to be a first lien upon all the property described
in the said several mortgaged deeds and the
proceeds arising from the sale thereof.

And that the proceeds arising from such sale be applied first to the payment of the attorney's fees decreed in this suit, the referee's fees and the stenographer's fees."

Claiming to be parties to the decree and.entitled to sell the property for their fees, the attorneys secured an order of sale upon this decree and, against the objections of the plaintiff, proceeded to sell the property. It sold for $9,000.

The sheriff returned that of the purchase price he had paid the attorney's fees $5,500, costs and disbursements $512.64, clerk's costs on execution $18.85, costs and disbursements of the sale $407.65, and had paid to the clerk $2,560.86, so that the attorneys received $5,500 and there was paid to the clerk for the plaintiff $2,560.86, to defray the other costs of foreclosure and the execution of the trust and for the bondholders.

tion, settled the law that in this State an attorney-at-law in a suit brought to enforce the rights of his client can, acting for himself and for his client at the same time, agree for himself on the one side of the controversy and for his client upon the other side of the controversy, without notice to his client that the claims of the attorney against himself are to be litigated or determined in the suit, and in such a suit take a decree in favor of himself and against his client, and such a decree is a consent decree, which is not appealable and which cannot be corrected upon appeal.

Persons loaning money in Oregon and taking notes providing for attorneys' fees in case of suit should understand that under the law as laid down by this decision, when they employ attorneys to collect their notes they place it within their power to have the amount of their compensation fixed and made a first lien on the amount recovered, without any agreement as to what their compensation shall be, without notice that the claim of their attorneys is to be adjudi

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

The plaintiff succeeded in having the sale set aside, and then appealed from the portion of the decree which decreed the relief the plaintiff was entitled to to his attorneys instead

of himself.

The court dismissed the appeal upon the ground that the decree was a consent decree, and therefore not appealable.

The opinion of the court is published in the number of the Pacific Reporter for June 22, 1895, commencing at page 406.

Attorneys for appellant filed a motion for a rehearing, with an elaborate brief, and the court, after prolonged consideration, yesterday refused a rehearing and adhered to the previous decision.

and without any opportunity to be heard.

In other words, that their attorneys may make a contract for themselves and for them and have it adjudicated and the judgment executed not only in their absence and without their knowledge, but in spite of any legal remedies they may invoke.

The following is quoted from appellant's brief on the petition for rehearing :

Such a judicial proceeding is a scandal upon the administration of justice, and if allowed to stand must weaken the respect for the courts and the confidence of citizens in the se

curity for their rights of property, and prevent the investment in Oregon of capital from other States and from foreign countries. There could be but one greater reproach upon our judicial system and the legal profession, and that would be to have the law deliberately settled by the highest court in the State that the party injured in such a case was precluded by the act of his attorney from having the error corrected and the wrong righted on appeal."

Notwithstanding that dealings between attorneys and clients concerning the subject matter of litigation are carefully scrutinized by courts, and many courts hold that contracts between them concerning the subject matter of litigation are absolutely void, and notwithstanding the power of an attorney to bind his client concerning the subject matter of litigation is Much has been written of late on the so confined to the ordinary powers of an attorney called "government by injunction," which has in the management of the suit, the Supreme been started by the action of Judge Buchanan Court of this State has, after prolonged delibera- in South Carolina in the enforcement of the

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

"The contempt of court for which this sentence was imposed was in part the ignoring of the summons to appear before him, and in part the selling of liquor in violation of the injunc-and sentenced without uniform statute, at tion order. The sentence was imposed, of course, without a preliminary arrest to bring the accused into the presence of the court. "In commenting upon this proceeding an exchange says:

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

'Copyright-i. 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 controversy in regard to infringements of copyright, 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:

'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 antici

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 word, although the word should be used as a fitting title for a book. The copyright contemplated by the act must be not in a single word, but in some words in the shape of a volume 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 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 coinright Act. 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 case can be found, either in England or this country (America), in which, under the law of copyright, courts have protected the title alone separate from the book which it is used to designate.' (Per Shipley, J., in Osgood v. Allen, 1 Holmes [Amer.] 185.) This, it is submitted, is a perfectly accurate statement of the law of copyright on this point. It therefore follows that no protection can be obtained by registering a title in advance of publication or a dummy book. But it does not follow that a title cannot be protected from piracy. Such protection is, however, really analagous to that of a trade-mark. The title is the trade-mark under which the property to which it is applied-e. g., a book is sold, and the sale of a book under a title already adopted for an existing publication would be restrained, if at all, on the ground of actual or probable injury to property or as a common law fraud. In Dicks v. Yates (sup.), the Master of the Rolls (Sir George Jessel) said: The adoption of the words as the title of a novel might make a trade-mark, and entitle the owner of the novel to say to anyone else, 'You cannot sell another novel under the same title, so as to lead the public to believe that they are buying my novel when they are actually buying yours,' and Lord Justice James said: 'Where a man sells a work under the name or title of another man or another man's work, that is not an invasion of copyright, it is common law fraud, and can be redressed by ordinary common law remedies, wholly irrespective of any of the conditions or restrictions imposed by the Copyright Acts.' Herein really lies the gist of the distinction between copyright and trade-mark. In the case of the former the subject of the copyright must be publicly registered before proceedings for infringement can be taken, and these must be brought within twelve months of the date of the offense, and the fact of infringement of a registered copyright entails the statutory penalties and gives the statutory right to damages as well. In an action for infringing a title regarded as a trade-mark, these conditions do not exist; byt the material question to be

At a recent meeting of the Ohio State Bar Association Judge Charles Pratt delivered one of the principal addresses which was devoted largely to the discussion of reform in procedure which has been one of the "fads" of this Journal. The suggestions on this subject are summed up most clearly by the judge under nine heads, which are as follows:

First- Abolish all pleadings upon money contracts, or upon claims founded upon

account, and provide for the enforcement of such demands by summary process, making service upon the debtors of copies of the contracts or accounts, verified by affidavit, and stating the amount claimed.

Second Provide for service of these by the creditor, or by his agent; and upon failure to pay or give notice of defense within some short time, say five or ten days, file the papers with the clerk of the court, who should be empowered to at once enter judgment and issue execution.

Third- In case the debtor disputes the claim made, in whole or in part, require him to serve notice of his defense, supported by affidavit, on the creditor, and then file these papers in court, and proceed at once to trial, before court, jury or referee.

Fourth- In actions other than on money contracts or account, let the claimant prepare and serve on defendant a copy of his petition. If no answer is served within the time named in the notice, let the petition be filed in the court, and trial had before the court or jury, as might be proper.

Fifth-If answer is served upon the plainin court, and let the case proceed to trial. tiff or his attorney, file the answer with petition So far as the pleadings to be filed are cerned, I would return to the old sections 84 and 101 of the Code of 1853, limiting the number unless extended by order of court.

con

Sixth-Where personal service of notice cannot be obtained, let the papers be filed in court with proof of service by publication, and the case submitted to court or jury for judg ment or assessment of damages.