dictment all references thereto, which motion the court disallowed.

Chief Justice White said: "The issue is a narrow one and involves not the determination of the operation and effect of a pardon within the jurisdiction of the sovereignty granting it, but simply requires it to be decided how far a pardon granted as to an offense committed against the United States operates, so to speak, extra-territorially as a limitation upon the state's excluding them from considering the conviction of a prior and pardoned offense against the United States in a prosecution for a subsequent state offense. It may not be questioned that the states are without right directly or indirectly to restrict the National Government in the exertion of its legitimate powers. It is therefore to be conceded that if the act of the state in taking into consideration a prior conviction of an offense committed by the same offender against the laws of the United States despite a pardon was in any just sense a punishment for such prior crime, that the act of the state would be void, because destroying or circumscribing the effect of the pardon granted under the Constitution and laws of the United States. And, of course, conversely, it must be conceded that if it be that the act of the state in taking into consideration a prior offense committed against the United States after pardon under the circumstances stated was not in any degree a punishment for the prior crime, but was simply an exercise by the state of a local power within its exclusive cognizance, there could be no violation of the Constitution of the United States. The whole controversy therefore is to be resolved by fixing the nature and character of the action of the state under the circumstances for the purpose of deciding under which of these two categories it is to be classed. When the issue is thus defined and limited its solution is free from the difficulty as it has been repeatedly and conclusively foreclosed by the prior adjudications of this court."

Under these rulings it was said not to be a limitation on the power of the United States in the granting of a pardon. It was said also: "We must not be understood as intimating that it would be beyond legislative competency to provide that the fact of commission of an offense after a pardon of a prior offense should be considered as adding an increased element of aggravation to that which would otherwise result alone from the commission of the prior offense." It does seem, however, that were a state to do this, it would be putting a very ef fective measure of relief on a pardon granted by another jurisdiction. It would have the effect of taking away very greatly from the

efficacy of the pardon elsewhere, and, if the state granting the pardon specifically should provide that the offense should be blotted out as if never committed, this foreign statute would prevent it from having this effect.

PRIVACY-RIGHT TO RECOVER DAMAGES FOR VIOLATION OF RIGHT OF.-A New York statute provides that any person, whose name, portrait or picture is used within that state for advertising purposes or the purpose of trade without the written consent of such person first obtained, may maintain an equitable action to prevent such use and to recover damages by reason of such use.

In a case where a moving picture concern designed a scenario for representing a collision at sea and the, saving of the crew by means of wireless telegraphy, in which plaintiff was represented very prominently as the wireless operator on board a vessel at sea, the scenes were reproduced according to the best information the writer of the scenario could obtain of an actual occurrence. When it had been written it was then acted out for the moving picture films. Plaintiff sued and obtained injunction and damages for representations in New York and this holding the New York Court of Appeals sustains. Binns v. Vitagraph Co., 103 N. E. 1108.

After ruling that the plaintiff's picture, though it was actually that of one who impersonated plaintiff, was used for purposes of trade in defendant furnishing films to others who were to be amused thereby, and who paid therefor, holds that there was right of recovery of damages.

The principle of recovery seems to be on the statute making the doing of these acts a misdemeanor, but how they are to be estimated does not appear. The plaintiff has no copyright in his name or portrait and he does not sue in this case for libel. Upon what, then, may he recover? And is the measure of his recovery the profits made by the wrongful user? The only thing the court says on this subject is that: "This court cannot consider the question whether the amount of damages given by the jury in its verdict is excessive." This strikes us as a queer situation. A jury must guided by rules of law in finding a verdict for damages, the court giving them the elements entering therein. In this case the damages recovered were $12,000, and it was claimed by plaintiff that: "He was greatly disturbed in mind and that his feelings were injured by the act of defendant and the inference which would be drawn therefrom that he had com mercialized his fame thus accidentally receiveed." The commission of the misdemeanor, then

be

is the predicate of damages and its effect upon the feelings of the party. It is not profits, which defendant makes, but solely the injury to one's reputation and in this respect the action is like that of libel. In such case there could be no recovery outside of the state having a law such as in New York.

DUE PROCESS OF LAW-TRIAL WITHOUT ARRAIGNMENT AND PLEA.-The U. S. Supreme Court reverses former ruling in Crain v. U. S., 162 U. S. 625, majority view, that a trial without a formal arraignment and plea was a denial of due process of law. The court says: "Holding this view, notwithstanding our reluc tance to overrule former decisions of this court, we now are constrained to hold that the technical enforcement of formal rights in criminal procedure sustained in the Crain case is no longer required in the prosecution of offenses under present systems of law and that so far as that case is not in accord with the views herein expressed it is necessarily overruled." Garland v. State of Washington, 34 Sup. Ct. 456.

This case was on error to Supreme Court of Washington affirming a conviction of larceny, in a second trial on an amended information, there being a regular plea on the first trial, but no arraignment and plea on the second trial. When the case was called for trial and the jury impanelled, a general objection was made to the introduction of any evidence but no specific objection was taken to the want of formal arraignment.

The state court held, following former decisions, that failure to enter the plea had deprived accused of no substantial rights, as he waived arraignment by failure to make objection. It is recited by U. S. Supreme Court that these technical objections "originated in that period of English history, when the accused was entitled to few rights in the presentation of his defense," and "courts were disposed to require that the technical forms and methods of procedure should be fully complied with. But with improved methods of procedure and greater privileges to accused any reason for strict adherence to the mere formalities of trial would seem to have passed away."

It is seen, therefore, that the court rules, that due process of law was not denied an accused, where he waived formal arraignment, all of which seems a clear conclusion.

This, however, is not the same question as involved in State v. O'Kelley, which we discussed in 78 Cent. L. J. 253, where a statute of Missouri required that there should be an arraignment, and upon arraignment, if defendant refused to plead, there should be a

formal plea of not guilty. One of the judges in a concurring opinion in holding similarly to the Washington court, said that this statute "is the lion here in the path," and complained that the legislature had failed to amend it after its uselessness had been shown and its amendment suggested by a conference of judges. In other words, the court holds that as it is an old statute, retained against complaint of its uselessness, the court should get rid of it.

We think there is a difference between refusing to obey a statute, as prescribing a techricality, and the observance of due process of law, and in this way there is no similarity between the Garland and O'Kelley cases. The latter might be affirmed by the Federal Court and still the question would be up whether the court was justified in refusing to enforce a statute, which left the Missouri system of law upon the old lines of useless technicality.

RECENT DECISIONS IN THE BRITISH COURTS.

A decision lately given in the Chancery Division on the subject of the good will of a trading business (Green & Sons, Northampton, Ltd., v. Morris, 6 February, 1914), suggests to us that statement of the present position of the law in this country on that point would be of practical use to practitioners in America.

The value of the "good will" of a business is sometimes difficult to ascertain. The good will is undoubtedly an asset of the business; generally a price can be obtained for it when the business is given up, and as an asset it passes to a trustee in bankruptcy. But its value must always be a more or less speculative question. The classical definition of good will is to be found in Lord Eldon's judgment in the leading case of Cruttwell v. Lye (17 Vesey, 335). He defines it as nothing more than "the probability that the old customers will resort to the old place." The associations and traditions of a well established coffee house, for example, may give the business conducted in it a special value, quite apart from the accident of who conducts it. In other cases the value of the good will may depend almost entirely upon the person who has carried on the business, the value of the locus being negligible.

It has been doubted whether in Scotland there can be a good will of a doctor's business which depends upon the personal skill of the doctor. At best it can be little more than the recommendation of his successor by the doctor to his patients, and the patients may have some excuse for suspecting that the recommendation

is given not so much because of the qualifications of the successor as because of the amount which he was willing to pay for the "practice." In the leading Scottish case upon this point (Bain v. Munro, 5R, 416), Lord Justice Clerk Moncrieff accepted as a correct statement of law this sentence from Smith's Mercantile Law: "Where the profits of the business result almost entirely from confidence in the personal skill of the party employed, as in the case of surgeons and attorneys, the good will is too insignificant to be taken notice of." In that case a doctor had died, and his widow sold his house to another doctor for £1,500, and the practice for £80 a year for five years. A creditor of the deceased doctor claimed this £400 as part of the deceased's estate, and therefore available to pay his debts; but the court held that what had been sold as good will was really not the good will of the doctor's practice, but the good will of the widow, who had undertaken to recommend the new man to her husband's old patients and that therefore the price was not part of the deceased's estate. But, on the other hand, there may be something in a doctor's house, just as in the case of a shop, which tends to bring people back; and even in Bain's case there was the right which the widow had, as executrix, of access to her husband's books and lists of patients, and there might be some value in this, so that on principle there seems to be no reason for denying the possibility of the existence of a good will in such a case, only it may be, "too insignificant to be taken notice of." In England the good will of such a practice has been recognized.

The development of the law as shown in the decided cases is interesting. In Cruttwell v. Lye, it was decided that a bankrupt whose business had been sold by his trustee might set up again on his own account. No question was raised as to the canvassing of old customers. In Labouchere v. Dawson (1872, 13 Eq. 332), it was decided that a vendor, selling voluntarily, might set up a new business and advertise publicly, but must not canvass his old customers. In Ginesi v. Cooper & Co. (1880, 14 Ch. Div. 599), the master of rolls, Jessel, held that a man in such a case must not deal with his old customers. In Walker v. Mottram (1881, 19 Ch. Div. 335), it was held that in a case of a compulsory sale by a trustee in bankruptcy, the bankrupt was entitled to set up a new business, and free to canvass his old customers. In Pearson v. Pearson (1884, 27 Ch. Div. 145), the court by a majority held that even in the case of a voluntary sale, there was no restriction on the right to canvass, thus overruling Labouchere. But this case in turn

was overruled by the House of Lords in what is now the leading case on the subject in British law, Trego v. Hunt (1896, A. C. 7), where it was held that when a man had voluntarily sold the good will of his business he was not entitled to canvass his old customers, though he was entitled to deal with them if they came of their own accord. In the Scottish case of Dumbarton Steamboat Co. v. Macfarlane (1899, 1F. 993), a man who had sold his business as a carrier, including the good will, was interdicted from canvassing his old customers; but it was pointed out from the bench that there was nothing to prevent him from taking business from any of them who voluntarily came to him. In a more recent English case (Curl Brothers v. Webster, 1904 1 Ch. 685), Mr. Jus tice Farwell has carried this principle one step further, and held that though the seller may deal with old customers who come voluntarily to him, he must not invite them to return to him. The decision in Walker v. Mottram, which leaves a man free to canvass when the business has been sold by his trustee in bankruptcy, has now been followed by Mr. Justice Warring ton in Green & Sons v. Morris. There a firm, being in financial difficulties, executed a deed of assignment to a trustee for behoof of its creditors. The trustee sold the business, including the good will, to Green & Sons. Morris, who had been a member of the firm, set up a rival busines in the same line of trade, and canvassed customers of the old firm for orders. Green & Sons asked for an injunction to prevent him from soliciting the customers of the old firm. Mr. Justice Warrington refused the injunction, holding that the rule which prevents the vendor of the good will of a business from canvassing his old customers does not extend to the case of a compulsory sale by a trustee for creditors.

The result of all this is, that when a man has voluntarily sold his business with the good will, he may, unless he has come under some special obligation to the contrary, set up a new business as a rival to the one he has sold. He may advertise the new business publicly, but he must not canvass his old customers. He may deal with them if they come to him, but he must not ask them to come back. On the other hand, if the sale has been carried through by a trustee in bankruptcy or a trustee for creditors, the man may start again without any restrictions upon his freedom in the way of obtaining customers. The trustee can only sell property, the voluntary seller can sell his rights as well as his property.

Glasgow, Scotland.

DONALD MACKAY,

The payment of the labor claims is determined by Section 64b of Bankruptcy Act, which is as follows: "The debts to have priority except as herein provided, and to be paid in full out of the bankrupt's estate, and the order of payment shall be (4) wages due to workmen, clerks, traveling or city salesmen, or servants, which have been earned within three months before the date of commencement of proceedings, not to exceed $300.00 to each claimant. the (5) debts owing to any person who by the laws of the state or the United States is entitled to priority. Section 67d of this Act provides that. "Liens given or accepted in good faith, and not in contemplation of or in fraud upon this Act, and for a present consideration which have been recorded according to law, if record thereof was necessary in order to impart notice shall to the extent of such present consideration only not be affected by this Act." The view that labor claims are entitled to prority of payment over liens is well supported.1

The view that the lien claims are superior to the labor claims is also supported by the cases.2

It is believed that a careful consideration of the material sections of the Bankruptcy

(1) In re Tebo, 101 Fed. 419; In re Erie Lumber Co., 150 Fed. 817; In re Consumers Coffee Co., 151 Fed. 933; In re West Side Paper Co., 159 Fed. 241; In re McDavid Lumber Co., 190 Fed. 97.

(2) In re Yorke Vitrified Brick Co., 180 Fed. 235: In re Proudfoot, 173 Fed. 733; In re Kirby Dennis Co., 95 Fed. 116.

Act will lead to the conclusion that the labor claims are superior to the lien claims. Section 64b of this Act regulates and determines the payment of all claims against the bankrupt estate. This section applies to "the debts to have priority except as herein provided and to be paid in full out of the bankrupt estate, etc." The expression is not the "unsecured" but "the" debts, and the expression "the debts" is equivalent to all debts. That this section does not apply to unsecured debts alone is evidenced by the fact that this section is not restricted to what are, technically, debts, but they are claims and very frequently are liens against the corpus of the estate. Neither is the cost of preserving the estate a debt, though it is a claim; and likewise as to the filing fees paid by creditors in involuntary cases. and costs of administration, including attorneys' fees. We see, therefore, that the section by its express terms applies to many things in addition to unsecured debts, and

that there is no reason so far as Section 64 is concerned for holding that it applies to unsecured debts and not to liens. On the contrary the section seems to apply generally to all claims, including liens, and this conclusion is strengthened by the fact that Section 64 alone regulates expressly the order of the payment of claims against the

estate.

It remains to be seen, however, whether or not Section 67d modifies or controls in any way the provisions under Section 64b. Section 67d provides that, "liens" given or accepted . . . shall to the extent of such present consideration only, not be affected by this Act. The first enquiry is, what does the expression "Shall

not be affected by this Act," mean? Certainly the words are not to be interpreted literally, for the bankruptcy Act does affect such liens. . In the first place debts secured by liens must be proved in bankruptcy as all of the debts, and if not so proved are barred. Further the bankruptcy court has the right to sell the property upon which there is a lien. free of all liens. It