Injunction. The dread of govern ment by injunction seems to be subsiding. Indeed, legislative authority for its use to prevent conduct which is punishable criminally is now quite extensive, as shown by the Red Light Acts, already referred to under Legislative Tendencies (cf. L. of Minn., Ch. 562). Most of the injunctions sought during the year were for the protection of property from waste (Pardee v. Camden Lumber Co., 70 W. Va. 68, 73 S. E. 82, 43 L. R. A. N. S. 262); for the protection of owners of franchises from unlawful interference by rivals (Vallejo Ferry Co. v. Solano Aquatic Club, 131 Pac. 864, Cal., May 3, 1913); to prevent levying a tax illegally imposed (Gill v. Board of commissioners, 160 N. C. 176, 76 S. E. 203, 43 L. R. A. N. S. 293, Nov. 12, 1912); to prevent the unlawful removal of the dead from their graves (Ritter v. Couch, 76 S. E. 428. 42 L. R. A. N. S. 1216, Oct. 29, 1912); and to prevent strikers from forcibly and riotously destroying the business of their former employers, or intimidating new employees (Fortney v. Carter, 203 Fed. 454, March 8, 1913). The last-named injunction would have been justified, even under the progressive statute of Montana, which declares that "an injunction cannot be granted in labor disputes under any other or different circumstances or conditions, than if the controversy were of another or different character" (L. 1913, Ch. 28). Commissioners v. Orr, 61 So. 920, Ala., Rule 73 of the new equity rules of the Federal Supreme Court provides as follows: No preliminary injunction shall be granted without notice to the opposite straining order be granted without notice party. Nor shall any temporary reto the opposite party, unless it shall clearly appear from specific facts, shown immediate and irreparable loss or damby affidavit or by the verified bill, that age will result to the applicant before the matter can be heard on notice. The Special Committee of the Ameri dies for Delay and Unnecessary Cost can Bar Association to Suggest Remein Litigation reported at the last meeting of the Association adversely to bills which had been introduced into Congress at variance with this rule. The report also states that from November, 1902, to Jan. 1, 1913, the Federal Courts in labor cases, only 26 injunctions were granted by while 704 issued in other controversies. The explanation of this report by the chairman of the committee, and the discussion which followed at the Montreal meeting of the American Bar Association were interesting and instructive. It seemed to be the consensus of opinion that the rules governing injunctions in disputes beshould be the same as those governtween labor unions and employers ing all other cases. Association directed the Committee Accordingly the to oppose all legislation exempting parties to a labor dispute from the liability to injunctive process that' rests upon other litigants, and also to oppose legislation prohibiting the granting of injunctions by Federal courts against state officials who are attempting to enforce state laws which are assailed as unconstitutional. Under the equity rule quoted above, notice must be given of application for such injunction, and it is proposed that this notice shall be given to the attorney-general of the state whose legislation is attacked. Current decisions reiterate the doctrine that an injunction cannot be invoked to decide an academic question, but may be brought only by one who shows that his personal or property rights demand protection by means of this extraordinary writ (Bellarts v. Cleeton, 132 Pac. 961, Ore., May 27, 1913). Also that it cannot be invoked to restrain another in the exercise of political rights unless clearly permitted by statute (People v. McWeeney, 259 Ill. 161, 102 N. E. Joint Stock Companies.-Although 233, June 18, 1913). While a criminal these associations are partnerships as prosecution will not be enjoined, mu- distinguished from corporations, they nicipal authorities may be prohibited have long enjoyed a semi-corporate from attempting to enforce by crim- standing. It is entirely competent, inal prosecutions a void ordinance therefore, for Congress to treat them when such prosecutions will destroy as legal entities for the purpose of or impair property rights (Board of bringing them under the Act "to reg ulate_ commerce" (24 Stat. 379, Ch. May 19, 1913). Privileged defama104 L. 1887), and subjecting them tion should be distinguished from fair as artificial persons to criminal liabil- comment on candidates for public ofity for a violation of such Act. This fice (Walsh v. Pulitzer Pub. Co., 157 Congress has done by that Act as S. W. 326, Mo., May 20, 1913, a amended in 1903 (32 Stat. 847), 1906 case in which plaintiff's fitness for (34 Stat. 584), and 1910 (36 Stat. office was scathingly criticised with539). (United States v. Adams Ex-out actionable liability); or on the press Co., 229 U. S. 381, 33 Sup. Ct. 878, June 9, 1913.) Libel and Slander. - A newspaper publication falsely purporting to be written by plaintiff, which describes an absurd and improbable venture of the writer, is an actionable libel upon him, as calculated to hold him up to ridicule and contempt (D'Almonte v. N. Y. Herald Co., 154 App. Div. 453, 139 N. Y. Supp. 200, affirmed 208 N Y. 596, April 29, 1913). condition of plaintiff's packing house and its methods of doing business, where these are matters of public interest (Schwarz Bros. Co. v. Evening News Pub. Co., 87 At. 148, N. J., June 9, 1913). The publication of a full, fair, and accurate account of judicial proceedings will not subject the publisher to an action for libel, though it includes a deliberately false statement by counsel which is defamatory of a party to the proceeding. It is for the best interests of society that judicial proceedings be open to the public and as the great majority of people cannot attend the sittings of court, it is in the public interest that newspapers should be allowed to publish accounts of proceedings. The only limitation upon such publication is that they shall be full, fair, and impartial. (Lee v. Brooklyn Union Pub. Co., 209 N. Y. 102, N. E. . . ., 50 N. Y. Law Journal, 495, Oct. 21, 1913, affirming 151 App. Div. 924.) While this decision is based on Sec. 1907 of the Code of Civil Procedure, that section is treated as declaratory of the common law. In case of slander which is actionable per se, damages may be given for mental anguish and consequent sickness caused by the slanderous language. If a wife is the victim of such defamation and the husband is deprived of her society and services by reason of her mental and physical suffering, he may recover damages therefor. (Garrison v. Sun Printing & Pub. Asso., 207 N. Y. 1, 100 N. E. 430, April 17, 1913.) That part of the opinion which undertakes to explain the earlier New York cases holding that damages are not recoverable for mental distress and physical pain due to slanderous statements not actionable per se is not very convincing, but it probably indicates present Negotiable Instruments. - An imjudicial dissatisfaction with the ear-portant question in the law of negotilier decisions. able paper has been decided recently by the New York Court of Appeals. It is this: Can the drawer of a draft, who has paid the same to a bona fide holder for value, relying in part upon purported bills of lading attached by the drawer to the draft but not mentioned therein, on discovering that the bills of lading are forgeries, recover back the moneys so paid from the payee or indorsee, who has neither guaranteed the genuineness of said instruments nor been aware of their fraudulent character? The question was answered in the negative. (Springs v. Hanover Nat. Bank, 209 N. Y. 224, 102 N. E., 50 N. Y. Law Journal, 475, Oct. 21, 1913.) The disposition of courts to sustain the right to publish true accounts of proceedings in which the public have a legitimate interest is shown by Parsons v. Age-Herald Co. (61 So. 345, Ala., Feb. 6, 1913), holding that a newspaper is not answerable in damages for libelous statements printed by it in reporting the action of a grand jury. Defamatory statements will be privileged conditionally if made in good faith in reference to a matter in which the person making it is immediately interested, and for the purpose of protecting his interest in the belief that it is true and without any sinister motive (Christopher v. The rule in the Uniform Negoti Akin, 214 Mass. 332, 101 N. E. 971, able Instruments Act that a bill or note is not rendered non-negotiable the other, depend upon that agreeby a provision that if it is not paid ment and not on the order in which at maturity the maker agrees to pay their signatures appear. (Shea v. the costs of collection or an attorney's Vahey, 215 Mass. 80, 102 N. E. 119, fee, has changed the law of Missouri May 24, 1913.) on this point but it has not changed the legal rule as to the validity of such a provision (Mechanics' American Nat. Bank v. Coleman, 204 Fed. 24, Feb. 10, 1913). Upon this point, the decision is in accordance with the view expressed by the draftsman of the Act. He has declared that the object of the statute was not to validate such a provision but only to prevent its affecting the negotiability of the instrument. Whether such a provision is valid or not, according to the decision above cited, is a question of general law upon which the Federal courts are not bound to follow state decisions. A similar provision was held valid in R. S. Oglesby Co. v. Bank of New York (77 S. E. 468, Va., March 13, 1913), the court treating the note as a New York contract, enforceable under the law of that state, and not repugnant to the public policy of Virginia. An indorsement to A or B in the alternative does not render the instrument non-negotiable, and either A or B may further negotiate the instrument (Page v. Ford, 64 Ore., 131 Pac. 1013, April 29, 1913, applying the Uniform Negotiable Instruments Act). Under the Wisconsin version of the Uniform Negotiable Instruments Act, even a holder in due course of negotiable paper cannot enforce it against a maker who signed it when so drunk as not to know what he was doing (Green v. Gunsten, 153 Wis. 413, 142 N. W. 261, May 31, 1913). A like ruling has been made in New York against a holder in due course, of a negotiable note void for usury (Crusins v. Siegman, 142 N. Y. Supp., Sup. Ct. Special Term, June, 1913). Partnership as an Entity.-The Supreme Court declines to commit itself on this vexed question, but unhesitatingly declares that partnership debts are debts of the members of the firm, and that the individual liability of the members is not collateral like that of a surety, but primary and direct. It therefore sustained an order, directing the separate estate of a member of a firm which had been adjudged a bankrupt, to be turned over to the trustee for administration, though his partner had not been adjudged a bankrupt (Francis v. McNeal, 228 U. S. 695, 33 Sup. Ct. 701, May 26, 1913). This practice was followed in a recent District Court case, though the foregoing decision was not cited. The only way in which a non-bankrupt partner can prevent his individual estate from being administered in the bankruptcy proceeding of the firm is by paying off the firm debts. (In re Samuels & Lesser, ex parte Quinn, 207 Fed. 195, July 12, 1913.) Patentees' Rights.-It is now settled that a patentee cannot by notice attached to the patented article limit the price at which a sale thereof may be made by one who has acquired an absolute title thereto (Bauer v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, May 26, 1913). A retailer, who sold Sanatogen for less than $1.00 a bottle in violation of the patentee's notice affixed to the bottle was held not to have infringed the patent. The case was distinguished from Henry v. Dick Co. (224 U. S. 1, 32 Sup. Ct. 364, March 11, 1912) on the ground that the Dick Company transferred only a qualified title to the patented mimeograph machine, giving a right to use the machine only with certain specified supplies (4. Y. B., 1912, pp. 241, 522). The Supreme Court of Massachusetts has found it necessary to reiterate the doctrine that the true rela- Quasi-Negotiability of Stock Certifition of parties to a negotiable instru-cates.-This is brought out very clearment may be shown by oral evidence ly in Nat. Safe Dep. Co. v. Hibbs (229 in actions between them to determine U. S. 391, 33 Sup. Ct. 818, June 10, their respective obligations. Accord- 1913), holding that a trusted agent ingly, when an agreement is shown of a bank who obtains possession with between indorsers fixing their respec- the consent of the bank of stock certive liabilities, their rights, one against tificates, assigned in blank by the trade mark by its registration in con owner can give a perfect title thereto to a bona fide purchaser from him, nection with goods, if it has been though his conduct in thus disposing of them is criminal. The Uniform Stock Certificate Act goes even further and makes certificates fully negotiable (see N. Y. L. 1913, Chap. 600, Sec. 166). "Res Ipsa Loquitur."-The evidential value of a state of facts properly characterized by this phrase is carefully considered in Sweeny v. Erving (228 U. S. 233, 33 Sup. Ct. 416, April 7, 1913, affirming 35 App. D. C. 57). Such a state of facts shown by the plaintiff warrants the inference of negligence on the part of the defendant, but does not compel such an inference. It may call for explanation or rebuttal but does not shift the burden of proof from the plaintiff to the defendant. Accordingly, the fact that an X-ray burns the plaintiff does not require the X-ray operator to give affirmative proof of his freedom from negligence. used by another so as to be identified with that other's products. Such registration of an imitated trade mark is at once a fraud upon the original user of it and of the public, and cannot be the foundation of a property right in the imitator. (Ubeda v. Zialcita, 226 U. S. 452, 33 Sup. Ct. 165, Jan. 6, 1913.) When a person has acquired a property right in a trade mark, its infringement is in the nature of a trespass to property, and the intent or motive of the infringer is immaterial (W. A. Gaines & Co. v. Turner-Looker Co., 204 Fed. 553, May 8, 1913). The trade mark in this case was a whiskey label bearing the word "Hermitage" in a peculiar script. If, however, the trade name is territorial or geographical or descriptive, such as "Boston Wafers," it is not susceptible of monopoly by the first user. It can with equal truth and equal right be employed by others in connection with their goods. Such others, it is true, must so use it as Trade Marks and Unfair Competition.-Literary property in a book cannot be protected by a trade mark. In order to sustain an infringement not to induce the public to believe of a trade mark, the owner must that the goods which they offer are have applied and affixed it to goods. the goods of first user. To put their Hence, the publisher of detective goods upon the market, under this stories under the so-called trade name trade name in such circumstances as of "Nick Carter" acquires no rights to induce purchasers to believe they under the trade-mark statute by reg- are buying the original user's goods, istering these words as a trade mark. is unfair competition, and constitutes (Atlas Mfg. Co. v. Street & Smith, an actionable tort. (C. A. Briggs Co. 204 Fed. 398, March 26, 1913.) Nor v. Nat. Wafer Co., 215 Mass. 100, can a person acquire property in a 102 N. E. 87, May 24, 1913.) LEGAL PROCEDURE The bar and the bench are agreed that the public demand for reforms in judicial procedure ought to be heeded, and so far as possible satisfied. In nearly every state the legal profession is making a determined attempt to secure a simplification of procedure, to minimize technicalities, and to secure the earliest possible termination of litigated controversies. The report of the Board of Statutory Consolidation of New York, printed in the Appendix to the Report of the New York State Bar Association for 1913, is a most instructive and encouraging document upon this topic. It contains a plan for the simplification of the civil practice in the courts of the state, as well as a full account of practice provisions in other states and in England. The Board was authorized by the legislature of 1913 to prepare and present a Practice Act, rules of court, and short forms, as recommended in this report. The subject was dealt with from different angles at the Montreal meeting of the American Bar Association. Various papers were read, reports made, and discussions had which were also instructive and encouraging. The Committee on Uniform Judicial Procedure reported a bill which it had prepared pursuant to a resolution of the Association passed in 1912 and which was introduced in the Sixtysecond Congress. The bill authorizes the Supreme Court to prescribe forms and rules, and generally to regulate pleading, procedure and practice on the common-law side of the Federal courts. The President of the American Bar Association stated in the Appendix to his Annual Address for 1913 that laws had been passed for the simplification of practice in Colorado, Indiana, Massachusetts, Minnesota, New York, North Carolina, North Dakota, and Oregon; and that in Minnesota the law has been changed so that a verdict in civil cases may be rendered on a five-sixths vote of the jury after 12 hours' deliberation, and in Ohio on a two-thirds vote. Reported cases show that the trial courts find great difficulty in applying existing rules of evidence and that multitudes of cases are reversed by appellate courts because of errors in the admission or rejection of evidence. However, it is gratifying to discover from an examination of the digests that appellate tribunals grant fewer new trials for errors in this respect than formerly. If they are satisfied that such errors did not affect or should not have affected the verdict, they rarely grant a new trial therefor. Dissatisfaction with existing rules of evidence has led legislatures expressly to discard them in many of the controversies arising under Workmen's Compensation Acts. It has also induced a distinguished teacher of the law of evidence, F. H. Wigmore, to try the experiment of supplanting, or at least supplementing them, with a treatise on the Principles of Judicial Proof. He thinks it is necessary for lawyers to acquire a scientific understanding of the principles of what may be called actual proof, as distinguished from the artificial proof now 'admissible under procedural rules. CRIMINAL LAW1 Legislative Tendencies.-The more (272) makes it a misdemeanor to serious crimes have been so long pro-adulterate or misbrand drugs; Nevada vided against by statute, and the ele- (569), to manufacture or deal in such Colorado (205), ments constituting them have so long drugs or liquors. ago been worked out, that we find California (695), Iowa (311), Indiana little current legislation, and few im- (581, 306), Idaho (163), Kansas portant decisions relating to them. (283), Delaware (459), Connecticut The significant feature of present-day (1890), and Maine (300), regulate legislation is the tendency to bring the sale or gifts of poisonous or stupewithin the domain of the criminal law fying drugs. so-called social legislation. The great mass of current legislation in the criminal field is, therefore, the creating of new misdemeanors consisting in the breach of laws passed to conserve the health, comfort, and safety of the community. Protection of Health and Safety. Laws for the protection of health and safety have been enacted in almost every state. Iowa (314) makes it a crime to misbrand food; Nebraska (273) and Michigan (279), to misbrand, to adulterate, or to manufacture or deal in adulterated or misbranded foods; Minnesota (607), to adulterate milk or cream; Nebraska Idaho (301) makes it a misdemeanor to sell intoxicating liquors to drunkards, and Indiana (29) makes it a misdemeanor to drink liquor on trains. Idaho (122) has enacted a stringent law against physicians prescribing liquor, and provides for forfeiture of license and imprisonment for from one to three years for violation. North Dakota (83) prohibits all sales of cigarettes and provides a Minnesota (870), prison penalty. Indiana (643), and Idaho (519) punishes such sale to minors, and the use of cigarettes by minors. Maine (171) requires registration of all sales of firearms, and Indiana (47) punishes by a fine of $1,000 the sale of deadly weapons to drunkards. 265 1 Figures in parentheses refer to the page of the session laws of 1913. |