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the same plea that the common law is no longer fusing two things which are perfectly distinctadequate to protect the public against disorder viz., copyright and trade-mark. or oppression. In Queen Elizabeth's time the "Copyright -1, e., in published works — is Court of Chancery recognized that its injunc- now entirely regulated by statute, an author's tions were no longer necessary for the repres. rights over his unpublished M$. depending sion of crimes, and from about 1590 to 1894, upon the common law (Prince Albert v. Strange, three hundred years, this extraordinary jurisdic-18 Law J. Rep. Chanc. 120; Gilbert v. The tion in the equity courts has been given up or Star Newspaper Company, 11 Times Rep. 4). has lain dormant.' 'Liberty and property are Copyright in books is defined by section 2 of not to-day,'concludes Mr. Stimson,‘so insecure the Copyright Amendment Act, 1842, 5 and 6 as to justify resort to this long since repudiated Vict., ch. 45, as the sole and exclusive liberty procedure. The courts of equity must go back of printing or otherwise multiplying copies; ' to their proper jurisdiction as civil courts, or and 'book
and 'book' means and includes every volthere is danger that all equity jurisdiction, soume, part or division of a volume, pamphlet, valuable and so effective, which was established sheet of letterpress, map, chart, or plan sepain so many States only after a fifty years' strug-rately published.' There is nothing referring gle with the suspicion of the people and the to such a thing as the title of a book, the only jealousy of the common law courts, may be re-words at all capable of including it being sheet pealed at a blow.'”
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 There appears to be a great deal of contro. versy in regard to infringements of copyright, cannot be what is termed copyright in a single and we have already alluded to many important word, although the word should be used as a decisions in this country and in England on
fitting title for a book. The copyright conthis subject. The Law Journal sums up the templated by the act must be not in a single English decisions on “Copyright in Titles” word, but in some words in the shape of a vol
ume or part of a volume.' In Dicks v. Yates, in a very interesting article, which is as
50 Law J. Rep. Chanc. 809; L. R., 18 Chanc. follows:
Div. 76, the Master of the Rolls (Sir George “The question whether there can be copy- Jessel) said: “I do not say there could not be right in the title of a book derives a present copyright in a title, as, for instance, in a interest from some observations in a contempo- whole page of title or something of that rary a propos of Mr. W. S. Gilbert's new opera, kind requiring invention. There must, at any the title of which is stated to have been antici- rate, be originality ; and certainly the mere pated some years ago by the late Charles adoption as a title of words in common use Mathews. The same authority gives a more does not give it protection under the Copyfamous illustration of this kind of literary coin
But the better opinion seems to be cidence in ‘Paul Pry,' which was really writ- that not even an original title can, per se, be ten by John Poole, though afterwards brought
copyright. 'It is only as part of the book out, with some trifling alterations, under the and as the title to that particular literary comsame title by Douglas Jerrold. The import-position that the title is embraced within the ance of protecting the titles of works is so ob-provisions of the act.
The right vious that it is strange to find so much misap- secured by the act is
the product prehension apparently existing on this subject. of the mind and genius of the author and not To say that, generally speaking, there can be no
in the name or title given to it. The title copyright in a title is to state what is known to does not necessarily involve any literary comthe few lawyers who have studied this subject, position.
It is not necessary that it what the majority of the profession would be should be novel or original. It is a mere surprised to hear, and what the world of au- appendage which only identifies thors and publishers would probably scout as the literary composition.
When the absurd. Yet it is undoubtedly correct, and the title itself is original,
and is apimpression to the contrary has arisen from con- | propriated by the infringement as well as the
whole or a part of the literary composition itself, determined is, injury, actual or probable, or in protecting the other portions of the literary fraud, proof of which may often present concomposition, courts would probably also pro- siderable difficulty.” tect. the title. But no can be found, either in England or this country (America), At a recent meeting of the Ohio State Bar in which, under the law of copyright, courts Association Judge Charles Pratt delivered one have protected the title alone separate from of the principal addresses which was devoted the book which it is used to designate.' (Per largely to the discussion of reform in procedure Shipley, J., in Osgood v. Allen, i Holmes which has been one of the “fads” of this [Amer.) 185.) This, it is submitted, is a per- Journal. The suggestions on this subject are fectly accurate statement of the law of copy- summed up most clearly by the judge under right on this point. It therefore follows that nine heads, which are as follows: no protection can be obtained by registering a First — Abolish all pleadings upon money title in advance of publication or a dummy contracts, upon
upon book. But it does not follow that a title can- account, and provide for the enforcement of not be protected from piracy. Such protec- such demands by summary process, making tion is, however, really analagous to that of a service upon the debtors of copies of the contrade-mark. The title is the trade-mark under tracts or accounts, verified by affidavit, and which the property to which it is applied-e.g., stating the amount claimed. a book-is sold, and the sale of a book under a Second — Provide for service of these by the title already adopted for an existing publica- creditor, or by his agent; and upon failure to tion would be restrained, if at all, on the ground pay or give notice of defense within some short of actual or probable injury to property or as a time, say five or ten days, file the papers with common law fraud. In Dicks v. Yates (sup.), the clerk of the court, who should be empowthe Master of the Rolls (Sir George Jessel) | ered to at once enter judgment and issue execusaid : The adoption of the words as the title tion. of a novel might make a trade-mark, and en- Third — In case the debtor disputes the title the owner of the novel to say to anyone claim made, in whole or in part, require him to else, ‘You cannot sell another novel under
serve notice of his defense, supported by affithe same title, so as to lead the public to be
davit, on the creditor, and then file these lieve that they are buying my novel when they papers in court, and proceed at once to trial, are actually buying yours,' and Lord Justice before court, jury or referee. James said: 'Where a man sells a work under
Fourth — In actions other than on money the name or title of another man or another
contracts or account, let the claimant prepare man's work, that is not an invasion of copy- and serve on defendant a copy of his petition. right, it is common law fraud, and can be re
If no answer is served within the time named dressed by ordinary common law remedies, in the notice, let the petition be filed in the wholly irrespective of any of the conditions or
court, and trial had before the court or jury, as restrictions imposed by the Copyright Acts.'
might be proper. Herein really lies the gist of the distinction
Fifth - If answer is served upon the plainbetween copyright and trade-mark. In the case of the former the subject of the copyright in court, and let the case proceed to trial. So
tiff or his attorney, file the answer with petition must be publicly registered before proceedings far as the pleadings to be filed for infringement can be taken, and these must
cerned, I would return the old secbe brought within twelve months of the date tions 84 and 101 of the Code of 1853, limiting of the offense, and the fact of infringement of
the number unless extended by order of court. a registered copyright entails the statutory
Sixth Where personal service of notice penalties and gives the statutory right to dam
cannot be obtained, let the papers be filed in ages as well. In an action for infringing a
court with proof of service by publication, and title regarded as a trade-mark, these conditions the case submitted to court or jury for judgdo not exist; but the material question to be I ment or assessment of damages.
Seventh · In case of appeal or removal in any Monday, stated that he regarded the position way from a justice of the peace or other inferior he had occupied as one one of 'greater obligacourt to the court of common pleas, file the tion and higher responsibility than any office papers in the original case, certified by the in- under the Crown.' Sir William Harcourt's alferior court and let the trial be had in the com- lusion was evidently to his position as leader of mon pleas without other pleadings, unless leave the House of Commons. In 1854 Mr. Cayley is granted by the court.
moved for a select com.nittee to consider the Eighth - I would abolish appeals from the duties of the member leading the government common pleas to the circuit court and for re- business in the House of Commons. The moview of any case, would provide that the clerktion was withdrawn after being opposed by Sir certify the record direct to the circuit court, to Charles Wood (Viscount Halifax), Mr. Walpole be heard upon notice to the opposing party or and Lord John (Earl) Russell. Sir Charles his attorney, without other pleadings, or pro- Wood described the post of leader of the House
as 'an office that does not exist and the duties Ninth - I would embody in the statutes, in of which cannot be defined;' while Mr. Walso far as practicable, the forms to be used for pole spoke of it as a 'position totally unknown all notices, affidavits and pleadings, carefully to the Constitution of the country.' Yet every following the rule that two words should not be
one knows that Sir William Harcourt was leader used where one is sufficient. This last
of the House, although no one could give a legal sition I consider of the utmost importance. definition of his position. The commission that framed the code of 1853 "Again, according to the strict letter of the attached to their report certain forms of law, the sovereign chooses all his ministers. A pleadings. These were brief and simple, fol-century ago the Crown had a real choice of lowing the idea on which the code was based;
ministers. They were not only in name, as and if they had been followed as it was at first now, but, in fact, the sovereign's servants. supposed they would be, we should have had a Remnants of this great prerogative remain. On much less compiex and elaborate system of the resignation or dismissal of a previous govpleading than that now in existence. But these ernment it is customary for the sovereign to simple forms found little favor with the older 'send for 'some eminent statesman and to inlawyers. This would be one way to relieve the trust him with the task of forming a new ad
ministration, supreme court and it may possibly be the only
The sovereign may, at times, way to do it practically. If it should be said have the opportunity of finally choosing between that the records of this association will show two, if not three, statesmen. But, as a rule, the that I have theretofore taken a different view prime minister is virtually selected by the legisas to this, I can only reply that although no
lature through indications of opinion which the longer a young man, I am not too old to learn.
sovereign recognizes. With the designation, however, of this one person, the initiative of
the sovereign is at an end. According to modNo English election of late years has aroused much interest and feeling as
ern usage the premier alone is the direct choice
the which has just ended, and it is noteworthy to
of the Crown, and he possesses the privilege of read the comments of the English press on the choosing his own colleagues, subject, of course, changes of the ministry. The Law Times pub. to the approbation of the sovereign. (See Bagelishes a very interesting article on the Constitu- hot’s English Constitution, p. 11, and Traill's tional Aspects of the Ministerial Crisis which is Central Government, pp. 12, 13.) Formerly, as follows:
however, each minister was a servant of the "The Ministerial crisis through which the Crown, responsible for his own department, and country is passing has been marked by some with little or no dependence on his colleagues. incidents which illustrate the development of Mr. Gladstone remarks that we have not even constitutional practice as distinguished from the now learned to designate the chiefship in the strict letter of the law. Sir William Harcourt, in ministry by a true English word,' but by the announcing the resignation of the cabinet on imported phrase 'premier.” Lord North, the
minister of the American war period, although and conventional code of rules of which we he had an ascendancy in his cabinet, always dis- speak as the Constitution." claimed the title of prime minister as inconsistent with the Constitution and wholly unknown The full text of the decision of the Illinois to the law. Mr. Freeman in this connection Supreme Court on the whisky trust case has marks a change in language which has happened just been published. It contains a somewhat within his own memory, and which, like other extended reference, not alluded to in the newschanges in language, is certainly not without its paper summary, in regard to the position of the meaning. “We now,' he says, 'familiarly speak courts of various States toward the monopoin Parliament and out of Parliament of the body listic combinations known as trusts, premising of ministers actually in power, the body known that, while the proceedings instituted against to the Constitution, but wholly unknown to the these combinations have generally had for their law, by the name of the government.' We object some of the corporations entering into speak of 'Mr. Gladstone's government' or 'Mr. the trust, and not the trust itself, the Illinois Disraeli's government.' I can myself remember judges point out that, so far as the courts have the time when such a form of words was un- had occasion to speak on the subject at all, known, when ' government'still meant "gov- they have held such trusts to be illegal. In ernment by king, lords and commons,' and
Nebraska suit was brought against a distilling when the body of men who acted as the king's company which had become a party to the immediate advisers were spoken of as ‘minis- whisky trust, and in holding this action to be ters' or 'the ministry.”' 'Growth of the Eng- an abuse of its corporate powers, and therelish Constitution,' pp. 123, 124.) We have seen,
fore ultra vires, the court took the position that likewise, the practice of the Constitution ren
the trust, having a tendency to destroy comders it quite incompatible with honor or petition and to create monopoly, was contrary
So in the Ohio self-respect for ministers to retain office whose to public policy, and unlawful. public action has been condemned by the House
case of a corporation which had entered the of Commons. The establishment of this prin- Standard oil trust, the court, after referring to ciple is, however, very recent. Mr. Pitt, to
the monopolistic purpose of the latter organizawards the end of the last century, kept office in tion, declared all such associations to be con
The defiance of repeated votes of the House of Com-trary to the policy of the State and void. mons, and at last by a dissolution at a well proceeding brought by the attorney-general of
New York to vacate the charter of the North chosen moment showed that the country was on his side. Such conduct would at the present
River Refining Company for its action in be
coming a member of the sugar trust brought time be regarded as highly unconstitutional. Again, the cabinet, which is, of course, the Term of the Supreme Court to the effect that
out opinions from both the Special and General mainspring of our constitutional system — the the trust was organized for an unlawful purhyphen,' to use the words of Mr. Bagehot,
and that the action of the defendant cor*which joins the buckle which fastens the legis- poration in entering into the association justified lative part of the State to the executive part of
its dissolution. The Court of Appeals affirmed the State,' is not mentioned by writers like the judgment of the courts below without exBlackstone and De Lolme. "The cabinet,' says pressing an opinion as to the legality of the Lord Macaulay, 'strange to say, still continues trust. to be altogether unknown to the law, the names More directly, the legal status of the Diaof the noblemen and gentlemen who compose mond Match Company came up before the it are never officially announced to the public, Michigan courts on a motion to enjoin the sale no record is kept of its meetings and resolu- of some of the stock of the company held as tions, nor has its existence ever been recognized security for loan made to procure its purby act of parliament.' These illustrations, chase. It was shown that the object of this which might be indefinitely multiplied from cir- corporation was to buy up the property of all cumstances attending the present ministerial individuals and corporations engaged in the crisis, prove the importance of that unwritten manufacture of friction matches, exacting from
the seller in every case a bond that he would gress. The importance, then, of this doctrine is at not, for a term of years, engage in or assist any once apparent. one else in the manufacture of matches in any
The rule has to do only with direct decisions upon place where his action might conflict with the important and vital issues. The decision (not dicta)
of our higher courts furnish precedents which are interest or diminish the profits of the Diamond Match Company. The appellate court de- The binding authority of adjudged cases is called
to control the future disposition of similar issues. clared the purposes of the company to be un
for on grounds of public policy and convenience. lawful, and it was held that any contract made In Harris v. Clark, 2 Barb. 94, when pressed with a to further them was void, as against public former decision, Gridley, J., responded as follows: policy, and such as the court would neither en
* In opposition to this doctrine, however, the case force while executory, nor relieve against when of Wright v. Wright (1 Cow. 598), is pressed upon executed.
us as an authoritative adjudication which we are The whisky trust decision makes an im- bound to follow. We believe in a rigid adherence portant addition to these judicial rulings, be to the doctrine of stare decisis. We regard it as cause it brushes aside the defense greatly relied necessary to preserve the stability, the certainty and on by the trusts that monopolistic combinations the symmetry of any system of jurisprudence; and cannot be charged when there is but one therefore, if we had any reason to believe that the corporation in the case.
decision in this case was made upon deliberate con
In other words, while it may be unlawful for two or more corpora- signed by the judge was necessary to the decision
sideration, and that the adoption of the reasons astions to combine to control production or stifle
of the question before the court, we should certainly competition, the moment they lose their indi- regard it as an authority binding upon us and leave viduality and become merged in one corporate the error, if any there were, to be corrected in the organization, they cease to be obnoxious to court of last resort." anti-trust law. But the Illinois court holds The knowledge that a judicial decision is to form that if a trust agreement between individuals or
a part of the substantive law, that it is to operate corporations be repugnant to public policy and as a rule of civil conduct, that it is to control simi
lar controversies in the future, begets a more careful illegal, it is impossible to see why the same is
and conscientious consideration on the part of the not true of the corporation of which it is the
court, and inspires a more profound respect for the basis. “There is no magic in a corporate court and its decisions on the part of the public. organization which can purge the trust scheme Were the solemn utterances of the court upon a vital of its illegality” is a dictum in which the skill- issue to end with the decision, and to exert no inful organizers of some of these combinations fluence upon subsequent litigation, clients would be will see a premonition of coming dissolution. wholly ignorant of their rights and counsel helpless The anti-trust law of Illinois happens to be one to advise. So that a wise policy demands that the of exceptional severity, but, without express
deliberate decisions of our higher courts should be statutory enactment, trusts stand condemned followed or at least respected.
There is something of a distinction between the by the common law as combinations in restraint doctrine of stare decisis and the doctrine of res adjuof trade in every State of the Union.
dicata. The latter is lragely a rule of evidence and
operates upon the particular case. It is more limiSTARE DECISIS.
ted in its scope than the former. In order to make
a matter res adjudicata there must be a concurrence THE The doctrine of stare decisis is peculiarly inter- of four conditions, viz.: Identity in the thing sued
esting at this time in view of its recent discussion for; identity of the cause of action ; identity of and application in the income tax cases. It may persons and of parties; indentity of quality in the be safely asserted that no doctrine is so thoroughly persons. (2 Bouv. Law Dict. 467 and cases cited.) fundamental, of such wide application and so vastly | The object of this rule is to protect suitors from important in the law as that embodied in the maxim interminable litigation of the same questions. stare decisis, et non quieta movere. Adjudged cases The rule can be invoked only where there has are to juridical science what ascertained facts and
been a previous ad jucation of the same matters in a experiments are to the natural sciences. On these previous action by a court of competent jurisdicas a foundation the legal system grows, expands and tion and between the same parties or their privies. becomes symmetrical. Leading decisions are the On the other hand the doctrine of stare decisis mile-stones which mark the pathway of judicial pro- | operates upon principles of analogy. That it may