This is the first time during an experience of over a third of a century at the bar, I have felt it my duty to discuss a decision of a court of justice in the press.

The case briefly stated is this: The appellant, A. L. Schmidt, was the trustee named in certain mortgages executed by the Oregon Gold Mining Company on mining property in Union county, Or., to secure issues of bonds by the company.

Default having been made in payment of the interest on the bonds, the trustee brought suit in Union county, Or., to foreclose the mortgages.

The mortgages contained the usual provision that, in case of foreclosure, the trustee should be entitled to recover from the mortgagor such sum as costs of foreclosure, including attorneys' fees, as the court should adjudge reasonable.

The complaint contained allegations sufficient to authorize the court to decree to the plaintiff attorney's fees.

The defendant answered, denying some or all the allegations of the complaint, but afterwards, in open court, consented that the plaintiff might have judgment and decree as prayed for in the complaint.

Butcher, of counsel.

Said defendant, by his said attorneys, in open court, here now consents that a judgment and decree may be here now made and entered in this cause in favor of said plaintiff, A. L. Schmidt, trustee, and against the said defendant, the Oregon Gold Mining Company, as prayed for in plaintiff's complaint, and that in said judgment and decree the court shall fix the referee's fees at the sum of $200; the court stenographer's fees at the sum of $, and the plaintiff's attorneys' fees at such sum as the court may find reasonable for the services' performed, and that the referee's fees, stenographer's fees and the plaintiff's attorneys' fees shall be a preferred lien upon the mortgaged property of the defendant, and the proceeds thereof in favor of the said referee, stenographer and the plaintiff's said attorneys for the respective amounts found due each as found and settled by the parties and the court, and that they or either of them may have execution therefor against the said mortgaged property.

"Eighteenth the sum of $5,500 is a reasonable attorneys' fee in this suit for the foreclosure of the said several mortgages and trust deeds, and that of said sum plaintiff's attorney, T. Calvin Hyde, should receive the sum of $2,750, and plaintiff's attorney, T. H. Crawford, should receive the sum of $2,750, and that said amounts so allowed each of said attorneys should be a preferred lien upon the said mortgaged premises and upon the funds arising from the sale of the said mortgaged property for the payment of the same, for the enforcement of which either of said attorneys should have execution."

- The court further finds that

Instead of taking a decree in favor of their client, the plaintiff, as prayed for in the complaint, for the foreclosure of the mortgages, with costs and attorneys' fees, the plaintiff's attorneys, without pleadings and without notice to their client, procured a decree in their favor and against their client, for the amount they claimed against their client for fees in the case. There was nothing in the case concerning the right of the attorneys to fees, or the meas- "It is therefore ordered, considered adure of their compensation. There was no agree-judged and decreed that plaintiff A. L. ment between them and the plaintiff as to the amount of their compensation. There was nothing in the case upon which a decree in their favor could be based.

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Schmidt, as trustee for the holders of said
bonds, have and recover of and from the
defendant;
and the further sum of
$5,500 reasonable attorneys' fees herein in
trust for T. Calvin Hyde and T. H. Crawford,
plaintiff's attorneys herein; and for the further
sum of $150, stenographer's fees herein in
trust for John Wheeler, court stenographer.

The portions of the decree in favor of the attorneys and material to an understanding of the question under consideration are as follows: | Now, at this time, this cause came on to be heard upon the motion of plaintiff for a judgment and decree, as prayed for in the complaint herein, the plaintiff appearing by T. Cal-entered for attorney's fees, referee's fees, stenovin Hyde and T. H. Crawford, of counsel, and the defendant by C. A. Johns and W. F.

"And it is further ordered, adjudged and decreed, that the judgment herein made and

grapher's fees and costs and disbursements be and the same are hereby adjudged and decreed

The attorneys by this process secured $5,500 cated, without knowledge that it is being done, for collecting $2,560.86.

State Dispensary law. An exchange, in speak- injunctions, Mr. Stimson continues, in brief, as ing on the subject, says: follows:

"A case has arisen in South Carolina which has aroused some very strong criticism against the growth of government by injunction.'

“Judge Buchanan, of the State Circuit Court, sitting in chambers at Charleston, issued injunctions restraining several alleged liquor dealers from further violation of the State Dispensary law. Two of these dealers, on affidavits of a policeman that they had continued to sell liquor, were summoned before the court to show cause why they should not be punished for contempt. One of them appeared by attorney and submitted affidavits from patrons of

his restaurants to the effect that he had stead

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fastly refused to sell liquor. The other ignored the summons, and was promptly sentenced to pay the sum of $200 and be imprisoned in the State penitentiary at Columbia for the term of

"I believe it is never wise to ignore a general sentiment of this magnitude. And I believe that in the particular case in hand this disquiet is reasonable. We have seen in private lawsuits between individuals and corporations courts of equity involved to restrain, not alone parties to the suits, but anybody, the whole world, with

or without actual notice of a court order or injunction, not merely from interfering with property which is the subject of the suits, but also from committing or advising others to commit acts which are criminal; and sometimes on the We have ground that they are criminal acts. seen more; we have seen persons committing, or about to commit, or said to be about to commit. such acts, arrested by these civil courts, deprived of their liberty, and punished by imprisonment. And we have seen persons so punished without the usual safeguards of liberty "The contempt of court for which this senafforded by the criminal law -- without indicttence was imposed was in part the ignoring of ment, without right to counsel, without being the summons to appear before him, and in part confronted with witnesses, without trial by jury the selling of liquor in violation of the injunc-and sentenced without uniform statute, at tion order. The sentence was imposed, of the discretion of the judge. course, without a preliminary arrest to bring the accused into the presence of the court.

four months.'

"In commenting upon this proceeding an exchange says:

"We cannot help feeling that there is in this new use of injunctions a violation of the spirit of our fundamental law more important than the occasional violation of any statute. When the Federal Constitution (sixth amendment) prescribed that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury; be confronted by the witnesses in his favor, and to have the assistance of counsel for his defense,' it is safe to say that the punishment of crime as the violation of a civil writ was not contemplated.'

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to

"The question raised by this South Carolina decision the question how far the modern use of injunctions is in conflict with the fundamental principles of our political life is discussed with rare power and insight by F. J. Stimson in the last number of the Political Science Quarterly. After speaking of the strong popular sentiment against the growing use of

"We have seen more; we have seen courts, not content with ordering all the world what not to do, order at a word the ten or twenty thousand employes of a railroad system to carry out each and every the definite and indefinite duties of their employment as directed by any of their superior officers, or by receivers of the courts themselves, so that for any failure or omission or merely negative act on the part of one of these employes, he may be summarily brought into court and punished, either at that time or later, as the court may find leisure to sentence, or its attorney to file complaints.'

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"This course of things,' continued Mr. Stimson, 'does away with the criminal law, with its safeguards of indictment, proof by witnesses, jury trial, and a fixed and uniform punishment. It makes the courts no longer judicial, but a part (and it bids fair to be the most important part) of the executive branch of the government. ** It tends to make our judiciary either tyrannical or contemptible.' This new use of injunctions is a revival of that introduced in England five centuries ago, against the same popular opposition, and upon

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fusing two things which are perfectly distinctviz., copyright and trade-mark.

"Copyrighti. e., in published works - is now entirely regulated by statute, an author's rights over his unpublished MS. depending upon the common law (Prince Albert v. Strange, 18 Law J. Rep. Chanc. 120; Gilbert v. The Star Newspaper Company, 11 Times Rep. 4). Copyright in books is defined by section 2 of the Copyright Amendment Act, 1842, 5 and 6 Vict., ch. 45, as 'the sole and exclusive liberty of printing or otherwise multiplying copies;' and 'book' 'means and includes every volume, part or division of a volume, pamphlet, sheet of letterpress, map, chart, or plan sepa

the same plea that 'the common law is no longer adequate to protect the public against disorder or oppression. In Queen Elizabeth's time the Court of Chancery recognized that its injunctions were no longer necessary for the repression of crimes, and from about 1590 to 1894, three hundred years, this extraordinary jurisdiction in the equity courts has been given up or has lain dormant.' 'Liberty and property are not to-day,' concludes Mr. Stimson, so insecure as to justify resort to this long since repudiated procedure. The courts of equity must go back to their proper jurisdiction as civil courts, or 'there is danger that all equity jurisdiction, so valuable and so effective, which was established in so many States only after a fifty years' strug-rately published.' There is nothing referring gle with the suspicion of the people and the jealousy of the common law courts, may be repealed at a blow.'"

There appears to be a great deal of contro

to such a thing as the title of a book, the only words at all capable of including it being 'sheet of letterpress' or 'part of a volume.' In Maxwell v. Hogg, 36 Law J. Rep. Chanc. 433; L. R., 2 Chanc. 387, Lord Cairns said: There cannot be what is termed copyright in a single

versy in regard to infringements of copyright, word, although the word should be used as a

and we have already alluded to many important decisions in this country and in England on this subject. The Law Journal sums up the English decisions on "Copyright in Titles" in a very interesting article, which is as follows:

fitting title for a book. The copyright con-
templated by the act must be not in a single
word, but in some words in the shape of a vol-
ume or part of a volume.' In Dicks v. Yates,
50 Law J. Rep. Chanc. 809; L. R., 18 Chanc.
Div. 76, the Master of the Rolls (Sir George
Jessel) said: 'I do not say there could not be
copyright in a title, as, for instance, in a
whole page of title or something of that
kind requiring invention.' There must, at any
rate, be originality; and certainly the mere
adoption as a title of words in common use
does not give it protection under the Copy-
right Act. But the better opinion seems to be
that not even an original title can, per se, be
copyright. 'It is only as part of the book
and as the title to that particular literary com-
position that the title is embraced within the
provisions of the act.
The right
secured by the act is
* * the product
of the mind and genius of the author and not
in the name or title given to it. The title
does not necessarily involve any literary com-
position. * * It is not necessary that it
should be novel or original. It is a mere
appendage which only identifies
the literary composition.
title itself is original,

"The question whether there can be copyright in the title of a book derives a present interest from some observations in a contemporary a propos of Mr. W. S. Gilbert's new opera, the title of which is stated to have been anticipated some years ago by the late Charles Mathews. The same authority gives a more famous illustration of this kind of literary coincidence in Paul Pry,' which was really written by John Poole, though afterwards brought out, with some trifling alterations, under the same title by Douglas Jerrold. The importance of protecting the titles of works is so obvious that it is strange to find so much misapprehension apparently existing on this subject. To say that, generally speaking, there can be no copyright in a title is to state what is known to the few lawyers who have studied this subject, what the majority of the profession would be surprised to hear, and what the world of authors and publishers would probably scout as absurd. Yet it is undoubtedly correct, and the impression to the contrary has arisen from con-propriated by the infringement as well as the

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* * ** When the * * and is ap

State Dispensary law. An exchange, in speak- injunctions, Mr. Stimson continues, in brief, as ing on the subject, says: follows: