. 6 H. L. 319 (1873). In trade-mark suits there has been the same conflict as in unfair competition generally. See the suggestions that trade-marks are different from patents in Benkert v. Feder, 34 Fed. 534 (Cal., 1888); Merriam v. Saalfield, 198 Fed. 369, 376 (C C. A., 6th, 1912). In suits based on registered interstate trade-marks, damages may now be recovered in equity by Act of February 20th, 1905, c. 592, § 19. See 29 Harv. L. Rev. 763. The rule as to non-Federal trademarks is discussed in the unfair competition cases cited supra.

On the general question of compensation in addition to an injunction, see 1 Pom. §§ 236, 237; 4 Sedgwick, Damages (9th ed.), c. liv; 21 L. R. A. N.S. 526n.; 20 Ann. Cas. 59n.; Nims, Unfair Competition (2d. ed.), c. xxv. "Decree granting an injunction as bar to action at law for past damages on account of thing enjoined," 14 A. L. R. 543n.

1 Only a few of these statutes are reprinted here. Others are reprinted in Hepburn, Cases on Code Pleading, 6 (1901). On their effect, see W. N. Hohfeld, "The Relations between Equity and Law," 11 Mich. L. Rev. 537 (1913), reprinted in his Fundamental Legal Conceptions, 115; Hepburn, op. cit., c 2; Hepburn, Historical Development of Code Pleading (1897); Pomeroy, Code Remedies (4th ed., 1904), c.1; Hinton, Cases on Code Pleading (2d ed., 1923).

In 4 Harv. L. Rev. 395 (1891), it is stated, substantially by Ames: "It is believed that the so-called fusion of law and equity is largely responsible for such decisions as those under discussion. The advantages of vesting a court with both legal and equitable powers are not to be denied. But

a Writ of Injunction against the Repetition or Continuance of such Breach of Contract, or other Injury, or the Committal of any Breach of Contract or Injury of a like kind, arising out of the same Contract, or relating to the same Property or Right; and he may also in the same Action include a claim for Damages or other Redress." 1

LORD CAIRNS' ACT (CHANCERY AMENDMENT ACT, 1858), 21 & 22 Vic. c. 27, § 2: "In all Cases in which the Court of Chancery has Jurisdiction to entertain an Application for an Injunction against a Breach of any Covenant, Contract, or Agreement, or against the Commission or Continuance of any wrongful Act, or for the specific Performance of any Covenant, Contract, or Agreement, it shall be lawful for the same Court, if it shall think fit, to award Damages to the Party injured, either in addition to or in substitution for such Injunction or specific Performance, and such Damages may be assessed in such manner as the Court shall direct." 2

JUDICATURE ACT (SUPREME COURT OF JUDICATURE ACT, 1873), 36 & 37 Vic. c. 66: By § 3 Chancery and the various law courts, etc., are united and consolidated together," and constitute one Supreme Court of Judicature in England." § 4 divides the Supreme Court into the High Court of Justice, with original jurisdiction and appellate jurisdiction from inferior courts, and the Court of Appeal, with appellate jurisdiction and original jurisdicton when incidental to the determination of an appeal. § 16 transfers and vests in the High Court of Justice, with certain exceptions, the jurisdiction previously "vested in, or capable of being exercised by," Chancery and the various law courts, etc. § 23 directs that the jurisdiction transferred to the new Courts shall be exercised in the manner provided by this Act, or by such Rules and Orders of Court as may be made pursuant to this Act; and in the absence of any special provision, "it shall be exercised as nearly as may be in the same manner as the same might have been exercised by the respective Courts from which such jurisdiction shall have been transferred, or by any of such Courts." The following provisions are especially important with respect. to equitable relief against torts:

when the doctrines of equity are no longer administered in a separate court, it is all the more important not to lose sight of the fundamental distinction between law and equity, a distinction as eternal as the difference between rights in rem and rights in personam." See Hammond, J., Whittenton v. Memphis, 19 Fed. 273, 275 (Tenn., 1883).

1 §§ 80-82 deal with the procedure of injunctions and injunctions pendente lite; §78 authorizes an order for the specific delivery of chattels in any action for the detention of a chattel.

2 This statute was technically repealed by 46 & 47 Vic. c. 49 (1883), but § 5 of that Act directs that the repeal shall not affect any jurisdiction or principle or rule of law or equity" established by the legislation repealed, so Lord Cairns' Act remains substantially in force as affected by the Judicature Act. Sayers v. Collyer, 28 Ch. D. 103, 107 (1884, C. A.); Chapman v. Guardians, L. R. 23 Q. B. D. 294, 299 (1889, C. A.); Sharp v. Harrison, [1922] 1 Ch. 502, 507n.; but see 20 L. J. 162 (1885); 67 Sol. J. 513 (1923).

Sir John Rolt's Act, 25 & 26 Vic. c. 42 (1862), also extended the power of Chancery.

"§ 24. In every civil cause or matter commenced in the High Court of Justice law and equity shall be administered by the High Court of Justice and the Court of Appeal respectively according to the Rules following: "(1.) If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a Court of Equity, the said Courts respectively, and every Judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose properly instituted before the passing of this Act." "(7.) The High Court of Justice and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided."

"§ 25. And whereas it is expedient to take occasion of the union of the several Courts whose Jurisdiction is hereby transferred to the said High Court of Justice to amend and declare the Law to be hereafter administered in England as to the matters next herein-after mentioned: Be it enacted as follows:

“(3.)'An estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate. "(8.) A mandamus or an injunction may be granted or a receiver appointed by an interlocutory Order of the Court in all cases in which it shall appear to the Court to be just or convenient that such Order should be made; and any such Order may be made either unconditionally or upon such terms and conditions as the Court shall think just; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title; and whether the estates claimed by both or by either of the parties are legal or equitable.

"(11.) Generally in all matters not herein-before particularly mentioned, in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail." 1 Wide rule-making powers are conferred upon the Supreme Court by § 74, but new Rules of Court must be laid before both Houses of Parliament within forty days, and either House may obtain the annulment of a Rule by an address to the Crown within a specified time. §75 requires that a Council of the Judges of the Supreme Court must assemble at least once a year to consider the operation of this Act and of the Rules of Court in force, and the working of the arrangements relative to the duties of officers of the Courts; and to inquire into any defects which may appear to exist in the system of procedure or the administration of law in the Supreme Court and the inferior courts. The Judges are then to report annually to a Secretary of State what provisions "for the better administration of justice" it is expedient to make by amendment of this Act or by other legislation.2

NEW YORK CODE OF PROCEDURE, N. Y. Laws, 1848, c. 379, § 62: "The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and, there shall be in this state, hereafter, but one form of action, for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be denominated a civil action."

1 On the effect of these sections, see Jessel, M. R., Salt v. Cooper, 16 Ch. D. 544, 549 (C. A., 1880); Lindley, L. J., Joseph v. Lyons, 15 Q. B. D. 280, 287 (1884, C. A.); Esher, M. R., Chapman v. Guardians, 23 Q. B. D. 294, 298 (1889, C. A.); Maitland, Equity, 16, 257; Loreburn, C., "The Operation of the Reformed Equity Procedure in England," 26 Harv. L. Rev. 99 (1912). 2 See S. Rosenbaum, The Rule-making Authority in the English Supreme Court, Boston, 1917.

3 This section, with a slight change, became § 69 in 1851 and § 3339 in the Code of Civil Procedure, 1876. This Code is superseded by the Civil Practice Act, 1920.

On the effect of this legislation, see F. X. Carmody, New York Practice (1923), § 12; J. L. Rothschild, "The Simplification of Civil Practice in New York - A Review of Judicial Experience under the Civil Practice Act," 23 Colum. L. Rev. 618 (1923); Voorhies' edition N. Y. Code (1851), 55n.

66

Comstock, J., Emory v. Pease, 20 N. Y. 62, 64 (1859): In determining whether an action will lie, the courts are to have no regard to the old distinction between legal and equitable remedies. Those distinctions are expressly abolished."

Danforth, J., Stevens v. N. Y., 84 N. Y. 296, 304 (1881): "The names of actions no longer exist, but we retain in fact the action at law and the suit in equity."

Chase, J., Sadlier v. N. Y. 185 N. Y. 408, 414 (1906): "The inherent, fundamental differences between actions at law and actions for equitable relief, such as determine whether a trial of the action by jury is a matter of right and otherwise affect the interests of litigants, have not been and cannot be abolished."

Cuddeback, J., Jackson v. Strong, 222 N. Y. 149, 154 (1917): "The inherent and fundamental difference between actions at law and suits in equity cannot be ignored."