QJontfU iCaw ^rijnnl IGibtary Cornell University Library KF 637.L67 Equity jurisdiction, waste and nuisance 3 1924 018 738 470 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018738470 EQUITY JURISDICTION WASTE AND NUISANCE A Collection of Cases with Notes, by Wm. Draper Lewis, Ph. D., Dean of the Law Department of the University of Pennsylvania, and Miriam McConnell. [Compiled in the Biddle Memorial Library of the University of Pennsylvania.] PHILADELPHIA : INTERNATIONAL PRINTING CO. I907. Sit "» DiJl* COPYRIGHT 1907 BY WM. DRAPER LEWIS CHAPTER I. WASTE. ROSWELL'S CASE. In Chancery, 1619. Rolle's Abridgment, 277 placitum 13. If there be lessee for life, the remainder for life, the reversion or remainder in fee, and lessee in possession wastes the land, although he is not punishable by the common law during the remainder, still it can be restrained in the Chan- cery, for this is a special mischief, and although it is not pun- ishable during the continuance of the remainder, still it is a tort and is punishable afterwards. Mich. 16 Jac. in Ros- well's case agreed by Dodderidge according to the prece- dents of the Court of Chancery which were before cited. 1 ^Compare : Anonymous, Moore 554, pi. 748, prior to 1599 ("Per Egerton, Keeper of the Great Seal, that he had seen a precedent in the time of Richard II., that where there is tenant for life, remainder for life, remainder over in fee, and therefore waste in the first tenant is dispunishable by the common law ; yet it has been decreed in chancery, by the advice of the judges, upon complaint of him in remainder in fee, that the first tenant shall not commit waste, and an injunction granted"). Abraham v. Bubb, Freem. C. C. S3, 1680 ("But in many cases, where a person is dispunishable in law for committing waste, yet this court will enjoin him; as where there is tenant for life, remainder for life, remainder in fee, the tenant for life shall be restrained from com- mitting of waste by the injunction of this court," p. 54). See further: Lord Chancellor Hardwicke's opinions in Robinson v. Litton, 3 Atk. 209, 1744; Farrant v. Lovel, 3 Atk. 723, 1750. Compare in accord : Dennett v. Dennett, 43 N. H. 499, 1862. WASTE MOLLINEUX v. POWELL. In Chancery, before Lord King, 1730. 3 Pecre Williams' Reports, 268, N. [F]. A. tenant for years, remainder to B. for life, remainder to C. in fee; A. is doing waste; B. though he cannot bring waste, as not having the inheritance, yet he is entitled to an injunction. 1 See 1 Roll. Abr. Roswell's Case, 377. But if the waste be of a trivial nature, and a fortiori, if it be meliorating waste, as by building on the premises, (see 1 Inst. 53) the, court will not injoin; nor if the reversioner or "In the following cases injunctions were granted to stay waste at the instance of a holder of an estate for life in remainder : Dayrell v. Champness, 1 Eq. Ab. 400, pi. 4, 1700 ("If A. is tenant for life, remainder to B. for life, remainder to the first and other sons of B. in tail male, remainder to B. in tail, etc., and B. (before the birth of any son) brings a bill against A. to stay waste, and A. demurs to this bill, because the plaintiff had no right to the trees, and none that had the inheritance was party; yet the demurrer will be over-ruled, be- cause waste is to the damage of the publick, and B. is to take care of the inheritance for his children, if he has any, and has a particular interest himself, in case he comes to the estate"). Lutterel's Case, cited in Prec. in Ch. 50, 1670 (A bill was filed on behalf of an infant in ventre sa mere to stay waste. Injunction granted). Perrot v. Perrot, 3 Atk. 94, 1741 (Limitation to B. for life, remain- der to his sons in tail, remainder to A. for life, with remainder to sons in tail, reversion to B. in fee. B. cut timber. A. brought bill for in- junction to restrain waste. Injunction gjanted. Lord Chancellor Hard- wicke said; "Upon the authority of those cases, which have been very numerous in this court, of interposing to stay waste in the tenant for life, where no action can be maintained against him at law, as the plaintiff has not the immediate remainder, the injunction must be con- tinued." p. 95). Williams v. Peabody, 8 Hun. 271, 1876 (A. was owner of an estate in certain land for the life of B., to commence upon the termination of the defendant's life estate. Held, A. had a vested remainder and could maintain an action to restrain defendant from committing waste). Compare in accord the language of Lord Eldon in Davis v. Leo, 6 Ves. 784, i302, p. 787. Trustees to preserve contingent remainders, have been granted in- junctions to stay waste in the following cases : Perrot v. Perrot, 3 Atk. 94, 1741; Garth v. Cotton, 1 Ves. 524, S5S, 175°; Lansdowne v. Lans- do'wne, 1 Madd. 73, 1815. MOLLINEUX v. POWELL remainder-man in fee be not made a party, who possibly may approve of the waste. 2 ^Compare : Barry v. Barry, I J. & W. 631, 1820 '(B.. tenant for life, cut down a few elm trees of trifling value and a part of a garden wall with a view to improvements. Bill by remainderman to restrain. In- junction refused). Morris v. Morris, 3 De G. & J. 323, 1858 (A tenant for life pulled down the mansion house and built in a more desirable situation. After his death the persons entitled in remainder filed a bill to obtain compen- sation. Bill dismissed. Knight Bruce, L. J., said, "That this was a reasonable, a judicious, and a beneficial thing to pull down the house at Clasemont, and to use the materials, so far as they could be used, for building the mansion at Sketty, is perfectly clear ; but I agree with Mr. Malins, that an act may be reasonable, may be judicious, may be bene- ficial to all the persons interested in a settled property, and yet it may be an act prohibited to a tenant for life, if a person interested in re- mainder chooses to interfere. I do not put the case, therefore, merely on the reasonableness, on the judiciousness, and on the beneficial nature of what was done, but they are ingredients in it. The estate has been benefited by what has been done, and the plaintiffs are receiving that benefit. * * * In my judgment it would be unjust, and would be stretching a rule beyond its reason, to make the tenant for life account for the materials of a mansion-house on the estate, wisely pulled down, when the materials have been so applied in rebuilding." p. 327). Doherty v. Allman, L. R. 3 App. Ca. 709, 1878 (A. leased land to B. for a term of 999 years. Buildings on the land had been used as corn stores for some years, and afterwards as artillery barracks, and dwellings for married soldiers. The buildings had fallen into disre- pair. B. started to convert them into dwelling-houses. The change would increase their value. A. filed a bill to restrain B. from making the contemplated alterations. Injunction refused). In the following cases bills to restrain waste were maintained against the assignees of the original holders of the limited estate : Anonymous, Mosely 237, 1729 (Tenant for life, remain- der to his first and every other .son in tail, became a bankrupt, and a commission was taken out against him. The commissioners sold his estate to the defendant against whom the son of the bankrupt obtained an injunction to stay waste). Farrant v. Lovel, 3 Atk. 723, 1750. (A bill was brought by a ground landlord to stay waste in and under lessee, who held by lease from the original lessee. Injunction granted.) Lushington v. Boldero, 15 Beav. r, 1851 (A bill to account for waste was sustained against the assignees in bankruptcy of tenants for life). WASTE WHITFIELD v. BEWIT. In Chancery before Lord Chancellor Macclesfield, 1724. 2 Peere Williams' Reports, 240. One seised in fee of lands in which there were mines all of them unopened, by deed conveyed those lands and all mines, waters, trees etc., to trustees and their heirs, to the use of the grantor for life (who soon after died), remainder to the use of A. for life, remainder to his first, etc., son in tail made successive^, remainder to B. for life, remaider to his first, etc., son in tail male successively, remainder to his sisters, C. and D. and the heirs of their bodies, remainder to the grantor in fee. A. and B. had no sons, and C. one of the sisters died without issue, by which the heir of the grantor, as to one moiety of the premises, had the first estate of inheritance. A. having cut down timber sold it and threatened to open the mines ; the heir of the grantor being seised of one moiety ut supra by the death of one of the sisters without issue, brought this bill for an account of the moiety of the timber and to stay A.'s opening of any mine. 1st. Obj. As to the plaintiff's claim of the moiety of the monies arising by sale of the timber, in regard the plain- tiff comes into equity for the same, it would be more agree- able to the rules of equity, that the monies produced by the timber should be brought into Court and put out for the benefit of the sons as yet unborn and which may be born. That these contingent remainders being in gremio legis and under the protection of the law, it would be most reasonable that the monies should be secured for the use of the sons when there should be any born ; but as soon as it became impossible there should be a son, then a moiety to be paid WHITFIELD v. BEWIT 5 to the plaintiff; and the case would be the same if there were a son in ventra sa mere; or the plaintiff might bring trover, and then what reason had he to come into equity ? Cur' : The right to this timber belongs to those who at the time of its being severed from the freehold were seised of the first estate of inheritance, and the property becomes vested in them. As to the objection that trover will lie at law, it may be very necessary for the party who has the inheritance to bring his bill in this Court, because it may be impossible for him to discover the value of the timber, it being in the posesssion of, and cut down by the tenant for life. This was the very case of the Duke of Newcastle versus Mr. Vane, where at Welbeck (the Duke's seat in Nottinghamshire) great quantities of timber were blown down in a storm ; and though there were several tenants for life, remainder to their first and every other son in tail, yet these having no sons born, the timber was decreed to belong to the first remain- der-man in tail. Neither do I think the defendant ought (as he insists) to be allowed out of this timber what money he has laid out in timber for repairs, since it was a wrong thing to cut down and sell the same, and shews quo animo it was done, not to repair but to sell. Secondly, it was urged, that the mines being expressly granted by this settlement with the lands, it was as strong a case as if the mines themselves were limited to A. for life, and like Saunders' case in 5 Co. 12 where it is resolved, that on a lease made of land together with. the mines, if there be no mines open, the lessee may open them ; so in this case, there being no mines open, the cestui que use for life might open them. But Lord Chancellor contra : A. having only an estate for life subject to waste, he shall no more open a mine than he shall cut down the timber-trees, for both are equally granted by this deed; and the meaning of inserting mines, WASTE trees, and water, was, that all should pass, but as the timber and mines were part of the inheritance, no one should have power over them but such as had an estate of inheritance limited to him. Of which opinion was Lord Chancellor King on a re- hearing. 1 ^ases in which legal waste was restrained : Horner i: Popham, Colles' P. C. I, 8, 1701 (A tenant for life re- strained from felling timber) ; Bathurst v. Burden, 2 Bro. C. C. 64, 1786 (Lessee restrained from injuring fish ponds) ; Pulteney v. Shelton, S Ves. 260 n. 1797 (Lessee, after notice to quit, enjoined from carrying away manure, and crops growing from seeds sown after a certain date, and from committing other wilful waste); Onslow v. , 16 Ves. 173, 1809 (Ibid.) ; Drury v. Molins, 6 Ves. 328, 1801 (Lessee under a covenant to manage pasture land in a husband-like manner, restrained from ploughing the land) ; Mayor v. Hedger, 18 Ves. 355, 1811 (A.'s lease to B. contained a covenant to repair, etc. Just before the end of the term, B. began to pull down the buildings and carry away the mate- rials. Injunction granted) ; Kane v. Vanderburgh, 1 Johns. Ch. n, 1814 (A., tenant for life, assigned to C. C. restrained B. et al., under tenants from year to year, who were cutting large quantities of valua- ble timber) ; Watson v. Hunter, 5 Johns. Ch. 169, 1821 (Lessee re- strained from cutting timber) ; Coppinger v. Gubbins, 3 J. & L. 397, 1846 (Lessee for lives renewable forever, restrained from cutting turf for sale) ; Sarles v. Sarles, 3 Sandf. 601, 1846 (Tenant for life re- strained from cutting timber. Accord: Robertson v. Meadors, 73 Ind. 43, 1880) ; Dickinson v. Jones, 36 Ga. 97, 1867 (A., remainderman. B., tenant for life, cut timber, preparatory to opening the land for cultiva- tion. Injunction granted) ; Poertner v. Russel, 33 Wis. 193, 1873 (Les- see restrained from removing machinery from mill property) ; West- moreland Coal Co.'s Appeal, 85 Pa. 344, 1877 (A. was owner of the freehold, subject to the life estate of B. A. filed a bill to enjoin B. from working a vein of coal which had not been opened during the life of the ancestor, and for an account of coal already mined. Prayer of the bill granted) ; Davenport v. Magoon, 13 Or. 3, 1884 (A. leased to B. The lease contained a provision enabling B. to alter the building on the land "so as to adapt it to other business than a livery stable." B. was about to tear down building, alleging that he intended to erect a better one in its place. A.'s prayer for an injunction granted) ; Broch v. Dole, 66 Wis. 142, 1886 (Lessee enjoined from erecting chim- ney) ; University v. Tucker, 31 W. Va. 621, 1888 (A., contingent re- mainderman. B., life tenant. B. took clay from the soil and manufac- tured it into bricks and sold the same. B. enjoined at the instance of A.) ; West Ham etc. Board v. East London Water Works Co., 69 L. J. Ch. 257, 1900 (Lessee of marsh land, for the purpose of constructing a reservoir, restrained from covering the land with rubbish) ; Binswanger v. Henninger, I Alaska 509, 1902 (Tenants in common restrained their co-tenants from working a mine in so unskillful a manner as to amount to destructive waste. Compare: 2 Lindley on Mines, § 790, Ed. 1903). Cases in which the court refused to grant an injunction to restrain the alleged waste : Findlay v. Smith, 6 Munf. 134, 1818 (B., devisee for life of salt WHITFIELD v. BEWIT 7 works, opened new wells. A., remainderman, filed a bill to restrain B. from exhausting the salt supply and from cutting more timber for use in the works, than had been used at the time of testator's death. Injunction refused. Roane, J., said: "In considering what is waste, in this country, it is to be remarked, that the common law, by which it is regulated, adapts itself in this, as in other cases, to the varied situation and circumstances of the country." p. 148). Winship v. Pitts, 3 Paige 259, 1832 (A. leased a city lot to B. for a term of years. B. was about to erect a building upon the rear of the premises. A. sought to restrain B. Walworth, C, said : "It cannot be waste to make new erections upon the demised premises, which may be removed at the end of the term without much inconvenience, leaving the property in the some situation it was at the commencement of the tenancy." p. 262. Injunction refused). Keeler v. Eastman, 11 Vt. 293, 1839 (Tenant for life cut down a maple sugar orchard and sold the timber. Bill for injunction dis- missed. Bennett, C, said: "It is not in this state waste, to cut down wood or timber, so as to fit the land for cultivation, provided this would not damage the inheritance, and would be according to the rules of good husbandry, taking into view the location and situation of the whole farm," p. 294. In accord, see the language of Paige, J., in Kidd v. Dennison, 6 Barb. 9, 1849). Alexander v. Fisher, 7 Ala. 514, 184s (Defendant was tenant in dower of a large estate, more than half of which was woodlands. Ap- plication for an injunction to restrain the cutting of trees. Held, a tenant in dower has the right to change woodland into arable, if the proportion of woodland is such, that a prudent farmer would consider it best to reduce a portion of it to cultivation ; and the general criterion by which to determine whether waste has been committed, is whether lasting damage has been done to the inheritance, or its value depreci- ated. Injunction refused). Cannon v. Barry, 59 Miss. 289, 1881 (A contingent remainderman sought by injunction to restrain a life tenant from using the timber of a heavily wooded farm in rebuilding fences, clearing a small part of the land and removing tenants' cabins to better locations, to render the place more productive. Chalmers, C. J., said, "The condition of this country and that of England are wholly dissimilar, and that which would be a safe test there is altogether inapplicable here. With us, speaking generally, it may be said that nothing will ordinarily be held to constitute waste which is dictated by good husbandry, and promotes rather than diminishes the permanent value of the property as an es- tate of inheritance. That such has been the nature and effect, in the main, of the acts of the defendant, is incontestably established by the testimony in the case." p. 303). A tenant for life may lawfully operate mines previously worked: Viner v. Vaughan, 2 Beav. 466, 1840; Neel v. Neel, 19 Pa. 323, 1852; Reed v. Reed, 16 N. J. Eq. 248, 1863. Gaines v. Green Mining Co., 33 N. J. Eq. 603, 1881 (A. was remainderman in fee. B. life tenant. A. prayed an injunction to restrain B. from working iron mines on the premises. The evidence showed that the mines had been worked by the former owner in fee, and that there had been only a cessation of the work and not such an abandonment, as would defeat the right of the life tenant to recommence mining). WASTE BISHOP OF WINCHESTER'S CASE. In Chancery, prior to 1638. 1 Rolle's Abridgment, 380 (T. 3). If a lessee for years, without impeachment of waste, about the end of his term, intends to cut down all the timber trees, an injunction lies out of a court of equity upon this matter, to stop the cutting down of the trees notwithstanding the agreement of the parties, because it is against the public good to destroy the trees, and the suit is to hinder and pre- vent it ,and not to have damages after it is done. Mich. 14 Car. B. R. in the said case of Salway said by Brampton, that this was the Bishop of Winton's case, which was referred out of Chancery to the judges and by their advice an injunction granted for the cause aforesaid. 1 VANE v. LORD BARNARD. In Chancery, before Lord Chancellor Cowper, 17 16. 2 Vernon's Reports, 738. The defendant on the marriage of the plaintiff, his eldest son, with the daughterof Morgan Randyll, and £ 10,000 por- tion, settled (inter alia) Raby Castle on himself, for life without impeachment of waste, remainder to his son for life, and to his first and other sons in tail male. 1 Abraham v. Bubb, Freem. C. C. 53, 1680 (Tenant in tail after pos- sibility of issue extinct restrained from felling ornamental trees. Lord Chancellor Finch said, "If there be tenant for life without impeach- ment of waste, if he goeth to pull down houses &c. to do waste mali- ciously, this court will restrain, although he hath express power by the act of the party to commit waste ; for this court will moderate the ex- ercise of that power, and will restrain extravagant humorous waste, be- cause it is pro bono publico to restrain it." p. 54). WOMBWELL v. BELASYSE !) The defendant, the Lord Barnard, having taken some displeasure against his son, got two hundred workmen together, and of a sudden, in a few days, stripped the castle of the lead, iron, glass-doors, and boards, etc. and to the value of £3,000. The Court upon filing the bill granted an injunction to stay committing o'f waste, in pulling down the castle; and now, upon the hearing of the cause, decreed, not only the in- junction to continue, but that the castle should be repaired, and put into the same condition that it was in, in August, 1714; and for that purpose a commission was to issue to as- certain what ought to be repaired, and a master to see it done at the expense and charge of the defendant, the Lora Barnard; and decreed the plaintiff his costs. 1 WOMBWELL v. BELASYSE. In Chancery, before Lord Chancellor Eldon, 1825. 6 Vesey Junior's Reports, no, note. The Lord Chancellor: This is an application to dis- charge an order of the Vice Chancellor, directing an issue to try, whether certain trees in a wood, called Prestwood, part of the Newburgh estate, were planted or left standing for ornament to the mansion house, park, grounds, etc., an order formed upon the equitable doctrine of this Court, "Bishop of London v. Web, 1 P. Wins. 527, 1718 (B. was lessee for years sans waste, with remainder to A. in fee. B. made an agree- ment with brick-makers, that they might dig and carry away the soil of twenty acres, six feet deep. A. brought a bill to enjoin the digging. Injunction granted. Lord Chancellor Parker said: "I take this to be within the reason of Lord Barnard's case, where, as he was not per- mitted to destroy the castle to the prejudice of the remainderman, so neither shall the lessee in the present case destroy this field, against the Bishop who has the reversion in fee, to the ruin of the inheritance of the church." p. 529). 10 WASTE with reference to waste. I do not apprehend, that there are any particular circumstances requiring attention : but the question turns simply upon this; whether Lady Charlotte Belasyse, being now tenant for life without impeachment of waste, can, consistently with that equitable doctrine, exercise the legal right she unquestionably has. First, I may state, as established doctrine, that the question is not, whether the timber is, or is not, ornamental : but the fact to be deter- mined is, that it was planted for ornament; or, if not origi- nally planted for ornament, was, as we express it, left standing for ornament by some person, having the absolute power of disposition. If such a proprietor had even the bad taste to plant or leave standing, a couple of yew trees cut in the shape of peacocks on the road side, I do not shrink from what I laid down in The Marquis of Devonshire v. Lady Sandys, 1 that they must be protected, until some per- son, having the same absolute power of disposition with more correct taste, comes into posession; and this doctrine applies in the same manner to a pleasant ride, although at the dis- tance of two miles from the mansion house; but I do not agree, that a mere tenant for life, coming into possession, can vary the estate. That can be done only by some person having the absolute dominion over it. A farther subject of consideration is, how far this pro- tection can be applied to an avenue or ride through a wood, which had previously supplied timber for the purpose both of repairs and sale ; how far the act of making that ride is to be considered as a consecration of the wood to this purpose of ornament. It seems to me rather a strong proposition, that, if tenant in tail or in fee, whose predecessors had sup- plied all the exigencies of the estate and all their own exigen- cies by an appropriation of the timber and sale of part of it, forms a ride or avenue, all the withered arms and branches must remain forever in that state, which one of the affidavits, '6 Ves. Jr. 107, 1801. WOMBWELL v. BELASYSE 11 on which this injunction has been granted, and this issue directed, represents as most ornamental on a Yorkshire estate. I have known instances on an application for an injunction of an inquiry directed before the Master to ascer- tain, whether trees were planted or left standing for orna- ment : a course which I can easily conceive may lead to a great length of unnecessary proceeding, and prove ex- tremely prejudicial. A tenant for life without impeachment of waste has the right by law to cut timber, and apply the produce to his own use ; and if this Court restrains the exer- cise of that legal right without making the party, at whose instance the injunction is granted, give ample security to insure justice being done, in case it should turn out, that the restraint ought not to have been imposed, it may happen, that after the death of that tenant for life his estate may lose the value of that timber, which he had a legal right to cut. In a case of this sort it is extremely difficult to ascertain, whether this timber was planted or left standing for orna- ment by a person having such an interest in the estate, that his will was to control those, who were to take after him; and, when the affidavits leave the questin excessively" doubt- ful, the Court cannot possibly send it to a farther inquiry, unless the person calling for it will give such security, that, if it shall appear, that his lady had the right to cut, and ought not to have been restrained, she, or those who take after her, shall be reimbursed the whole value. Although I do not recollect an instance of sending such a question to a jury, I think there may be cases, in which that course ought to be taken ; admitting both a more speedy and a better decision than in the Master's office : but it would be extremely dangerous to send it to a jury without very special directions, not only for ample security, but also confining the issue to these questions; whether the timber was planted or left standing for ornament, and by whom; and what estate that person had : otherwise we shall be left just where we were, with a verdict upon evidence such as 12 WASTE these affidavits can afford ; amounting to no more than that, which no man can doubt, that these woods are ornamental to this estate. Another inquiry must be added; (for this does appear to me to go considerably beyond what has been the doctrine of this Court) whether the act of cutting rides through a wood, certainly a circumstance of evidence, that the wood was in some measure appropriated, and intended to be appropriated, to the purpose of ornament, is incon- sistent with cutting a great part of that wood, leaving suffi- cient to answer that purpose of ornament; and upon this the acts of the owner, who made those rides, will be ex- tremely material ; as, if that owner, after those rides were made, had been in the habit of cutting in that wood for the purpose of repairs and sale, it cannot be represented as his intention, that, not a sufficient part, but the whole wood, should be consecrated to that purpose of ornament, so that a Court of Equity must say, it shall stand until it shall be entirely decayed. Let the Plaintiff go before the Master, and give such security as will in the Master's judgment secure to the De- fendants the value of all the trees, which the Defendants shall be prevented from cutting by the injunction of this Court, in case it shall finally turn out in the judgment of this Court, that they ought not to have been issued in equity; and let the Master proceed de die in diem. Declare, that in the issue hereinafter directed it is intended by this Court, that the jury shall try, and determine, not whether the tim- ber in question, or any part of it, is ornamental, but whether the timber in Prestwood, or any part thereof, ornamental or not, was planted or left standing for ornament or the purpose of shelter by any former owner of the estate; secondly, whether consistently with the purposes, for which such trees were planted or left, standing, if planted or left standing for ornament or shelter, any and what part thereof may be Cut for the purposes of repairs or sale; and let the jury, in case they shall find, that such wood, or any part thereof, was WOMBWELL v. BELASYSE 13 planted or left standing for ornament or shelter by any former owner, indorse upon the Postea what estate and interest in the lands such former owner had. I do not confine the directions to the mansion-house; declaring my opinion, that consistently with this doctrine, which, I admit, has taken great liberties with the rights of mankind, I must abide by what has been laid down in such cases; and therefore not only the mansion-house, but these rides and shelter to the park also, must be protected. 2 'Injunctions against tenants unimpeachable for waste, restraining the cutting of ornamental timber, were granted in the following cases : Packington's Case, 3 Atk. 215, 1744 (Restrained from cutting down trees in lines, or avenues, or ridings in a park and saplings. Accord : Wellesley v. Wellesley, 6 Sim. R. 497, 1834). Chamberlain v. Dum- mer, 1 Bro. C. C. 166, 1782 (A life tenant with power to cut timber "for her own use and benefit, at seasonable times," was restrained from cutting saplings). Downshire v. Sandys, 6 Ves. 107, 1801 (Restrained from cutting a clump of fir trees, planted or left standing for ornament, on a common two miles from the mansion house) ; Tamworth v. Fer- rers, 6 Ves. 419, 1801 (Restrained from cutting shelter or ornamental trees); Williams v. McNamara, 8 Ves. 70, 1802; Day v. Merry, 16 Ves. 37s, 1810 (Restrained from cutting trees planted for the purpose of excluding objects from view) ; Morris v. Morris, 15 Sim. 505, 1847 (Restrained from felling ornamental trees, though the mansion house about which the trees had formerly stood, had been pulled down) ; Marker v. Marker, 9 Hare 1, 1851 (Restrained from cutting timber left standing for ornament) ; Duncombe v. Felt, 81 Mich. 332, 1800 (A ten- ant for life with "as full and complete control of the premises" as though he owned the fee restrained from stripping land of all its timber). Compare : Baker v. Sebright, L. R. 13 Ch. Div. 179, 1879 (B., equitable tenant for life and unimpeachable for waste, cut ornamental timber, not only properly, but beneficially for the ornamental timber which remained. A., trustee of the will, filed a bill, praying that B. be ordered to pay the proceeds of the sale into court to be invested for the benefit of the estate. Held, B. was entitled to retain the proceeds because the timber cut was such as the court would itself direct to be cut for the preser- vation and improvement of the remaining ornamental timber. But Jessel, M. R., said, "I wish to guard myself against it being supposed that if the remaindermen had come to the court before the tenant for life had cut any ornamental timber, I should not have granted an in- junction." p. 188). 14 WASTE. LORD CASTLEMAIN v. LORD CRAVEN. In Chancery, before Honorable John Verney, M. R., 1733- 22 Viner's Abridgement, 523, placitum n. A. tenant for life, remainder to trustees to preserve, etc., remainder to C. the plaintiff in tail, remainder over, with power for A. with consent of trustees to fell timber, and the money arising to be invested in lands, etc., to same uses, etc. A. felled timber to the value of £3000 without consent of trustees, who never intermeddled, and A. had suffered some of the houses to go out of repair. C. by bill prayed an ac- count and injunction. The Master of the Rolls said, that the timber may be considered under two denominations, (to wit) such as was thriving, and not fit to be felled, and such as was unthriving, and what a prudent man and a good husband would fell etc. , and ordered the Master to take an account, etc., and the value of the former which was waste, and therefore belongs to the Plaintiff, who is next in remainder of the inheritance, is to go to the Plaintiff, and the value of the other is to be laid out according to the settlement, etc. 1 But as to 1 Compare : Gent v. Harrison, Johns 517, 1859 (An estate was de- vised to A. for life, remainder to trustees to preserve contingent re- mainders, with like remainders in favor of B. and C, with remainder to D. for life without impeachment for waste. A. cut timber and gave the proceeds to trustees to preserve. The trustees paid him interest during his life. B. entered, cut more timber, and gave the proceeds to the same trustees. B. received during his life interest on the funds in the hands of the trustees. D. came into possession. D. brought bill to have all the capital of the timber money paid to him and also to have the executors of A. and B. pay him the income received by them from the trustees. Held, that if the cutting by A. and B. was rightful, that the receipt by them of interest on the fund was proper, and that if the cutting was wrongful the corpus of the fund should have been paid LORD CASTLEMAIN v. LORD CRAVEN 15 repairs, the Court never interposes in case of permissive waste, either to prohibit or give satisfaction, as it does in case of wilful waste; 2 and where the Court having jurisdic- tion of the principal, viz., the prohibiting, it does in conse- quence give relief for waste done, either by way of account as for timber felled, or by obliging the party to rebuild, etc., as in case of houses, etc., and mentioned Lord Barnard's case, as to Raby Castle, 2 Vern. But as to the repairs, it was objected, that the plaintiff here had no remedy at law, by reason of the estate for life to the trustees mean between plaintiff's remainder in tail and defendant's estate for life, and that, therefore, equity ought to interpose, etc., and that this was a point of consequence. Sed non allocatur. at once, not to D., but to the first remainderman in fee. D. then ad- mitting that the cutting was rightful, received the corpus of the fund and the claim against the executors was dismissed). 2 Wood v. Gaynon, Amb. 395, 1761 (B. was life tenant of copyhold and freehold estates. Bill filed by the remainderman to compel B. to keep the premises in repair. Bill dismissed. Accord : Powys v. Bla- grave, 4 De G. M. & G. 448, 1854; Cannon v. Barry, 59 Miss. 289, r38i). 16 WASTE BEWICK v. WHITFIELD. . In Chancery, before Lord Chancellor Talbot, 1734. 3 Peere Williams' Reports, 266. A. was tenant for life, remainder to B. in tail, as to one moiety, remainder as to the other moiety to C. an infant in tail, remainder over. There was timber upon the premises greatly decaying ; whereupon B. the remainder-man, brought a bill, praying, that the timber that was decaying might be cut down, and that the Plaintiff the remainder-man in tail, together with the other remainder-man, the infant, might have the money arising by sale of this timber. On the other hand, the tenant for life insisted to have some share of this money. Lord Chancellor: The timber, while standing, is part of the inheritance ; but whenever it is severed, either by the act of God, as by tempest, or by a trespasser and by wrong, it belongs to him who has the first estate of inheritance, whether in fee or in tail, who may bring trover for it; and this was so decreed upon occasion of the great windfall of timber on the Cavendish estate. 2dly. As to the tenant for life, he ought not to have any share of the money arising by the sale of this timber; but since he has a right to what may be sufficient for repairs and bootes, care must be taken to leave enough upon the estate for that purpose ; and whatever damage is done to the tenant for life on the premises by him held for life, the same ought to be made good to him. Tydly. With regard to the timber plainly decaying, it is for the benefit of the persons intitled to the inheritance, that it should be cut down, otherwise it would become of no value ; but this shall be done with the approbation of the Mas- ter ; and trees though decaying, if for the defence and shelter BEWICK v. WHITFIELD 17 of the house, or for ornament, shall not be cut down. B. that is the tenant in tail, (and of age) of one moiety, is to have a moiety of the clear money subject to such deduc- tions as aforesaid, the other moiety belonging- to the infant, must be put Out, for the benefit of the infant, on government or real securities, to be approved of by the Master. 1 ^Compare : Mildmay v. Mildmay, 4 Bro. C. C. 76, 1791- (Bill by tenant in tail in reversion to have timber cut. So ordered. The money was after- ward settled to the same uses). Delapole v. Delapole, 17 Ves. 150, 1810 (Upon a bill by infant re- mainderman in tail, an inquiry was directed to ascertain what decayed timber should be felled; the money from the sale of the timber to be settled to the same uses). Wickham v. Wickham, 19 Ves. 419, 1815 (A., tenant for life un- impeachable for waste, in possession, brought a bill to have decayed timber cut. The court decreed that the timber be cut and the money produced by the sale be laid out in real estate to be limited to the uses of the settlement. A. was entitled to the interest of the money). 18 WASTE ROLT v. LORD SOMERVILLE. In Chancery, before Lord Chancellor Hardwicke, J 737- 2 Equity* Cases Abridged, 759, placitum 8. The case in effect was thus : — A very considerable real estate was limited to Mrs. Rolt (who afterwards married the defendant the lord Somerville) for life, without impeach- ment of waste, remainder to the plaintiff Rolt for life, with- out impeachment of zvaste, with several remainders over. The defendant the lord Somerville, to make the most of this estate during the life of his wife, pulled down several houses and out-buildings upon the estate, and sold the same, and also took up lead water pipes that were laid for the convey- ance of water to the capital messuage, and disposed thereof, and he also cut down several groves of trees that were planted for the shelter or ornament of the capital messuage. Upon this a bill was brought by the plaintiff to compel the defendant to account for the money raised by the particulars before mentioned, and to put the estate in the same plight and condition that it was before. To this the defendant de- murred, and thereby insisted that this waste was committed by tenant for life, without impeachment of waste, and there- fore he was not liable to be called to an account for what he had done, either in law or equity, and if he was, yet the plaintiff could not call him to an account, because he was not a remainder man of the inheritance. Lord Chancellor Hardwicke: Tho' an action of waste will not lie at law for what is done to houses, or plantations for ornament or convenience, by tenant for life, zvithout impeachment of waste, yet this court hath set up a superior equity, and will restrain the do- ing such things on the estate. In Lord Bernard's case the ROLT v. LORD SOMERVILLE 19 court restrained him from going on, and ordered the estate to be put in the same condition. In Sir Biundel Charleton's case the master of the rolls decreed that no trees should be cut down that were for the ornament of the park ; but lord chan. King reversed that, and extended it only to trees that were planted in rows. My only doubt is, as to the trees that have been cut down, for if this bill had been brought before such trees had been cut down as were for the ornament or shelter of the estate, this court would have interposed ; but here the mischief is done, and it is impossible to restore it to the same condition as to the plantations, and therefore it can lie in satisfaction only ; and I cannot say the plaintiff is entitled to a satisfaction for the timber which is a damage to the inheritance, yet as to the pulling down the houses and buildings, and laying the lead pipes, they may be restored, or put in as good condition again. In the case of my lord Bernard there were directions for an issue at law to charge his assets with the value of the damages, he not having per- formed the decree in his life-time. The demurrer was allow- ed as to satisfaction on account of the timber, but over-ruled as to the rest. 1 "In the following cases of equitable waste an account was allowed though no injunction asked for : Garth v. Cotton, i Dick. 183, 1753, S. C. ; 3 Atk. 751 ; 1 Ves. 524 (A settlement was made to A. for 99 years, if he so long live, without im- peachment of waste, remainder to trustees to preserve, etc., to first, etc., sons in tail, remainder to B. in fee. A. had no sons, and agreed with B. to fell timber and divide the profits. Afterward A. had a son. Bill filed by A.'s son against the representatives of B. for an account. An account was granted. Lord Hardwicke, C, said, "I must decree satisfaction to the plaintiff, . . . and if the original limitations had been still subsisting, I must have directed this money, to have been laid out in lands, to the same uses ; but as these are now barred, and the plaintiff is tenant in fee, the money is his own." p. 220. It did not appear what was the condition of the timber, so no interest was allowed further back than the filing of the bill). Lansdowne v. Lansdowne, 1 Madd. 73, 1815 (C, tenant for life, committed equitable waste, by cutting saplings and ornamental trees. A. et al., tenants for life and of the inheritance, filed a bill against C. to restrain . C. disregarded the injunction, cut more trees, and died. A. et al. filed a supplemental bill against C.'s representative for an ac- counting of the benefit which accrued to C.'s estate by the equitable waste committed. Defendant demurred. Demurrer overruled). 20 WASTE Leeds v. Amherst, 2 Ph. 117, 1846 (D, father of A, was tenant for life, unimpeachable for waste. A. was remainderman in tail. D. demol- ished the mansion-house, and cut ornamental timber. D. devised his unsettled estates to B., trustee, and died. A. filed a claim against B. for an account. The prayer was granted although the waste had been committed thirty-eight years before, the title of A. having accrued within twenty years before the filing of the bill). Lushington z'. Boldero, 15 Beav. 1, 1851 (An estate stood limited to A. for life without impeachment of waste, with remainder to his issue in tail, with similar remainder to B. for life with remainder to his issue in tail. A. and B. became bankrupt and the assignees under their joint commission committed equitable waste by cutting ornamental timber. The produce was ordered brought into court. Held, that the assignees were entitled to no part of the income, but the whole fund belonged to the first tenant in tail and that the son of B. could not claim until A. died childless. Romilly, M. R., said, "When the tenant for life has committed the wrongful act which produces the fund, the court will not allow him to gain any benefit from it; but the rever- sioner takes the benefit arising from accretion of the fund, in lieu of the accretion of the timber." p. 7). Compare: Bubb v. Yelverton, L. R. 10 Eq. Ca. 465, 1870 (A re- mainderman in fee, brought an action against the executor of the life tenant unimpeachable for waste, to recover damages for the ornamen- tal trees cut down by the life tenant for the benefit of the estate. Romilly, M. R., said that this was a question properly determinable by a jury, and that he, "performing the office of a jury," had come to the conclusion that no damage had been done, and that the claim must be dismissed. An account will be given as an incident of an injunction to re- strain equitable waste : Aston v. Aston, i Ves. Sr. 52, 264, 1749 ; Welles- ley v. Wellesley, 6 Sim. 497, 1834. JESUS COLLEGE v. BLOOM 21 JESUS COLLEGE v. BLOOM. In Chancery, before Lord Hardwicke, 1745. Ambler's Reports, 54. This bill wai brought by the Master and Fellows of Jesus College, in Oxford, for an account of timber cut down on the premises by them let to the defendant, and for an account of some stones which he had carried off the land. Lord Chancellor: This is the most extraordinary bill that ever was brought in this Court, and I hope never to see one of the like nature again. On this bill there arise two questions : First, Whether bills are to be maintained in this Court merely for timber cut down after the term is gone out of the tenant by assign- ment? or, whether such bills can only be brought for an account of such waste done, without at the same time pray- ing an injunction? And I am of opinion that they can- not. Waste is a loss for which there is a proper remedy by action; in a court of law the party is not necessitated to bring an action of waste, but he may bring trover; those are the remedies, and therefore there is no ground of equity to come into this Court, for satisfaction of damages is not the proper ground for the Court to admit of these sort of bills, but the staying of waste ; because the Court presumes, when a man has done waste he may commit the same again, and therefore will suffer the lessor or reversioner, when he brings his bill for an injunction to stay waste, to pray at the same time an account of the waste done ; for though a court of law may give damages, yet it cannot prevent further waste; and it is upon this ground, to prevent multiplicity of suits, that this Court will decree an account of waste done at the same time, with an injunction; just like the case of a 22 WASTE bill brought for discovery of assets, an account may be prayed at the same time ; and though originally the bill was only brought for a discovery of assets, yet, to prevent multi- plicity of suits, the Court will direct an account to be taken. If the Court were to allow of these sort of bills, it would create infinite vexation; there is not one precedent to war- rant it. The cases cited do not come up to the present. Whitfield v. Bewick, 3 Wins. 267. It does not appear in that case, that an injunction to stay waste generally was not prayed ; if it was, that brings it within the common case. As to the case of the Bishop of Winchester v. Knight, 1 Wms. 406 I am at a loss to know upon what grounds the Court went. The book says, because it was a demand against an executor : but I doubt greatly as to this, for it is far from being a general rule of this Court to entertain a bill against an executor for a tort committed by his testa- tor. The more probable reason for decreeing an account in that case seems to be, because it was the case of mines ; and the Court always distinguishes between digging of mines and cutting of timber, because the digging of mines is a sort of trade ; and there are many cases where this Court will relieve and decree an account of ore taken, when in any other tort or wrong done it has refused relief. If this be the reason of the determination in that case, as I really think it is, it stands quite different from the present; I am there- fore of opinion, upon this first head, that this bill brought by Jesus College, to have satisfaction for timber cut down after an assignment of the lease, when the proper remedy is at law, ought to be dismissed. 1 'In the following cases where no injunction could be granted, the court refused to grant an account: Pigott v. Bullock, 3 Bro. C. C. 539, 1792 (C. devised his estate to his wife, B., for life, "with liberty to cut timber and underwood for her own use, but not to sell." She cut underwood, sold it and died. A., next taker for life, without a power of committing waste, filed a bill for an account. Bill dismissed). Higginbotham v. Hawkins, h. R. 7 Ch. App. 676, 1872 (B. was JESUS COLLEGE v. BLOOM 23 tenant for life, and executrix of C, a preceding tenant for life. C. and B. both committed waste. A., remainderman in fee, filed a bill against B. for injunction and an account of the timber felled by C. and B. Injunction and account granted against the existing tenant for life, yet as no injunction could be granted against the preceding tenant for life, no account could be granted against her executrix). Lippincott v. Barton, 42 N. J. Eq. 272, 1886 (The executors of a wife filed a bill against the executors of her husband, who survived her, for an account of the timber cut upon her lands which he occu- pied as tenant by the courtesy. Bill dismissed). In accord with the statement in the text that an account without an injunction will be given of material mined, see: Bishop of Winchester v. Knight, 1 P. Wms. 406, 1717 (Tenant for years opened a mine, dug ore, and died. Lord of the manor brought a bill against tenant's executor for an account. Granted). Story v. Windsor, 2 Atk. 630, 1743 (Lord Hardwicke said, "Though the plaintiff's is a legal title, yet he is proper in coming into this court, because this is not a title of land, but of a colliery, which is a kind of trade, and therefore an account may be taken of the profits here." p. 630. The case involved another question). Parrot v. Palmer, 3 M. & K. 632, 1834 (Lord Chancellor Brougham said, "From the whole it may be collected that although, as to timber, there exists considerable discrepancy, yet the sound rule is to make account the incident and not the principal, where there is a remedy at law; but that mines are to be otherwise considered, and that, as to them, the party may have an account even in cases where no injunction would lie." p. 642. The bill, which was an injunction and an account, was dismissed because of the laches of the plaintiff). An account was given in the following cases, being incidental to the injunction granted to restrain legal waste: Ackerman v. Hartley, 8 N. J. Eq. 476, 1850 (An injunction was "ranted to stay working a quarry, and an account given for past waste) ; Rodgers v. Rodgers, 11 Barb. 595, 1852; Armstrong z>. Wilson, 60 111 226, 1871 (A tenant by the courtesy restrained from felling tim- ber and made accountable for past waste) ; Disher v. Disher, 45 Neb. 100, 1895- WASTE SKELTON v. SKELTON. In Chancery, before Lord Nottingham, 1677. 2 Swanston's Reports, 170. The bill was exhibited against a jointress to stay maresme in felling timber, and notwithstanding the De- fendant's answer, who claimed the inheritance by a deed which the Plaintiff controverted, an injunction was obtained until hearing; and now, at the hearing, she proved herself to be a jointress in tail; and it was urged by Mr. Attorney, that the Defendant being a jointress within the statute of 11 H. 7, which restrains all power of alienation by fine or discontinuance, she ought likewise to be restrained in equity from commiting waste, which is also in disherison of the heir. But this I would by no means allow, that equity should enlarge the restraints or the disabilities introduced by act of parliament; and as to the granting of injunctions to stay waste, I took a distinction where the tenant hath only impunitatem, and where he hath jus in arboribus. If the tenant have only a bare indemnity, or exemption from an action if he committed waste, there it is fit he should be re- strained by injunction from committing it ; but if he have a. right in the thing itself, when it is wasted and cut down, there it is no way reasonable that he should be restrained: as, for example, if there be tenant for life, the remainder for life, the reversion in fee ; here the tenant for life has no right nor power to fell timber or commit waste ; yet if he do so he cannot be punished for it in an action of waste, during the life of him in the remainder for life; for that intervening remainder is an impediment to the action; so it is most just to grant an injunction to stay waste ; and so it was ruled in the Chancery by advise of judges, P. 41 El. Sir F. Moor, 554. pl- 748; and Egerton, C. said he had seen a precedent SKELTON v. SKELTON -£> of such an injunction, 5 R. 2, and so it had been done before, temp. E. 6. Vandemot v. Eyr: and with this agrees 16 Jac. B. R. 1 Roll. 377 pi. 13 per curiam. And the reason of this is most convincing ; for when such a tenant for life hath cut down the trees, he in the remainder in fee may take them away, notwithstanding the mean remainder for life, or he may have a trover and conversion against the tenant for life, if he remove them; which shows that such tenant for life hath no property in the trees; it were ergo, most absurd to put the reversioner to recover damages for his inheritance in the trees, or to seize them as chatties, when they may better be preserved to him in specie, by granting an injunction to stay the felling of them. And upon the like reason it may seem that tenant after possibility may be restrained by injunction from committing waste, for so if he fell trees the reversioner may have a trover and con- version, as was held 24 Car. 1 3. R. Udal v. Udal's case, p. Rolle en curiam; and yet temp. E. 'R. placita parliament. Ryley, Appendix 653. Kirbrok petitions "quod breve de waiste poet giser versus Roger son frere" (against Maud, the widow of Roger) "tenant in tail, apres possibility; Re- sponce, ley nest mye uncore ordein en ce cas." Prob- ably this was before 21 Ed. 3, for in 21 Ed. 3, Rot. Pari, n. 46, the commons petition for a general law, that tenant after possibility might be liable to an action of waste, as being in effect but tenant for life, yet could not obtain it; but this serves only to keep the tenant after possibility in a state of impunity, if he commit waste, not to give him a right to commit it. On the other side, if there be tenant for life, with an express charge to hold without impeachment of waste, he is not to be restrained by injunction, for he hath more than a bare impunity, viz., a right in the trees to fell them ; a fortiori, in the case in question, no restraint can be put upon a jointress in tail who has the inheritance; and yet all this notwithstanding, he that hath a lawful power and liberty to commit waste may be restrained by Chancery from 26 WASTE using this power, zvhen the waste which he is about to do is signally contra bonum publicum V. 19 Car. 1 B. R. 1 Roll. 380 T. 3, though a lease for years was made without im- peachment of waste by the Bishop of Winchester, yet when the lessee for years, towards the end of his term, was about to cut up all the trees, an injunction was awarded by the ad- vice of all the judges, pro bon publico, and in favor of the church whereof the King is patron, notwithstanding the agreement of the parties. But in my Lord of Orford's case, where the earl was tenant for life without impeachment of waste, the reversion in fee to the coheirs of the Lady Bann- ing, and the Earl was about to pull down a house near Col- chester, no injunction could be obtained, but the coheirs and Sergent Peck, who was a purchaser from one of them, were fain to compound with the Earl. So it seems there is some discretionary latitude in these cases ; but that which is more remarkable is, that he who hath a power to commit waste may sometimes be restrained from the exercise of that power, when it tends only to a private damage; as for example, the Lady Evelyn was tenant for life in jointure, remainder to Sir John Evelyn, her eldest son, for life, without im- peachment of waste, with several remainders over; the jointress let the land to a tenant at will; Sir John Evelyn enters by consent of the undertenant, and cuts down trees; resolved, though no injunction had lain against Sir John Evelyn if his remainder had fallen into possession, yet now it does; for although the license of tenant at will to enter excuse the entry from being a trespass, yet no possession by such entry can enable him to cut down the trees presently, for the jointress hath right during her life to the shade and the mast ; and to reasonable bootes ; ideoque Lord Bridg- man, Custos, awarded an injunction during the life of the jointress. 1 Dec. 1670, 22 Car. 2 Lord Nottingham's MSS. "This court sees no color of cause to give the said Plaintiff any relief in this court, and doth therefore think fit and order that the matter of the said Plaintiff's bill be from SKELTON v. SKELTON 27 henceforth clearly and absolutely dismissed out of this court; and it is hereby referred to Sir J. F., etc., to tax the said De- fendants their moderate costs of this suit." Reg. Lib. B. 1677 fol. 33. 1 "Tenants in tail after possibility of issue extinct have been re- strained from committing equitable waste: Williams v. Day, 2 Ca. in Ch. 32, 1680 (Lord Chancellor Finch declared that he would stop pulling down houses or defacing a seat by tenant after possibility of issue extinct) ; Anonymous, Freeman, C. C. 278, 1704 (A tenant in tail after possibility of issue extinct was re- strained from pulling down houses or cutting trees, which stood in defence of the house, and fruit trees in the garden; but for some tur- rets of trees, which stood a land's length or two from the house the court would grant no injunction) ; Aston v. Aston, 1 Ves. Sr. 52, 264, 1749)- Compare : Savile's Case cited in Talbot's Eq. Ca. 16, prior to 1729 (Lord Chancellor Talbot said, "That (i. e., an injunction) was refused in Mr. Savile's Case of Yorkshire; who being an infant, and tenant in tail in possession, in a very bad state of health, and not likely to live to full age, cut down by his guardian a great quantity of timber just before his death, to a very great value ; the remainderman applied here for an injunction to restrain him, but could not prevail"). 28 WASTE ROBINSON v. LITTON. In Chancery, before Lord Chancellor Hardwicke, 1744. 3 Atkyit's Reports, 209. The father of the plaintiffs and defendant, by his will devised to the defendant, his son, John Robinson Litton, "the lands upon which the question arises, to him and his heirs forever, and in case he should not live to twenty-one, and die without issue, he gave the lands to his daughters (who are the plaintiffs) with several remainders over; then he goes on, and says, my will is, in case my son shall not attain twenty-one, my estate shall be sold, and the money divided among my daughters, for an augmentation of their fortunes, and gave to his daughters £10,000 besides.'' 1 The estate which came to the son by settlement, was between three and four thousand pounds a year. The son, who wants about three-quarters of a year of coming of age, intends cutting down three thousand pounds worth of timber off the estate. The bill is brought by the daughters amic- ably, for an injunction to stay waste, and in order to have the opinion of the court on this point, whether Defendant had a right to cut down the timber. Lord Chancellor : If the Defendant has a legal right, and there are no equitable circumstances to restrain him, I shall not do it. But though he may have a legal right, yet if there are equitable circumstances he may be restrained, and it is not proper for me to give a liberty in doubtful cases. As to the intention of the testator, he certainly had not the least thought that the son before his age of twenty-one, should fell all the timber upon the estate. The inheritance is con- stituted of the land and timber upon it, and that is devised to be sold for the benefit of his daughters. The intent was to give the value of the estate at the time it was devised. A 'The devise as given in the reports of this case in 8 Viner's Abridg- ment, 475, placitum 16, and 6 Cruise's Digest of the Law of Real Prop- erty, 427, makes the estate on the sons reaching twenty-one pass to the' daughters. ROBINSON v. LITTON 2'.) person having meadow ground might as well make it arable. What is the will ? The clauses must be construed as if they were in one and the same clause. Suppose the last clause had been first, the defendant would have been con- sidered as a trustee of the inheritance for the benefit of the daughters ; and that is the point I shall ground the injunction upon to stay waste. This court have gone greater lengths to stay waste than the courts of law have in giving actions, or granting prohibitions against it. As where there is tenant for life, remainder for life, remainder in fee, so where there is tenant for life subject to waste, remainder for life dis- punishable for waste, remainder in fee the court will not suffer an agreement between the two tenants for life to commit waste, to take place against the remainder-man, be- fore the time comes when the second tenant for life's power commences. So, in mortgages and securities, where the mortgagor has been in possession, it is always granted, be- cause the whole estate is a security, but the court does it more strongly where there is a trust. The clause in this will amounts to as much, as if he had said, I give my estate to my son and his heirs, till twenty-one, to receive the profits, then to increase my daughters portions ; and here there could be no doubt but the court would have done it. There are at this day three sorts of estate in lands ; the legal estate, that is the fee or freehold. Secondly, the use, which by the statute draws the legal estate after it. Thirdly, the beneficial interest. How does it stand upon this devise? There is an undoubted estate in fee in the defendant, and he may receive the profits till twenty-one. This amounts to a devise of the beneficial interest to him for that time, and it would be very extraordinary to suffer him to take away a great part of the inheritance of the estate, which was directed to be sold, not for strangers, but for the benefit of the daughters, for their portions. The father is to judge of the provision for his chilren. After giving the daughters £10,000 he then directs this shall go in augmentation. There have been several cases put which have never been deter- mined, as that of a child in ventre sa mere, but always said 30 WASTE arguendo, and I should make no scruple in such a case to grant an injunction. Suppose the case of an executory de- vise, as in Gore v. Gore, I should doubt whether the heir at law ought not to be restrained from committing waste in the mean time. I am therefore of opinion, the injunction ought to be made perpetual. It is pursuing the intention of the testator, and preserving the value of the estates intended to go to his daughters. 2 2 In accord: Turner v. Wright, Johns. 740, i860 (D. devised lands to B. in fee, but should B. die without issue, then to C. for life without impeachment for waste, remainder to A. in fee. A. filed a bill "to restrain the cutting of any timber, or at any rate of any orna- mental timber," by B. Injunction granted. Vice Chancellor Sir Page Wood said: "The principle of equitable interference is, that if the estate is to go in succession, equitable waste ought to be restrained.'' P- 751)- Gordon v. Lowther, 75 N. C. 193, 1876 (B. was tenant for life, with a contingent remainder in fee to such child or children as she might have who lived to 21 years of age, with an executory devise over to A. A. filed a bill to restrain B. frorn committing waste. Injunction granted. Settle, J., said : "While owners of executory bequests and other contin- gent interests cannot recover damages for waste already committed, they are entitled to have their interests protected from threatened waste or, destruction by injunctive relief." p. 19s). Cowand v. Meyers, 99 N. C. 198, 1888 (Devise to A. for life, re- mainder to B. provided she "shall have lawful heirs of her body, and if not, \ give it to my son." Held that the son was entitled to restrain B. from committing waste). University v. Tucker, 31 W. Va. 621, '1888 (A contingent remain- derman restrained a life tenant from removing clay from the estate for the purpose of making bricks). Duncombe v. Felt, 81 Mich. 332, 1890 (A. derived title to the land in question upon an execution sale to satisfy a judgment against B. A. executed a lease to B. for life, which gave B. as full and complete con- trol of the premises (160 acres, with 9 acres of standing timber) as though the conveyance to A. had not been made. B. cut and removed timber. A. prayed for an injunction. Granted. Long, J., said, "There can be no doubt that the defendant in the present case has much of the character of a tenant in fee, but he cannot destroy the inheritance. He may take the timber for his own use, and do all those acts which a prudent tenant in fee would do. He cannot pull down the buildings or destroy them, or cut and destroy fruit trees or those planted for ornament and shelter; neither can he be permitted to entirely strip the land of all timber, and convert it into lumber, and sell it away from the inheritance." p. 338). Latham v. Lumber Co., 139 N. C. 9, 1905 (Contingent remainder- man brought an action at law to recover for timber cut by the life tenant. Recovery was denied. Connor, J., said: "The interest of a contingent remainderman in the timber will be protected by a court of equity by injunction). Contra: Gwaltney v. Gwaltney, 119 Ind. 144, 1889 (By statutory provision, upon the death of a man, who leaves a second wife and has no children by her, but has a child by a previous wife, his real property descends to his wife for life, and at her death to his child. The child by the first marriage has a mere expectancy. He cannot enjoin the wife from committing waste). USBORNE v. USBORNE USBORNE v. USBORNE. In Chancery, before Lord Chancellor Hardwicke, 1740. 1 Dickens's Reports, 75. The order of this date states, that the plaintiff, under an assignment, was entitled to a mortgage term of 500 years of two farms and premises, for securing £630 and interest from the defendant, Usborne, subject to redemption ; that Usborne had sold the timber standing and growing on the mortgaged premises to the defendant, Bathurst; that he had entered on the mortgaged premises, and cut down several trees, and threatened to cut down more, by means whereof the mortgage security would be lessened. It was therefore ordered that an injunction should be awarded to stay the defendants etc., from committing any waste or spoil on the premises, etc., until answer and further order. 1 1 Other instances of injunctions to restrain waste at instance of mortgagees : King v. Smith, 2 Hare 239, 1843 (Bill filed by the mortgagee out of possession to restrain the mortgagor from felling timber. Vice Chancellor Wigram said, "The cases decide that a mortgagee out of possession is not of course entitled to an injunction to restrain the mortgagor from cutting timber on the mortgaged property. If the security is sufficient, the court will not grant an injunction merely because the mortgagor cuts, or threatens to cut, timber. There must be a special case made out before this court will interpose. The diffi- culty I feel is in discovering what is meant by a 'sufficient security.' Suppose the mortgage debt, with all the expenses, to be 1000Z., and the property to be worth 1000/., that is, in one sense, a sufficient security; but no mortgagee, who is well advised, would lend his money, unless the mortgaged property was worth one-third more than the amount lent at the time of the mortgage. If the property consisted of houses, which are subject to many casualties to which land is not liable, the mortgagee would probably require more. It is rather a question of prudence than of actual value. I think the question which must be tried is, whether the property the mortgagee takes as a security, is sufficient in this sense, — that the security is worth so much more than the money advanced, that the act of cutting timber is not to be considered as sub- stantially impairing the value, which was the basis of the contract be- 32 WASTE tween the parties at the time it was entered into.'' p. 243. Bill dis- missed upon the merits. Accord: Coker v. Whitlock, 54 Ala. 180, 1875). Ensign v. Colburn, 11 Paige 503, 1845 (B., mortgagor, was decreed abankrupt. His interest in the mortgaged premises vested in his as- signee in bankruptcy, who proceeded to strip the land of timber. By the terms of the mortgage, the mortgagor was authorized to cut timber for the purpose of having the proceeds thereof applied to the payment of the mortgage debt. A., mortgagee, filed bill to restrain the assignee. Injunction granted). Coggill v. Millburn Land Co., 25 N. J. Eq. 87, 1874 (B. gave pur- chase money mortgage for large tract of unimproved land, covered with timber. The land to be used for building purposes. B. cut timber. B. did not have other property sufficient to pay the mortgage. A., mortgagee, filed a bill to restrain B. Injunction granted). Martin's Appeal, 9 Atl. Rep., Pa. 490, 1887 (A. sold land to B. for building purposes, taking a mortgage for the whole purchase price. B. sold the soil and opened sand and stone quarries. A. filed a bill to restrain. Injunction granted). Beaver Flume Co. v. Eccles, 43 Or.' 400, 1903 (B. mortgaged timber land to A. Subsequently B w placed valuable improvements on the land for the purpose of cutting the timber into lumber, and commenced operations. A. filed a bill to restrain B. Held, though it would take ten years to remove all the timber and not more than one-tenth thereof would be removed before the maturity of the debt, that A. was entitled to an injunction). Fidelity Trust Co. v. Hoboken & M. R. Co., 63 Atl. Rep. 273, N. J., 1906 (Bill filed by the mortgagees of a railroad company to restrain the company from making certain excavations and removing tracks, buildings and other property, which would depreciate the value of the mortgage security Injunction granted). Reynolds v. Lawrence, 40 So. Rep. 576, Ala., 1906 (A vendor, re- taining a lien for the purchase money, restrained the vendee in posses- sion from felling timber). See also in accord the following cases : Robinson v. Litton, 3 Atk. 210, 1844; Farrant v. Lovel, 3 Atk. 723, 1850; Brady v. Waldron, 2 Johns. Ch. 148, 1816; Capner v. Flemangton Co., 3 N. J. Eq. 467, 1836; Cooper v. Davis, 15 Conn. 556, 1843; Gray v. Baldwin, 8 Black. 164, Ind., 1846; Real Estate Co. v. Hatton, 194 Pa. 449, 1900. In Robinson v. Russell, 24 Cal. 467, 1864, it was held, that the re- moval of pendant fruit and growing nursery stock by the mortgagor did not impair the value of the inheritance to the injury of the mort- gagee, and an injunction to restrain was refused. Compare the following cases, where injunctions were granted to restrain waste at the instance of plaintiffs having an interest in the nature of a lien on the land : Attaching creditor: Camp v. Bates, 11 Conn. 51, 1835 (B. was indebted to A. upon promissory notes. B. was insolvent. A. brought suit on the notes and attached rea'l estate of B. upon which there was timber which constituted its chief value. B. cut the timber. A. filed bill to enjoin. Injunction granted). County having lien for taxes : Lancaster County v. Fitzgerald, 104 N. W. Rep. 87s, Neb., 1905 (When taxes against real estate are past due and unpaid, the county may maintain a suit to restrain waste, where the acts complained of would reduce the value of the property to an amount insufficient to pay the taxes). Execution creditor: Webb v. Boyle, 63 N. C. 271, 1869 (A. obtained USBORNE v. USBORNE 33 a judgment against C. An execution levied upon C.'s land. Owing to the war, a sale was impracticable. C. died insolvent and his son B., also insolvent, cut timber. Bill filed to restrain. Injunction granted. Contra Law v. Wilgees, 5 Biss. 13, 1 85 1 ) . Judgment creditor: Vandemark v. Schoonmaker, 9 Hun. 16, 1876 (A. had a judgment lien against but one piece of property. The judg- ment debtor was dead, and the real estate was an inadequate security. At the instance of A., B., in possession, was enjoined from cutting timber. Bockes, J., said, "Waste has always been a subject of chancery jurisdiction. It is generally irreparable in its results, hence especially within the restraining power of that court. And it has been well re- marked that courts of equity will exercise a liberal jurisdiction in respect of waste, and in its restraint." p. 19). Surety for mortgagor: Johnson v. White, 11 Barb. 194, 1851 (A. purchased of B. one of several parcels of land which were subject to a mortgage. B. became insolvent and assigned his property, including a part of the land mortgaged, to trustees, for the payment of his debts. The land assigned was first chargeable with the payment of the mort- gages, but if it should prove insufficient, A's land was chargeable. Held, A. was in legal effect surety for the mortgagor, and was en- titled to an injunction to prevent waste by cutting timber upon the land). Vendor: Holmberg v. Johnson, 45 Kan. 197, 1891 (J., by written contract, purchased land of H. and paid a portion of the purchase money down. H. was to remain in possession for five year's, for the taxes, care, etc., put thereon by him. H. committed waste by quarrying and removing rock and trees. Injunction at instance of J. to restrain H. issued). 34 WASTE HAWLEY v. CLOWES. In Chancery, before Chancellor Kent, 1816. 2 Johnson's Chancery Reports, 122. The bill prayed for a partiton of land, and for an injunction to stay waste in cutting down and carrying away the timber. It stated, that the plaintiff and defendant owned the land as tenants in common, in equal undivided moieties, and that the defendant is in actual possession of the whole by himself, or his tenant, and is cutting down the timber, and threatening to persevere ; but admitted the plain- tiff's title a tenant in common. An injunction was granted on filing the bill, which was sworn to. The defendant, in proper person, moved to dissolve the injunction, on the ground that an injunction to stay waste between tenants in common will not lie, and cited Goodwyn v. Spray, (Dickens, 667) in 1786, and Smallman v. Onions, (3 Bro. 621). But if the motion could not be granted in toto, he then moved that he might have liberty to carry off the wood already cut before the service of the process. No answer was put in. The Chancellor: The injunction must be modified, so as to confine it to timber then standing and growing on the premises, and not wanted for the necessary use of the farm. The last cited case admitted the authority of the court to grant the writ between tenants in common, in special cases, as where the Defendant was sworn to be insolvent; and Lord Eldon, in the subsequent cases of Hole v. Thomas, (7 Vesey, 589) and of Tworl v. Tworl, (16 Vesey, 128) admitted the propriety and necessity of this power in the court, between tenants in common, where the waste was destructive to the estate, and not within the usual and legitimate exercise of enjoyment. HAW LEY v. CLOWES 35 The case, therefore, of the exercise of this power, must rest in sound discretion; it is not a case of a want of jurisdiction. Here is a bill for partition, and pending the suit it appears to be extremely fit that the tenant in common in possession should not be permitted to strip the land of its timber. It' is destructive, in many cases, of the value of the estate, and not consistent with a prudent enjoyment by the real owner. The statute of W. 2. 13 Edw. I. c. 22 (sess. 10 ch. 6) gives an action of waste by one tenant in common against an- other. It is, therefore, an injury recognized by law, and the remedy by injunction is applicable to every species of waste, it being to prevent a known and certain injury ; this remedy is peculiarly proper and appropriate pending a bill for partition of the very land. It comes within the equity of the statute, (of sess. 10, ch. 50, s. 29) which prohibits a defendant, pending a suit for the land, from making waste, and directs the court, where the suit is pending, to prevent it. The injunction, therefore, under the above modification, must be continued until answer, and further order. Injunction continued. 1 ''Accord: Hole v. Thomas, 7 Ves. 589, 1802 (Tenant in common was restrained by his co-tenant from cutting saplings and timber trees or underwood at unseasonable times; Compare: Durham v. Wawn, 3 Beav. 119, 1840 (Five tenants in common leased property to a railroad company, which constructed a track upon the property, contrary to the wishes of the remaining tenant in common. The sixth tenant pulled up the track. The railway company filed a bill to restrain the sixth tenant from committing waste. The Master of the Rolls recognized the juris- diction of chancery to restrain tenants in common from committing waste, but dismissed the bill on its merits) ; Weise v. Welsh, 30 N. J. Eq. 431, 1879 (Three tenants in common enjoined a fourth tenant from wasting the estate by working a quarry) ; Stout v. Curry, no Ind. 514, 1886 (One tenant in common maintained a suit to enjoin a tenant in possession from committing waste, the tenant in possession being insol- vent) ; Binswanger v. Henninger, 1 Alaska 509, 1902 (Tenants in com- mon enjoined their co-tenants from committing waste and appropriating the entire proceeds of mine on the land) ; Leatherbury v. Mclnnis, 85 Miss. 160, 1904 (One tenant in common was restrained by his co-tenant from felling more than half the timber upon their estate). Statutes. The editors are unaware of any instance in which the jurisdiction in cases of waste has been extended by statute to cases where under 36 WASTE the rules of equity the injunction would be refused. There are several jurisdictions in which the jurisdiction to restrain certain trespasses has been expressly conferred by statute, the statute speaking of the wrong to be restrained as waste. These statutes are referred to in the chapter on Trespass infra. The following legislation in Utah is of interest, though it does not appear to extend the jurisdiction beyond the cases cited in the note to Usbourne v. Usbourne, supra: "The court or judge may, by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon, or after a sale on execution, before a conveyance." Utah, 1898, § 3518. "Until the expiration of the time allowed for redemption, the court may restrain the commission of waste on the property by order granted with or without notice, on the application of the purchaser, or the judg- ment creditor. But it is not waste for the person in possession of the property at the time of sale or entitled to possession afterward, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used ; or to use it in the ordinary course of husbandry; or to make the necessary repairs of buildings thereon, or to use wood or timber on the property therefor, or for the repair of fences or fuel in his family while he occupies the property." Ibid., § 3266. CHAPTER II. NUISANCE. SECTION I. PRIVATE NUISANCE. OSDURNE v. BARTER. In Chancery, before Lord Chancellor Bromley, 1583. Choyce Cases in Chancery, 176. The bill was to be relieved of a nuisance committed by the defendant to the plaintiff's mill by erecting a new mill and turning or letting the water-course from serving the plaintiff's mill; but for that the plaintiff since the bill ex- hibited had brought an assize of nuisance at lawj therefore the cause is dismissed, if cause be not shewed. BUSH v. WESTERN. In Chancery, before Lord Chancellor, Parker, Afterwards Earl of Macclesfield, 1720. Finch's Precedents in Chancery, 530. The plaintiffs had been in possession of a water-course upwards of 60 years; the defendant claimed the land through which the water-course ran, by virtue of a forfeited mortgage for 100 years, and which he had obtained a de- cree to foreclose; the plaintiff's title was fully proved, and the bill was for a perpetual injunction to quiet the plaintiff's possession, which the defendant had interrupted, by making (37) 38 NUISANCE a cut or channel through his own lands, and setting up a sluice at the mouth thereof, whereby the water that should have ran to the plaintiff's water-course was totally diverted and prevented. And though it was objected, that if the plaintiff had any damages, his remedy was purely at law, and that they ought not to come hither till they had established their title at law; Secondly, That if they could, yet they ought to have brought those who had the inheritance of the lands, through which the water-course ran, before the Court, and that it was not sufficient to have only the mortgagee; Yet the Court decreed for the plaintiff, and agreed it usual to have such bills in the first instance in this Court, and cited Lord Aylesford's Case lately, and some others ; and if the defendant would have had the remainder-man a party, he ought in his answer to have shewn who that was, that he had only a term for years, and prayed that he might have been made a party; but this he had not done, but insisted on his own title under the foreclosed mortgage ; and therefore that objection was overruled. 1 VAN BERGEN v. VAN BERGEN. In the Court of Chancery of New York, before Chancellor Kent, 1818. 3 Johnson's Chancery Reports, 282. Plaintiff being seized as tenant in common, with de- fendant of about six acres and a half of land and two cer- l Compare: Weller v. Smeaton, 1 Bro. Ch. (London, rSoi), 572, 1784, decided by Lord Thurlow. (A had a mill, B erected a dam higher up on stream and was diverting water. After three years A brought bill to have B pull down obstruction. B demurred. Sustained because a. Laches ; b. Never except in Bush v. Western did equity inter- pose where there was a disputed right.) VAN BERGEN v. VAN BERGEN 39 tain falls of water and mill seats, "including the ground re- quisite for the erection and convenience of mills, together with a grist mill erected on the easternmost or lower mill- seat, on the north side of Coxsackie Creek, and the privilege of erecting mills, raceways, and dams on and across the said creek and using the water for such purposes," he en- tered into an agreement with defendant for a partition of the premises, and they accordingly, divided the same into two parts, and the westernmost half of the six and a half acres, together with the upper fall and mill seat were set off and released to the plaintiff, and the easternmost half, together with the lower fall and millseat and grist mill erected thereon, to the defendant. The plaintiff built a mill and a mill dam and some years later defendant erected a new dam in place of an old one which had been carried away by a freshet. This dam caused the water to flow back and obstruct the operation of the plaintiff's mill. Plaintiff claims that the injury occasioned to him by defendant's dam is permanent and precludes all hope of any adequate remedy at law, and is contrary to the intent and meaning of the release in partition, and prays that defendant may be required to remove his dam and not obstruct the operation of plaintiff's mill. 1 The Chancellor. There are two objections to the plaintiff's title to a decree, and both of them appear to be well founded. I. The remedy of the plaintiff (if any) ought to be sought at law, by an action on the case, or by an ac- tion upon the covenants contained in his deed of Decem- ber, 1808. The cases in which chancery has interfered by injunction, to prevent or remove a private nuisance, are those in which the nuisance has been erected to the pre- judice or annoyance of a right which the other party had x The statement of the bill and the answer as given in the report are abbreviated, and the last portion of the opinion is omitted. 40 NUISANCE long previously enjoyed. It must be a strong and mischie- vous case of pressing necessity, or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of this court. In Brown's case, (2 Vesey, 414.) Lord Hardwickc intimated that the title must have been established at law, or the party have been in the previous enjoyment of the subject, for at least three years, before he would interpose by injunction in the case of a private nuisance. In the case of The Attorney Gene- ral v. Nichol, (16 Vesey, 338.) Lord Eldon said, there were private nuisances which would support an action on the case, but which would not support an injunction. He put the jurisdiction of the court upon the ground of material injury, and of that special and troublesome mischief which required a preventive remedy, as well as a compensation in damages. I have had occasion frequently, since I have been sitting in this court, to allude to this very doctrine, and to consider it as sound. {Gardner v. Village of New- burgh, 2 Johns. Ch. Rep. 164, 165. Attorney General v. Utica Insurance Company, id. 379.) When a statute authorizes commissioners or others to interfere with private property, and it is charged and shown that they are about to exceed their powers, the case seems not to be governed by the ordinary rule; the interference of the court is more prompt, and is called for by greater necessity. (Belknap v. Belknap, 2 Johns. Ch. Rep. 463.) In this case the plaintiff erected his mill after the de- fendant had erected his dam. It is like the case of a per- son building his house against an ancient wall, and then complaining that his windows are darkened. Whether the defendant had a remedy at law, prior to the erection of his present mill, for the overflowing of his land, by the means of the dam in question, it is not for me to say. But, perhaps, he might have tested the legality of the dam, in that way, or after he had erected his mill, he might, by an action on the covenant in his deed, have tried the ques- tion. It is a proper legal question, and the plaintiff had VAN BERGEN v. VAN BERGEN 41 his legal remedy. It does not strike me that he has shown that species of nuisance required by the cases, to entitle him to call to his assistance the power of this court. But if the merits of the case were properly, before me, I should consider the plaintiff as having failed. 2 'Compare with principal case the following : Crowder v. Tinkler, 19 Ves. 617, 1816, before Lord Eldon. (A owned a paper mill. B a powder factory. B was erecting a powder magazine within two hundred yards of A's mill. Lord Eldon said, "Upon the whole the proper course is, that the plaintiffs shall indict this building as a nuisance ; and the defendants shall plead without traversing ; so that it may be tried at the next assizes ; and put the concern in such circumstances, that it may be carried on without immi- nent danger. If they will undertake to carry it on so that no more powder shall be kept there than is necessary for the purpose of carrying on the trade, with liberty to apply upon the result of the trial, that appears to be the best way to dispose of this case." p. 627.) Caldwell, v. Knott, 10 Yerg. 209, 1836. (A's land was flooded by mill pond of B. A brought a bill against B to abate. B said A's ancestor had given him a parole license. Held that whether license was binding or could be revoked was a legal question which must first be determined at law.) Porter v. Witham, 17 Me. 292, 1840, 294. (A and B erected two mill dams about the same time. A, claiming that B's dam made his useless, brought a bill against B. Bill dismised on ground that court will only interfere before trial at law where plaintiff has long enjoyed his right, which has recently been injured by the defendant, "or which is in danger of being injured or destroyed." Accord: Jordan v. Woodward, 38 Me. 423, 1854; Varney v. Pope, 60 Me. 192, 1872, 195.) Shields v. Arndt, 4 N. J. Eq. 234, 1842. (A owned farm adjoining B. B had, prior to the time A purchased his land, turned a stream so that it ran over that land. In time of freshet B's land was over- flowed, and he dug a ditch which A claimed deprived him of the water to which he was entitled. A prayed for an injunction to prevent said diversion. B denied A was wrongfully deprived of the water. Upon final hearing, Chancellor Pennington said: "The first consideration that presents itself, and which was fully discussed on the argument, relates to the power of a court of equity over such a case. "Upon the case made by the bill, I had no doubt at the time, and have none now. The jurisdiction of this court is of a preventive character in cases of waste and nuisance, and comes in aid of the courts of law. It has long been exercised, and with great usefulness. It is founded on the necessity created by an irreparable mischief, and the inadequacy of pecuniary compensation. "The right to have water flow in its accustomed channel is an acknowledged principle, for a breach of which the party injured may have his redress by suit at law, and in many cases by injunction. No mere pecuniary compensation will answer the ends of justice, and if the design is discovered in time, before the nuisance is carried into effect, may and should be restrained. The elementary treatises are full of cases 6i this character, and they will be found sustained by 42 NUISANCE authority : Fonblanque's Equity, 3, in notes ; Angel on Water-courses, 75; I Vesey, sen. 476, 543; 2 Vernon, 390; 2 John Chan. 164; Saxton, 192. "But it was not so much" against the general jurisdiction of the court, that the objection is raised, as to its exercise, when the defend- ant, as in this case, denies the complainant's right. It is the province of this court, as the defendant's counsel insist, not to try this right, that belonging alone to a court of law, but to quiet the possession whenever that right has been ascertained and settled. • If it be intended to say, that a defendant setting up this right by his answer, thereby at once ousts this court of jurisdiction, I cannot assent to it, for it would put an end, very much, to the exercise of an important branch of the powers of the court. This question of right to water is often a very debateable matter, and it would be quite easy for a defendant to satisfy his conscience in his own favor. If it be intended to go no further, than that it is a question which should be sent to law in cases of doubt, and often should before injunction be first there estab- lished by trial and judgment, then I agree to the proposition. A long enjoyment by a party of a right will entitle him to restrain a private nuisance, even though the defendant may deny the right, and the court will exercise its discretion whether to order a trial at law or not, always inclining to put the case to a jury if there be reasonable doubt. In the case cited from 2 John Chan, the chancellor refused to send the question of right to be tried at law, saying it was clear enough; and a case is cited from Prec. m Ch. 530, where a plaintiff who had long been in possession of a water-course, was quieted by injunction, though he had not established his right at law." p. 244. But after a discussion of the merits of the case, the court refused the injunction, as A had not proved his right to the water, either as an ancient water-course, or by twenty years' adverse user.) Coe v. Winnepisiogee Mfg. Co., 37 N. H. 254, 1858. (A was a farmer. B, by means of artificial excavations for the purpose of a mill, recently in part drained and in part overflowed A's land. A brought bill to restrain. B demurred and was sustained on the ground that there had been no trial at law, and A had not alleged facts from which irreparable damage could be inferred.) Green v. Lake, 54 Miss. 540, 1877, 544. (A et al. were owners of private dwellings. B erected a flouring and corn mill near by and used same for five years. A et al. brought bill to restrain, alleging noise, danger from fire and disease. B demurred ; one ground being that bill did not show "imperious necessity," and that A's rights had not been established at law. Demurrer sustained.) Goodall v. Crofton, 33 Ohio 271, 1877. (A, a land-owner, com- plained that certain steam power and machinery operated by B on adjoining land, was a nuisance. Held, — when a party who complains that a busines, lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages, he must establish his right to relief at law, before equity will interfere by injunction. There had also been delay and apparent acquiescence on part of A, which justified sending him to a court of law, before equity would interfere.) WHITE v. FORBES 43 WHITE v. FORBES. In the Court of Chancery of Michigan, before Chancellor Manning, 1843. Walker's Chancery Reports, 112. This as a bill for a perpetual injunction to prevent de- fendant from erecting a mill dam of such height as to over- flow complainant's land. 1 The Chancellor. This Court may stay or prevent nuisances by injunction. R. S. 499. Gardner v. Village of Newburgh, 2 /. C. R. 162. Sometimes the complain- ant is required to establish his right at law, before equity will protect him by injunction in the enjoyment of it; but that is only when the right on which he bases his claim to the interposition of the Court is doubtful, and in dis- pute. It is contended that the injury is too inconsiderable in itself for the Court to take cognizance of this case, and that the statute requires the Court to dismiss every suit concerning property, except between partners or for the foreclosure of mortgages, where the matter in dispute does not exceed one hundred dollars. R. S. 365 ; Laws 1839, p. 221. This is not a suit to settle the title to property. All the complainant asks is to be protected in the enjoy- ment of property, about the title to which there is no dis- pute. The question presented is, whether or not the de- fendant shall be allowed to erect a dam on his own land, to such a height as to flow the land of complainant, lying on the river a short distance above defendant's mill. It is not denied, but on the contrary is admitted, that the old dam, before it was carried away by the freshet, caused the water to overflow more or less of complainant's land. 'The statement of facts is omitted. 44 NUISANCE The defendant does not place his defence on this ground, but upon another and different ground, viz : that the land so overflowed, and which will be again, if he is allowed to erect a new dam of the same height with the old one, is of little or no value, and the flowing of it not produc- tive of any serious injury. The evidence on this point is conflicting. Some of the witnesses think it would do lit- tle or no injury, while others estimate the damages at from $300 to $500. The extent of the injury, provided there be a substantial injury done, is of no very great impor- tance. Every man has a right to the enjoyment of his property undisturbed by another, and to be protected in that enjoyment; and, what one may consider of little va- lue, another may esteem very highly. The Court will not, in cases of this kind, be governed by dollars and cents alone, but will inquire whether the injury is of such a nature, that it can reasonably be supposed to lessen materially the enjoyment of property by its owner. The complainant lives on the premises. They are his home. He places a high value on the land, and wants it for a meadow; and he is apprehensive that the flooding of it will generate disease, and render the atmosphere of his dwelling less salubrious. 2 Injunction made perpetual, with costs. 'Compare with the principal case the following : Soltau v. De Held, 2 Sim., n. s., 133, 1851. (A and B were neigh- bors. B rang bells at early hours in the morning. A brought bill to restrain. B demurred on ground that A had not established his right at law. Demurrer overruled. Vice-Chancellor Cranworth said: "Now it is true that equity will only interfere, in case of nuisance, where the thing complained of is a nuisance at law ; there is no such thing as an equitable nuisance; but it is no ground of demurrer that the matter has not been tried at law. It very often is a ground for refusing an injunction; but it is not a ground of demurrer." p. 151.) Aldrich v. Howard, 7 R. J. 87, 1861. (The bill was to enjoin the defendant from erecting a large livery stable in close proximity to the complainant's dwelling house. The defendant demurred because the bill did not allege that there had been a trial at law. In his discussion on this part of the demurrer, Ames, C. J., said : "Nor is it true, that a bill to enjoin such a nuisance is demurrable, because it does not state that the rights of the parties, in support of the bill, have been settled by WHITE v. FORBES 45 a judgment at law. It may be very proper that they should be, if uncer- tain, before the court affords its specific relief; but the title of the plaintiff to the relief he asks may be admitted by the answer, as it is by this demurrer, and then, why should it be further ascertained to induce the action of the court?" p. 94.) Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. 33s, 1862. (A and B were riparian owners. A brought a bill to restrain B from polluting stream. B answered bill. Court thought fact of nuisance clear. B argued that A's right to have stream unpolluted was not clear and demanded an issue. Chancellor Green said: "Where the complainant seeks protection in the enjoyment of a natural water course upon his land, the right will ordinarily be regarded as clear; and the mere fact that the defendant denies the right by his answer, or sets up title in himself by adverse user, will not entitle him to an issue before the allowance of an injunction." p. 343. Accord : Carlisle v. Cooper, 21 N. J. Eq. 576, 1870; Wahle v. Reinbach, 76 111. 322, i87S, 325-) Hayden v. Tucker, 37 Mo. 214, 1866. (B had a livery stable where he occasionally kept stallions and jacks. A erected a house next to B. B increased the number of his stallions and jacks to the great annoy- ance of A. A brought bill to restrain. Granted without trial at law. "It is only necesary that a party should establish his right in an action at law preparatory to obtaining an injunction for a nuisance, where a question of title is involved or the right itself is doubtful or uncer- tain." Wagner, J., p. 222.) Duncan v. Hayes, 22 N. J. Eq. 25, 1871. (B filled the air around A's dwelling house with smoke. A brought a bill to restrain. Zabris- kie, Chancellor, said : "It is equally well settled that if the title of the complainant is not disputed, and the injury is clear, it is not necessary that the fact of nuisance should be first established by a verdict at law." p. 27.) 46 NUISANCE MOWDAY v. MOORE. In the Supreme Court of Pennsylvania, 1890. 133 Pennsylvania Reports, 598. On April 20, 1887, David J. Mowday filed his bill in equity against Samuel M. Moore, averring that the defend- ant, by the careless and negligent construction of certain buildings on his own premises, had caused water from a mill-race, running through his lot, to flow along and through the foundation walls of the buildings into the cellar of the plaintiff; praying for a decree requiring the defend- ant to remedy the wrong, for an injunction and for general relief. The defendant, reserving all benefit of exception and objection to the errors, etc., of the bill, and to the juris- diction of the court, answered and issue was joined, where- upon the cause was referred to a master. 1 To the report of the master the defendant filed ex- ceptions, alleging among other things, that the master erred in deciding that equity had jurisdiction. The exceptions were dismissed and the report of the master confirmed. A decree having been signed and entered, as recommended by the master, the defendant took this appeal. Opinion, Mr. Justice Mitchell: The rule in regard to the remedy by injunction, in cases like the present, is thus stated by Adams : "There is a jurisdiction in equity to enjoin, if the fact of nuisance be admitted or established at law, whenever the nature of the injury is such that it cannot be adequately compensated by damages, or will occasion a constantly recurring griev- ance:" Adams' Eq., *2ii; and in Bispham's Eq., where it is said that "the tendency of the modern decisions is cer- 'The statement of facts, master's report and arguments of counsel are omitted. MOWDAY v. MOORE 47 tainly very much against the old rule, which required the prior establishment of the legal right:*' page 491, 2d ed., the conclusion is, nevertheless, . that "the modern doctrine may be stated in general terms to be that equity has con- current jurisdiction with courts of law in all cases of pri- vate nuisance, the interference of chancery in any particular case being justified on the ground of restraining irreparable mischief, or of suppressing interminable litigation, or of preventing multiplicity of suits:" Page 488; citing, espec- ially, Carlisle v. Cooper, 21 N. J. Eq. 576; and, after the discussion of illustrative cases, the result is summed up as follows: "If the complainant's title is doubtful, the or- dinary rule is not to interfere until his title has been es- tablished at law:" Page 490. This subject was fully considered upon all the au- thorities in our own case of Rhea v. Forsyth, 37 Pa. 503, and the true doctrine has nowhere been better expressed. "Where the plaintiff's right," says Woodward, J., "has not been established at law, or is not clear, but is questioned not only by the answer of the defendant, but by proofs in the cause, he is not entitled to remedy by in- junction. It is not enough that he is able to produce some evidence of his right, when there is conflicting evidence that goes to the denial of all right. In a case so situated, the plaintiff should first establish his right in an action at law, and then come into chancery, if necessary, for the pro- tection of the legally established right." From these views, this court has never departed, and how closely they have been adhered to, even where the nuisance complained of is alleged to be public and common and injurious to the health and safety of a city, is shown by New Castle v. Raney, de- cided at the present term, and reported in 130 Pa. 546. "The authorities," says the Chief Justice, "uniformly limit the jurisdiction to cases where the right has first been es- tablished at' law or is conceded. It was never intended, and I do not know of a case in the books, where a chancellor 48 NUISANCE has usurped the functions of a jury, and attempted to decide disputed questions of fact and pass upon conflicting evi- dence, in such cases." These principles are settled, and ought to be familiar. But the modern and growing tendency, alluded to by Mr. Bispham in the passage above quoted, to bring such cases into equity in the first place, seems to require a re-statement of the true limits of the jurisdiction. That damage which is imminent and irreparable, or is not capable of adequate com- pensation in money, may be enjoined without waiting for the process of law, is not intended to be questioned, but the right must be clear, and the facts upon which it rests un- contested. Failing this, all that the swift hand of the chan- cellor will do, is to stay the impending mischief until the facts are established by the ancient and appropriate tribunal. Coming, now, to the examination of the case in hand in the light of the foregoing principles, it is at once manifest that this bill cannot be sustained. The mischief complained of is not imminent ; it is of considerable standing, and is no worse now than it has been for several years past. It affects only the pecuniary interests of complainant, and is capable of full compensation in money damages ; and, above all, its origin from any cause for which defendant is liable is at the least extremely doubtful. A general review of the facts with reference to this last point is all that is necessary. Complainant bought the lot from defendant. The weight of the evidence is overwhelming that it was at least partly made ground, and was wet and spongy at the time of the purchase, and long before. Defendant, Corson, Gehringer, Oberholzer, and Rayner all so testify, and even the rebutting witnesses to the contrary nearly all admit that the silt from the cleaning out of the race, and the refuse from the cooper-shop from time to time, were dumped on it. Complainant knew the character of the land, and that dry cellars could not be built on it. The testimony of de- fendant, Oberholzer, Rose, Moore, Sr., and Ramey to that MOWDAY v. MOORE 49 effect, is practically uncontradicted. Complainant, with this knowledge, started to put cellars on his lot, the floors of which were below the level of the water in the race. His own witness Hallman, the mason who laid the cellar walls, says the water came in on him so he had to build it in small sections; yet, in spite of this warning, complainant did not lay his wall in cement, nor even puddle the earth, as he did in the second cellar which was thereby kept dry. All the witnesses agree that he might have cemented his wall, or Moore's line wall and his own cellar wall both, so as to have kept out any water from Moore's lot, and at trifling expense. Even his own main witness, Calhoun, says it could have been done, but would have been expensive. He does not say how much, but equally competent witnesses, Corson and Oberholzer, put the additional cost at ten dollars. Unless these witnesses are far astray in their judgment, the com- plainant's act in building as he did was done of inexcusable negligence. Turning, now, to the defendant's acts, what do we find? He was the owner of a lot subject to the easement of this mill-race, with no control over it, and, so far as ap- pears, no duty to repair. He knew the ground was wet, and showed his appreciation of the fact by constructing all his buildings from Main to Lafayette streets without cel- lars. When he built he put what is called a line wall on the boundry between his land and complainant's, but all within his own premises, and cross-walls from the Mill street side to this line wall. There is no evidence in the case that this was an unusual way to build. On the con- trary, even plaintiff's witnesses say (Houpt), that "cross- walls were the proper thing to put in," and (Mayberry,) that they "were necessary to be put there for the construc- tion of Moore's buildings, and were well constructed." The only thing suggested is that defendant might have built dif- ferently; might have laid a wall in cement parallel to the race. But no witness even now says he was bound to do 50 NUISANCE so, or that it was unusual or improper or negligent to build as he did. In the absence of such testimony, it is difficult to see wherein the defendant's fault lay from which any liability would arise. At law the plaintiff would have to make out a case of negligence on the part of defendant, and clear of it on his own part. The rule in equity is certainly no harder on a defendant. Even if this were an action at law, it is doubt- ful if plaintiff had made out his case. No better evidence of doubtfulness could be found than the failure of a jury to agree in an action for damages for this very same in- jury. This fact, which was put before the master, showed conclusively that the case was too doubtful for original re- lief in equity, and should at once have terminated the pro- ceedings. But as the case went to final hearing and decree, we have examined the whole evidence, and are of opinion that in any aspect, whether of negligence of defendant, or contributory negligence of complainant, the complainant has not only failed to make out a clear case in his favor, but has left the weight of evidence on the side of defendant. It is unnecessary to discuss the assignments of error in detail, but it is proper to say, as a matter of practice, that much of the evidence given in rebuttal was erroneously ad- mitted. It was not properly answer to new matter intro- duced by the defence, but merely cumulative on the case in chief. Decree reversed, and bill dismissed, with costs. 2 2 Compare: Mirkil v. Morgan, 134 Pa. 144, 1890. (B et al. were own- ers of a factory building used for purpose of refining and cleansing- hair. A was owner of adjoining dwelling houses, and alleged that by reason of insufficient drainage the water used by defendant perco- lated into the cellars of complainant's houses. Bill praying for an injunction. The master reported that upon the proofs it was doubtful whether the presence of water in plaintiff's cellars was due to the con- struction of defendant's drain or arose from natural causes. Held? Since the facts were disputed equity would not interfere by injunc- tion.) English v. Progress Elect. Light Co., 95 Ala. 259, 1891. (A resided in near vicinity of defendant's electric plant, which he sought to abate as a nuisance. Plant of defendant was operated for purpose of lighting MOWDAY v. MOORE 51 the city, and no very serious damage was proved to have resulted to A, after certain alterations and improvements were made to the plant. Held: Since the evidence left the court in doubt, whether A had suffered any substantial injury, no injunction would be granted.) Wood v. McGrath, 150 Pa. 451, 1892. (A filed bill for injunction to restrain B from maintaining private drain from well in street con- necting with B's premises, said drain being laid under public street on land of A. The drain by permission of the borough councils was not a nuisance per se, and the evidence being conflicting as to whether it was a nuisance in fact, an injunction for its removal was refused until after the right had been established at law.) Nuisance Established at Law. The nuisance having been estab- lished at law, the courts of equity will grant an injunction as a matter of course where the nuisance is of a continuous and constantly re- curring character. Award of arbitrator equivalent to verdict by Jury: Imperial Co. v. Broadbent, 7 H. L. C. 600, 1859. (A owned garden adjoining B's gas works. Brought action against B for injury done to his crops. Injury was determined by reference to an arbitrator. B subsequently increased works. Bill filed for injunction. Perpetual injunction granted to restrain the manufacture of gas in manner in- jurious to A's crops, the award of the arbitrator being equivalent to the verdict of a jury.) Paddock v. Somes, 102 Mo. 226, 1890, 240; Harper Co. v. Mountain Co. (N. J. Eq.) 56 Atl. Rep. 297, 1903. Injunction once issued. If an injunction has once issued, equity will decide without sending the case again to law, whether the defend- ant has continued the nuisance in disobedience to the injunction. Car- lisle v. Cooper, 21 N. J. Eq. 576, 1870. Both parties desire Court to act. When both parties desire that the Court of Equity try the merits of the dispute, instead of referring it to a court of law, it will do so. Walter v. Selfe, 4 De Gex & Sm. 315. 1851, 320. English Legislation. In England by the Common Law Procedure Act of 1854, 17 and 18 Vict. c. 125, Sees. 79 and 82, the common law courts were authorized to grant an injunction against a repetition of the wrong for which the action was brought, and this injunction could be granted at any time after the commencement of the action, on such terms as the Court thought just. In 1858, by Lord Cairn's Act, 21 and 22 Vict. c. 27, the Court of Chancery, in all cases where it had jurisdiction to issue an injunction, could award damages in lieu of or in addition to an injunc- tion. In 1862, Lord Rolt's Act, 25 and 26 Vict. c. 42, provided that the Court of Chancery, in those cases where it would have to refuse or postpone an injunction until trial at law, should thereafter either determine the disputed question itself, or if more convenient, direct an issue to a jury. The Supreme Court of Judicature, Act of 1873, 36 and 37 Vict. c. 66, created the High Court of Justice and vested in it the original, as distinguished from the appellate, jurisdiction of the Courts of Chancery and Common Law. Section 25 (8) provided that an injunction might be granted in any case whenever it should appear to the Court to be just and convenient. As a result of these statutes the English courts can award an injunction at any stage of the pro- ceeding, it being entirely in the discretion of the judge whether refer- ence shall be had to a jury before equitable relief is given. In the following cases the injunction was issued without a reference: Turner v. Mirfield. 34 Beav. 390, 1865; Inchbald v. Robinson, L. R. 4 Ch. App. 388, 1869. In Eaden v. Firth, 1 H. and M. 573, 1863, Vice- Chancellor W. Page Wood refused to issue an injunction against an alleged nuisance until after reference. 52 NUISANCE American Code Procedure. In New York the statement was made in Corning v. Troy Iron and Nail Factory, 40 N. Y. 191, 1869, at p. 207, that since the adop- tion of the code it is not necessary to send the plaintiff to law, even though there may be a substantial doubt as to the legal right. See also Pollitt v. Long, 58 Barb. 20, 1870, at p. 35. Code practice in New York and elsewhere enables a suitor to obtain in one action all the remedy to which he is entitled, even though he may have asked for a remedy to which he is not entitled. Pomeroy's Code Remedies, Sec. 11, and cases cited in note 1. But why this ability should effect the question whether an injunction should be granted in a case of alleged nuisance, prior to the determination of "the doubtful question" by a jury is not clear. The only effect of the code is to enable the question of nuisance to be brought before a jury without requiring the plaintiff to bring a new action. See in apparent accord with this view the language of Daniels, J., in People v. Metropolitan R. R. Co., 31 Hun. 596, 1884, at p. 600. See, however, in accord with the view of the first New York cases cited, Lux v. Haggin, 69 Cal. 255, 1886, at p. 283. Under Sec. 1660 of the New York Code of Civil Procedure an action for nuisance may be maintained in any case where such an action might have been maintained prior to the code, and in such an action the final judgment may award the plaintiff damages, direct the removal of the nuisance, or both. In proceeding under this sec- tion where damages are asked, a jury trial may be demanded by either party. Code of Civil Procedure, Sec. 968. Chase's Pocket Code, p. 258; Doer v. Dansville Gas Light Co., 18 Hun. 274, 1879; Chapman v. Rochester, 23 N. Y. W. D., 424, 1886. But (semble) a preliminary injunction may be granted before trial, Hutchins v. Smith, 63 Barb. 251, 1872. In Michigan there is a statute which expressly provides that "in all matters concerning nuisances, where there is not a plain, adequate and complete remedy at law," equity may grant an injunction to stay or prevent nuisances, Comp. L. 1871, Sec. 6377. In Robinson v. Baugh, 31 Mich. 290, 1875, at p. 293, the Court treat this provision as making it entirely discretionary with the judge whether he shall refer any doubtful question of law or fact to the jury. This interpretation of the meaning of the statue places the law in this State in regard to the necessity, or rather lack of necessity, of a trial at law, exactly where it is in England under the statutes referred to in the previous note. ROBINSON v. LORD BYRON 53 ROBINSON v. LORD BYRON. In Chancery, before Lord Thurlow, 1785. 1 Brown's Chancery Reports, 588. Motion for an injunction to restrain Lord Byron from preventing the water flowing to a mill which the plaintiffs used for a cotton manufacture, or letting a greater quantity of water than usual flow upon the mill. The motion was before appearance, upon affidavits which stated that, since the 4th of April, Lord Byron, who had large pieces of water in his park, supplied by the stream which flowed to the mill, had at one time stopped, the water, and at another time let in the water in such quantities as to endanger the mill; and the affidavits contained strong expressions of Lord Byron's shewing that his object, in these proceedings, was to obtain money from the plaintiffs. Lord Chancellor. — The Court will not restrain what has been enjoyed for twenty years past; but if what has been so enjoyed is used in a different way, so as to do mis- chief, the Court may interpose.- — His Lordship accordingly ordered an injunction to restrian Lord Byron from using dams, wears, shuttles, floodgates, and other erections, other- wise than he had done before the 4th of April, 1785. Afterwards his Lordship altered the terms of the order, and added the words, "so as to prevent the water flowing to the mill, in such regular quantities as it had ordinarly done before the 4th of April." When the answer came in, it was instituted before the Master of the Rolls, fitting for Lord Chancellor, that the affidavits could not be read; but he was of a contrary opinion. 54 NUISANCE WHITE v. COHEN. In Chancery, before Vice Chancellor Kindersley, 1852. 1 Drewry's Reports, 312. The Bill in this case was filed by a married woman in respect of her separate property. It alleged that a glass bottle manufactory had been erected upon land closely ad- joining plaintiff's leasehold houses, and for a year had been conducted so as not to be a nuisance or annoyance to the neighborhood. That at the expiration of that time, defend- ant had purchased the factory and conducted the business in such a manner as to become an intolerable nuisance and annoyance to the neighborhood, and, in particular to the plaintiff, her family and tenants. 1 The Bill prayed an injunction to restrain defendant from carrying on said business of glass bottle making so as to occasion any nuisance to plaintiff. A motion was made for an injunction in the terms of the Bill against Cohen. 1 The Vice-Chancellor : The question now before me is, whether, until an action has been brought, the Defendant ought to be restrained from carrying on his works : that is the only question. It is not disputed that this Court cannot permanently restrain acts alleged to be nuisance, until a Court of Law has de- clared that they do constitute nuisance. If in the interim, on a bill being filed, I restrain the Defendant, I am pro tanto acting on the assumption that there is a nuisance. Now. no doubt if the nuisance, supposing it to be one in point of law, were one of an irremediable kind, one not capable of 'The statement of facts has been abbreviated and the arguments of counsel omitted. WHITE v. COHEN 55 compensation, this Court might impose terms, pend- ing the trial of the question of nuisance, to protect the property in its existing state. But in a case where the only questions are mere inconvenience to the parties by the al- leged noise disturbing more or less their sleep, or in refer- ence to the diminution of value of the Plaintiff's property ; in either case the injury is not irremediable, but is capable of compensation in damages. I feel so much doubt, also, whether the Plaintiff can maintain this suit at all, that I should feel great difficulty on that ground alone; and on the whole, until it shall first have been determined at law that there is a nuisance ; and, secondly, that, if there is a nui- sance, the Plaintiff has taken the right course, considering that this bill rests, as it appears to me that it does, merely on the ground of diminution in value of the property; I think the only order that I can make will be for the motion to stand over, with liberty for the Plaintiff to bring such action as she may be advised. 2 2 In accord: Biddle v. Ash, 2 Ash. 211 (Pa. C. P.), 1838. (A and B were owners of adjoining houses fronting on a certain street. B began to build beyond what A claimed was the line of the street. A brought a bill asking for a preliminary injunction. Injunction refused on ground that a preliminary injunction should be refused unless right of plaintiff is clear.) Haines v. Taylor, 10 Beav. 75, 1846. (Injunction to restrain erec- tion of gas works refused, because Court was not sure that the means to be resorted to by defendant for the purpose of preventing the al- leged nuisance would not be effectual for that purpose.) Middleton v. Franklin, 3 Cal. 238, 1853. A. occupied upper part of building as an auction store. B occupied the cellar below. B was about to erect a steam engine to drive machinery of a grist mill, which A alleged would prove a nuisance, but an interlocutory in- junction was refused, because no irremediable mischief was shown.) Mygatt v. Goetchins, 20 Ga. 350, 1856. (A steam factory, not prima facie a nuisance, not enjoined on interlocutory motion.) Radenhurst v. Coate, 6 Grant Ch. 139, 1857. (Interlocutory in- junction to restrain defendant from carrying on a soap factory, re- fused, where he had conducted the business for several years without any steps being taken to restrain him.) Manhattan Gas Light Co. v. Barker (N. Y.), 7 Rob. 523, 1868. (An interlocutory injunction to restrain defendant, owner of a dis- tillery, from discharging refuse mash_ into the common sewer, re- fused, where the answer denied explicitly and positively the grounds on which the claim to relief rested.) 56 NUISANCE Tracy v. Troy, etc., R. R. Co., 54 Hun. 550, 1889. (A temporary injunction to restrain the erection of poles for sustaining power for propelling cars was refused, it appearing that no injury would be done which could not be compensated by a pecuniary payment and upon the further ground that if the injunction was allowed, a public im- provement would be obstructed for many months, which in the end might be allowed to proceed, and, thereby the plaintiff would, without, a trial, have accomplished the object of his action, and no longer nave any inducement to press forward the case.) Born v. Loflin Co., 84 Ga. 217, 1890. (It is no abuse of discretion to refuse a temporary injunction against the erection of buildings for the storage of explosives, where the evidence is conflicting as to the damage to the applicant.) Cornell v. New York, 20 N. Y. Supp. 314, 1892. (A temporary injunction was refused, where it was uncertain whether a nuisance existed, and whether the dump complained of was the cause of the alleged nuisance.) McGuire v. Bloomingdale, 8 Misc. Rep. 478, 1894. (B was a dry goods merchant, and had dynamos to run an electric light plant and pneumatic cash system. A lived upon adjoining premises and alleged that vibrations and noise from the machinery were a nuisance. Tem- porary injunction refused. It appeared that the noise was only such as was ordinarily incidental to the operation of similar machinery used in the conduct of like business in other parts of the city.) McELDOWNEY v. LOWTHER McELDOWNEY v. LOWTHER. In the Supreme Court of Appeals, of West Virginia, 1901. 49 West Virginia Reports, 348. Bill by John C. McEldowney and others against F. P Louther and others. From an order refusing to dissolve an injunction, defendant's appeal. Dent, Judge : F. P. Lowther and the Exchange Telephone Company of Littleton appeal from a vacation order of Judge Farr, of the circuit court of Wetzel County, refusing to dissolve an injunction granted to John C. McEldowney and others by the Hon. Thayer Melvin, Judge of the First Judicial Circuit. The plaintiffs for and on behalf of themselves and other citizens of the town of New Martinsville obtained an injunction restraining the defendant, appellants, from un- lawfully erecting additional telephone poles and stringing wires thereon along Maple Avenue in said town to the ir- reparable injury and damage to the property of plaintiffs and others abutting on said avenue. The defendant ap- pellants filed their answers, admitting the allegations of the bill, that defendant Lowther was about to erect a line of telephone poles along the east side of said avenue; that he had a line along the west side of the avenue, but it was insufficient to accommodate the demands of his business and owing to the fact that the Bell Telephone Company also had a line along the west side of such avenue, defend- ant's line could not be improved so as to accommodate his business and for this reason he desired and it was necessary to remove his line to the east side of the avenue, where he would have more room, and he claimed the right to do so under the original ordinance of the town council permit- ting him to erect the first line, for the reason that the lan- guage used was plural and not singular and granted him 58 NUISANCE the privilege of erecting lines instead of line. He further denied that the plaintiffs would be injured by such line as be proposed to erect. The defendants then moved in vacation for a dissolution of the injunction. The judge on consideration of the bill and answer and affidavits filed, refused to either dissolve or modify the injunction granted, but continued it until final hearing. It is a matter of sound discretion to continue or dis- solve an injunction on the filing of the answer contesting the equities of the bill, and the injunction should not be dissolved if its continuance will subserve the ends of justice, and protect the rights of the parties in interest. Nor will this Court interfere with the action of the circuit court in such cases, unless the circuit court has plainly abused its discretion in this respect. 10 Ency. Plead. & Prac, 1059; High on Injunction, s. 1467; Robrecht v. Robrecht, 46 W. Va. 738. When the papers as presented make out a prima facie case of nuisance on motion to dissolve in vacation, the injunction should be continued until the hearing. Mc- Gregor v. Camden, 47 W. Va. 193, (34 S. E. R. 936) ; Hogg's Equity Principles, s. 284; Heatherly v. Farmer's Bank, 31 W. Va. 70. It is plain from the allegations of the bill and the admission of the answer that the defendant is actively engaged in erecting a nuisance, to the great injury and detriment of plaintiffs' property and unless he has ac- quired the legal right to do so the injunction should be per- petuated. Elliott on Roads and Streets, ss. 644, 664, 665, 666; McDonald v. Newark, 42 N. J. E. 136; Brown v. Telephone Co., 42 N. J. E. 141 ; Cook v. Totten, decided at this term. The defendant Lowther being engaged in in- vading the plaintiffs' rights to the damage of their prop- erties, must show his legal authority to do so; otherwise the injunction must be perpetuated. The judge in over- ruling the vacation motion merely held that prima facie the case was for the plaintiffs, and it is impossible for this Court to say that in doing so the judge plainly violated his sound discretion in continuing the injunction until a hearing could McELDOWNEY v. LOWTHER 59 be had on the merits. But it is argued that the injunction is broad enough to prevent the stretching of additional wires upon its poles along the west side of the avenue and insisted that it should be modified to this extent. The in- junction must be construed by the bill, from which it is plainly apparent that it was not intended to interfere with the proper use of the telephone poles along the west side of the avenue, but only to prevent the illegal erection and use of a line along the east side of said avenue. Nor do the defendants claim in their answers that they are going to stretch any new lines along the west side of said avenue where Lowther now has his line of poles, or that they have been in any manner interfered with in the proper use thereof. The injunction so construed in the light of the bill requires no modification. The order complained of is affirmed. 1 Vm accord : Gardner v. Village of Newburgh, 2 Johns. Ch. 162, 1816. (A owned land through which ran a stream, from which B et til., trustees of a village, were authorized by Legislature to supply said village with water. The act made no provision for indemnifying A, who would thereby be deprived of his right to have sufficient water flow by his land to supply his cattle, distillery and a churning mill. Chancellor Kent granted an interlocutory injunction restraining any proceeding to divert the stream, saying, "I shall * * * wait for the answer, to see whether the merits of the case will be varied";) Arthur v. Case, 1 Paige 447, 1829. ,(A and B owned land on opposite sides of a stream, and operated mills. Dams provided mills with water, but. in the dry season there was not sufficient water to supply all the mills, and B, claiming the right to be supplied first, commenced building a dam, the effect of which would be to deprive A's mills of water in dry seasons. A preliminary injunction was granted, be- cause as a general rule opposite riparian owners are each entitled to equal shares of the water, and the injury might be irreparable) ; Blakemore v. Glamorganshire Co., 1 M. & K. 154, 1832. (A had manu- factory on stream, from which, by authority of Parliament, a canal was supplied with water. The B company were about to draw a large quantity of water from the river to the injury of A, by means of a collateral pond, which, it was alleged, was merely a contrivance for enabling the B. company to enlarge the canal, and A prayed that B be ordered to fill up the pond, and in the meantime be restrained from using it. The Court refused on intercolutory application to com- pel a positive act, but acted with a view to keep matters in statu quo) ; In Beaufort v. Morris, 6 Hare 340, 1847. (On a bill for an injunc- tion to protect A's coal mines from injury by the water flowing to them from B's colliery, the Court granted an injunction restraining B from working his coal mine in any places which might injure A's mines until answer or further order. At the hearing the Court re- fused to make the injunction perpetual, until A's right had been tried 60 NUISANCE at law, but continued the injunction in the meantime) ; Coker v. Birge, 10 Ga. 336, 1851. (A livery stable in a city, erected within sixty- five feet of a hotel, was held a prima facie nuisance, and restrained upon an interlocutory injunction) ; Pollock v. Lester, 11 Hare 266, 1853. (The burning of bricks restrained) ; Westminster Coal Co. v. Clayton, 36 L. J. Ch. 476, 1867. (A and B owned adjoining collieries. The barrier between the two mines having been perforated, B artificially conducted his water so as to pass by the perforations into A's mine, thereby causing irreparable damage to A. On interlocutory ap- plication a mandatory injunction was granted to keep things in the state in which they were ante litem motain until the hearing) ; Meigs v. Lister, 23 N. J. Eq. 199. 1872. (B et al. carried on an establishment for drying bone, and rendering refuse matter received from a large city. A et al. complained, and proved by affidavit that the odors which escaped from this establishment polluted the air and rendered it im- possible to live on complainant's premises with any degree of comfort. Complainants prayed an injunction against carrying on this establish- ment. A preliminary injunction granted. The nuisance being free from doubt, a delay of a few months should not prevent relief by pre- liminary injunction, without a trial at law) ; Fulton v. Greacen, 36 N. J. Eq. 216, 1882. (A operated a mill by water power. B was about to divert water from A's mill, claiming the right to do so under a clause in the deed, which provided that A forfeited his right to the water upon failure to pay the rent. This right was disputed, but a preliminary injunction was granted to prevent the irreparable threat- ened injury) ; Hobbs v. Amador Co., 66 Cal. 161. 1884. (B dumped the refuse from its mines into certain water courses, -which washed the debris down upon and spread them over A's land. The commission of an unlawful act by a corporation is not part of its general and ordinary business, and a temporary injunction issued to restrain the pollution of the stream, to the injury of A, without notice to the cor- poration") ; Atlanta v. Warnock, 91 Ga. 210, 1892. (It was held to be no abuse of discretion in granting a temporary injunction to enjoin a city, vested with plenary powers over streets, sewers, etc., "from con- tinuing said manholes in such condition as to allow the escape of noxious gases," to injury of complainant) ; Dimon v. Shewan, 34 Misc. Rep. 72, 1901. (A temporary injunction was granted and con- tinued pendente lite, upon the complaint of owners of a bulkhead on the river front, who had the right to exact wharfage, to restrain lessees of the city from constructing a floating dry dock, so as to constitute a nuisance to complainants) ; Southern Co. v. Bull, 116 Ga. 776, igo2. (A temporary injunction issued at the instance of a property holder, averring special damage, to restrain a railroad company and manu- facturing company from building a spur track across a public street. A preponderance of the evidence showed that running locomotives at that place would be an unauthorized nuisance) ; Colonial Woolen Co. v. Trenton Co., 55 Atl. Rep. 993, 1903. (A and B were mill owners. B discharged water into a tail-race running over A's land, which washed out portions of the foundation of A's mill, inundated his dyeing tubs and injured the goods in them. Injunction awarded restraining the discharge of an amount of water dangerous to A's premises, until the rights of the parties were determined at law) ; Wilson v. Eagleson, 71 Pac. Rep. 613. 1903. (A and B were owners of an irrigating ditch. B had placed check-gates in the ditch, which prevented the water be- longing to A from flowing to his lands. A preliminary injunction granted to restrain the acts which caused great and irreparable in- jury to A's growing crops) ; The balance of injury will be taken into consideration upon ap- plication for an interlocutory injunction. See cases cited in note to Sullivan v. Jones & Laughlin Steel Co., infra. WEBB v. PORTLAND MANUFACTURING COMPANY fil WEBB v. PORTLAND MANUFACTURING COM- PANY. In The Circuit Court of United States, for 9th District of Maine, 1838. 3 Summer's Reports, 189. Bill in equity for an injunction by the plaintiff to pre- vent the defendant from diverting a watercourse from the plaintiff's mill and for further relief. The facts admitted on all sides were, that at the Sac- carappi Falls, on the river Presumpscut, there were two successive falls, upon which there are erected certain mills and mill dams, the latter being called the upper and the lower mill dams, and the distance between them is about forty or fifty rods; and the water therein constituted the mill-pond of the lower dam. The plaintiff is the owner of certain mills and mill privileges, in severalty, upon the lower dam, and the defendants are entitled to certain other mills, and mill privileges on the same dam, also in severalty, as to a portion of one of the mills, there was a controversy between the parties in regard to title; but that controversy in no essential degree affected the question presented to the Court. The defendants are the owners of a cotton-factory mill near the left bank of the river, and opened a canal for the supply of the water necessary to work that mill, into the pond immediately below the upper dam ; and the water thus withdrawn was returned again into the river immediately below the lower dam. The defendants insisted upon their right so to divert and withdraw the water, by means of their canal, upon the ground that it was a small part only (about one-fourth) of the water to which as mill-owners on the lower dam, they were entitled; and that there was no damage whatsoever done to the plaintiff's mill by this diver- sion of the water. 62 NUISANCE Upon the coming in of the answer, a preliminary- question was suggested by the Court at the hearing, which was argued by C. S. Davis for the plaintiff, and P. Mellen and Lonfellow for the defendants. Story, J : The question, which has been argued upon the suggestion of the court, is of vital importance in the cause ; and, if decided in faVor of the plaintiff, it supersedes many of the inquires to which our attention must otherwise be directed. It is on this account, that we thought it proper to be argued separately from the general merits of the cause. The argument for the defendants, then, presents two distinct questions. The first is, whether, to maintain the present suit, it is essential for the plaintiff to establish any actual damage. The second is, whether, in point of law a mill-owner, having a right to a certain portion of the water of a stream for the use of his mill at a particular dam, has a right to draw off the same portion, or any less quantity of the water, at a considerable distance above the dam, without the consent of the owners of the mills on the same dam. In connection with these questions, the point will also incidentally arise, whether it makes any difference, that such drawing off of the water above can be shown to be no sensible injury to the other mill-owners on the lower dam. As to the first question, I can very well understand that no action lies in a case where there is dammm absque in- juria, that is, where there is a damage done without any wrong or violation of any right of the plaintiff. But I am not able to understand, how it can correctly be said, in a legal sense, that an action will not lie, even in case of a wrong or violation of a right, unless it is followed by some perceptible damage, which can be established, as a matter of fact ; in other words, that injuria sine damno is not action- able. On the contrary, from my earliest reading I have considered it laid up among the very elements of the com- mon law, that, wherever there is a wrong, there is a remedy WEBB v. PORTLAND MANUFACTURING COMPANY 63 to redress it, and that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages. A fortiori, this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the de- fendant, if continued, may become the foundation, by lapse of time, of an adverse right in the defendant; for then it assumes the character not merely of a violation of a right, tending to diminish its value, but it goes to the absolute destruction and extinguishment of it. Under such circumstances, unless the party injured can protect his right from such a violation by an action, it is plain, that it may be lost or destroyed, without any possible remedial redress. In my judgment, the common law countenances no such in- consistency, not to call it by a stronger name.. Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no farther inquiry than whether there has been the violation of a right. If so, the party injured is entitled to damages, in vindication of his right, if no other damages are fit and proper to remunerate him. Upon the whole, without going farther into an ex- amination of the authorities on this subject, my judgment is, that, whenever there is a clear violation of a right, it is not necessary in an action of this sort to show actual damage; that every violation imports damage; and if no other be proved, the plaintiff is entitled to a verdict for nom- inal damages. And, a fortiori, that this doctrine applies whenever the act done is of such a nature as that by its repetition or continuance it may become the foundation or evidence of an adverse right. But if the doctrine were otherwise, and no action were maintainable at law, without proof of actual damage; that would furnish no ground why a Court of Equity should not interfere, and protect such a right from violation and in- 64 NUISANCE vasion; for, in a great variety of cases, the very ground of the interposition of a Court of Equity is, that the injury done is irremediable at law; and that the right can only be permanently preserved or perpetuated by the powers of a Court of Equity. And one of the most ordinary pro- cesses to accomplish this end is by a writ of injunction, the nature and efficacy of which for such purpose I need not state, as the elementary treaties fully expound them. If, then, the diversion of water complained of in the present case is a violation of the right of the plaintiffs, and may per- manently injure that right and become, by lapse of time, a foundation of an adverse right in the defendant, I know of no more fit case for the interposition of a Court of Equity, by way of injunction, to restrain the defendants from such an injurious act. If there be a remedy for the plaintiffs at law for damages, still that remedy is inadequate to prevent and redress the mischief. If there be no such remedy at law, then, a fortiori, a Court of Equity ought to give its aid to vindicate and perpetuate the right of the plaintiffs. A Court of Equity will not indeed entertain a bill for an injunction in case of a mere trespass fully remediable at law. But it might occasion irreparable mischief, or per- manent injury, or destroy a right, that is the appropriate case for such a bill. Let us come, then, to the only remaining question in the cause; and that is, whether any right of the plaintiff, as mill-owner on the lower dam, is or will be violated by the diversion of the water by the canal of the defendants. And here it does not seem to me that, upon the present state of the law, there is any real ground for controversy, al- though there were formerly many vexed questions, and much contrariety of opinion. The true doctrine is laid down in Wright v. Howard (i Sim. & Stu. R. 190), by Sir John Leach, in regard to riparian proprietors, and his opin- ion has since been deliberately adopted by the King's Bench. "Prima facie, (says that learned judge,) the pro- prietor of each bank of a stream is the proprietor of half the WEBB v. PORTLAND MANUFACTURING COMPANY 65 land covered by the stream; but there is no property in the water. Every proprietor has an equal right to use the water, which flows in the stream; and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor, without the consent of the other proprietors, who may be affected by his operations ; no proprietor can either diminish the quantity of water, which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor, who claims a right, either to throw the water back above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years, which term of twenty years is now adopted upon a principle of general convenience, as affording conclusive presumption of a grant." * * * * The same principle applies to the owners of mills on a stream. They have an undoubted right to the flow of the water, as it has been accustomed of right and naturally to flow to their respective mills. The proprietor above has no right to divert, or unreasonably to retard, this natural flow to the mills below ; and nb proprietor below has a right to retard or turn it back upon the mills above, to the preju- dice of the right of the proprietors thereof. * * * * Now, if this be the law on this subject, upon what ground can the defendants insist upon a diversion of the natural stream from the plaintiff's mills, as it has been of right accusomed to flow thereto ? First, it is said, that there is no perceptible damage done to the plaintiffs. That suggestion has been already in part answered. If it were true, it could not authorize a diversion, because it impairs the right of the plaintiffs to the full, natural flow of the stream ; and may become the foundation of an adverse right 66 NUISANCE in the defendants. In such a case, actual damage is not necessary to be established in proof. The law presumes it. The act imports damages to the right, if damage be neces- sary. Such a case is wholly distinguishable from a mere fugitive, temporary trespass, by diverting or withdraw- ing the water a short period, without damage, and without any pretence of right. In such a case the wrong, if there be no sensible damage and it be transient in its nature and character, as it does not touch the right, may possibly (for I give no opinion upon such a case) be without redress at law ; and certainly it would found no ground for the inter- position of a Court of Equity by way of injunction. * * * * But I confess myself wholly unable to comprehend, how it can be assumed in a case like the present, that there is not and cannot be an actual damage to the right of the plain- tiffs. What is that right ? It is the right of having the water flow in its natural current at all times of the year to the plaintiff's mills. Now, the value of the mill privileges must essentially depend, not merely upon the velocity of the stream, but upon the head of water which is permanently maintained. The necessary result of lowering the head of water permanently would seem, therefore, to be a direct diminution of the value of the privileges. And if so, to extent it must be an actual damage. ^c ^c ^c ^c A suggestion has also been made, that the defendants have fully indemnified the plaintiff from any injury, and in truth have conferred a benefit on him, by securing the water by means of a raised dam, higher up the stream, at Sebago Pond, in a reservoir, so as to be capable of affording a full supply in the stream in the dryest seasons. To this sug- gestion several answers may be given. In the first place, the plaintiff is no party to the contract for raising the new dam, and has no interest therein; and cannot, as a mater of right, insist upon its being kept up, or upon any advantage to be WEBB v. PORTLAND MANUFACTURING COMPANY 67 derived therefrom. In the next place, the plaintiff is not compellable to exchange one right for another; or to part with a present interest in favor of the defendants at the mere election of the latter. Even a supposed benefit can- not be forced upon him against his will; and, certainly, there is no pretence to say, that, in point of law, the de- fendants have any right to substitute, for a present existing right of the plaintiff's, any other, which they may deem to be an equivalent. The private property of one man can- not be taken by another, simply because he can substitute an equivalent benefit. Having made these remarks upon the points raised in the argument, the subject, at least so far as it is at present open for the consideration of the Court, appears to me to be exhausted. Whether, consistently with this opinion, it is practicable for the defendants successfully to establish any substantial defense to the bill, 'it is for the defendants, and not for the Court, to consider. I am authorized to say, that the District Judge concurs in this opinion. Decree accordingly} "In the following cases the defendant's use of the water being, re- garded as unreasonable, the injunction was granted, though the plain- tiff could not show' that he was suffering serious pecuniary damage: Wilts Co. v. Swindon Co., L. R., 9 Ch. App. 451, 1874; Brown v. Ash- ley, 16 Nev. 311, 1881; Smith v. Rochester, 38 Hun. 612, 1886, affirmed, 104 N. Y. 674; Roberts v. Gwyrfai (1899), I Ch. 583; McEvoy v. Gallagher, 107 Wis. 331, 1900; Amsterdam Knitting Co. v. Dean, 162 N. Y. 278, 1900. Compare : Shreve v. Voorhees, 3 N. J. Eq., 25, 1834. It has been said that the reason for enjoining a diversion of water without plaintiff being required to show damage, is that at law plain- tiff may maintain an action, without showing damage on account of the invasion of his right to have the water flow in its usual course; Parker v. Griswold, 17 Conn. 288, 1845 ; Miller v. Miller, 9 Pa. 74, 1848. And equity will enjoin in order to avoid a multiplicity of suits; Olmsted v. Loomis, 9 N. Y. 423, 1854; Burden v. Stein, 27 Ala. 104, 1855 ; Moore v. Clear Lake Water Works, 68 Cal. 146, 1885 ; Chestatee Co. v. Cavenders Co., 118 Ga. 255, 1903; Miller v. Rickey, 127 Fed. 573. I9°4- Compare: Westbrook Mfg. Co. v. Warren, 77 Me. 437, 1885. (A bill in equity by one mill owner to enjoin other mill owners upon the opposite side of the stream at the same power, from using more than one-half of the water, complained that the defendants had, within ten days, commenced to use and were continuing to use, and threatening to use in the future more water than they were lawfully entitled to, thereby depriving the plaintiff of sufficient water to run 68 NUISANCE its mill, some portions of which had to be shut down, throwing out of employment some two hundred persons. Held, that the injury claimed did not appear to be of that permanent or irreparable character neces- sary to require the interposition of a court of equity by way of in- junction. In accord, Heilbron v. Land & Water Co., 80 Cal. 189, 1889.) In the following cases the defendant's use being unreasonable and the plaintiff suffering present damage, the injunction was granted; Wilts Co. v. Swinson Co., L. R. 9 Ch. App. 451, 1874. (To furnish the water supply of a village or city is not a reasonable use for a riparian owner to make of running water. In accord: Higgins v. Flemington Water Co., 36 N. J. Eq. 538, 1883; Lonsdale Co. v. Woon- socket, 25 R. I., 428, 1903; Gray v. Village of Ft. Plain, 94 N. Y. S. 698, 1905) ; Heilborn v. Canal Co., 75 Cal. 426, 1888. (Where the in- jury caused by the diversion is incapable of ascertainment or cannot be measured by any certain pecuniary standard, equity will not leave a riparian owner to a verdict at law) ; Britt v. Reed, 42 Or. 76, 1902. (B, a prior appropriator of water, who claimed by prescription, en- joined from improperly infringing upon the rights of A, a lower ripar- ian owner) ; Goodrich v. Georgia R. R. Co., 115 Ga. 340, 1902. (In- junction granted, notwithstanding it was necessary for defendant to do a positive act, i. e., close the ditch which had the effect of diverting the stream from its natural course) ; In accord : Dilling v. Murray, 6 Ind. 324, 1855 ; Ferrea v. Knipe, 28 Cal. 340, 1865 ; Walker v. Emerson, 80 Cal. 456, 1891 ; Stock v. Jefferson Twp., 114 Mich. 357, 1897; Webster v. Harris, 69 S. W. 782, 190*2. In the following cases defendant's use of the water was regarded as reasonable and the injunction was refused: Clinton v. Myers, 46 N. Y. 511, 1871. (The water was used for the propulsion of such machinery as the stream in its ordinary stages was adequate to pro- pel) ; Stanford v. Felt, 71 Cal. 249, 1886. (Use of water for domestic purpose and for the support of life, is reasonable) ; Lux v. Haggin, 69 Cal. 255, 1886. (What is a reasonable use depends upon the circum- stances appearing in each particular case) ; Fifield v. Spring Valley Water Works, 130 Cal. 552, 1900. (B diverted storm or flood waters of a stream, which in no way interfered with the rights of A, a lower riparian owner) ; Daum v. Cooper, 208 111. 391, 1904. (One may change the course of a natural water-course on his own land if he restores it to the original channel before it reaches the land of another, provided such change does not cast upon the lands of an adjoining owner, water not naturally flowing there.) SOLTAU v. DeHELD 69 SOLTAU v. De HELD In Chancery, before Vice-Chancellor Cranworth, 1851. 2 Simons Report New Series, 133. This was an application for an injunction to restrain the ringing of the bells of a chapel belonging to the Roman Catholic Order of Redemptorist Fathers, so as to occasion any nuisance, disturbance, and annoyance to the plaintiff, who resided next door. 1 The Vice-Chancellor: This case came before me, in the first instance, by way of demurrer; and, the demurrer having been overruled, a motion for an injunction was made. I abstained from ex- piessing, at the time, my reasons for overruling the de- murrer, from an apprehension that I might intimate some opinion or drop some expression that might prejudice the argument oh the motion. I shall now state my reasons for overruling the demurrer, and then I shall give my opinion on the motion. The demurrer is a general demurrer for want of equity ; and, of course, by that demurrer, the Defendant under- takes to show that, upon the statements contained in the bill, the Plaintiff would not be entitled to any relief at the hearing of the Cause. The statements of the bill are as follows, &c. &c. &c. The first ground of demurrer to this bill is that the nuisance complained of is a public nuisance; and, therefore, the suit should have been instituted by the Attorney-General; and that it is not competent to the Plaintiff to file a bill respecting it. With regard to that ground of demurrer, my opinion 'The statement of facts, as reported, is abbreviated and the argu- ments of counsel are omitted. 70 NUISANCE is that it is extremely questionable (to say the least) whether this is a public nuisance at all. But, in the view which I take of the case, it is scarcely, if at all, necessary to consider whether it be or be not a public nuisance. I entertain, however, very great doubt whether it be a public nuisance. I conceive that, to constitute a public nuisance, the thing must be such as, in its nature or its consequences, is a nuisance — an injury or a damage, to all persons who come within the sphere of its operation, though it may be so in a greater degree to some than it is to others. For example, take the case of the operations of a manufactory, in the course of which operations volumes of noxious smoke, or of poisonous effluvia, are emitted. To all persons who are at all within the reach of those operations, it is more or less objectionable, more or less a nuisance in the popular sense of the term. It is true that, to those who are nearer to it, it may be a greater nuisance, a greater inconvenience than it is to those who are more remote from it; but, still, to all who are at all within the reach of it, it is more or less a nuisance or an inconvenience.. Take another ordinary case, perhaps the most ordinary case of a public nuisance, the stopping of the king's highway : that is a nuisance to all who may have occasion to travel that highway. It may be a much greater nuisance to a person who has to travel it every day of his life, than it is to a person who has to travel it only once a year, or once in five years : but it is more or less a nuisance to every one who has occasion to use it. If, however, the thing complained of is such that it is a great nuisance to those who are more immediately within the sphere of its operations, but is no nuisance or inconvenience whatever, or is even advan- tageous or pleasurable to those who are more removed from it, there, I conceive, it does not come within the meaning of the term public nuisance. The case before me is a case in point. A peal of bells may be, and no doubt is an extreme nuisance, and, perhaps, an intolerable nuisance to a person who lives within a very few feet or yards of them; but, to SOLTAU v. DeHELD 71 a person who lives at a distance from them, although he is within the reach of their sound, so far from its being a nuisance or an inconvenience, it may be a positive pleasure ; for I cannot assent to the proposition of the Plaintiff's Counsel that, in all circumstances and under all conditions, the sound of bells must be a nuisance. And it is rather curious that one of the witnesses who was examined on the trial on the part of the Plaintiff, and who deposed, strongly, to the bells being an intolerable nuisance when he was in Mr. Soltau's house, says : "But, where I live at Clapham, which is about a furlong from the bells and with the inter- vention of trees, so far from their being a nuisance to me, they are a positive gratification; and I confess I should be extremely sorry if they were done away with." I mention that only by way of illustrating that, in this case, to some persons who live within the sound of these bells they may be no nuisance at all ; and, no doubt, are none; and, therefore, I very much doubt, indeed, my opinion is that the nuisance complained of in this case, could not be indicted as a public nuisance. * * * * But it is clear that that which is a public nuisance, may be also a private nuisance to a particular individual, by inflicting on him some special or particular damage : and, if it be both, that is, if it be, in its nature, a public nuisance, and, at the same time, does inflict, on a particular individual, a special and particular damage, may not that individual have his private remedy at Law, by action, or, in Equity, by bill? That is the question which is to be determined with respect to this ground of demurrer. The Defendant's Counsel insist that he cannot; and several cases were cited in support of that proposition. But, on referring to those cases, it appears to me that they do not support that prop- osition. 2 2 His discussion of the cases is omitted. In accord with this por- tion of the principal case, see the following American cases : Corning v. Lowerre, 6 Johns. Ch. 439, 1822. (An injunction was granted to re- 72 NUISANCE I am of opinion, therefore, that the first ground of de- murrer is not tenable. 3 I now proceed to give my opinion with regard to the motion. And many of the observations which I have made upon the demurrer, necessarily apply, more or less, to the motion : for I find that the facts alleged by the bill are verified by affidavit. I have already stated those facts, and, therefore, I need not repeat them. But I must observe that the six bells in the steeple of the church, are not, in respect of size such as are used in most chapels and district churches in and near London : but they are unusually large bells ; and the effect produced by ringing them is thus described by Mr. Soltau in his affidavit: He says, "That, when a peal of the bells of the said Roman Catholic church was rung, the noise was so great that it was impossible for me or the members of the family, to read, write, or converse in my dwelling-house : And I further say that the tolling and ring- ing of the said bell and bells, was and is an intolerable nuisance to me; and, if the said bell or bells is or are per- mitted to be tolled or rung in the manner in which the same was tolled and rung as aforesaid, it will be impossible for me to continue to reside, any longer, in my said house." That is the description of the effect produced by the ringing of the bells as it was practised antecedently to the trial in August last. It appears that the chapel bell has been since removed from the top of the building to the side furtherest from the Plaintiff's house. The affidavit then strain defendant from obstructing a highway by building thereon, it being not only a public nuisance, but producing a special injury to the plaintiff) ; Green v. Oakes, 17 111. 249, 1855 ; Milhau v. Sharp, 27 N. Y. 611, 1863; Ewell v. Greenwood, 26 Iowa 377, 1868; Pettibone v. Hamilton, 40 Wis. 402, 1876; Martin v. Marks, 154 Ind. 549, 1900; Pence v. Bryant, 46 S. E. 27s, 1903; Weiss v. Taylor, 39 So. 519, 1905. The rule was also recognized in Hamilton v. Whitridge, 11 Md. 128, 1857 ; Allen v. Board of Freeholders, 13 N. J. Eq. 68, i860 ; Sheboygan v. Sheboygan R. R. Co., 21 Wis. 667, 1867; Sparhawk v. Union Pass. Ry., 54 Pa. 401, 1867 ; Green v. Nunnemacher, 36 Wis. 50, 1874 ; Baker v. McDaniel, 178 Mo. 447, 1903. "The discussion of the second ground of demurrer, relating to the necessity of a previous trial at law, is omitted. SOLTAU v. DeHELD 73 describes the effect of the ringing which took place on the 9th and 16th November last, that is, as it is now practised: "And I further say that the tolling and ringing of the said bells of the said Roman Catholic church in the manner in which they were so tolled and rung on the said 9th day of November instant and 16th day of November instant, caused considerable annoyance to myself, and disturbed the de- votions of the members of my family; and that, during the time or times when some of the more weighty of these said bells are rung or tolled, it is impossible for me to read or converse without great difficulty." Then he mentions the fact of his daughter having been removed from the house, which I do not dwell upon, and he proceeds thus: "And I further say that the tolling and ringing of said bells on the said 9th and 16th days of November 185 1, was a great annoyance and nuisance to me and my family ; and I further say that, if the said bells of the said church are permitted to be tolled and rung- in the manner in which they were so tolled and rung on the 19th and 16th days of November as aforesaid, the value of my said dwelling-house and premises will be considerably diminished and that if I and my family are compelled to leave, I could only dispose of it at a great pecuniary sacrifice; and I further say that the distance of my bedroom from the bell of the said chapel and the bells of the said church, does not exceed twenty yards."' There is another affidavit, that of Mr. Gadsden, in support of the Plaintiff's case, which thus states the nuisance as it exists according to the present practice of ringing : "I further say that I have heard the said bells, as they now ring and toll since the 13th August, when I was in the Plaintiff's residence, on the 30th November now last past;" that 30th November being a Sunday; "and I con- sider the ringing and tolling of the said bells, both as they were rung and tolled, prior to the 13th day of August 1 85 1, and as they are now rung and tolled, to be peculiarly annoying and distressing to any person occupying the said residence of the said Plaintiff; and, in my opinion, the 74 NUISANCE value thereof is greatly decreased by reason of such ring- ing and tolling." Then he goes on to state: "That, if the said bells were not rung and tolled as aforesaid, in my opinion, the house would still let for 130/. per annum, the rent which I am informed the said Plaintiff now pays for it; and I say that I consider, from the peculiar position of the said church with reference to the Plaintiff's residence that any ringing or tolling the bells of the said church, even on a Sunday only, as they are now rung and tolled, would have the effect of deteriorating the value thereof; because I do not beleive any private gentleman or lady or person who could afford to pay such a rent would become a tenant thereof." That is the account given of the effect of the present nuisance. ,Now it struck me, at the time when the motion was made, that more persons ought to have been brought forward to depose to the fact of the nuisance. But, when I consider that, in fact, there is no controversy about it, and that there is no contradictory evidence, I think that the plaintiff was perfectly justified in not producing any further evidence than his own affidavit and the affidavit of one disinterested person. It is not, however, quite correct to say, that there is no controversy about the nuisance ; for there is an affidavit on the part of the defendant, made by Mr. Wright, a builder and house agent at Clapham, who says : "I live near the church in the pleadings men- tioned and within full hearing of the bells in the plead- ings also mentioned; and I say that I do not consider them any nuisance; and I say that I know, from frequent communication wtih my neighbours, that the said bells are not considered a nuisance to persons generally." And then he adds this : "and I say that the four Protestant churches in Clapham, have and use bells which ring several times, for half an hour at a time, on Sundays, and twice on Wednesdays and Fridays, besides frequent ringings, during the day, for deaths and funerals." That is the only af- fidavit which at all contradicts the fact of this being a nuisance : but what does it amount to ? This gentleman SOLTAU v. DeHELD 75 says : "I live near the church." The question is how near? He says; I live within full hearing of the bells;" yes, but how near to the bells? He says that his neighbours do not consider them a nuisance.. But where do those neigh- bours live? How near to the bells? It really comes round to what I observed upon the demurrer, that the ring- ing of these bells, is a great nuisance to a person living as near as the Plaintiff does, but is not only no nuisance, but may be a cause of pleasureable sensations to those who live further off : and, as Mr. Wright has not thought fit to tell me how near he lives to the church, I am left to conjecture : it may be 50 yards, 100 yards, 500 yards, or 1000 yards; and although he may live sufficiently near to the church to hear the bells, yet he may hear them in a way which may be gratifying, or, at all events not annoying. So, also, with respect to the neighbours : we have no means of knowing who those neighbours are, or how near they live. All that we are told is that they do not consider the ringing a nuisance. Therefore I consider the fact of its being a nuisance, sufficiently established by the affidavits which have been made by and on the part of the Plaintiff. More- over one ought to take into consideration the actual cir- cumstances proved and not at all disputed, namely, that these bells are of a most unusual weight, and size ; that they are placed in a steeple which is almost in front of the Plain- tiff's house; and in a place which was the court-yard of the mansion-house, before it was divided into two houses. When you consider those circumstances, it is hardly necessary to produce affidavits to show that it must be an intolerable nuisance to have such large bells ringing, though for a short period of time and only on Sundays, so near to the Plaintiff's house: and it is to be remembered that the Plaintiff has not gone to the bells, but the bells have come to him.. Then I may further observe, in connection with this point, that the plaintiff swears that he is informed and believes that the Defendant threatens and intends not only to continue tolling or ringing the last-mentioned bells every 76 NUISANCE Sunday, in manner last aforesaid, but also to ring peals of the said six bells; and also to toll and ring on week days, and also to toll and ring the bell of the chapel : and there is no contradiction to that; and therefore I must take it that there is the intention, or, at all events, the reservation of the right, on the part of the Defendant, to ring as much as he pleases. Then it is said that part of what is alleged, by the Plaintiff, as the mischief arising to him, is the diminution in value of his house; and it is said, and with perfect truth, by the Defendant's Counsel, that diminution in value does not constitute nuisance, and is no ground for the Court's in- terfering. But, although it is perfectly true that mere diminution of value does not, per se, constitute nuisance, yet, surely the extent of the nuisance, if it be a nuisance, may be materially shown by this; that so great is the nuisance that no person who can afford to live in such a house as the Plaintiff's, would take it with such a nuisance ; and the only person who could be expected to take it, would be one who would pay only a very small rent, and to whom it was a great object to have a very large house at a very small rent, and who would bear with the nuisance for the sake of the small rent which he paid. I say, in that way, the diminution of value is of very great moment, not as constituting a nuisance, but as an indicium of the extent of the nuisance. Under those circumstances the question that I have to determine is a question which I cannot do better than state in the language of .Vice-Chancellor Knight Bruce, when he decided the case of Walter v. Selfe.* He says: "The important point next for decision may properly, I con- ceive, be thus put : Ought this inconvenience to be consider- ed, in fact, as more than fanciful, or as one of mere delicacy or fastidiousness; as an inconvenience materially interfering with the ordinary comfort, physically, of human '4 De Gex & Smale. 315, 1851. SOLTAU v. DeHELD 77 existence, not merely according to elegant or dainty modes and habits of living; but according to plain, sober and simple notions among the English people?" That, I think enun- ciates distinctly the question which is to be tried upon such an occasion as this ; and I must add, in the very words of Vice-Chancellor Knight Bruce; that I am of opinion that this point is against the Defendant ; that this is such an in- convenience, and such an invasion of the domestic comfort and enjoyment of a man's home, that he is entitled to come and ask this Court to interfere.. And, upon that point, I will just refer to the language of Lord Eldon, in the case of The Attorney-General v. Nichols. 5 He says: "The foundation of this jurisdiction," (that is, interfering by in- junction) "is that head of mischief alluded to by Lord Hardwicke; that sort of material injury to the comfort of the existence of those who dwell in a neighboring house, requiring the application of a power to prevent, as well as remedy, an evil for which damages, more or less, would be given in an action at law." That is the ground for in- terference by injunction, and that is the ground upon which, I conceive, that I ought to grant an injunction in this case. There has been no acquiescence in this case. The Plain- tiff has diligently asserted his rights : and I think that he is entitled to an injunction; but not quite in the terms in which it is asked by the notice of motion. The bill asks for an in- junction to restrain the ringing of these bells altogether ; or, in the alternative, to restrain the ringing of them so as to cause or occasion any nuisance or annoyance to the Plaintiff or any of the members of his family residing in his house ; and it appears to me that the latter is very nearly the form in which the injunction ought to be granted. Therefore I shall order an injunction to issue to restrain the Defendant and all persons acting under his direction or by his authority, •i6 Ves. 338, 1809. 78 NUISANCE from tolling or ringing the bells in the Plaintiff's bill men- tioned or any of them, so as to occasion any nuisance, dis- turbance and annoyance to the Plaintiff and his family resid- ing in his dwelling-house in the bill mentioned. In thus wording the injunction, I am following what was done, by Vice-Chancellor Knight Bruce, in Walter v. Selfe. I cannot say that it is absolutely impossible that any one of these bells may not be rung so as not to occasion any nui- sance or annoyance to the Plaintiff. It is possible; and, therefore I do not think it right to say that none of the bells shall be rung again. 6 6 The ringing of bells at unreasonable hours was enjoined in Harri- son v. Mark's Church, 3 W. N. C. 384 (Pa.) 1877; Davis v. Sawyer, 133 Mass. 289, 1882; Leete v. Pilgrim Congregational Soc, 14 Mo. App. 590, 1884. Other instance where the courts restrained the defendants from disturbing the complainants by noises : Dennis v. Eckhardt, 3 Grant 390, 1862. (The defendant, a tinsmith, was enjoined from work- ing in his shop at unreasonable hours) ; Bishop v. Banks, 33 Conn. 118, 1865. (The bleating of calves kept over night at a slaughter house, to be slaughted in the morning, to the serious annoyance of a family dwelling near, was held to be a nuisance.) Inchbald v. Robinson, L. R. 4 Ch. App. 388, 1869. (The noise of the music and shouting in a cir- cus was restrained by injunction.) Ball v. Ray, L. R. 8 Ch. App. 467, 1873, and Broder v. Saillard, L. R. 2 Ch. Div. 692, 1876. (The constant noise arising from the stamping and kicking of horses was the annoy- ance complained of and an injunction was granted to prevent the defendant from keeping horses in his stable so as to be a nuisance). Sny- der v. Cabell,, 29 W. Va. 48, 1886 (Skating rink) ; Bellamy v. Wells, 60 L. J. Ch. Div. 156, 1890 (Crowds and whistling) ; Lambton v. Mellish, L. R. 3 Ch. (1894) 163 (Organs) ; Mill v. McBurney, 112 Ga. 788, 1900 (Whistles) ; Leeds v. Bohemian Art Glass Works, 52 Atl. Rep. 375, 1902 (Factory noises) ; Morey v. Black, 20 Montg. Co. 150, (Pa.) 1904 (Bowling alley.) GOLDSMID v. TUNBRIDGE WELLS 79 GOLDSMID v. TUNBRIDGE WELLS IMPROVEMENT COMMISSIONERS In the Court of Appeal in Chancery, 1866. Law Reports, 1 Chancery Appeal, 349. This was an appeal from a decree of the Master of the Rolls. The plaintiff was tenant for life of a mansion and estate near Tunbridge Wells, called Somerhill. The defendants were Commissioners for the Improvement of Tunbridge Wells, under a local Act of the 9 & 10 Vict., which gave full powers to drain the town, to make sewers, and to turn any drain or sewer into a common ditch or watercourse. In the execution of the powers of their Act, the De- fendants drained the greater part of the town into a brook called Calverley Brook, which afterwards passed through the Plaintiff's estate and supplied the water of an ornamental lake in his park. When the Plaintiff came into possession of the estate in 1859, the water of Calverley Brook, although at that time it received some of the drainage of the town, and also of the farms lying between Tunbridge Wells' and Somerhill, was fit for domestic use ; but since that time, and especially for the last three or four years, as the town in- creased in size, the amount of sewage flowing into the stream had greatly increased, and the Plaintiff complained that the water had become foul and unwholesome. The Plaintiff accordingly filed the present bill, praying that the Defendants might be restrained from permitting the sewage draining from the town of Tunbridge Wells to flow into Calverley Brook, or to pollute the water of the Plaintiff's lake and mill stream. Considerable evidence was produced on both sides, from scientific and other persons, as to the conditions of the water in the brook as it passed through the Plaintiff's 80 NUISANCE land, and also at the Powder Mill, and other points which lay between the Plaintiff's land and the town. The Master of the Rolls, before whom the cause was heard on motion for decree, granted the relief prayed by the bills, and from this decision the Defendants appealed. 1 Sir G. J. Turner, L. J., after stating the facts of the case , and the decree of the Master of the Rolls continued : — • It is from this decree that the present appeal has been brought by the Defendants. The argument on this appeal turned mainly upon the questions whether the discharge by the Defendants amounted to or occasioned a nuisance presently affecting the Plaintiff's estate; and if it did not, then whether the continuance of the discharge would result in producing such a nuisance ; and in either case, whether the nature and extent of the nuisance, present or prospective was such as that this Court ought now to interfere by in- junction to prevent the discharge. We come then, to the questions above proposed, the first of which, the question of present nuisance, is purely a question of fact, depending upon the weight of the evidence upon the one side and upon the other. There are two dis- tinct branches of the evidence: first, what may be called the scientific evidence, and secondly, the evidence which points to the facts as they actually stand. Speaking with all possible respect to the scientific gentlemen who have given their evidence, and as to whom it is but just to say that they have dealt with the case most ably and most impartially, I think that in cases of this nature much more weight is due to the facts which are proved than to conclusions drawn from scientific investigations. The conclusions to be drawn from scientific investigations are, no doubt, in such cases of great value in aid or in explanation and qualification of the facts which are proved, but in my judgement it is upon the facts which are proved, and not upon such conclusions, the Court ought in these cases mainly to rely. I think so the more 'The arguments of counsel are omitted. GOLDSMID v. TUNBRIDGE WELLS 81 strongly in this particular case, because it is obvious that that the scientific examinations which have been made of the water of this brook must have depended much upon the state of circumstances which existed at the times when those investigations took place. They might well have been af- fected by the force of the stream at the times of investiga- tion, and probably by the state of the weather, as tending or not tending to the diffusion or dispersion of noxious smells. In my view of this case, therefore, the scientific evidence ought to be considered as secondary only to the evidence as to the facts. How, then, does this case stand as to the facts ? There are many witnesses on the part of the Plaintiff, who dispose to the fact that, until within the last few years, the water of this brook was fit to be used, and was used, by them for drinking and for domestic purposes, and that it cannot now be so used. Some of these witnesses speak to the state of the water above and others of them to its state below the Powder Mill. (His Lordship then entered into an examination of the evidence and continued : — ) •Upon the fair result of the evidence on both sides it seems to me that the just conclusion to be drawn from it is that the solid sewage is almost if not wholly deposited before the stream reaches Great Lodge, but that the liquid sewage passes on and befouls the stream as well above as below the Powder. Mill. Then, looking to the scientific evidence in connection with the facts that are proved, it seems to me that the evidence of the scientific witnesses on the part of the Plaintiff tends much to corroborate these conclusions, and that the evidence of the scientific witnesses on the part of the Defendants certainly does not displace them. The Defendants have attempted to refer the foulness of the water of the brook to other causes, but in my opinion the evidence on the part of the Plaintiff far outweighs that on the part of the Defendants upon this branch of the case. Upon the whole, therefore, my opinion is that the Plaintiff has estab- 82 NUISANCE lished the existence of a nuisance, presently affecting the estate, by the water of the brook being befouled by the sew- age discharged by the Defendants into it. 2 Then, as to the second question — that of prospective nuisance — I am satisfied upon the evidence that the nuisance in this case has been and is increasing, and in all probability will continue to increase; and, although I am not prepared to say that, if this case rested upon prospective nuisance only, enough is proved to warrant the interference of this Court, I am by no means disposed to think that where some degree of nuisance is proved to exist, and to have been increasing, the Court in determining whether it should in- terfere ought not to have regard to the prospect of its fur- ther continuance and increase. The interference of the Court in cases of prospective injury very much depends, as I apprehend, upon the nature and extent of the apprehended mischief, and upon the certainty or uncertainty of its arising or continuing: and the fact of the nuisance having com- menced raises a presumption of its continuance. 3 2 Concerning the province of scientific evidence to prove a nuisance, ,see Salvin v. North Brancepeth Coal Co., L. R. g Ch. App. 705, 1874. (A was owner of house and grounds in coal region. B put up coke ovens very near to A and increased the fumes of the neighborhood. A brought a bill to restrain B, but the Court held A had not shown that the principal amount of smoke came from B's works or that damage was done to his, A's, trees and crops. Sir W. M. James, L. J., said, "The damage must be visible, and as I understand the proposi- tion, it amounts to this, that although when you once establish the fact of actual substantial damage, it is quite true and legitimate to have recourse to scientific evidence as to the causes of that damage, still if you are obliged to start with scientific evidence, such as the micro- scope of the naturalist, or the tests of the chemist, for the purposes of establishing the damage itself, that evidence will not suffice. The dam- age must be such as can be shown by a plain witness to a plain com- mon juryman.") s In Fletcher v. Bealey, L. R. 28 Ch. Div. 688, 1885, plaintiff, a paper manufacturer, whose works were situated on the bank of a river, sought to restrain defendants, who were alkali manufacturers, from depositing a large heap of refuse from their works, on a piece of land close to the river, about a mile and a half higher up than plaintiff's mills. It was proved that in the course of a few years a very noxious liquid would flow from the heap, and would continue flowing for forty years or more. Injunction refused. The danger was not imminent. In Morgan v. Binghamton, 102 N. Y. 500, 1886, an injunction against a sewer was refused, where the allegation was that it would become noxious in three years. GOLDSMID v. TUNBRIDGE WELLS 83 This brings us to the question whether the nature and extent of the nuisance in this case is such that this Court ought to interfere by injunction to prevent it. I have throughout felt this point to be one of some difficulty. I adhere to the opinion which was expressed by me and by the Lord Chancellor in the Attorney-General v. Sheffield Gas Consumers' Company (3 D. M. & G. 304), that it is not in every case of nuisance that this Court should inter- fere. I think that it ought not to do so in cases in which the injury is merely temporary and trifling; but I think that it ought to do so in cases in which the injury is permanent and serious : and in determining whether the injury is serious or not, regard must be had to all the consequences which may flow from it. In this particular case, I think that regard must be had not merely to the comfort or con- venience of the occupier of the estate, which may only be in- terfered with temporarily and in a partial degree, but that • regard must be also had to the effect of the nuisance upon the value of the estate, and upon the prospect of dealing with it to advantage; and I cannot but think that the value of this estate, and the prospect of advantageously dealing with it, is and will be affected by the continuance of this nuisance. Upon this ground, and upon the ground of the water of the brook being rendered unfit for the use of the tenants and occupiers of the estate. I think that the interference of the Court in this case was due. The defendants relied, not by way of bar to the relief, but as evidence of there being no substantial injury, upon the plaintiff not having sooner applied to the court; but I think the delay in applying to the court is sufficiently ac- counted for by the evidence. 4 The defendants also relied 'Laches : In the following cases the delay of the plaintiff in invok- ing equitable relief, deprived him of his right to an injunction against the continuance of a nuisance. Birmingham Canal Co. v. Lloyd, 18 Vesey 515, 1812. (An injunc- tion against draining, preparatory to opening a coal mine, with preju- dice to a canal, before establishing the right at law, was refused, be- cause of laches for two years, permitting expenditure). Reid v. Gifford, 6 Johns. Ch. 19, 1822, before Chancellor Kent. (A 84 NUISANCE much upon the case of Elmhirst v. Spencer, 2 Mac. N. & G. 45 ; but that case seems to me to be, quite distinguishable from the present. In that case, as I understand it, the court was of opinion that there having been no trial at law, which was necessary according to the then course of the court, the nuisance was not established, and, further, that no injury was proved; but in this case, I think there is proof both of the nuisance and of the injury. Upon these grounds, my opinion agrees with that of the Master of the Rolls; and I think that this appeal ought to be dismissed, and dismissed with costs. Sir J. L. Knight Bruce, L. J. : — I am of the same opinion, both on the facts and on the law. 5 for twenty years had a mill on lake. B, by means of tunnel, drew off water from lake. And after three years A brought a bill against B) ; Blakemore v. Glamorganshire, i M. & K. 154, 1832. Wood v. Sutcliffe, 8 Eng. L. & Eq. 217, 1851. (Injunction to re- strain pollution of stream refused, because B was allowed to con- struct and to use his dye-works for a period of five years, without a hint being given on the part of A that he was doing anything which he had not a lawful right to do). Bassett v. Salisbury Co., 47 N. H. 426, 1867. (Acquiescence by A for over six years, in B's maintaining a dam, during which time B made expensive erections of mills and machinery to be operated by the power so gained, furnished a decisive objection to the interposi- tion of equity) ; Varney v. Pope, 60 Me. 192, 1872 (delay of three years). Fisk v. Hartford, 70 Conn. 720, 1898. (A was a lower riparian owner, who for many years had knowingly permitted B, a city, to take its water supply in gradually increasing quantities from the head- waters of the stream by means of expensive reservoirs and distribut- ing mains. A was not entitled to an injunction to restrain such diver- sion, merely because the city had until recently found it economical to return the greater part of the water thus taken, in the form of sewage, to the stream above A's dam). Penrhyn State Co. v. Granville Elect. Co., 181 N. Y. 80, 1905. (In- junction to restrain a diversion by a water company refused where complainant delayed fifteen years). Compare with the foregoing cases : Weston Paper Co. v. Pope, 155 Ind. 394, 1900. (A and B were riparian owners. A gave B straw to induce B to erect a strawboard plant on his, B's, land, and stood by while B spent money in its erection. A was ignorant of the fact that the operation of the plant would pollute the stream. B operated the plant and polluted stream. A brought suit for damages and bill for injunction. Injunction granted.) ^Pollution of Streams. Other cases in which injunctions were granted to restrain the pollution of streams : Holsman v. Boiling Spring Bleaching Co., 1 McCart, 335, 1862 (By chemicals) ; Lingwood v. Stow- GOLDSMID v. TUNBRIDGE WELLS 85 market Co., i Eq. Cas. 77, 1865 ; Clowes v. Staffordshire Water Works, L. R., 8 Ch. App. 125, 1872; Pennington v. Brinsop Coal Co., L. R. 5 Ch. Div. 769, 1877 (By pumping out coal mine) ; Woodruff v. North Bloomfield Mining Co., et al., 8 Saw. 628, 1883 (By mining debris). Ballard v. Tomlinson, L. R. 29 Ch. Div. 115, 1885 (Pollution of underground waters). Young v. Bankier Co. (1893), App. Cas. 691 (By pumping out coal mine). Beach v. Sterling Co., 54 N. J. Eq. 6S> JSo^ (No defense that pollution was the necessary result of mining operations carried on in the ordinary way). Weston paper Co. v. Pope, 1 ss Ind. 394, 1900 (Sewage) ; Piatt Bros. Co. v. Waterbury, 72 Conn. 531, 1900 (Sewage) ; Mason v. City of Mattoon, 95 111. App. 525, 1901 (Sewage) ; Stroebel v. Kerr Salt Co., 164 N. Y. 303, 1901 (Put salt. in water) ; Keppel v. Lehigh Coal & Nav. Co., 200 Pa. 649, 1901 (Coal mining company restrained from so conducting its opera- tions as to cause a continuous discharge of culm into a stream) ; Todd v. City of York, 92 N. W. 1040, 1902 (Sewage). In Pennsylvania it has been held that no action lies against a coal company for polluting a stream by pumping the water out of its mine. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 1886. In accord, Barnard v. Shirley, 151 Ind. 160, 1898. NUISANCE WALKER v. BREWSTER. In Chancery, before Vice-Chancellor Wood, 1867. haw Reports, 5 Equity Cases, 25. "This was a suit for the purpose of restraining the De- fendant, the lessee of Molineux House and grounds, Wolver- hampton, from holding in such grounds certain fetes as ad- vertised, or any other fetes of a similar character, and from permitting the grounds to be used for displays of fireworks, or for public music or dancing, or for any other public en- tertainment whereby large numbers of idle persons might be drawn together in the immediate neighbourhood of Plain- tiff's premises. The Plaintiff was the owner in fee simple of a house and grounds, called Waterloo House, in the outskirts of Wolverhampton, and divided by a narrow pathway from the grounds of Molineux House, which occupy an area of about four acres. Molineux House had been occupied for many years, until i860, as a private residence, and afterwards by a Mr. Tyrer as a school, and in May, 1867, the premises were leased to the defendant Brezvster, the proprietor of a music- hall in Wolverhampton, for two years. Bvewster entered into possession, and shortly after- wards advertised and held in the grounds a monster fete on Whit Monday, the 10th of June. These Whitsun diversions, which were attended by great numbers of persons, were fol- lowed by fetes of a similar character every Monday and Friday evening, with music, dancing, and fireworks (omit- ting the fireworks on Fridays). The Plaintiff's complaint was thus stated in his bill : — "These fetes also have brought together, and still con- tinue to bring together, great crowds of persons, many of whom are of idle and dissolute habits, to the great annoy- WALKER v. BREWSTER 87 ance of the Plaintiff and the inhabitants of his house. The bands of music play for nine or ten hours each Monday and Friday without cessation. Great numbers of boys climb on to the walls of the Plaintiff's grounds adjoining Molineux House, and destroy their privacy. The shoutings of the as- sembled people are loud and continuous, and almost beyond endurance. The reports from the fireworks are frequent and most annoying, and have so frightened the Plaintiff's horses in their stables as to cause them to break loose from their fastenings, and sustain serious injury. The rocket-sticks fall thickly on the roofs of the Plaintiff's house and outbuildings, and in the garden, breaking the glass of the green-houses and conservatories, and there is great fear of the buildings on the Plaintiff's grounds, especially his stables, being set on fire by the fireworks falling upon them. The whole effect of these fetes is to destroy the peace and comfort of the Plain- tiff and his family, and to render it impossible for the Plain- tiff to continue to occupy his said house and premises unless the said fetes be stopped. The aid fetes are, in fact, a most grievous nuisance, and if allowed to proceed, will destroy the possibility of the Plaintiff's house being used as a gentle- man's residence, and depreciate the value of his estate by from £ iooo to £2000." The bill, which was filed on the 1st of July, was directed specially against three "monster fetes" advertised for the 8th, 9th, and 10th of that month, during the fair week. On the 4th of July the Plaintiff moved for an injunc- tion. The Defendant had- not then had time to answer Plain- tiff's affidavits, and as the Plaintiff declined to give an under- taking to be answerable in damages, the question was or- dered to stand over until the next seal. On the nth of July, upon an undertaking by the De- fendant not to let off any fire-balloons, or ascending fire- works, or any fireworks the sparks from which could fall on Plaintiff's buildings, the motion was ordered to stand over until the hearing of the cause, with liberty to apply to expe- dite the same. 88 NUISANCE The cause now came on for hearing. Evidence was given in support of the Plaintiff's case by several residents in the Waterloo Road, affirming the state- ments in the bill, and shewing that the neighbourhood of Waterloo Road had up to lately a quiet and retired charac- ter, with houses of a superior class, occupied by persons of standing and position, who had selected the locality by rea- son of its freedom from noise, crowd, and bustle. The wit- nesses all deposed to the noise and din from powerful brass bands playing continuously for several hours, and distinctly audible two and a half miles off, the distance of the band from the Plaintiff's house being variously stated, but cer- tainly not exceeding ioo yards; to the danger from fire-bal- loons arid rocket-sticks ; and especially to the nuisance from the concourse of idle vagabonds on fete nights in the Water- loo Road, "as if a fair were being held," the state of things on such occasions being thus described : — "The holding of these fetes attracts a very large con- course of persons of the lowest class to congregate, both within the grounds and in the Waterloo Road outside, com- pletely choking the said road, rendering it almost impassable to persons wishing and having occasion to pass, who have to crush their way through, and are exposed to great danger and insult. The repose of the neighbourhood is completely disturbed by the continuous din of music within the grounds, and the shouts, noise, and confusion, and the disgusting lan- guage employed by the rabble and mob so congregated to- gether in passing to and from the entrance to the said grounds." It was also stated by the Plaintiff's gardener, that on the morning after, fetes he had frequently found rocket-sticks in the grounds of Plaintiff, and noticed that the glass roof and other parts of the green-houses had been broken. In reference to the annoyance from men and boys occupying Plaintiff's garden wall, the gardener stated that on the 8th of July, at ii p.m., after the music had ceased, and the WALKER v. BREWSTER 89 crowds were dispersing, three men mounted the wall, and remained there in defiance of him, until he went up and in- sisted on their leaving. Evidence was adduced on behalf of the Defendant as to the respectable character of the entertainments, which had been attended by the mayor and several of the town council (who had expressed their approbation), and also by the bor- ough members. The chief constable of Wolverhampton, who resided in Waterloo Road, and had never felt any annoyance, had fre- quently attended the fetes, and also received reports of them from his officers. In no instance had there been any dis- turbance, nor any case for inquiry before the magistrates originating there ; and, in his opinion, the position of the les- sees afforded the fullest guarantee that no improper char- acters would be admitted, nor any act of immorality allowed to take place there. The two policemen stationed at the entrance for the pur- pose of excluding prostitutes and disorderly persons, stated that on the first day only of these fetes had any prostitutes applied for admission, and that on being refused they at once retired; that no disorderly or disreputable characters what- ever had been admitted, and that the utmost order and de- cency of conduct and conversation had been maintained dur- ing the fetes. A Mr. Sills, residing in Waterloo Road, denied that any inconvenience to himself or family had arisen from the en- tertainments given by Defendant. It was also stated that fetes of a similar character had been held at intervals for the last ten or eleven years in Molineux Grounds — sometimes as many as three in a week — without any complaint on the part of the Plaintiff or any of the other residents in Waterloo Road, and, in particular, sev- eral fetes had been given without objection during Mr. Tyrer's occupation of Molineux House. Only two of these fetes had been held for purposes of charity, all the others having been at the risk and for the profit of the givers. 90 NUISANCE In reply to this evidence, the Plaintiff adduced the evi- dence of five persons, all residing in Waterloo Road, all of whom complained in very strong terms of the nuisance, and described the neighbourhood as having been quiet and peace- able down to the end of Tyrer's tenancy. In reference to the fetes held during his tenancy, Tyrer, who was a schoolmaster, stated that during his occupation of Molineux House and grounds between September, 1862, and the 25th of March, 1867, he was induced to allow the grounds to be used for fetes on two occasions only, in both instances during the school vacation. One of these fetes was on behalf of the United Order of Forresters Friendly Soci- ety, the other on behalf of the Widows and Orphans' Fund of the Manchester Unity of Odd Fellows, and the proceeds were divided amongst the charitable institutions of the town. Tyrer went on to state that although these fetes were patron- ised by the borough members and many of the principal in- habitants, and to some extent conducted under the control and supervision of the clergy, and the authority of the police, "the attendant noise and confusion was a great nuisance to myself and neighbours, independently of which the scenes of vice and immorality which came under my personal ob- servation in the evenings rendered such fetes an abomina- tion. Nothing would have induced me to have allowed a continuance thereof." In reference to the evidence given by the chief constable and policemen, Plaintiff stated that although they might have prevented the well-known prostitutes and disorderly people from entering the said grounds from the Waterloo Road entrance, it was nevertheless a fact that great disorder and noise occurred during the holding of the said fetes, and numbers of such characters assembled in the Waterloo Road, to the great annoyance of the inhabitants of the neighbour- hood." 1 'The arguments of counsel are omitted. WALKER v. BREWSTER 91 Sir W. Page Wood, V.C. :— When this case was before me upon the motion for am interlocutory injunction, I was impressed with the defence of acquiescence which was raised against the Plaintiff. But when one comes to look into the matter this defence breaks down altogether, as there is no evidence whatever of any sin- gle entertainment having been given for hire in these grounds during the last ten years. The only two which were allowed by Mr. Tyrer, the Plaintiff's predecessor during the four years immediately preceding the Plaintiff's tenancy, were for the benefit of charitable institutions, and the affidavit of Mr. Tyrer shewed that even these entertainments were so pro- ductive of annoyance that he never allowed any other fete to take place as long as he was the occupant of the property. What, then, is the nuisance complained of? Three things are alleged : First : the noise of a very powerful band of eighteen performers, which performs regularly twice a week, from two or three in the afternoon, until eleven at night. The second evil complained of is a serious one, the throwing up of rockets, to say nothing of the noise and glare of the fireworks, in the immediate neighborhood of Plaintiff's premises, and the risk to his garden and greenhouse from the falling of the rocket sticks. The third nuisance complained of is exactly the case of Rex v. Moore [3 B. & Ad. 184,] which stands upon grounds that are unimpeachable. The Plaintiff complains that when these fetes are given crowds of idle people are drawn together who, being idle, do not pass on, but occupy the road and the Plaintiff's wall so as to obtain a view of the fireworks and other entertainments. On this part of the case no serious contradiction is to be found in the evidence. The chief constable of police and two of his officers have been brought forward, and state that the entertainments have been conducted in a most orderly and respectable manner, and that admittance has been re- fused to persons of improper characters. The Defendant, very much to his credit, seems to have been anxious to pre- vent anything like immorality, and stationed policemen at 92 NUISANCE the entrance to keep out prostitutes and other improper char- acters. But the complaint of the Plaintiff is not against the persons who are actually in the grounds, but against those who have been shut out and had admission refused to them. In Rex v. Moore it was expressly stated that the Defendant had driven off the disorderly people from his own grounds in the same way as the Defendant here excludes them from these gardens ; and yet it was held that the collection of these disorderly people outside amounted to a nuisance. It is to be observed that the chief constable in his evidence as to the orderly character of the entertainments, does not allude to this main ground of complaint on the part of Plaintiff as to the conduct of the crowds collected outside, which is support- ed by evidence on behalf of the Plaintiff as to the annoyance produced by the blocking up of Waterloo Road by a crowd on the fete nights. Everything is, in fact, admitted on this head by the Defendant's witnesses. The policemen stationed at the entrances say that on one occasion some prostitutes had applied for admission, and that on being refused admit- tance they at once retired. Where did they retire to ? It is only reasonable to suppose that they retired to the crowd from which they had come — that crowd which is complained of, and through which the people have to force their way. According to Rex v. Moore [3 B. & Ad. 184], which is in many ways a very instructive case, the thing is plain and clear. The very argument addressed to me by Mr. Kay was there mentioned. It was urged, that if the Defendant was to be held guilty of a nuisance by the collection of crowds outside who were not admitted to the grounds, and over whom he had no control, not a ball or rout could be given in London without rendering the entertainers liable for a nui- sance. Mr. Joy, during his argument, referred to what was said by Lord Ellenborough in Rex v. Cross [3 Camp. 224], "in allusion to the mention by counsel of the possibility of a hundred indictments every time a rout was given by a lady at the West end of town." He says Lord Ellenborough puts this question : " 'Is there any doubt that if coaches, on the WALKER v. BREWSTER 93 occasion of a rout, wait an unreasonable length of time in a public street and obstruct the transit of His Majesty's sub- jects, the persons who cause and permit such coaches so to wait are guilty of a nuisance ?' By which he appears to have meant not that the lady herself ought to be indicted, but only such of her guests as blocked up the way by ordering their carriages to wait instead of drawing off and returning when wanted. They, of course, as obstructing the way by their equipages and servants, would be responsible, and not the person who invited them. And the present case is more fav- ourable to the Defendant, for he did not even invite the per- sons who committed the nuisance." It was also observed by Mr. Joy, during the same argu- ment : "It does not follow that when a collection of idle peo- ple commit a nuisance the attraction which drew them to- gether may not be perfectly innocent, otherwise the exhibi- tion of prints in a window would render a printseller liable to an indictment wherever the footpath was obstructed by the number of gazers." In answer to this observation it was decided, in the case of Carlile, the printer, that the exhibi- tion of prints in a shop window in Fleet Street, by causing the collection of a crowd, amounted to a nuisance. The truth is, that common sense must be used with reference to transactions of this kind. If persons use their houses for the enjoyment of life, and one of the ordinary enjoyments of life is supposed to be the occasional entertainment of one's friends at a rout, it would be very difficult for any one com- plaining of the noise and inconvenience caused by a rout to obtain an indictment at law, still more so, I apprehend, to persuade this Court to interfere. At all events, that differs altogether from a case like this, where the Defendant makes a business and a profit by giving entertainments, which are carried on so as to induce this crowd of idle people to collect in large numbers to the annoyance of the Plaintiff. In this respect the language of Lord Tenterden in Rex v. Moore [3 B. & Ad. 184J, is exactly applicable to the present case: "The Defendant asks us to allow him to make a profit to 94 NUISANCE the annoyance of all his neighbours. . . .If a person collects together a crowd of people to the annoyance of his neigh- bours, that is a nuisance for which he is answerable." There the nuisance complained of was the trampling of grass and destruction of fences. Here it assumes a much worse form, as persons cannot reach their houses without having to force their way through these crowds. Again, in the same case, Littledale, J., says : "It has been contended that to render the Defendant liable, it must be his object to create a nui- sance, or else that that must be the necessary and inevitable result of his act. No doubt it was not his object; but I do not agree with the other position, because if it be the prob- able consequence of his act he is answerable as if it were his actual object. If the experience of mankind must lead any one to expect the result he will be answerable for it." Mr. Justice Taunton refers to Hawkins' Pleas of the Crown, where it is laid down "that all common stages for rope dancers, and also all common gaming houses, are nui- sances in the eye of the law . . . not only because they are great temptations to idleness, but because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood." It appears to me, therefore, that a clear case of nuisance is es- tablished in the collecting of the crowd alone ; and further, that I am not bound to specify the other nuisances to which this gentleman has been subjected. Having regard to the fact of this Court having restrained the ringing of bells (Soltau v. De Held), I confess I have a strong opinion that the setting up a powerful brass band, which plays twice a week for several hours in the immediate vicinity of a gen- tleman's house, is a nuisance which this Court would re- strain. I have a still clearer opinion that the noise of fire- works, as contrasted with the noise of the tolling of a bell, to say nothing of the damage that may be occasioned by falling rocket-sticks, is a serious nuisance. But that the collection of crowds is a nuisance has been fully established ; and in the neighbourhood of a populous town the letting off WALKER v. BREWSTER 95 fireworks and performance of powerful bands will collect together crowds as a necessary and not merely a probable consequence. On this ground, therefore, the Plaintiff is en- titled to relief, and there will be a perpetual injunction to restrain the Defendant Brewster from continuing to hold, and from permitting to be held, upon the grounds in the bill mentioned as being in his occupation, any public exhibition or other entertainment whereby a nuisance may be occa- sioned to the annoyance and injury of the Plaintiff. Mr. Bruce, suggested that in order to prevent the whole question from being left open, the decree should be prefaced by some declaration of the Court being of opinion that the nuisance complained of in the bill amounted to a nuisance. The Vice-Chancellor : — I have thought of that; but I prefer to leave the injunction in this general form. It seems quite enough if a nuisance has been established which is sufficient ground for an injunction. The band might be modified. It is difficult to fix the amount of annoyance that might be occasioned. You must prove the nuisance when- ever you come to commit. 2 ^Compare: Bostock v. North Staffordshire Railway Co., 5 Ge Gex. & Sm. 584, 1852. (B held regattas on reservoir, adjoining the park surround- ing A's mansion house. Large concourses of persons gathered, and caused a nuisance to A, by trespassing upon her property, and injur- ing her right of fishing upon the reservoir. Injunction granted to re- strain B from holding another regatta). Inchbald v. Robinson, L. R. 4 Ch. App. 388, 1869. (B erected a circus near A's property. The noise of the music and shouting in the circus prevented conversation in A's house, though the doors and shutters were closed. Injunction granted to restrain the nuisance on that ground, although it was not proved that the circus would attract crowds of disorderly persons). Bellamy v. Wells, L. J. 60 Ch. Div. 156, 1890. (A lived in resi- dential section. B conducted a proprietary club a few doors away. A alleged nuisances were caused at the club by the assembling in the street of noisy crowds, which were attracted thither by boxing con- tests frequently held within the club itself late at night; by continual whistling for cabs outside the club late at night and early in the morn- ing and the noise of cabs answering the whistles. Court granted an injunction, restraining whistling for cabs between midnight and 7 A. M., and causing crowds to assemble). Cronin v. Bloemecke, 58 N. J. Eq. 313, 1899. (B_ conducted base- ball games, which caused large numbers of idle and disorderly persons to assemble in the neighborhood of A's home. Injunction.) 96 NUISANCE ROSS v. BUTLER. In the Court of Chancery of New Jersey, before Chancellor Zabriskie, 1868. 19 New Jersey Equity Reports, 294. Argued on rule to show cause why an injunction should not issue. The Chancellor. 1 For the purpose of this application, it must be taken as established, that the defendant is about to erect upon his lot, on the west side of Burnet street, a brick building with a fire proof roof, forty feet front by sixty feet deep, and three stories high ; that the building is to be placed on the line of Burnet street upon the front of the lot, which is one hun- dred feet wide and two hundred feet deep, and has on its rear a small pottery, which has been used for several years ; that the building will be constructed with two kilns, each containing one furnace for burning earthenware, having each one chimney ; that it is intended when the building is finished, to use these kilns and to burn pine wood, which will cause large volumes of dense smoke to issue from the chimneys, which, with the cinders emitted with it, will fall in the yards and upon the houses in the vicinity, and penetrate the dwellings of the complainants, injure their goods and make their homes uncomfortable. These fires will not be kindled more than twice in each month, and after the first twelve hours will not emit large volumes of smoke, and in certain states of the atmosphere the smoke will be carried off with- out penetrating the houses of the complainants. It must also be taken as established, that Burnet street, in this locality, and the adjoining parts of the city, are, if not continuously, thickly built up, and have been so built up 'The facts of the case as stated by the Court and the Court's discussion of authorities are omitted. ROSS v. BUTLER 97 for years ; that these buildings have been, and now are, used for dwellings ; that the complainants all occupy dwellings on Burnet street, between New and Oliver streets, and that the dwelling-house of the complainant, Agnew, is on the oppo- site side of Burnet street, and within forty feet of the pro- posed pottery ; that this part of the city is used for business and mechanical purposes, and is in the neighborhood of the canal and river, and of the wharves, docks, and coal and lumber yards on it, and is not the residence of the more wealthy and luxurious inhabitants, but is occupied by busi- ness men and mechanics of moderate means. The question is, whether this factory, and the business proposed to be carried on in it in the manner stated, will be, in that neighborhood and to these complainants, a nuisance such as this court ought to prevent and restrain. The defendant contends that it will not be a nuisance : first, because the annoyance will not be great," and only oc- casional, principally in the night, when it will not be much noticed, and will not be injurious to health; secondly, be- cause it is in an old part of the town, now deserted by the better class of residents, and given up principally to trade and manufactures, and on which there are not many valu- able buildings ; and, thirdly, because it is near the canal and river, where there is an abundant supply of water to extin- guish any fires which may be occasioned by the business. The first question is, whether the large volume of dense smoke, issuing from this factory upon the premises, and pen- etrating the dwellings of the complainants, is such a nuisance as will be restrained by this court. The business is a lawful one; there can be no pretence that it is injurious to health; and it is a question of great practical importance in this state, where manufactures nourish, and are on the increase, whether such business can be permitted in the neighborhood of dwelling houses, where the smoke and cinders render the houses uncomfortable to the inhabitants. Smoke, noise, or bad odors, even when not injurious to health, may render a 98 NUISANCE dwelling very uncomfortable, so as to drive from it any one not compelled by poverty to remain. If the citizen has no protection against such annoyances, the comfort and value of his home can be destroyed by any one that may choose to erect such annoyance near it, and no one, not rich enough to buy all the land around him from which he could be so annoyed, could be safe. The law takes care that lawful and useful business shall not be put a stop to on account of every trifling or imaginary annoyance, such as may offend the taste or disturb the nerves of a fastidious or over refined person. But, on the other hand it does not allow any one, whatever his circumstances or condition may be, to be driven from his home, or to be compelled to live in it in positive discomfort, although caused by a lawful and useful business, carried on in his vicinity, the maxim, sic utere tuo ut alienum non laedas, expresses the well established doctrine of the law. It is not necessary, to constitute a nuisance, that the matter complained of should affect the health or do injury to material property. It is sufficient, in the language of Sir Knight Bruce, if it is "an inconvenience materially interfer- ing with the ordinary comfort, physically, of human exist- ence, not merely according to elegant and dainty modes and habits of living, but according to plain and sober and simple notions among the English people." In accordance with this view, it is settled in England and in this country, that smoke, or offensive vapors, or noise, although not injurious to health, may constitute a nuisance; the only question being, whether the degree or extent is such as to interfere materially with the comfort of life. The law, then, must be regarded as settled, that when the prosecution of a business, of itself lawful, in the neigh- borhood of a dwelling-house, renders the enjoyment of it materially uncomfortable, by the smoke and cinders, or noise or offensive odors produced by such business, although not in any degree injurious to health, the carrying on such busi- ROSS v. BUTLER 99 ness there is a nuisance, and it will be restrained by injunc- tion. That large quantities of dense smoke produced by burn- ing pine wood, with the cinders floating in it, falling upon the houses and yards in the vicinity, and penetrating the dwellings, would cause material discomfort, there can be no doubt. In this case, it is contended that as the burning will be but twice in a month, and for twelve hours only, and that principally at night, it will be so slight as not to be a material discomfort. A nuisance of this kind may possibly occur so seldom that it will not be held to produce a material discomfort. Where the occurence was only accidental and not produced by the regular course of business, and recurring only three or four times a year, and not intended to be again permitted, it was held not to be a proper cause for an injunction to stop a lawful business, but that the party must be put to his action [for] damages. But I am not aware of any authority or established prin- ciple, holding that a clear unmistakable nuisance, which it is intended to commit periodically, will be permitted because it does not exist the greater portion of the time, but only for a small portion of it. This court will not determine that a family shall have their dwelling-house made uncomfor- table to live in for twelve hours, once in two weeks, or that they shall protect themselves by closing the house tightly, and remaining in doors for that time. It is surely no justifi- cation to a wrong doer, that he takes away only one-twenty- eighth of his neighbor's property, comfort or life. The qualifications contained in the opinions of the judges that a lawful business will not be restrained for every trifling inconvenience, and that persons must not stand on extreme rights, and bring actions in respect to every matter of annoyance, does not refer to the proportion of time for which the nuisance is continued, but only to the degree or kind of annoyance. As if in a manufacturing town contin- 100 NUISANCE ually filled with smoke and dust, a new establishment was erected which added in some degree to it, or in a vicinity where the sounds of smiths' hammers, and the snorting of steam engines, were continually heard, another forge or steam engine was started, it would not be a nuisance if the others had by time established their right to continue. So, matters that are an annoyance by being merely disagreeable or unsightly, as a well kept butcher shop or a green grocer's stall, near a costly dwelling-house, or any business that at- tracts crowds of orderly persons, or numbers of carts and carriages, although very undesirable neighbors, yet are not nuisances, even should they seriously affect the value of the property by driving away tenants and prevent it being let to any who would pay high rents. These are the natural and necessary consequences of living in a city or town com- pactly built, and do not like dense smoke, and offensive smells, annoy every one, but only those whose taste make such matters repulsive to them. Another question raised is, whether this business, al- though in some places it might be a nuisance, is not lawful here, on the ground that this is a part of the city devoted to such business, and therefore a convenient and proper place for it. The defendant is about to erect his pottery in a part of the city where there are no costly dwellings, and inhabited by persons in moderate circumstances, some of whom are mechanics, and some tradesmen, and carry on their trades and business on their own premises, but none of whom cause any annoyance in kind or degree like the smoke of such a pottery. The doctrine that a business which of itself was a nuisance to dwellings in its vicinity, might be carried on law- fully if in a convenient and suitable place, has been applied to justify such business to the discomfort of the inhabitants in their own dwelling-houses, on the ground that such trade and business must be carried on somewhere, and that certain places should be considered proper for, and dedicated to, ROSS v. BUTLER 101 such purposes. This position has been supported by many dicta, and some authorities. 2 This question, whether the locality of works which in most places would be a nuisance, is a justification of their erection and maintenance, has never been considered or ad- judicated in New Jersey. In the case of Butler v. Rogers, iStockt. 487, the complaint was the erection of an additional blacksmith shop on premises which had been occupied for making locomotives for twenty years, in the midst of the business part of the manufacturing- town of Paterson; and the establishment of the complainant, to which injury was apprehended, was a large paper-mill which had a blacksmith shop connected with it on the same lot, and nearer to it than the projected shop of the defendants. Yet Chancellor Wil- liamson,, in refusing the injunction, although he recites these facts, does not place his opinion on that ground; and it may seem a fair inference that he did not think this ground suffi- cient, but he does not so declare. _ 2 A distinct increase of an existing condition may amount to a nuisance. Crump v. Lambert, L. R. 3 Eq. Cas. 409, 1867. (A owned houses on outskirts of manufacturing town. B erected a bedstead factory on land adjoining A's property. Injunction granted to restrain the issuing of smoke and effluvia from B's factory chimney and the making of noise in the factory, although it was situated in a manufacturing town). Crossley v. Lightowler, L. R. 2 Ch. App. 478, 1867. Lord Chelms- ford, L. C, said, "Where there are many existing nuisances, either to the air, or to water, it may be very difficult to trace to its source the injury occasioned by any one of them; but if the defendants add to the former foul state of the water, and yet are not to be responsible on account of its previous condition, this consequence would follow, that if the plaintiffs were to make terms with the other polluters of the stream so as to have water free from impurities produced by their works, the defendants might say, "We began to foul the stream at a time when, as against you, it was lawful for us to do so, inasmuch as it was unfit for your use, and you cannot now, by getting rid of the existing pollutions from other sources, prevent our continuing to do what, at the time when we began, you had no right to object to." p. 181. See Robinson v. Baugh, 31 Mich. 290, 1875. Richmond Mfg. Co. v. Atlantic Co., 10 R. I. 106, 1871; Weston Paper Co. v. Pope, 155 Ind. 394, 1900; West Arlington Imp. Co. v. Mt. Hope Retreat, 97 Md. 191, 1903- (It was no defense that plaintiff also polluted another stream flowing upon the land of third parties.) 102 NUISANCE I find no authority that will warrant the position that the part of a town which is occupied by tradesmen and me- chanics for residences and carrying on their trades and busi- ness, and which contains no elegant or costly dwellings, and is not inhabited by the wealthy and luxurious, is a proper and convenient place for carrying on business which renders the dwellings there uncomfortable to the owners, and their families by offensive smells, smoke, cinders, or intolerable noises, even if the inhabitants are themselves artisans, who work at trades occasioning some degree of noise, smoke, and cinders. Some parts of a town may, by lapse of time, or prescription, by the continuance of a number of factories long enough to have a right as against every one, be so dedi- cated to smells, smoke, noise, and dust, that an additional factory, which adds a little to the common evil, would not be considered at law a nuisance, or be restrained in equity. There is no principle in law, or the reasons on which its rules are founded, which should give protection to the large comforts and enjoyments with which the wealthy and luxu- rious are surrounded, and fail to secure to the artisan and laborer, and their families, the fewer and more restricted comforts which they enjoy. But the question remains, what degree or amount of discomfort is necessary to constitute a nuisance. It is clear that every thing that renders the air a little less pure, or is to any extent disagreeable, is not necessarily a nuisance. The smoke that may, in certain conditions of the atmosphere, descend from a neighbor's chimney, the fumes that may sometimes be wafted from his kitchen, though not desirable or agreeable, are not a nuisance. Between them and the dense smoke from a kiln or factory, that renders breathing difficult and painful, and smells offensive to the verge of nauseating, there is debatable ground, on which it may be difficult to fix the exact point at which the smoke or smell becomes a nuisance in the eye of the law. The word "uncomfortable" is not precise, nor does the ROSS v. BUTLER 103 phrase of Vice Chancellor Bruce, "according to plain and sober and simple notions among the English people," add much to making it definite ; in fact, no precise definition can be given; each case has to be judged of by itself. Here the question is, whether a dense smoke laden with cinders, caused by the burning of pine wood, and continued for twelve hours, twice in each month, falling upon and penetrating the houses and premises of the complainants, at distances varying from forty to two hundred feet, would cause such injury, annoyance, and discomfort, as would con- stitute a legal nuisance. I am of opinion that it would. The building of the pottery would be no nuisance. It is possible that the burning of earthenware may be conducted with other fuel than pine wood, not emitting large quantities of dark, dense smoke or cinders ; and equity will not interfere against a nuisance that is only contingent. The defendant may, if he sees fit, finish his building. But it was proper for the complainants, as soon as they knew of his intention to use the building for a purpose objectionable to them, to apply in equity for relief. This court would be very reluctant to in- terfere, if they had stood by, without objection, and allowed him to expend his money. An injunction must issue against using the building for burning earthenware, or any manufacture with pine wood, or any fuel that may emit large quantities of dense smoke. The injunction, of course, may be removed or modified, if, upon the final hearing of the cause, it appears that the con- sequences, on which this decision is founded, will not follow from such use of the premises. 8 "Noxious Fumes. Equity enjoined the pollution of the atmosphere with noxious odors and fumes in the following cases : Catlin v. Valen- tine, 9 Paige's Ch. 575, 1842 (Slaughter house) ; Brady v. Weeks, 3 Barb. 157, 1848 (Ibid) ; Walter v. Selfe, 4 De Gex & Sm. 315, 1851 (Burning of bricks) ; Pollock v. Lester, 11 Hare 266, 1853 (Ibid) ; Beardmore v. Tredwell, 3 Giff. 683, 1862 (Ibid.) ; Turner v. Mirfield, 34 Beavan 390, 1865. (A owned colliery adjoining B's property. B drained noxious and offensive refuse water from his manufactory into an old pit on his land. The water percolated underground into 104 NUISANCE A's colliery. Injunction granted to restrain B) ; Babcock v. New Jersey Stock Yard Co., 20 N. J. Eq. 296, 1869 (Slaughter-house) ; Cleveland v. Citizen's Gas Light Co., 20 N. J. Eq. 201, 1869 (Gas works) ; Meigs v. Lister, 23 N. J. Eq. 199, 1872 (Rendering establish- ment) ; Campbell v. Seaman, 63 N. Y. 568, 1876 (Burning of bricks) ; Appeal of Pennsylvania Lead Co., 96 Pa. 116, 1880 (Smelting works) ; Bushnell v. Robeson, 62 Iowa 540, 1883 (Slaughter-house) ; Reichert v. Geers, 98 Ind. 73, 1884 (Ibid.) ; Cogswell v. N. Y., N. H. &. H. R R. Co., 103 N. Y. 10, 1886 (Engine house) ; Rodenhausen v. Craven, 141 Pa. 546, 1891 (Carpet cleaning works) ; Grand Rapids v. Weiden, 97 Mich. 82, 1893 (Rendering establishment) ; Evans v. Reading Fertiliz- ing Co., 160 Pa. 209, 1894 (Bone boiling establishment). GILBERT v. SHOWERMAN 105 GILBERT v. SHOWERMAN. In the Supreme Court of Michigan, 1871. 23 Michigan Reports, 448. COOLEY, J. This is a bill to enjoin a private nuisance. The complainant is owner of a city lot in the city of Detroit, covered by a four-story brick building, fronting on the south side of Jefferson avenue and extending to Wood- bridge street. The lower story of the building he has been accustomed to rent as a store or warehouse, while the upper stories are occupied by him, with his family, as a dwelling- house, and the roof as a convenient place for drying clothes. His ownership has continued for twenty years or more. Adjoining his building, on the east, is another four-story brick building, and he avers that the defendants, being in possession thereof, have set up therein a steam engine and boiler, and put in other machinery and fixtures, and fitted the same up as a steam flouring-mill, and are running, and threaten to continue to run, the said mill with the power of said steam-engine and boiler, and to use the said building with the machinery therein as such mill. He further avers that the use of such building, as a mill, causes great injury, inconvenience and damage to complainant in the occupation and use of his said building, and endangers the safety of the building itself; that the motion of the machinery, in running said mill, shakes complainant's building, weakening the walls thereof and permanently damaging the same, and creates a rumbling noise and a trembling motion, that causes the doors, windows, crockery and any other fixtures or arti- cles that are loose in complainant's dwelling-house to rattle continuously; that the fires of said boiler and steam-engine generate large quantities of soot and cinders, which are 106 NUISANCE thrown out therefrom on the roof of complainant's said dwelling-house, and that the steam is thrown out from said boiler and engine, through the exhaust pipes, and condenses and falls thereon, keeping the same, and the air above it, foul and damp, and that flour collects about said mill, from the use thereof, and turns musty and sour, and poisons the air in, and about, complainant's said building. By means whereof complainant alleges that his dwelling-house is rendered uncomfortable, unhealthy, noisy and unfit for occu- pation, and complainant is deprived of the use of the roof thereof for the ordinary purpose of drying clothes thereon, and is hindered and prevented from renting his store and deriving gain and profit therefrom. Wherefore he prays a perpetual injunction to restrain the defendants from using their said building for such steam flouring-mill, and from using or running said steam-engine, boiler and machinery therein. The case was heard in the court below on pleadings and proofs, and although there is some conflict in the evidence, there does not appear to be any serious difficulty in arriving at a satisfactory conclusion regarding the leading facts. The buildings mentioned as occupied by the parties respectively, are situated upon one of the main business streets of the city of Detroit, in a long block of continuous buildings, which extend through to, and have a front upon, another business street of less prominence. All the buildings appear to have been constructed with a view primarily and mainly to oc- cupation for business purposes, and the location not less than the nature of the buildings has caused them to be so occu- pied. The occupants are in the main merchants, but some manufactures are also carried on in the block, among which is the manufacture of tobacco, requiring heavy machinery moved by the power of steam. All the time a greater or less number of families have resided in the block, generally over stores and manufactories, but the tendency has been for families to give way to business, and at present but few re- GILBERT v. SHOWERMAN 107 main; probably not more than would be found in almost any business block in a town of corresponding size. The defendants began converting their building into a steam flouring-mill very early in 1870, and had the mill in opera- tion about the first of July in that year. The present bill was filed more than a year after the machinery was put in, and more than eight months after the mill was in operation ; and it does not appear that while the improvement was going on, or afterwards, except by the commencement of suit, there was any remonstrance on the part of complainant. There can be no question that the mill causes annoyance to- complainant and his family, and renders the occupation of his building, as a residence, less desirable, but we are not satisfied by the evidence that there has been any want of due care, or any willful disregard of the rights of their neighbors, in the manner in which the defendants have carried on their business, and there is strong showing that the mill was carefully constructed with a view to avoiding, so far as should be practicable, any annoyance or injury to others. We have no doubt the defendants put in their ma- chinery in entire good faith, supposing they were legally and morally entitled to do so, and that it is not possible for them entirely to avoid causing some annoyance and discom- fort to complainant, unless they discontinue wholly the use of their machinery. Whether the value of complainant's premises for business purposes is reduced by the proximity of the mill is a question we need not consider, though some evidence has been produced on both sides of it. For some kinds of occupation his building would undoubtedly be less valuable. This, we think, is a fair statement of the case ; and the question which it presents is, whether the complainant, in consequence of the annoyance which the business of the defendants causes him, is entitled to have that business en- joined. It is not a question of mere damages, such as might arise in action on the case, but it goes to the founda- 108 NUISANCE tion of the right in defendants, under the circumstances, to make use of their premises in the manner they have decided to be for their interest; and if the conclusion shall be ad- verse to them, the loss in the breaking up of their business, and in the depreciation of machinery, which can only be made use of after removal to some new locality, must be very considerable. Nevertheless, if it is the legal right of complainant to have the annoyance to himself and his family enjoined, the unavoidable consequent loss to the defendants cannot preclude this remedy. The serious consequences to them can be reason only for more careful and patient con- sideration of the case before the legal principles governing it are applied to their detriment. Generally speaking, it may be said that every man has a right to the exclusive and undisturbed enjoyment of his premises, and to the proper legal redress if this enjoyment shall be interrupted or diminished by the act of others. The redress, if the injury is slight or merely casual, or if it is in any degree involved in doubt, should be by action for the recovery of damages ; but if permanent in its nature, so that by persistence in it the wrong-doer might, in time, acquire rights against the owner, it is admissible for the court of chancery to interfere by injunction, provided the injury is conceded or clearly established; — Webb v. Port- land Manuf. Co., 3 Sum., 189; Walker v. Shepardson, 2 Wis., 384; though the power to do so should be cautiously and sparingly exercised. — Attorney General v. Nichol, 16 Ves., 338 ; Rosser v. Randolph, 7 Port, 238. An offensive trade or manufacture may call as legitimately for the inter- ference of equity as any other nuisance, for, as is said by Sir William Bla'ckstone, though these are lawful and neces- sary, yet they should be exercised in remote places. — 2 Bl. Com., 217; Catlin v. Valentine, 9 Paige, 575; Hackney v. State, 8 Ind., 494. The right, nevertheless, to have such a business restrained is not absolute and unlimited, but is, and must be in the nature of things, subject to reasonable limit- GILBERT v. SHOWERMAN 109 ations which have regard to the rights of others not less than to the general public welfare. One man's comfort and enjoyment with reference to his ownership of a parcel of land cannot be considered by itself distinct from the desires and interests of his neighbors, as otherwise the wishes of one might control a whole community, and the person most ready to complain might regulate to suit himself, the busi- ness that should be carried on in his neighborhood. In a crowded city some annoyance to others is inseparable from almost any employment, and while the proximity of the stables of the dealers in horses, or of the shops of workers in iron or tin, seems an intolerable nuisance to one, another is annoyed and incommoded, though in less degree, by the bundles and boxes of the dealer in dry goods, and the noise and jar of the wagons which deliver and remove them. Indeed, every kind of business is generally regarded as un- desirable in the parts of a city occupied most exclusively by dwellings, and the establishment of the most cleanly and quiet warehouse might, in some neighborhoods, give serious offense and cause great annoyance to the inhabitants. This cannot be otherwise so long as the tastes, desires, judgments and interests of men differ as they do, and no rule of law can be just which, in endeavoring to protect the interests and subserve the wishes of a complaining party, fails to have equal regard to the interests and wishes of others. The true principle has been said by an eminent jurist to be one "grow- ing out of the nature of well ordered civil society, that every holder of property, however, absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the right of the community. All property is held subject to those general regulations which are neces- sary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment 110 NUISANCE as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them, by the constitution, may think necessary and expedient." — Shaw, Ch. J. in Commonwealth v. Alger, 7 Cush., 84. The question, therefore, in the case at bar must be, whether there is anything in the nature of the case which renders it unreasonable, in view of the relative rights, inter- ests and wishes of both parties and the general welfare of the public, that defendants should continue upon their pre- mises the business they are now engaged in, or whether, on the other hand, the resulting annoyance to the complainant must be regarded as one which is incident to the lawful en- joyment of property by another, and which, consequently, can form no basis for legal redress. And in considering this question, the fact is to be kept in view that the business of the defendants is one which is lawful in itself and necessary to the community, and which the public good requires shall be carried on by some per- sons in some locality. The question is, whether it be proper and right that it be carried on in the particular locality where it is now established. Even the most offensive trade, as we have seen, is allowed to be carried on in a remote place ; and this means, not a place remote from all other oc- cupations and trades, but remote from such other occupa- tion or trade as would be specially injured or incommoded by its proximity ; in other words, in a place, which, in view of its offensive nature, is a proper and suitable one for its establishment. The most offensive trades are lawful, as well as the whole wholesome and agreeable; and all that can be required of the men who shall engage in them is, that due regard shall be had to fitness of locality. They shall not carry them on in a part of the town occupied mainly for dwellings, nor, on the other hand, shall the occupant of a dwelling in a part of the town already appropriated to such GILBERT v. SHOWERMAN 111 trades, have a right to enjoin another coming in because of its offensive nature. Reason, and a just regard to the rights and interests of the public, require that in such case the en- joyments of pure air and agreeable surroundings for a home shall be sought in some other quarter; and a party cannot justly call upon the law to make that place suitable for his residence which was not so when he selected it. In the case before us we find that the defendants are carrying on a business not calculated to be specially annoy- ing, except to the occupants of dwellings. They chose for its establishment a locality where all the buildings had been constructed for purposes other than for residence. Families, to some extent, occupied these buildings, but their occupa- tion was secondary to the main object of their construction, and we must suppose that it was generally for reasons which precluded the choice of a more desirable neighborhood. The number of these families, moreover, was decreasing, and in view of the size of the block, was really insignificant at the time this machinery was put in. Some kinds of business were then carried on in the block, which were likely to be equally offensive to adjoining proprietors with that of the defendants, and it is not shown that any complaint was made of them. In view of these facts we think it is not shown that the defendants were bound to know they were invading the legal rights of other persons when they estab- lished their present business, nor can we say that the evi- dence satisfies us that they selected an unsuitable locality for the purpose. We cannot shut our eyes to the obvious truth that if the running of this mill can be enjoined, almost any manu- factory in any of our cities can be enjoined upon similar reasons. Some resident must be incommoded or annoyed by almost any of the*m. In the heaviest business quarters and among the most offensive trades of every city, will be found persons who, from motives of convenience, economy or necessity, have taken up there their abode; but in the 112 NUISANCE administration of equitable police, the greater and more general interests must be regarded rather than the inferior and special. The welfare of community cannot be other- wise subserved and its necessities provided for. Minor in- conveniences must be remedied by actions for the recovery of damages rather than by the severe process of injunction. On the whole case we are of opinion that the complain- ant, having taken up his residence in a portion of the city mainly appropriated to business purposes, cannot complain of the establishment of any new business near him, provided such new business is not in itself objectionable as compared with those already established, and is carried on in a proper manner. We do not find from the evidence that the business of defendants was thus objectionable, or that in the man- ner of conducting it there is special ground of complaint. And the decree dismissing the bill must, therefore, be affirmed with costs. But the dismissal is to be without preju- dice to any proceedings the complainant may be advised to take at law. The other Justices concurred. 1 'Nuisances incident to cities must be borne, when they are not unreasonable. Simpson v. Justice, 8 Ired. Eq. 115, 1851. (B had erected a turpentine distillery across the street from A, which A al- leged was a nuisance, because of the smoke and soot which issued from the establishment, and the likelihood of its communicating fire to A's premises. On application for an injunction, the annoyance to A appeared contingent upon the wind and kind of fuel used, and the exposure to fire from the distillery no greater than from an ordinary dwelling house on an adjoining lot. Injunction refused. In accord: Rhodes v. Dunbar, 57 Pa. 274, 1868) ; Hyatt v. Myers, 73 N. C. 232, 1875. (B had erected a steam cotton gin and grist mill in front of A's residence, and when the wind was in a certain direction it blew smoke and soot into A's residence. An injunction was refused. The Court said persons who live in towns, near the water-front, where the business of the town is mostly done, are supposed to have made up their minds to endure such injury, by reason of the compensatory advantages of the situation. Accord, Louisville Coffin Co. v. Warren, 78 Ky. 400, 1880) ; Straus v. Barnett, 140 Pa. in, 1891. (B manu- factured files in a neighborhood devoted exclusively to manufacturing purposes. The noise and vibration caused by steam trip-hammers necessarily used by him prevented conversation, writing and keeping books in A's adjoining factory, which was used for galvanizing sheet iron. A bill by A to restrain B from using his trip-hammers to A's injury was dismissed on the ground that the annoyance was an insepar- able incident to a lawful business, carried on where noise and vibra- tion must be expected.) STURGES v. BRIDGMAN 113 STURGES v. BRIDGMAN. In the Chancery Division of the High Court of Jus- tice, 1879. Law Reports, n Chancery Division, 852. The Plaintiff in this case was a physician. In the year 1865 he purchased the lease of a house in Wimpole Street, London, which he occupied as his professional residence. Wimpole Street runs north and south, and is crossed at right angles by Wigmore Street. The Plaintiff's house was on the west side of Wimpole Street, and was the second house from the north side of Wigmore Street. Behind the house was a garden, and in 1873 the Plaintiff erected a con- sulting-room at the end of his garden. The Defendant was a confectioner in large business in Wigmore Street. His house was on the north side of Wig- more Street and his kitchen was at the back of his house, and stood on ground which was formerly a garden and abutted on the portion of the Plaintiff's garden on which he built the consulting-room. So that there was nothing between the Plaintiff's consulting-room and the Defendant's kitchen but the party-wall. The Defendant had in his kitchen two large marble mortars set in brickwork built up to and against the party-wall which separated his kitchen from the Plaintiff's consulting-room, and worked by two large wooden pestles held in an upright position by horizontal bearers fixed into the party-wall. These mortars were used for breaking up and pounding loaf-sugar and other hard substances, and for pounding meat. The Plaintiff alleged that when the Defendant's pestles and mortars were being used the noise and vibration thereby caused were very great, and were heard and felt in the Plain- tiff's consulting-room, and such noise and vibration seriously annoyed and disturbed the Plaintiff, and materially inter- 114 NUISANCE fered with him in the practice of his profession. In particu- lar the Plaintiff stated that the noise prevented him from ex- amining his patients by auscultation for diseases of the chest. He also found it impossible to engage with effect in any oc- cupation which required thought and attention. The use of the pestles and mortars varied with the pres- sure of the Defendant's business, but they were generally used between the hours of 10 a.m. and i p.m. The Plaintiff made several complaints of the annoyance, and ultimately brought this action, in which he claimed an injunction to restrain the Defendant from using the pestles and mortars in such manner as to cause him annoyance. The Defendant stated in his defence that he and his father had used one of the pestles and mortars in the same place and to the same extent as now for more than sixty years, and that he had used the second pestle and mortar in the same place and to the same extent as now for more than twenty-six years. He alleged that if the Plaintiff had built his consulting-room with a separate wall, and not against the wall of the Defendant's kitchen, he would not have ex- perienced any noise or vibration; and he denied that the Plaintiff suffered any serious annoyance, and pleaded a pre- scriptive right to use the pestles and mortars under the 2 & 3 Will. 4, c. 71. Issue was joined, and both parties went into evidence. The result of the evidence was that the existence of the nui- sance was, in the opinion of the Court, sufficiently proved; and it also appeared that no material inconvenience had been felt by the Plaintiff until he built his consulting-room. The action came on for trial before the Master of the Rolls on the 31st of May, 1878. 1 Jessel, M. R. : — I think this is a clear case for the Plaintiff. There is really no dispute as to this being a nuisance ; in fact, the evi- ^he arguments of counsel are omitted, STURGES v. BRIDGMAN 115 dence is all one way, and, as has been often said in these cases, the Plaintiff is not bound to go on bringing actions for damages every day, when he is entitled to an injunc- tion. The only serious point which has been argued for the Defendant is that by virtue of the statute, or by prescription, he was entitled as against the Plaintiff to make this noise and commit a nuisance. Now the facts seem to be that until a very recent period it was not a nuisance at all. There was an open garden at the back of and attached to the Plaintiff's house, and the noise, it seems, if it went anywhere, went over the garden, and, of course, was rapidly dispersed; as far as I can see upon the evidence before me, there was until a re- cent period no nuisance to anybody — no actionable nuisance at all. The actionable nuisance began when the Plaintiff did what he had a right to do, namely, built a consulting-room in his garden, and when, on attempting to use the consult- ing-room for a proper purpose, he found this noise too great for anything like comfort. That was the time to bring an action for nuisance. Now, under those circumstances, it appears to me that neither the defence of the statute, nor the defence of the right by prescription, can possibly avail. I pass over techni- cal grounds, for it appears that in fact both the Plaintiff and the Defendant are lessees under the Duke of Portland, the Defendant having a lease in 1845 an ^ the Plaintiff in 1854. On what theory of law I am to presume a grant as against the Duke of Portland's lessee I do not know. I will state the authorities as shortly and in as few words as I can. There are a great many authorities on the subject, but there is one authority which I have been looking at for another purpose, to which I shall refer. That is the case of Webb v. Bird 2 , which states the law as explicitly as it possibly can be stated. There Justice Wightman, who 2 13 C. B. n. s. 841. 116 NUISANCE delivered the judgment of the Court, says: "We think, in accordance with the Court of Common Pleas, and the judgment of the House of Lords in Chasemore v. Richards* that the presumption of a grant from long continued enjoyment only arises where the person against whom the right is claimed might have interrupted or prevented the ex- ercise of the subject of the supposed grant." Now in the case before me that was simply impossible. The noise was made on the Defendant's own premises — in his kitchen. Of course you could not go into his kitchen without being a trespasser. You could not interrupt it there, nor could you interrupt it on your own land, because you had no control over the waves of sound ; nor could you even have interrupted it by an action, because there was originally no actionable nuisance. It did not hurt anybody as long as the Plaintiff's premises remained as a garden. It did not hurt anybody until the room was built. Therefore, it is quite plain that independent of the technical ground, namely the fact of there having been two leases, there would have been no ground for presuming a grant. That puts an end to any notion of prescription. Then the only other question is whether the Defendant can claim any defence under the statute. The 2nd section of the statute (2 & 3 Will. 4, c. 71) says, "That no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, .... to be enjoyed or derived upon, over, or from any land. . . . when such way or other matter .... shall have been actually enjoyed by any person claiming right thereto without inter- ruption for the full period of twenty years, shall be defeated or destroyed by shewing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated." 37 H. L. C. 349- STURGES v. BRIDGMAN 117 Now I get rid of this claim at once by saying that, from its nature, I do not presume a lost grant. So that the statute really has no application at all. It seems to me it is quite un- necessary to discuss the question; but inasmuch as the case may possibly be taken elsewhere, I think it just as well to give my reason for saying why the 2nd section of the stat- ute can have no application, and that is this : the easement there referred to is an easement to be enjoyed or derived "upon, over, or from" the land of the servient tenement. That is what it means; and it is to be actually enjoyed by a person claiming a right without interruption for the full period of twenty years. There are really all sorts of difficulties in the Defend- ant's way. In the first place the easement must be an ease- ment "upon, over, or from." Now the noise in question, in my opinion, is not properly described in that way. No doubt the waves by which the sound is distributed pass over the Plaintiff's land ; there is no question about that. But is that an easement enjoyed "upon, over or from any land?" Well, I think it is not. That appears not only from the natural meaning of the words, but from authority. In the report of Webb v. Bird* Lord Chief Justice Erie says, "I do not think the passage of air over the land of another was or could have been contemplated by the Legis- lature when framing that section." Now, what he means by the passage of air is the passage of air in motion, the waves of air ; for the ground of action in that case was wind ; that is, what was wanted was not the air but the wind, for still air would have been of no use. The plaintiff complained that his windmill would no longer turn, and therefore he claimed a right to the passage of air in motion. Then the Lord Chief Justice proceeds : "They evidently intended it to apply only to the exercise of such rights upon or over the surface of the servient tenement as might be interrupted by 4 io C. B. n. s. 268, 282. 118 NUISANCE the owner if the right were disputed." Then he goes on to say: "I am clearly of opinion that the 2nd section of the statute meant to include only such easements upon or over the surface of the servient tenement as are susceptible of in- terruption by the owners of such servient tenement, so as to prevent the enjoyment on the part of the owner of the dom- inant tenement from ripening into a right." Then in another passage he says, "The Legislature evidently considered the passage of light — which bears a very close analogy to that of air — to stand upon a different footing from the other easements with which it had been dealing in the preceding section ; and, if it had intended to extend the right to the un- interrupted passage of wind and air, it would have done so in express terms." Now it must be recollected that all the Defendant claims here is a right to the uninterrupted passage of air or ether — nothing else. He claims the right of setting the air or ether in motion by something or other that he does upon his own property. It is exactly, therefore, within the principle as laid down by Chief Justice Erie, as a case to which the Act does not apply. But Mr. Justice Willes, in the same case, put it very plainly ; and what he says applies both to the Act of Parlia- ment and to the presumption of lost grant or prescription. He first of all says, "That which is claimed here amounts to neither more nor less than this — that a person having a piece of ground, and building a windmill upon it, acquires by twenty years' enjoyment a right to prevent the proprie- tors of all the surrounding land from building upon it, if by so doing the free access of the wind from any quarter should be impeded or obstructed." It comes to the same thing here. It prevents a man building upon it so as to enjoy his build- ing. "It is impossible to see how the adjoining owners could prevent the acquisition of such a right except by combining together to build a circular wall round the mill within twenty years. It would be absurd to hold that men's rights are to be STURGES v. BRIDGMAN 119 made dependent on anything so inconvenient and imprac- ticable." Then he says, as regards light, "All that can be said, however, of these cases, is, that, as compared with the general law, they are anomalous. In general," — and this ap- plies, as I said, to lost grants — "a man cannot establish a right by lapse of time and acquiescence against his neigh- bour, unless he shews that the party against whom the right is acquired might have brought an action or done some act to put a stop to the claim without an unreasonable waste of labour and expense." That puts the thing, if I may so say, on what is really a sensible ground. If a man has a noisy business in the mid- dle of a barren moor which belongs to somebody else to whom the business carried on does no injury, the owner of the moor cannot bring an action and he cannot interrupt. Take the case of putting a blacksmith's forge in the middle of a moor : you cannot enter the blacksmith's forge, inasmuch as that belongs either to him or to his landlord, and the owner of a moor which has no game upon it has nothing which can be injured by the noise. There is no remedy whatever, because it is a barren moor. Presently, this which is useless as a barren moor becomes available for building land by reason of the growth of a neighbouring town : is it to be said that the owner has lost the right to this barren moor, which has now become worth perhaps hundreds of thousands of pounds, by being unable to build upon it by reason of this noisy business ? The answer would be simply, "I could not stop you : I could not interrupt. It is physically impossible because it would be a trespass ; legally impossible, because I had suffered no damage and could not maintain an action. How could you therefore acquire a right to deprive me of the fair and ordinary use of my property?" That seems to me to be an answer to all the cases put. You must have regard to the position of the property and all the sur- rounding circumstances to see if you can presume any grant. A man cannot presume a grant of that to which, so far as he 120 NUISANCE is concerned, he has no right. You have no occasion to pre- sume a grant. It is not a license to use a thing, because the use does not injure you. When you find a man doing an act which is a manifest injury to another, such as fouling a stream by pouring the refuse of a manufactory into the bright trout stream of his neighbour, and his neighbour allows that to go on for a great number of years, it is not unreasonable to presume that he did it under some right. If he has done it openly and his neighbour does not complain of that injury, although it is a very serious injury, it is not unreasonable to suppose that they did come to terms at some antecedent period for granting a right. But here, in the case I have before me, I cannot see a pretence for it. The fact that the man has made a noise which has not injured me or inter- fered with my comfort or enjoyment in any way, cannot de- prive me of my right to the land, or interfere with my right to come to the Court when it does seriously interfere with my comfortable enjoyment. It seems to me that, neither on the theory of lost grant nor on the statute, can the Defendant claim to do what he has done, and therefore the Plaintiff is entitled to an injunc- tion; but as it would be somewhat hard upon a confectioner to alter his mode of business at the height of the London season, I will give him a reasonable time, say upon the ist of August, to alter the position of his mortars. From this decision the Defendant appealed. 5 Appeal dismissed. 6 'The opinions of James, Baggallay and Thesiger, L. J. J., confirming the decision of the Master of the Rolls, are omitted. "Accord: Elliotson v. Feetham, 2 Bing. (N. C), 134, 1835. (In an action on the case against a noisy nuisance it was held to be no de- fense, that defendant had been possessed of the workshops in which the noise was made, ten years before the plaintiff was possessed of the term in his house) ; Brady v. Weeks, 3 Barb. 157, 1848. (A slaughter- house in a city was abated as a nuisance, even though it had been erected prior to the time when plaintiffs built their residences upon the neighboring lots. Accord: Bushnell v. Robeson, 62 la. 540, 1883) ; Campbell v. Seaman, 63 N. Y. 568, 1876. (B owned and had used his property as a brick yard for over twenty-five years. A erected STURGES v. BRIDGMAN 121 an elegant country house in near vicinity to B's kilns. The smoke injured A's ornamental trees and shrubs. Injunction granted. It did not affect A's right to an injunction, that the brick yard was used before A purchased his land) ; Hurlburt v. McKone, 55 Conn. 31, 1887. The fact that when one purchased land he knew of the existence thereon of a nuisance, consisting of the discharge thereon of refuse from a neighboring creamery, under an alleged easement, does not estop him from maintaining proceedings to abate the nuisance. Van Fossen v. Clark, 84 N. W. 989, 1901. See Attorney General v. Man- chester (1893), 2 Ch. Div. 87. Vibrations : Nuisances arising from vibrations due to the operation of machinery were enjoined in the following cases : McKeon v. See, 51 New York, App. 300, 1873; Hennessy v. Carmony, 50 N. J. Eq. 616, 1892. (A had a small house near large works of B. The fact that the vibrations from B's engines shook A's house, owing to the underlying quicksand, was not considered a defense) ; Shelfer v. City of London Electric Lighting Co., L. R. (1895) Ch. Div. 287; Miller v. Edison Electric 111. Co., 68 N. Y. Supp. 900, 1901 ; Colwell v. St. Pancras Bor- ough Council, L. R. (1904), 1 Ch. Div. 707. Compare in accord with these cases the following: Stevenson v. Pucci, 32 N. Y. Misc. Rep. 464, 1900. (A contractor engaged in blasting, was restrained from using explosives so powerful that they shook a neighboring house, cracked its walls and threw masses of rock into its apartments and upon its premises) ; Morey v. Black, 20 Montg. Co. 150, 1904 (Bowling alley restrained) ; Schaub v. Perkinson Bros., 108 Mo. App. 122, 1904 (Blasting restrained). 122 NUISANCE LAMBTON v. MELLISH. In the Supreme Court of Judicature, Chancery Division, 1894. Law Reports, 3 Chancery (1894), 163. The Plaintiff was the lessee and occupier of a house ad- joining Ashstead Common in Surrey. The premises of the Defendant Mellish were about 60 or 70 yards from the Plaintiff's premises, and those of the Defendant Cox were about 120 or 130 yards from the Plaintiff's premises and about 100 yards from those of the Defendant Mellish, and were separated from both by a line of railway. It appeared that during the summer months a large number of school treats and assemblages of that description took place on Ashstead Common. The Defendants Mellish and Cox were rival refresh- ment contractors who catered for visitors and excursionists to the common, and both the Defendants had merry-go- rounds on their premises, and were in the habit of using organs as an accompaniment to the amusements. It appeared from the evidence that these organs were for three months or more in the summer continuously being played together from 10 or 11 a.m. till 6 or 7 p.m., and that the noise caused by the two organs was "maddening." The organs used by Mellish had been changed, and it was alleged by him that the organ in use when the motion was made was a small portable hand-organ making com- paratively little noise. That used by Cox was a much larger one provided with trumpet stops and emitting sounds which could be heard at the distance of one mile. The Plaintiff now moved against the the Defendant in each action for an injunction restraining him from play- ing any organs so as to cause a nuisance or injury to the LAMBTON v. MELLISH 123 Plaintiff or his family, or other the occupiers of the Plain- tiff's property. 1 Chitty, J. : — Notwithstanding the conflict of evidence, I am of opinion that the Plaintiff is entitled to the injunction he asks for as against the Defendant in each action. A man may tolerate a nuisance for a short period. A passer-by or a by-stander would not find any nuisance in these organs; but the case is very different when the noise has to be continuously endured : under such circumstances it is scarcely an exaggeration to term it "maddening," go- ing on, as it does, hour after hour, day after day, and month after month. I consider that the noise made by each Defendant, taken separately, amounts to a nuisance. But I go further. It was said for the Defendant Mellish that two rights cannot make a wrong — by that it was meant that if one man makes a noise not of a kind, duration, or degree sufficient to constitute a nuisance, and another man, not acting in concert with the first, makes a similar noise at the same time, each is responsible only for the noise made by himself, and not also for that made by the other. If the two agreed and acted in combination each would be a wrong- doer. If a man shouts outside a house for most of the day, and another man, who is his rival, (for it is to be remem- bered that these Defendants are rivals), does the same, has the inhabitant of the house no remedy ? It is said that that is only so much the worse for the inhabitant. On the ground of common sense it must be the other way. Each of the men is making a noise and each is adding his quantum until the whole constitutes a nuisance. Each hears the other, and is adding to the sum which makes up the nuisance. In my opinion each is separately liable, and I think it would be contrary to good sense, and, indeed, con- trary to law, to hold otherwise. It would be contrary to common sense that the inhabitants of- the house should be, 'The arguments of counsel are omitted. 124 NUISANCE left without remedy at law. I think the point falls within the principle laid down by Lord Justice James in Thorpe v. Brwmfitt [Law Rep. 8 Ch. 650]. That was a case of ob- structing a right of way, but such obstruction was a nui- sance in the old phraseology of the law. He says [Law Rep. 8 Ch. 656] : "Then it was said that the plaintiff alleges an obstruction caused by several persons acting in- dependently of each other, and does not shew what share each had in causing it. It is probably impossible for a per- son in the plaintiff's position to shew this. Nor do I think it necessary that he should shew it. The amount of ob- struction caused by any one of them might not, if it stood alone, be sufficient to give any ground of complaint, though the amount caused by them all may be a serious injury. Suppose one person leaves a wheelbarrow standing on a way, that may cause no appreciable inconvenience, but if a hundred do so, that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent; and it is no defence to any one person among the hundred to say that what he does causes of itself no damage to the complainant." There is, in my opinion, no distinction in these respects between the case of a right of way and the case, such as this is, of a niusance by noise. If the acts of two persons, each being aware of what the other is doing, amount in the aggregate to what is an ac- tionable wrong, each is amenable to the remedy against the aggregate cause of complaint. The Defendants here are both responsible for the noise as a whole so far as it con- stitutes a nuisance affecting the Plaintiff, and each must be restrained in respect of his own share in making the noise. I therefore grant an interim injunction in both the actions in the terms of the notices of motion. 2 'One bill was filed against several polluters of streams in Woodruff v. North Bloomfield Mining Co., 8 Saw. 628, 1883 (Demurrer because of misjoinder overruled) ; Warren v. Parkhurst, 92 N. Y. S. 725, 1904 (No one defendant polluted the stream, but all twenty-six acting to- gether did. Demurrer overruled). MANN v. WILLEY 125 MANN v. WILLEY. In the Appellate Division of the Supreme Court of New York, 1900. 51 New York Appellate Division Reports, 169. Per Curiam : — The plaintiff is a riparian owner upon the banks of a creek known as Gulfbrook. She complains that the defendant, who keeps a summer hotel located some fifty-four rods further up the stream, has polluted the water of such stream by discharging all the sewage from his hotel into it. She brings this action for a perpetual injunction against the defendant so discharging into the stream, and for damages for the injury already caused her. * * * * The trial judge found, as a fact, that the discharge of such sewage into the stream rendered it impure and un- wholesome, and that plaintiff's damage thereby is sub- stantial, and ordered judgment for a perpetual injunction against the same. From the judgment entered thereon this appeal is taken. The plaintiff has never, as yet, used the water from this stream for drinking, cooking or other domestic purposes. The only use to which she seems to have ever put it is for bathing and driving a turbine wheel. And the defendant contends that for such purposes the water is in no way in- jured by the discharge of his sewage into the creek. Al- though there is some conflict of evidence on that question, we are inclined to think the weight of evidence is to the effect that, when the water reaches the plaintiff's premises, it does not appear either to the smell or the sight to be at all affected by the sewage, and if the right to the injunction depended entirely upon that question, we would hardly be inclined to sustain it. But that the discharge of such sew- age into the stream does pollute and render it unfit for do- mestic purposes cannot be doubted, and is, we think, estab- 126 NUISANCE lished by the evidence, and even though the plaintiff has not as yet put the water to such a use, she had the right to the stream in its natural purity. (Townsend v. Bell, 62 Hun, 306; S. C, 42 App. Div. 409; Chapman v. City of Rochester, no N. Y. 273.) And that right was not con- ditioned upon the beneficial user of it. (N. Y. Rubber Co. v. Rothery, 132 N. Y. 293, 296.) And she was entitled to equitable relief against the defendant for interfering with it, though the damages were merely nominal. {Amsterdam Knitting Co. v. Dean, 13 App. Div. 42.) *?* *P *j* *P All concurred, except Kellogg, J., not sitting. Judgment affirmed, with costs. 1 ^Compare with the principal case the following : Jackson v. Duke of Newcastle, 3 De G. J. & S., 27s, 1864. (A carried on a grocery business. In the back part of his store was a counting-house, but A rarely used the room for this or any other pur- pose. B proposed to erect a building which would materially interfere with the use of the room as a counting-house. A applied for an in- junction. Chancellor Westbury said: "I find a threatened obstruction, which will no doubt abridge the light now received through the window of the counting-house; but it will still leave, beyond all doubt, an abundance of light for the ordinary operations which are now carried on in the counting-house. * * * I apprehend the application must be founded upon the present existing injury, and the future possibilities cannot be speculated upon by the Court." p. 289 and 291.) Crossley v. Lightowler, L. R. 2 Ch. App. 478, 1867. (In this case the opinion was expressed that an injunction should issue to prevent the pollution of a stream even though plaintiff was not using the stream. Citing, Sampson v. Hoddinott, 1 C. B.. N. S., 590, 1857, a case of taking water.) Brookline v. Mackintosh, 133 Mass. 215, 1882. (A had authority of Legislature to furnish the water supply of a town. He took water from a river by percolation into a filtering gallery. B had a factory higher up stream and discharged refuse into it. By chemical analysis, it was shown that the quality of the water, when it reached A, was not impaired. A prayed for an injunction, because if the town should take the water from the river by pumping there would be a possibility, especially in times of freshets, that some refuse would be carried into the water used by the town. Injunction refused. No injury to the present use, and the apprehended danger was not real and immediate.) In Dwight v. Hayes, 150 111. 273, 1894, and Middlestadt v. Waupaca Co., 93 Wis. 1, 1896, although only nominal damages appeared, injunc- tions were granted to prevent the pollution of streams. Contra, Mc- Cord v. Iker, 12 Ohio, 387, 1843 (Erection of dam caused water to flow back on complainant's land). See Webb v. Portland Mfg. Co., supra, and cases cited in note 2. for instances where injunctions were issued to prevent diversion of water, the damage to plaintiffs being nominal merely. ATTORNEY-GENERAL v. BIRMINGHAM 127 ATTORNEY-GENERAL v. COUNCIL OF BOROUGH OF BIRMINGHAM. In the High Court of Chancery, 1858. 4 Kay and Johnson's Reports, 528. Mr. Adderly, the Relator and Plaintiff was the seized of a large estate situated upon the River Tame, below Birming- ham. The Council of the Borough of Birmingham were bound by a local Act of Parliament, effectually to drain the town. In carrying out the Act sewers were constructed emptying into the Tame. Other sewers were in the course of construction. Owing to the pollution of the River the plaintiff's cattle could not drink the water, and fish could not live in it. The present information and bill was filed to re- strain the defendant from polluting the River. 1 Vice-Chancellor Sir W. Page Wood : — . I need not hear a reply, for I am clear that the Plain- tiff's counsel are entitled to the relief they have asked. Of course they do not ask, in such a case as this, that the Court should immediately interfere to stop up the main sewers already made by the Defendants ; but what they ask is, that, the rights of their clients being ascertained, there should be some arrangement made, — some security given, — that, between this time and the hearing, or within some reasonable and proper time, the Defendants, knowing their legal position, will take steps to prevent the nuisance of which the Plaintiff complains. That the Defendants should know in gome degree the legal position in which they are placed, appears to me most desirable; for the extreme proposition contended for by their counsel has struck me, I confess, as being one of re- markable novelty. It has been urged upon me more than once during the The facts are restated. 128 NUISANCE argument by the counsel for the Defendants, that there are 250,000 inhabitants in the town of Birmingham, and that this circumstance must be taken into consideration in de- termining the question of the Plaintiff's right to an injunc- tion. I say the Plaintiff's right, rather than the rights of those other members of the community on whose behalf the information is exhibited, because, as regards the latter, there may be circumstances to be taken into consideration which do not affect the question so far as it regards the Plaintiff. There are cases at law in which it has been held, that, where the question arises between two portions of the com- munity, the convenience of one may be counterbalanced by the inconvenience to the other, where the latter are far more numerous. But in the case of an individual claiming cer- tain private rights, and seeking to have those rights pro- tected against an infraction of the law, the question is sim- ply whether he has those rights, and if so, whether the Court, looking to the precedents by which it must be gov- erned in the exercise of its judicial discretion, can interfere to protect them. Now, with regard to the question of the Plaintiff's right to an injunction, it appears to me, that, so far as this Court is concerned, it is a matter of almost absolute indifference whether the decision will affect a population of 250,000, or a single individual carrying on a manufactory for his own benefit. The rights of the Plaintiff must be measured pre- cisely as they have been left by the Legislature. I am not sitting here as a committee for public safety, armed with ar- bitrary power to prevent what, it is said, will be a great in- jury, not to Birmingham only, but to the whole of England, — that is not my function. My function is only to interpret what the Legislature (the proper body to which all such ar- guments should be addressed) has considered necessary for the town of Birmingham. The town of Birmingham is to have neither more nor less than the Legislature has thought necessary for its protection. The Plaintiff's rights are ATTORNEY-GENERAL v. BIRMINGHAM 129 neither more nor less than the Legislature has thought it proper to leave him. And the question, whether the town of Birmingham is concerned, or whether, as in the case of Delaware v. The Aldershot Deodorizing Manure Company, the Defendants are carrying on these operations for their own profit, is one which it is entirely beside the purpose to argue in this Court. Now, the Plaintiff's rights are these: — He has a clear right to enjoy the river, which, before the Defendants' oper- ations, flowed unpolluted — or, at all events, so far un- polluted that fish could live in the stream and cattle would drink of it, — through his grounds, for three miles and up- wards, in exactly the same condition in which it flowed formerly, so that cattle may drink of it without injury, and fish, which were accustomed to frequent it. may not be driven elsewhere. He is entitled to the full use and benefit of the water of the river just as he enjoyed them before the passing of the Municipal Act, unless there be in that Act something which says he is not to enjoy them any longer. That is the only question I have to try, and when I have tried that question I arrive at the measure of the rights of both' parties. As regards the discretion the Court should exercise where such rights exist; if the Plaintiff finds the river so polluted as to be a continuous injury to him, — if, in order to assert his right, he would be obliged to bring a series of actions, one every day of his life, in respect of every addi- tional injury to his cattle, or every additional annoyance to himself (not to mention the permanent injury which he would sustain in having the water, — which, as it passes along the course of his land, is his property, — so damaged that he cannot use it), then the Court will properly exercise its discretion by granting an injunction, to relieve him from the necessity of bringing a series of actions, in order to ob- tain the damages to which such continual and daily annoy- ance entitles him. In one respect, it is true arguments as to the discretion. 130 NUISANCE which the Court should exercise in a case like the present, may very properly be addressed to it, viz. that before grant- ing an injunction compelling the sudden stoppage of works like these, inasmuch as such an injunction might produce a considerable injury, the Court, by way of indulgence, would afford the Defendants every conceivable facility to enable them to remedy the evil complained of. But when I am told that they have already done their utmost and spent all their money in endeavouring to remedy that evil, and that now, in order to discharge the duties which the Act has im- posed upon them, they have no alternative but to override the rights of private individuals, the answer is this : — If they have not funds enough to make further experiments, they must apply to Parliament for power to raise more money. If, after all possible experiments, they cannot drain Bir- mingham without invading the Plaintiff's private rights, they must apply to Parliament for power to invade his rights ; and if the case be one of such magnitude as it is rep- resented to be, Parliament, no doubt, will take measures ac- cordingly, and the Plaintiff will protect himself as best he may. As regards the Plaintiff's rights, therefore, the only question I have to consider is, whether the nuisance has been created by the act of the Defendants; and I cannot hesitate to say that it has. It was argued, that the inhabi- tants of Birmingham had a right to drain their houses into the Rea, and thence into the Tame; but this at least is in evidence, but the alleged right as exercised (assuming it to be a right) did not pollute the water of the Tame as it does now — did not kill the fish or prevent cattle from drinking of the river; but immediately the Defendants' sewers were opened the fish were killed in the river, and cattle would no longer drink of it; and there cause and effect are clearly pointed out. The same sort of argument was addressed to me in the Luton case. 2 There it was contended, and, in 2Jur. N. S., 180. ATTORNEY -GENERAL v. BIRMINGHAM 131 fact, the Plaintiff admitted, that the inhabitants had a right to open their sewers into the river; and the Defen- dants, acting on behalf of the community, claimed to exercise all the rights which its several members possessed. But the answer is this: — The right thus claimed is like that which exists in the case of adjoining mines upon different levels. From the necessity of the case, every owner of a mine must submit to the inconvenience of having the water of an adjoin ing mine upon a higher level descend upon his mine so long as it descends in the natural course of drainage; but that does not entitle the owner of the adjoining mine to throw upon him in some other and more objectionable way water which might be allowed to descend upon him in a modified form, not occasioning the same amount of injury to his property. So here, before the Defendant's operations, the drainage of Birmingham, entering the river in driblets and at different parts of the stream, was largely diluted before it reached the Plaintiff's property, and did not subject him to that inconvenience of which he now complains. 3 The result is, that there will be an interim injunction to restrain the Defendants from opening any additional main or branch public sewer into either of the main sewers ; and, it seems to me, that there should be, further, an under- taking forthwith to take such steps as may be deemed neces- sary and proper, due time being allowed for the purpose, to prevent the continuance of the nuisance complained of in the bill — that is to say, to prevent the pollution of the river Tame , so as to render it injurious to the inhabitants of the houses adjoining its course, and also to prevent its being so polluted as to become offensive and unfit for use, with refer- ence to the Plaintiff, where it passes through the grounds of the Plaintiff. Those are the two things to be arived at. 3 The Court's discussion of the Act of Parliament, and its discus- sion of the alleged injury to the health of the public are omitted. 132 NUISANCE The Plaintiff is entitled to rather larger rights than the pub- lic. The public have only to look to their health. Some discussion arose as to the difficulty of the Defend- ants' entering into any undertaking, and eventually the order was made in the following form : — Injunction to restrain the Defendants from opening any additional main or branch public sewer into either of the main sewers in the bill and information and affidavits men- tioned, until further order. Liberty for either party to ap- ply. In the event of the Defendants not proceeding forth- with to take such steps as may be necessary and proper (due time being allowed for that purpose) to prevent the continu- ance of the nuisance complained of by the information and bill (that is to say), to prevent the pollution of the river Tame, so as to render it injurious to the health of the inhabi- tants of the houses adjoining its course, "and also to prevent its being so polluted as to become offensive and unfit for use or injurious to health where it passes through the grounds of the Plaintiff and Relator, — the Informant and Plaintiff to be at liberty to apply on the first day of Michael- was Term for an extension of the injunction. 4 4 In Broadbent v. Imperial Gas Co., 7 De Gex. M. & G. 462, affirmed in 7 H. L. Cas. 600, 1859. Lord Cranworth said: "If it should turn out that the company had no right so to manufacture gas as to dam- age the plaintiff's market garden, I have come to the conclusion, that I cannot enter into any question of how far it might be convenient for the public that the gas manufacture should go on. That might be a good ground for the Legislature to declare that the company might make, gas if they indemnified the plaintiff; but, unless the company had such a right, I think the present is not a case in which this court can go into "the question of convenience or inconvenience, and say where a. party is substantially damaged, that he can only be compensated by bringing an action toties quoties. That would be a disgraceful state of the law; and I quite agree with the vice-chancellor, in holding that in such a case, this court must issue an injunction, whatever may be the consequences with regard to the lighting of the parishes and dis- tricts which this company supplies with gas."In accord : Atty. Gen. v. Colney, etc., Asylum, L. R. 4 Ch. App. 146, 1868; Acquackanonk, etc., Co. v. Watson, 29 N. J. Eq. 366, 1878; Smith v. City of Rochester, 38 Hun. 612, 1886; Shelter v. City of London Elect. Co. (1895), L. R. 1 Ch. 287; Stock v. Jefferson Township, 114 Mich. 357, 1897; Harper, etc., Co. v. Mountain Water Co., 65 N. J. Eq. 479, 1903. • Compare: Daniels v. Keokuk Water Works, 61 Iowa 549, 1883. (A ATTORNEY-GENERAL v. BIRMINGHAM 133 was owner of dwelling houses situated on a bluff. B who supplied the city with water erected an engine and pumping house at the foot of the bluff. The top of B's smoke-stock was opposite the base of A's houses and dense masses of black smoke enveloped and penetrated A's houses to his inconvenience and annoyance. Relief by injunction refused. Seevers J. said : "If the defendant were enjoined even for a time the result might be disastrous ; for the water supplied by it is the only efficient means of extinguishing conflagrations at the command of the city or its citizens. Besides this, a daily and hourly supply of water used for many purposes would be cut off. We think it may be safely assumed that the rule in equity is, that where the damages can be admeasured and compensated, equity will not interfere where the public benefit greatly outweighs private and individual inconvenience.") An injunction was also refused in the following cases : Lillywhite v. Trimmer, 36 L. J. Ch. 525, 1867 (a stream was polluted by drainage of a town) ; Clifton Iron Co. v. Dye, 87 Ala. 468, 1888 (the pollution of a stream not restrained on account of the development of mineral re- sources) ; Miller v. City of Webster City, 94 Iowa 162, 1895, (a market place established by a city was not rendered a restrainable nuisance be- cause stock confined in it corrupted the air) ; Fisk v. Hartford, 70 Conn. 720, 1898, (water diverted for supply of a city) ; Riedeman v. Mt. Morris Electric Light Co., 67 N. Y. S. 391, 1900, (equity would not enjoin the operation of an electric plant, since serious injury would be done to defendant and public at large) ; Stewart Wire Co. v. Lehigh Co., 203 Pa. 474, 1902, (dictum). 134 NUISANCE DAVIS v. SAWYER. In The Supreme Court of Masachusetts, 1882. 133 Massachusetts Reports, 289. W. Allen, J. This is a bill in equity praying for an injunction to restrain the defendants from ringing a bell. The case comes here on appeal by the defendants from a decree entered by a single judge, enjoining them from ring- ing the bell earlier than half after six o'clock in the morning The plaintiffs for many years have owned and occupied dwelling houses situated, one about one thousand feet, and the other about three hundred feet, from a woolen mill of the defendants. The defendants began to run their mill which, had been before that occupied by other persons, in December, 1879, and about January 1, 1880, placed the bell upon the mill, and caused it to be rung every working day at five o'clock, and twice between six and six and one-half o'clock, in the morning, and at other times during the day, except that the five-o'clock bell was discontinued during the summer months. The plaintiffs allege that the bell as rung is a private nuisance to them, and injuries their property, and disturbs the quiet and comfort of their homes ; that it is not necessary for any purpose of trade or manufacture; that it is un- necessarily large, and rung at unseasonable hours, and un- reasonably long. The defendants in their answer deny that the bell is a nuisance to the plaintiffs, and say that it is used by the defendants to summon the operatives in their mill to work; that it is necessary and customary to adopt some method to summon operatives in such a manfactory to their work; that the bell is of suitable size, and rung at suitable hours, and in a proper manner, for that purpose. Two questions are presented; whether the plaintiffs have proved that the ringing of the bell is a nuisance to DAVIS v. SAWYER 135 them ; and whether it is such a nuisance that this court will interfere to restrain it by injunction. Noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to inter- fere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance to him. Crump v. Lambert, L. R. 3 Eq. 409. Wesson v. Wash- burn Iron Co. 13 Allen, 95. Fay v. Whitman, 100 Mass. 76. Upon a careful examination of the evidence reported, it seems fully to sustain the finding of the judge who heard the case, that the ringing of the bell was a nuisance to the plaintiffs. The bell weighs about two thousand pounds, and is set in an open tower about about forty feet from the ground, and was rung for a long time at five o'clock, as many as ninety strokes having been repeatedly counted. The residences of the plaintiffs are so situated with respect to the bell, particularly that of the plaintiff Davis, being higher than the bell and upon a hill side, with no obstruction between, that they receive the full force of the sound, and they are in a village in which, at that hour, there is no other ringing of bells, or other distrubing noise. Without refer- ring to the evidence in detail, or reviewing the particular circumstances affecting the question, it is enough to say that the evidence sustains what must have been found by the judge, namely, that the plaintiffs were deprived of sleep during hours, usually devoted to repose, and were personally annoyed, and disturbed in their homes, and the quiet and comfort of their dwellings were impaired, as the natural consequence of the acts of the defendants which are complained of. Nor is the fact that a large majority of the persons living nearer to the bell than the plaintiffs were not annoyed by it, at all conclusive that it would not, and did not, awaken and annoy persons of ordinary sensi- bility to noise situated as the plaintiffs were. Besides the consideration that nearness to the bell would not alone determine the effect produced by its sound, it is obvious that the bell was sufficient and effective to awaken persons 136 NUISANCE ordinarily sensitive to sound, who were no more exposed to its effects than the plaintiffs were. That was the effect it was intended to produce, and, if it had not in fact pro- duced the effect, its use would not have been continued. The fact that some persons may have had such associations connected with the sound that it may have been to them a pleasure rather than an annoyance, or that the sensibility of others to the sound may have become so deadened that it ceased to disturb them, shows that the noise was not a nuisance to them, but does not change its character as to others. Many persons can, by habit, lose, to some extent, their sensibility to a disturbing noise, as they can to a disagreeable taste or order or sight, or their susceptibility to a particular poison, but it is because they become less than ordinarily susceptible to the particular impression. In this case, the evidence shows that persons were awakened and distrubed by the bell until they had lost ordinary sensibility to its sound. The other question presented is, whether the plaintiffs are entitled to an injunction. Upon general principles, they would be entitled to an injunction against a nuisance of this nature, for the obvious reason that they can have no adequate remedy in actions at law for damages. Cadigan v. Brown, 120 Mass. 493. But the defendants argue that relief by injunction is in the discretion of the court, and will not be granted where it will be inequitable between the parties, or will work detriment to the public, and that, in this case, the abatement of the nuisance by injunc- tion will involve damage to the defendants in a lawful busi- ness carried on by them to the public benefit, disproportion- ate to the damage to the plaintiffs from its continuance ; and that the court ought not to interfere by injunction, but leave the plaintiffs to their remedy in damages which may be recovered in actions at law. The business in which the defendants are engaged is such a business; and if it ap- peared that the effect of an injunction would be to materially affect it, the argument for the defendants would be of great DAVIS v. SAWYER 137 weight. But the evidence does not show that the ringing of the morning bells is at all essential to the defendants' business, or that it is anything more than a convenience to them. The time for commencing work in the mill was at half after six o'clock in the morning, and the ringing of the morning bells was to aid the operatives in being at their work at that time. It may be convenient for the boarding- house keepers to be called at five o'clock, and for the de- fendants' operatives to be called at six o'clock, and to be summoned to the mill at half after six o'clock; but the evidence wholly fails to show that there are not other and equally effective methods of accomplishing the result which will not interfere with the rights of the plaintiffs. The custom in other places cannot affect the rights of the plain- tiffs. The question is, largely, what is reasonable under the circumstances peculiar to the case. The defendants have adopted a certain method for producing a result sub- ordinate in their business; they thereby do damage to the plaintiffs. If that method is so necessary to their business that it is reasonable that they should use it, notwithstanding the damage it does to the plaintiffs, then it is reasonable that the plaintiffs should suffer the damage, or obtain an indemnity by an action at law. But it is for the defendants to show that their act is, under all the circumstances, rea- sonable ; and we think that the evidence warranted the judge before whom the case was heard in finding that the ringing of the bell before the hours of six and one half o'clock in the morning was not necessary or reasonable. 1 Decree affirmed. 'But see Callanan v. Gilman, 107 N. Y. 360, 1887. (B had a grocery store on a city street. When loading or unloading goods from trucks he placed a bridge across the sidewalk, which entirely obstructed it, to the detriment of A, who carried on business on an adjoining prop- erty. An injunction issued to restrain B from unnecessarily and un- reasonably obstructing the sidewalk. Earl, J., said : "It is not sufficient, however, that the obstructions are _ necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rights of the public." p. 365. 138 NUISANCE REINHARDT v. MENTASTI. In Chancery, before Sir Arthur Kekewich, 1888. Law Reports, 42 Chancery Division, 685. C. W. Reinhardt, the plaintiff in this case, was a banker and money-changer, carrying on his business at and occupy- ing No. 14, Coventry Street, Piccadilly. At the back of his house was a small wine cellar separated from the back of a hotel kept by the defendants, by a party wall only. The defendants, Mentasti Brothers, had a large hotel in Arundell Street, called Previtali's Hotel and they had recently put up in their kitchen a stove so near to the wine cellar of the plaintiff, that as he alleged and as appeared to be the fact, the wine cellar became so hot as to be unfit for the storage of wine. This action was brought, claim- ing an injunction and damages. Kekewich, J. : — For obvious reasons the result of this case may affect many localities and many persons. I therefore thought fit to reserve my judgment, and, although the conclusion which I am about to express is the same as that which I entertained at the close of the trial, I confess to some fluctuation of opinion since that time, as well as during the argument. I thought it possible, and indeed probable, that by studying some of the cases on this branch of law I should find a line of demarcation between those nuisances which may be said to partake of the character of trespass and those of which this cannot be averred, and a diposition on the part of the Court to grant injunctions more readily against the former than the latter. My examination of the authorities has not justified this anticipation. There are, no doubt, expressions in some judgments which point to stronger protection being given where rights of property are invaded than where they are not ; but, on the other hand, REINHARDT v. MENTASTI 139 there are many cases in which a private nuisance, not affecting rights of property, except so far as to pre- vent a man from personally using his own with rea- sonable comfort, may be regarded as having been equally condemned. The principle applied in either class of cases is that a man must not use his own so as to injure his neighbor, and, in substance, the only question discussed in any given case is, whether that principle is applicable to the particular circumstances there occurring. Here there is really no dispute about the material facts. The De- fendants in adding to their hotel have recently converted what, it seems, was formerly an unused chamber into a supplemental kitchen, and have there placed a stove which is used for supplying hot water and cooking pastry. Not only is the stove one of an ordinary character and well constructed, but the Defendants have taken divers precau- tions to prevent its being obnoxious, and the only thing to be said against them in this respect is that the stove does not oc- cupy the site of the fireplace, which must be taken to have existed since the house was first built, and that thus far they have departed from the original plan of the building. And this use of their own house, alleged to be in all respects — and, subject to the one remark just made — apparently in all respects reasonable, has nevertheless proved exceeding- ly inconvenient to their neighbor, the Plaintiff, whose cellar was situate right against the stove on the other side of the wall. It was reasonable for the Plaintiff to have a cellar, and it cannot be said that it was otherwise than of a reasonable character or in an inconvenient place. The heat occasioned by the stove passing through the wall has injured the cellar. It has so injured the cellar that, according to the evidence, the Plaintiff is unable any longer to store his wine there, and although he might keep there what is required for daily use, one ordinary and reasonable purpose of a cellar in a private dwelling-house has gone. The Plaintiff says that such interference with his reasonable use of his own property ought not to be allowed, and in 140 NUISANCE answer it is said that the Defendants, who on their part have only used their own property reasonably, are not to blame. The question. which I have to decide is, which of them is right. The injury to the Plaintiff being clear and clearly arising from the stove, it lay on the Defendant to establish that they were not culpable. In support of this position reference was made to several judgments, and more particularly to those of Lord Bramwell in Bramford v. Turnley [3 B. & S. 62], and Lord Selbome in Gaunt v. Fynney [Law Rep. 8 Ch. 8.], which, with many others to be found in the books, contain passages insisting on the right of every man to act reasonably in the. enjoyment and use of his own property, and the regard which must be had in every case to the special circumstances attending it, including the distinction between dwellings in crowded cities and those in the open country, and the unwillingness of the Court to interfere at the instance of a plaintiff, who, from ill-health or other cause engendering fastidious- ness, complains of that to which his neighbours, however reluctantly, find themselves compelled to submit. Such passages must of course be read in connection with the circumstances of the particular case under consideration, and, what is even more important, they must be read as not intentionally departing from, or rather, in absence of the proof to the contrary, as intentionally adhering to those principles and rules of law which a Judge must be credited with bearing in mind, although he does not think it worth while to repeat or exen expressly to refer to them. Thus read, the judgment of Lord Bramwell, who concurred with the majority of the Court in reversing the decision of the Court of Queen's Bench, and also in overruling Hole v. Barlow [4 C. B'. N. S/334], loses much of the weight which, in reliance on certain selected passages, was sought to be attributed to it by the Defendants, and it is to be observed that in a recent case in the House of Lords, Fleming v. Hislop [11 App. Cas. 6, J, the present Lord Chan- REINHARDT v. MENTASTI 141 cellor epitomized Lord Bramwell's judgement with ap- proval, as saying, "that what makes life less comfortable and causes sensible discomfort and annoyance is a proper subject of injunction." What fell from Lord Selborne in Gaunt, v. Fynney [Law Rep. 8 Ch. 8] may be explained in like manner, and must rather be understood as illustrating the convenience of what Lord Bramwell calls "the rule of give and take; live and let live," than as having established — which I am sure he did not intend to do — any new guide to the decision of cases where a legal nuisance has been proved to exist. I may pass by without further remark the cases of Ball v. Ray [Law Rep. 8 Ch. 467], Sturges v. Bridg- man [11 Ch. D. 852], and Attorney-General v. Sheffield Gas Consumers' Company [3 D. M. & G. 304] the judg- ments in all of which, and especially those in the last cast, are instructive on this branch of law and on the points which were argued before me. But it is right to say a word on Border v. Saillard [2 Ch. D. 692], because that was eminently a case in which the defendant had behaved rea- sonably, and yet was enjoined from continuing a nuisance by a Judge who thought the injunction such a hardship that he. allowed that consideration to influence the costs. After an argument, in which both Ball v. Ray and Gaunt v. Fynney were cited, Sir George Jessel states the general law in terms equivalent to those used by Lord Justice Knight Bruce in Walter v. Selfe [4 De G. & Sm. 315], which has long been treated as giving the true rule of distinction be- tween those nuisances of a personal character which do and those which do not merit an injunction. On page 701 he says: "I take it the law is this, that a man is entitled : to the comfortable enjoyment of his dwelling-house. If his neighbour makes such a noise as to interfere with the ordinary use and enjoyment of his dwelling-house, so as to cause serious annoyance and disturbance, the occupier of the dwelling-house is entitled to be protected from it." He proceeds to explain why it is no answer to say that the 142 NUISANCE defendant is only making a reasonable use of his property, stating that that cannot be the test, and lower down, on page 702, he says what the test, as applied to the case which he had under consideration, is, namely, "Whether the stables are unluckily so situated as that the noise from the horses, not being uncommon horses in any way,, materially disturbs the comfort of the plaintiff's dwelling-house, and prevents the people sleeping at night." If for "horses" you read "stove" and for "sleep" "use of cellar," which, though of couse less necessary, and in that sense entitled to protec- tion, is yet, in my judgment, a reasonable requirement on the part of the Plaintiff, you have a test exactly applicable to the case in hand. Agreeable to this is the opinion of Lord Blackburn, worthy of selection from numerous au- thorities, as expressed in Scott v. Firth [4 F. & F. 349, 351 J. That was a case of nuisance by vibration, caused by steel hammers used in the defendant's workshops, which, be- sides interfering with the comfort of the plaintiff, had, it was alleged, cracked the walls of the adjoining cottages. The learned judge, in summing-up the case to the jury, stated the question to be whether it was one of nuisance — that is, of actionable wrong; and, after calling attention to the evidence of injury, added this: "A further point has been raised by the plea that the grievances com- plained of were caused by the defendant in the reasonable and proper exercise of his trade in a reasonable and proper place. My opinion is that in law that is no answer to the action. I think that that cannot be a reasonable and proper exercise of a trade which has caused such injury to the plaintiff as she complains of." It seems to me, therefore, that notwithstanding some passages in some judgments to the contrary, the application of the principle governing the jurisdiction of the Court in cases of nuisance does not de- pend on the question whether the defendant is using his own reasonably or otherwise. The real question is, does he injure his neighbour? I recognize some hardship in an REINHARDT v. MENTASTI 143 injunction to restrain the Defendants from doing that which I am obliged to regard as a reasonable use of their prop- erty — the better adapting to the purposes of an hotel a house situate in a neighbourhood where hotels are conveniently built; but the hardship is not so great as that in Broder v. Saillard, nor do the facts allow me to regard the De- fendants as so entirely passive as the Master of the Rolls considered the defendant to be there. Therefore, while granting the relief asked by the Plaintiff, I am bound to do so with the usual consequences. I may, however, properly give the Defendants some time to consider and do what is best under the circumstances, and I shall therefore make the injunction not enforceable for three months. His Lordship gave the Plaintiff the costs of the action, but ordered him to pay the Defendants the costs of certain minor issues on which he had failed. 144 NUISANCE RICHARDS APPEAL. In the Supreme Court of Pennsylvania, 1868. 57 Pennsylvania Reports, 105. Thompson, C. J. 1 — The complainant in this case is the owner of a dwelling-house and cotton factory in the village of Phcenixville, Chester county; and the respondents are owners of very extensive iron works in the same village. The former complains that by reason of the kind of fuel- used by the latter in their works, his residence is rendered uncomfortable and unwholesome, and his factory materially injured in the discoloration of his fabrics and deterioration of his machinery. Claiming that he had established this, he asked the court below for a perpetual injunction to re- strain the respondents from using the fuel, bituminous and semi-bituminous coal complained of as the cause of the in- jury to his property in these furnaces. The case was heard on bill and answer, and the court decided against him. He was then permitted to file a replication and take testi- mony, on which there is a report of a master also against him. The court having sustained the report, again refused to enjoin the defendants, and the case is before us on an ap- peal, and we are asked to do what the court below refused, namely, perpetually to restrain the defendants from using bituminous or semi-bituminous coal in their furnaces. The defendants' works are very extensive, amongst the most so, it is said, of any of the kind in the Common- wealth, consisting of several blast furnaces, some seventy puddling furnaces, and rolling-mills and other machinery. They began on a small scale, some forty-nine or fifty years ago, and up to 1840 used bituminous coal exclusively. The original works were not precisely on the spot of those com- *The statement of facts and argument of counsel are omitted. RICHARDS APPEAL 145 plained of, but so near it as to entitle the latter to be re- garded as an extension of the former. The extensions made in the works in 1837, 1846 and 1853, constitute the pres- ent works, the cost of which alone is represented as ex- ceeding half a million of dollars, and which at the time of taking the testimony, and previously, employed, as the mas- ter reports, from eight hundred to one thousand hands. The plaintiff's dwelling, it appears, is situated on a bluff or hill northwardly from the defendants' works, about sev- enty feet above the nearest furnace floor, which brings its first story about on a level with the top of the puddling- stacks, and when the wind is towards the plaintiff's house and from the furnace, the consequence is, that it is at times enveloped in a coal-smoke thrown out of the chimneys of the puddling furnaces. It cannot be doubted, I think, that this materially operates to injure the dwelling-house as a dwelling, and consequently to deteriorate its value. The alleged injury to the factory is mainly that the smoke and soot of the furnace blackens the stock and renders the fabrics less saleable. This I can readily understand and believe. The house was erected in 1829, and the factory in 1834, and both have been generally occupied ever since; the fac- tory not doing full work for some time past, as the master reports. A careful consideration of the testimony satisfies us that the use of semi-bituminous coal, the fuel complained of, is necessary to the successful manufacture of iron fit for axles, cannon and the like, in the manufacture of which the defendants are largely engaged; that the process of manu- facture, and fuel used, are generally employed in similar establishments, and that there was neither a negligent nor willful infliction of injury upon the plaintiff or his property in the defendants' mode of operating their works. What- ever of injury may have, or shall result to, his property from the defendant's works, by reason of the nuisance com- plained of, is such only as is incident to a lawful business conducted in the ordinary way, and by no unusual means. 146 NUISANCE Still there may be injury to the plaintiff; but this of itself may not entitle him to the remedy he seeks. It may not, if ever so clearly established, be a case in which equity ought to enjoin the defendants in the use of a material necessity to the successful production of an article of such prime neces- sity as good iron; especially if it be very certain that a greater injury would ensue by enjoining than would result from a refusal to enjoin. If we were able with certainty to say that the use of semi-bituminous coal, in the process of making good iron by the puddling process, was unnecessary, and other fuel was equally good and available, or that by a reasonable expenditure of money on the works, all injury might be avoided, a different case might appear to our minds as chancellors, and we might then say that the cause of injury should cease, and that a decree in terms to meet such a contingency should be made so as to prevent the in- jury. But we have not such case before us. Bituminous, or at least semi-bituminous coal, we think, from the testi- mony, is necessary in the manufacture of iron, such as the business of the defendants require, and whose fabrics the public require. Nor are we shown by testimony or reliable tests of any kind, that the smoke produced in the puddling process can be consumed, as it undoubtedly may be in ordi- nary chimneys, or when produced in furnaces used to propel machinery. I am personally cognisant that this may be done, from observation both in this country and in Eng- land; and I have therefore read with satisfaction and entire conviction of the truth, the article from the London Quar- terly of 1866, so largely quoted by the learned counsel for the appellants ; but I would be very unwilling to act on that conviction or that theory any further than to the extent to which experiment has gone. I would require very clear proof of the practicability of the application of the principle to uses dissimilar, or partially so, as puddling chimneys from common furnace smoke-stacks. The defendants seem willing to test the applicability of smoke consumers to pud- dling furnaces, and at the same time express their doubts RICHARDS APPEAL 147 in a practical shape by offering $50,000 for an invention which will consume the smoke of their puddling stacks with- out impairing the efficiency of the process of manufactur- ing iron. However this may be, certain it is, we are not able to say from anything shown, that the evil complained of can be remedied by the application of smoke consumers. We do not know what effect their application might have on the process; nor do we think we should visit the de- fendants, because they might be unwilling to add to the height of their chimneys without knowing what effect it would have, or because they might not be willing to tear down their establishment and re-erect it on Seiman's plan or patent. What effect these remedies, or either of them ought to have on the mind of a chancellor, if feasible, and the injury complained of were absolutely irreparable, we are not called upon to say, for such is evidently not the case here of there be any damage at all, as we shall presently show. The rule on this subject is well stated in Grey v. The Ohio and Pennsylvania Railroad Co., 1 Grant 412, thus : "Where damages will compensate either the benefits derived or the loss suffered from a nuisance, equity will not inter- fere." See also Hilliard on Injunc. 271 ; Adams' Eq. 485; Fonblanque's Eq. 5152 Story's Eq. Sec. 925, et seq.; Eden on Injunc. 269. In Coe v. Lake, 37 N. H. 254, it was said, where the bill prayed an injunction to suppress a nuisance to the plaintiff's land, it might be dismissed on general de- murrer for want of equity, unless it appeared from the subject-matter affected by the alleged nuisance that there was danager of irreparable mischief, or of an injury such as could not be adequately compensated in a suit at law. These, and many other authorities to the same effect, some of which are on the paper book of the appellees, prove con- clusively that, as a general rule, mischief or damage is not irreparable which is susceptible of being compensated in damages. We have' no doubt that an action at law will lie for an injury to property for causes similar to those 148 NUISANCE mentioned in this bill, and if so, why will not the remedy be adequate in such case, and thus the injury be repaired in damages? We are not to presume that it will not be. This would be to impugn the justice of our common-law forms without reason. We think, under the circumstances of the case, that the injunction ought to be refused, and the plaintiff left to his action at law for the recovery of such damages as he may have sustained or may sustain. An error seems somewhat prevalent in portions, at least, of this Commonwealth, in regard to proceedings in equity to restrain the commission of nuisances. It seems to be supposed that, as at law, whenever a case is made out of wrongful acts on the one side and consequent injury on the other, a decree to restrain the act complained of, must as certainly follow, as a judgment would follow a verdict in a common-law court. This is a mistake. It is elementary law, that in equity a decree is never of right, as a judgment at law is, but of grace. Hence the chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing, and leaving the party to his redress at the hands of a court and jury. If in conscience the former should appear he will refuse to enjoin ; Hiltio v. The Earl of Granville, i Craig & Ph. Cr. R. 292 ; Grey v. The Ohio and Penna. Railroad Co., supra. We think this is a safe rule, and that the case we are con- sidering is within it. With these views, and on full con- sideration of all the testimony in the case, we are of opinion the injunction was properly refused in the court below, and that the decree dismissing the plaintiff's bill with costs must be affirmed. Appeal dismissed at the cost of the appellant 2 2 In the following cases the notion was advanced, that if an action able nuisance is established, if it appears that greater injury will be done by granting than by withholding the injunction, the Court will not interfere. Wood v. Sutcliffe, 2 Sim. (N. S.) 163, 1851 (part only of ground of decision, and clearly, not the modern doctrine of the English courts; see cases cited, infra, Sullivan v. Steel Co., note 2.) Beardmore v. Tredwell, 3 Giff. 683, 1862; Morris, etc., Co. v. RICHARDS APPEAL 149 Prudden, 20 N. J. Eq. 305, 1869 (see infra, Sullivan v. Steel Co., note 2) ; Demarest v. Hardham, 34 N. J. Eq. 469, 1881 (dictum) ; Fox v. Holcomb, 32 Mich. 494, 1875 ; Turner v. Hart, 71 Mich. 128, 1888 (dic- tum) ; Tuttle v. Church, 53 Fed. 422, 1892 (dictum) ; Wahl v. Cemetery Assn., 197 Pa. 197, 1900 (dictum) ; Downing v. Elliott, 182 Mass. 28, 1902 (dictum). For cases contra see Sullivan v. Steel Co., note 2, infra. Plaintiff at slight expense can avoid consequences of defendant's acts: The courts of Alabama have refused an injunction where plaintiff might at slight expense avoid the consequences of the defendant's nuisance. Rosser v. Randolph, 7 Port. 238, 1838; English v. Progress Co., 95 Ala. 259, 1891. In Wahl v. Cemetery Assn., 197 Pa. 197, 1900, there is dictum to the same effect. But see contra, Paddock v. Somes, 102 Mo. 226, 1890; Masonic Association v. Banks, 94 Va. 693, 1897. 150 NUISANCE SULLIVAN v. JONES & LAUGHLIN STEEL COMPANY. In the Supreme Court of Pennsylvania, 1904/ 208 Pennsylvania Reports, 540. Opinion by Mr. Justice Brown: 1 The material facts in this case, of more than ordinary interest and importance, are not in dispute. They are readily gathered from the court's findings and from testimony which is uncontradicted. In 1859 'the appellee's prede- cessors in title purchased land from Jennie P. A. Sullivan, one of the appellants, and erected furnaces on it. The loca- tion of the land at that time was in Pitt township, which has since been annexed to the city of Pittsburg. It lies between the Monongahela river and Second avenue. This avenue runs along the foot of a bluff, on the top of which the properties of appellants are situated, at an average distance of about 1,000 feet in a northerly direction from the fur- naces of the appellee. The tops of these furnaces are a little lower and the stacks a little higher than the bluff. The district in which the furnaces are located is, and for many years has been, distinctively and exclusively a manufactur- ing one, and the district on top of the bluff, where appel- lants' properties are situated, is, and has been for some time, a residence locality, which has been subject to the smoke and dust from the furnaces and mills along the Monongahela river at the foot of the bluff, but was never subject to ore dust, in annoying and injurious quantities, until about July 1, 1901. Prior to 1898 the appellee had three furnaces in blast on the sites of the present ones, and, about seven or eight years before this bill was filed, began to use "Mesaba" ore. It had been using "Old Range" 'The arguments of counsel are omitted. SULLIVAN v. STEEL COMPANY 151 ore, the supply of which is being exhausted. The amount of "Mesaba" ore used during the time stated averaged about thirty per cent, of the total quantity used. This "Mesaba" ore, brought from Minnesota, is a fine and dustlike quality. "Old Range" is coarse and lumpy. No complaint is made of the emission and settling of dust upon the properties of appellants when either or both these ores were used prior to 1901. Between March, 1898, and May, 1901, according to the court's ninth finding, "The three furnaces at that time constituting the Eliza furnaces were rebuilt, improved and enlarged upon the site and now occupied by them, and a fourth furnace added upon that site. The first of the rebuilt furnaces was 'blown in' September 1, 1899; the second May 13, 1900; the third, January 21, 1901, and the fourth on May 8, 1901. These furnaces as re-built, im- proved and enlarged, are constructed in accordance with modern and approved plans, and in their construction are in every respect equipped with modern appliances and im- provements, and are equal, in many respects superior, to other furnaces in this locality in which pig iron is manu- factured, and among the largest known in the iron business, having a capacity each of about 500 tons daily production and consuming together about 4,000 tons of ore daily." The capacity of these new furnaces is twice or three times that of the old ones replaced by them. After the fourth and last furnace was blown in the annoyance and injury began, against the continuance of which relief is sought by this bill. The escape of dust from blast furnaces in large quantities is due to what is known as a "slip," a definition of which is found in the court's eleventh finding: "The escape of dust from blast furnaces into the atmosphere is, and always has been, incident to their operation. It escapes at all times, but in larger quantities when what is known as a 'slip' occurs in the furnace. In the operation of all blast furnaces 'slips' occur from time to time. These are 152 NUISANCE occasioned by the caking or encrusting of the ore in the stack of the furnace, and the falling away of the ore, fuel and limestone beneath the crust by reason of the continued combustion and the liquefaction of the iron, thus forming a chamber or vacant space into which the encrusted ore at the top drops, occasioning an explosion, the violence of which depends upon the extent of the cavity produced, and the amount of gas accumulated therein. 'Slips' occur at irregular intervals, and perhaps more frequently since the use of Mesaba ores, their frequency depending upon the manner in which the furnace is working. Sometimes there may be but four 'slips' in twenty-four hours, while at other times during the same period the number may be as high as eighteen." The seventeenth finding is : "Ore dust was first noticed settling upon the properties in the neighborhood of defend- ant's furnaces as early as 1899, but the deposit did not become serious until about July, 1901. Since that time, dust in greater or less quantities, has been carried from the ' defendant's furnaces and deposited upon and about plain- tiff's premises. The effect of the dust is not only annoy- ing, but injurious to property; it chokes rain conductors upon the houses, discolors fabrics and paints, and injures carpets and curtains ; it is of a greasy nature and difficult to remove from both garments and paints ; it has also been destructive to fruit and shade trees and vegetation gen- erally, and has depreciated the value of plaintiffs' properties from twenty-five per cent, to fifty per cent." The furnaces were operated in a careful and skillful manner, and no effort or money was spared to keep them in constant good order and repair. As to the escape of this ore dust, a further finding is the sixteenth: "The escape of ore dust due to 'slips' in the furnace is a financial loss to the operator, both in the matter of production and in the loss of ore; the defendant has been diligent in its efforts to find means, or to adopt appliances or inventions which will prevent the escape of dust from its furnaces ; up to the present time no SULLIVAN v. STEEL COMPANY 153 appliance has been found which will effectually prevent, or reasonably diminish, the escape of the ore dust from blast furnaces, when 'slips' occur. The use of Old Range ores exclusively would not materially lessen the number of 'slips' occurring in furnaces, but would to a considerable extent decrease the amount of ore dust discharged into the air at each explosion." :fc ifc ^ ^i The appellants are not complaining because appellee is operating its furnaces. They would not be heard if that were their only complaint. The city of Pittsburg is a busy manufacturing center, and by day and by night clouds of smoke ascend from the stacks of its numberless mills, factories and furnaces, ofttimes hanging over it like a pall. In a manufacturing district of this city the appellee has established its furnaces and is engaged in an important and lawful business. The appellants, in a residential portion of same city, close by this manufacturing district, own houses in which their tenants live. So situated, they must expect a measure of annoyance and discomfort, arising from the dust and smoke, which cannot be avoided in their manu- facturing metropolis, and are borne to the homes of the city and fill the air that is breathed. To this general an- noyance and discomfort appellants submitted for years with- out complaint, and they were bound to do so, for they chose to erect their houses not only in sight of great manu- facturing plants, but within certain reach of the smoke and dust, without which the fires of the furnaces and factories could not burn. Of all this there is now no complaint by them. What, in common with all other citizens, they had endured for years, up to the summer of 1901, they were willing to continue to endure; and they are not now complaining of appellee's manufacture of iron, even with "Mesaba" ore. Their complaint is that the ap- pellee in tearing down the three furnaces and replacing them with the four new ones, of immense size and several times the capacity of the old, and in using in them the fine "Mesa- 154 NUISANCE ba" ore dust, without so operating them as to prevent the escape of the dust from "slips," causing admitted devasta- tion, is practically confiscating their properties. To pre-, serve these to them, and to protect them in their absolute right to the enjoyment of their private property, subject to the general conditions of the city in which they live, this bill was filed; and its prayer is not to restrain the appellee from operating its furnaces, and manufacturing iron, but is to enjoin it from such operation of them as causes the serious and exceptional injuries alleged in the bill and proved by the testimony. As already stated, the facts here are not in dispute. Not a single finding of fact by the learned judge below is assigned as error by the appellants, whose bill he dismissed. Equitable relief cannot, therefore, be withheld because more light as to any alleged fact could be obtained from a jury on the common-law side of the court. * * * * If this bill were for relief from personal inconveni- ence and interference with the appellants' full and free en- joyment of their property, due merely to the conditions of smoke and dust that have existed for years and will exist as long as the city itself continues to be the great steel and iron manufacturing center, it would be promptly dismissed. Of the smoke and dust now coming from all the other sur- rounding mills and furnaces no complaint is made, and of what used to come from the old furnaces of the appellee the appellants made no complaint, and would not be com- plaining now but for the changed conditions brought about by the appellee. The court below, though requested by it, refused to find that "the matters complained of by plaintiffs are only such discomforts and inconveniences as are and always have been incident to and consequent upon close proximity to an exclusively manufacturing section of a manufacturing city." The changed conditions brought about by the appellee have not resulted from the development and natural use SULLIVAN v. STEEL COMPANY 155 and enjoyment of its own property, as was the situation in Pennsylvania Coal Co. v. Sanderson, 113 Pa., 126, the doctrine of which case has never been and never ought to be extended beyond the limitation put upon it by its own facts. There it was said of the coal company : "They have brought nothing on to the land artificially. The water as it is poured into Meadow Brook, is the water which the mine naturally discharges; its impurity arises from natural, not artificial causes. The mine cannot, of course, be operated elsewhere than where the coal is naturally found, and the discharge is a necessary incident to the mining of it." Here the furnaces were artificially brought by appellee on to its lands by being built there by it, and the "Mesaba" ore con- verted by the furnaces into iron is also artificially brought there by it. It knew, when about to erect these new furnaces, of immense size and great capacity, that, in their operation, the rights of others, among them those of the appellants, to the use and enjoyment of their property, situated in what, for years, has been a portion of the city given up to resi- ences, were not to be utterly disregarded; and, when it be- gan to use the fine ore dust, which has manifestly caused the serious injury to the property of the appellants, it was again bound to consider the effect of the use of this ore upon the nearby residences. By this we are not to be un- derstood as saying, or even intimating, that the large fur- naces could not be erected and operated, that "Mesaba" ore cannot be used, or if, in the operation of the furnaces and the use of this fine ore, the discomfort and annoyance of the appellants had simply been increased in degree, they would be entitled to equitable relief. When, however, as the result of the improvements voluntarily made by the ap- pellee, and its use of a new ore, the annoyance, inconveni- ence and injury to which the appellants are now subjected do not differ merely in degree from those to which they for- merely submitted as part of their lot as citizens of the "Iron City," but in kind, and practical destruction and confisca- tion of their properties confront them, a very different situa- 156 NUISANCE tion is presented to a chancellor from those cases in which the rule is laid down that people who live in such a city, or within its sphere of usefulness, do so of choice, and, therefore, voluntarily submit themselves to its peculi- arities and its discomforts. It is urged that as an injunction is a matter of grace, and not of right, and more injury will result in awarding than refusing it, it ought not to go out in this case. A chan- cellor does act as of grace, but that grace sometimes becomes a matter of right to the suitor in his court, and, when it is clear that the law cannot give protection and relief — to which the complainant in equity is admittedly entitled — the chan- cellor can no more withhold his grace than the law can de- ny protection and relief, if able to give them. This is too often overlooked when it is said that in equity a decree is of grace, and not of right, as a judgement at law. In Walters v. McElroy et al., supra, the defendants gave as one of the reasons why the plaintiff's bill should be dismissed, that his land was worth but little, while they were engaged in a great mining industry which would be paralyzed if they should be enjoined from a continuance of the acts com- plained of; and the principle was invoked, that, as a decree in equity is of grace, a chancellor will never enjoin an act, where, by so doing, greater injury will result than from a refusal to enjoin. To this we said : "The phrase 'of grace* predicated of a decree in equity had its origin in an age when kings dispensed their royal favors by the hands of their chancellors, but, although it continues to be repeated occas- ionally, it has no rightful place in the jurisprudence of a free commonwealth, and ought to be relegated to the age in which it was appropriate. It has been somewhere said' that equity has its laws as law has its equity. This is but another form of saying that equitable remedies are adminis- tered in accordance with rules as certain as human wisdom can devise, leaving their application only in doubtful cases to the discretion, not the unmerited favor or grace of the SULLIVAN v. STEEL COMPANY 157 chancellor. Certainly no chancellor in any English speak- ing country will at this day admit that he dispenses favors or refuses rightful demands, or deny that when a suitor has brought his cause clearly within the rules of equity jur- isprudence, the relief he asks is demandable ex debito jus- titise, and needs not to be implored ex gratia. As to the principle invoked that a chancellor will refuse to enjoin when greater injury will result from granting than from refus- ing an injunction, it is enough to observe that it has no ap- plication where the act complained of is in itself as well as in its incidents tortious. In such case it cannot be said that injury would result from an injunction, for no man can complain that he is injured by being prevented from doing to the hurt of another that which he has no right to do. Nor can it make the slightest difference that the plaintiff's pro- perty is of insignificant value to him as compared with, the advantages that would accrue to the defendants from its occupation." There can be no balancing of conveniences when such balancing involves the preservation of an established right, though possessed by a peasant only to a cottage as his home, and which will be extinguished if relief is not granted against one who would destroy it in artificially using his own land. Though it is said a chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his re- dress at the hands of a court and jury, and if, in conscience, the former should appear he would refuse to enjoin: Rich- ard's Appeal, supra; that, "it often becomes a grave question whether so great an injury would not be done to the com- munity by enjoining the business, that the complaining party should be left to his remedy at law:" Dilworth's Appeal [91 Pa. 247] ; and similar expressions are to be found in other cases, "none of them, nor all of them, can be authority for the proposition that equity, in case for its cognizance being otherwise made out, will refuse to protect a man in the pos- session and enjoyment of his property because that right is 158 NUISANCE less valuable to him than the power to destroy it may be to his neighbor or to the public :" Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209. The right of a man to use and enjoy his property is as supreme as his neighbor's and no artificial use of it by either can be permitted to destroy that of the other. To this rule if at times there are appar- ently some exceptions, the present case is not one of them. The decree of the court below is reversed, the bill is reinstated and the record remitted, with direction that an injunction be issued perpetually enjoining Jones & Laugh- lin Steel Company, the appellee, from such operation of its furnaces, situated in the Fourteenth ward of the city of Pittsburg, and described in the bill, as to cause to be emitted thereform clouds of ore dust, working and causing the in- jury to the property of the appellants as in the bill described and found by the court below, the costs on this appeal and in the preceeding below to be paid by the appellee. Mr. Chief Justice Mitchell dissenting : It is conceded that when the respondents located their works they were in an appropriate place. Certainly the com- plainants cannot deny this for they sold the land for this express purpose. The establishment of the works carried with it the right to future change and expansion not only as to extend but as to methods in the progress of the busi- ness. It was accompanied at all times by some inconvenience to residents of the neighborhood, and I am unable to concur in the views of the majority that the change by the introduc- tion of the use of Mesaba ore was a change in the kind of in- jury. On the contrary I am of opinion that it was one of de^- gree only, but whether that be the correct view or not the question is one of fact which is by no means clear and there- fore should go in the first instance to a court of law to be set- tled by a jury. Where a clear legal right is being infringed I agree that the remedy in equity is as mandatory as in law. but where as here the question is between two conflicting rights, their respective claims should be ascertained at law SULLIVAN v. STEEL COMPANY 159 before equity is called upon to aid either. I would therefore affirm the decree. 2 justices Fell and Thompson also dissented. Compare with the principal case, the cases cited supra, Richard's Appeal, note 2, and also the follozving cases: Pennington v. Brinsop Co., L. R. s Ch. D. 769, 1877. (An injunction issued to restrain de- fendants from discharging water from their mines into a stream so as to cause an injury to the plaintiff's mill. It was no defense that obe- dience to the injunction would be possible only by stopping defendant's works and throwing out of employment a large number of workmen. In accord, Higgins v. Flemington Water Co., 36 N. J. Eq. 538, 1883.) Hennessy v. Carmony, 50 N. J. Eq. 616, 1892. (The defendant was restrained from so using his machines as to cause the complainant's house to vibrate. The complainant owned a small dwelling house in close proximity to defendant's dye-works. Pitney, V. C, said: "The insignificancy of the injury to the complainant cannot be taken into account, if it be appreciable and such as would clearly entitle him to damages at law.") Young v. Bankier Distillery Co., App. Cas. (1893) 691. (Com- plainants, riparian owners restrained defendants from pouring into a stream water pumped from their mines. It was no defense that work- ing coal was the natural use of defendant's mineral property and that they could not continue to work unless they were permitted to dis- charge the water which accumulated in their mine into the stream) ; Hobbs v. Amador Co., 66 Cal. 161, 1884; Stock v. Jefferson Twp., 114 Mich. 357, 1897; Suffolk Gold Mining Co. v. San Miguel Co., 9 Colo. App. 407, 1897; in accord. In Weston Paper Co. v. Pope, 155 Ind. 394, 1900, it was held that the fact that a manufacturing company had expended a large sum of money in the construction of its plant and that it conducted its business in a careful manner and without malice, would not relieve it from liability to a riparian owner for damages for depositing refuse matter in a stream. Injunction also granted. In accord, Banks v. Frazier, 23 Ky. Law Rep. 1197, 1901 ; Brown v. Ontario, etc., Co., 81 App. Div. (N. Y.) 273, 1903. On application for a temporary injunction the balance of injury will be taken into consideration. Herbert v. Penna. R. R. Co., 43 N. J. Eq. 21, 1887. (B Co. made an embankment which sunk into the silt and forced it back upon A's adjacent property so as to disturb the surface of his lot upon which he had a building which was thereby damaged. A asked for a mandatory interlocutory injunction to com- pel the removal of the embankment. An injunction was refused. The damage was done, and any possible future damage to A would be small in comparison to the injury to B which would result from either a preventive or mandatory injunction.) The following statement from the case of Evans v. Fertilizing Co., 160 Pa. 209, 1804, shows the generally accepted view on this point. "So far as the "balance of injury" notion refers to the parties of the litigation, its legitimate application is to motions for preliminary injunctions, not to final decrees. Where the question for the con- sideration of the court is as to the propriety of stopping a business by preliminary injunctions, upon an ex parte showing, which may or may not be substantiated by further examination of the case in due course, it is very well for a chancellor to take into account the magnitude of the defendant's investment and compare it with the character of the 160 NUISANCE plaintiff's alleged injury, and if the latter appears trifling beside that which would result from the impairment of the former, he may well refuse to exercise his power until more fully advised." In accord with this rule Wynstanley v. Lee, 2 Swanst, 333, 1818; Hilton v. Earl of Granville, 1 Craig & P. 283, 1841 ; Elmhirst v. Spencer, 2 Mac N. & G. 45, 1849; Eaden v. Firth, 1 H. & M. 573, 1863; Duncan v. Hayes, 22 N. J. Eq. 25, 1871 ; Sellers v. Parvis, 30 Fed. 164, 1886 ; Amelia Co. v. Tenn., etc. Co. 123 Fed. 811, 1903. Damages for Past Injury. Where a party has established his right to an injunction, equity will afford complete relief, and grant damages for past injuries arising from the nuisance restrained, in order to avoid a multiplicity of suits. Farris v. Dudley, 78 Ala. 124, 1884; Comminge v. Stevenson, 76 Tex. 642, 1890; Walters v. McElroy, 151 Pa. 549, 1892; Case v. Minot, 158 Mass. 577, 1893. (When plaintiff brings a bill for equitable relief to which he is then entitled and a reason for denying such relief after- ward arises, the bill will be retained for the assessment of damages) ; Roberts v. West, 126 Ala. 355, 1899; Piatt v. Waterbury, 72 Conn. 531, 1900; Richi v. Chattanooga, etc., Co., 105 Tenn. 651, 1900; Moon v. National Wall Plaster Co., 66 N. Y. Supp. 33, 1900; Keppel v. Lehigh Coal & Nav. Co., 200 Pa. 649, 1901 (Pollution of a stream by a coal mining operation) ; Gilbert v. Boak Fish Co., 86 Minn. 365, 1902 (Court went so far as to say that the plaintiff must recover compensation in the equity suit, or forfeit all claim for past damages) ; Reese v. Wright (Md.), 56 Atl. Rep. 976, 1904. In some of the jurisdictions above represented, statutes exist which direct the courts of equity to grant the dual relief. See contra to the foregoing cases, Minor v. Nichols, 24 R. I. 199, 1902 (A bill in equity seeking to restrain the defendant from con- tinuing to obstruct a water-course, which also prayed for damages for the injury already suffered, was held demurrable as to that portion of the bill seeking damages. But see Lonsdale v. Woonsocket, 25 R. I. 428, 1903) ; Stevenson v. Morgan (N. J. Eq.), 53 Atl. Rep. 677, 1902. Additional Miscellaneous Cases of Injunctions Against Nuisances. The following examples of the restraint of specific nuisances not mentioned in the notes to the foregoing cases may be of interest. Dams. In the following cases the equitable remedy of injunction was granted because the overflow of water upon the complainant's land was a continuous trespass which would result in a nuisance, not sus- ceptible of being adequately compensated in damages at law, or causing a multiplicity of suits and vexatious litigation: Coulson v. White, 3 Atkyns 21, 1743; Hammond v. Fuller, 1 Paige, 197, 1828; White v. Forbes, Walk. (Mich) 112, 1843; Stevens v. Stevens, 52 Mass. 251, SULLIVAN v. STEEL COMPANY 161 1846; Whitfield v. Rogers, 26 Miss. 84, 1853; Stone v. Roscommon Lumber Co., 59 Mich. 24, 1886; Koopman v. Blodgett, 70 Mich. 610, 1888; Turner v. Hart, 71 Mich. 128, 1888; Lake Erie & Western R. R. Co. v. Young, 135 Ind. 426, 1893; Harmon v. Carter, 59 S. W. 656, 1900; Brown z.'. Ontario Talc. Co., 81 App. Div. (N. Y.) 273, 1903 (A mandatory injunction was granted to lower a dam, which caused water to back up upon complainant's land) ; Schwarzenbach v. Electric Water Power Co., 92 N. Y. Supp. 187, 1905. Where the overflow of the plaintiff's land is the result of a dam erected on land of the defendant, instead of requiring an entire pros- tration of the dam, a decree in equity may order an abatement in part, determine the height to which the dam may be kept, the terms on which it may be kept up, and the mode of using the water; Bemis v. Upham, 13 Pick. 169, 1832; Longwood Valley R. R. Co. v. Baker, 27 N. J. Eq., 166, 1876. Other instances in which dams have been restrained as a nuisance : McCormick v. Horan, 81 N. Y. 86, 1880. (A was an upper, B a lower, riparian owner. B erected a dam. B's dam would not have caused the water to flow back on A's land, had A not increased the natural flow of the stream. Had B not erected the dam in the way he did, the natural capacity of the water course would have been sufficient to carry off the additional water discharged by A. A's prayer for a decree abating the dam granted.) McKee v. Delaware & Hudson Canal Co., 125 N. Y. 353, 1891. (A was a lower riparian owner. B, a canal company, was an upper riparian owner. B retained the waters of a natural stream on its lands by a dam; in dry seasons, in the use of the stream as a feeder for its canal, it discharged the water in such quantities that the stream over- flowed its banks, causing injury to lands of A. Injunction granted.) Sullivan v. Dooley, 73 S. W. 82, 1903. (A and B were land owners on opposite banks of a stream which frequently overflowed and inun- dated the land on both sides, but more easily overflowed the land of B. B filled in the low places on his land and was about to construct a levee, which would cause the stream to unnaturally overflow A's land. A's prayer for a decree restraining the erection granted. In ac- cord: Menzies v. Breadalbane, 3 Bligk, N. S., 414. 1825; Farris v. Dudley, 78 Ala. 124, 1884). Krause v. Oregon Iron & Steel Co., 77 Pac. 833, 1904. (A owned valuable farming lands, which were formerly of a marshy character, but had been redeemed by drainage. B erected a dam in the stream into which A's ditches and drains emptied. The drainage of A's lowlands was thereby impeded, and the planting of crops retarded from one to four weeks. The obstruction of the river was enjoined at the in- stance of A.) Explosives. The use or storing of, in thickly settled sections so as to endanger life is a nuisance which equity will enjoin. Wier's Appeal, 74 Pa. 230, 1873 (The erection of a powder-house was restrained, without the existence of actual irreparable damage, but to prevent it). Sayen v. Johnson, 3 Del. Co. (Pa.) 323, 1887 (B operated a quarry by means of violent explosives. Pieces of rock were thrown upon the public road and premises of A. Injunction granted to restrain B from operating his quarry in manner dangerous to A's life and property). People's Gas Co. v. Tyner, 131 Ind. 277, 1891 (A and B owned city properties, only separated by a narrow street. B dug a natural gas well upon his property and accumulated a large quantity of nitro- glycerine for the purpose of "shooting" the well. A prayed that B be restrained from accumulating or using the explosive. Injunction 162 NUISANCE granted. Coffey, J., said: "It certainly cannot be maintained that the destruction of human life is an injury which can be compensated in damages." p. 283.) Heat. Compare with Remhardt v. Mentasti, supra, p. 102, the case of St Louis Safe Deposit Bank v. Kennett Estate, 101 Mo. App. 370, 1903, the maintenance of a smokestack was enjoined as a con- tinuing nuisance. The heat which radiated from the stack made plain- tiff's rooms untenantable. Ice on High Buildings. Davis v. Niagara Falls Tower Co., 171 N. Y. 336, 1902. (A owned museum with large skylights in the roof. B built a tower upon his adjacent land. Ice formed on the tower, and when a thaw occurred large quantities of ice fell upon A's roof, with sufficient velocity to endanger human life. A's building was also in- jured. Injunction issued restraining B from so maintaining the struc- ture that ice would form and fall upon A's building.) Pest Houses. Metropolitan Asylum v. Hill, L. R., 6 App. Cas. 193, 1881. (Injunction against maintenance of hospital for contagious diseases. In accord: Gilford v. Babies' Hospital, 21 Abb. N. C, 159, 1888.) Spite Fences. A spite fence will be enjoined in those jurisdictions which recognize the maintenance of such a structure as an actionable wrong. Kirkwood v. Finegan, 95 Mich. 543, 1893. (A and B were neighbors on a residential street. They quarreled, and B constructed a fence of discarded street railway ties, to which he nailed old boards. Injunction issued to restrain the maintenance of such a fence. Its- character indicated the motive which prompted its construction. Fol- lowing Burke v. Smith, 69 Mich. 380, 1888; Flaherty v. Moran, 81 Mich 52, 1890. In accord: Harbison v. White, 46 Conn. 106, 1878.) The injunction in such cases will be refused in those jurisdictions which deny a right of action. Letts v. Kessler, 54 Ohio 73, 1896. For a full discussion of the question whether it is lawful for the owner of land, to erect a fence to "spite his neighbor," or dig a well for the pur- pose of draining his neighbor's well, etc. See Pomeroy's Eq. Jur., Vol. 5, sec. 528 (3rd Ed.), and cases cited. THE ATTORNEY-GENERAL v. RICHARDS 163 SECTION 2. PUBLIC NUISANCE. THE ATTORNEY-GENERAL v. RICHARDS. In the Exchequer, before Chief Baron MacDonald, 1795- 2 Anstruther, 603. This information stated, that, by the royal prerogative, the sea and sea-crafts, as far as the sea flows and reflows, between the high and low water-marks, and all the ports and havens of the kingdom, belong to his Majesty, and ought to be preserved for the use of his Majesty's vessels, and others, and that his Majesty has the right of superintendency over them, for their preservation. It then stated, that the Defendants, in 1784, erected a wharf or key, two docks, and other buildings, between high and low water-mark, in Portsmouth harbor, adjoining to Gosport, so as both to prevents the boats and vessels from sailing over that spot, or mooring there; and also to en- danger further damage to the harbor, by preventing the free current of the water to carry off the mud. The information therefore prayed, that the defendants might be restrained from making any further erections, that those made might be abated, and the harbor restored to its ancient situation. The Defendants claimed to hold the soil of the place irt question under letters-patent, 14th July, 4 Ch. I. 1 It was proved, that the embankment was highly pre- judicial and dangerous to the harbor, and that it was 'So much only of the case as relates to the question of nuisance and the jurisdiction of chancery to restrain, is printed. 164 NUISANCE peculiarly hurtful to the town of Gosport, by preventing' boats from coming immediately up to the town, on that side, as formerly. This case was argued during the term by the Attorney General and Solicitor General, Alexander, Campbell, and Percival, for the Crown. The prima facie right of the Crown to all ports and arms of the sea, and to the soil thereof, is clearly established. The nature of that right is explained by Lord Hale in his treatises De Jure Mans and De Portibus Maris. It is there shown (p. 12) that the King has the soil of the sea-coast and havens, and is en- titled to the profits thereof as a jus privatum; and so far as it is considered in that light merely, he may grant it away. But he has also (p. 81, 83, 88, 89) another right in the arms of the sea, the right of a free passage for all his subjects, and others, and of having all havens, and branches of the sea, preserved from nuisances, for that purpose. This is a right similar to the King's property in highways, a mere jus publicum vested in the King for the use of the subjects. This, by its nature, is unalienable, and shall pre- vail against any claim set up against it. Lord Hale, De Jure Maris, 12. De Jure Portibus, 85. Where any invasion of the jus privatum of the Crown, in arms of the sea, or ports, takes place, by encroachment on the soil, it is a purpresture. Glanville, 1. 9, c. 11. Spelm, Gloff. Purpresture. Where the jus publicum is violated, it is a nuisance; and it frequently happens, as in the present case, that a nuisance in a port is accompanied with a pur- presture, or encroachment on the soil of the Crown. All nuisances may be abated by the mere act of any individual; but, in the case of the Crown, the more proper and decorous mode of proceeding, is by information in a court of justice, for ascertaining the right. This may be done by information in equity, as well as at law; and the nuisance may be decreed to be abated. In the case of a purpresture, the same method of pro- THE ATTORNEY-GENERAL v. RICHARDS 165 ceeding has been held proper. In case of the decree for the Crown, an inquiry is directed, whether it be most beneficial for the Crown to abate the purpresture, or to suffer the erections to remain, and be arrented. Where the purpresture is also a nuisance, the Crown has not this election; for it cannot sanction a nuisance. In the case of the Attorney General v. Philpot, in this Court, 8 Ch. I. the information stated the Crown to be seised of the river Thames where navigable and an arm of the sea, for the use of the ships resorting there; and that the Crown was also seised of the soil betwen high and low water-mark ; that the defendants had lately encroached upon the soil of the King, and had thereby stopped the course of the river, and rendered it less convenient for shipping, and for their mooring in the pool. The information there- fore prayed, that the encroachment might be declared a purpresture, and be abated as such. The defendants set up a. defence, that they had had the leave of the High Admiral, and that their encroachment was no damage to the shipping. The Court declared, that purprestures on navigable rivers ought to be abated. They accordingly directed a commission to inquire, whether the fact complained of was a purpresture. The commissioners returned that it was, and the encroach- ment was abated. So in the case of the City of Bristol v. Morgan, cited in Lord Hale's treatise De Portibus Maris, p. 81. The bill stated the benefit of navigable rivers for commerce, and the right to have all purprestures therein abated. It was proved, that the defendants had erected houses on the banks of the Avon, so as to straighten the river, and to incommode the passage to and from the shipping to the shore: that these houses also intercepted the commerce to the town, and tended to defraud the revenue. The encroachments were ordered to be abated, on the ground of the damage to the city; but were never destroyed, some composition having probably been entered into. A similar case is there cited 166 NUISANCE to have been determined between the Town of Newcastle and Johnson, relative to the right of towage on the river Tyne. In Churchman v. Tunstal, Hardr. 162., the plaintiff sued by bill, as tenant of an ancient ferry under the Crown, to suppress a new ferry set up in the neighborhood, to the damage of his ancient ferry, and to obtain an injunction against renewing it. The Court there dismissed the bill, as seeking to establish a monopoly ; but another bill being after- wards filed for the same matter, the Court, on 7th April, 14 Ch. II. (Lord Hale presiding in it,) decreed, that the new ferry should be suppressed, and that the defendants should not have liberty to use any ferry-boat, to the annoyance of the plaintiff's ancient ferry. So in the anonymous case, 3 Atk. 750, where it was moved to issue an injunction against building a small-pox hospital in Cold Bath Fields, Lord Hardwicke lays it down that, in the case of a public nuisance, an information by the Attorney General is the proper remedy. He was then sitting in equity, and must be understood to mean an information in a court of equity. Besides, he refused the injunction in that case, upon the want of merits, not from any doubt of his jurisdiction. So Coulson v. White, 3 Atk. 21., establishes the authority of equity to abate nuisances. Ryder v. Ben- tham, 1 Vez. 543. Sir Lister Holt's case, 2 Vez. 193. Macdonald, Chief Baron, this day delivered the opin- ion of the Court, (after stating the case,) to this effect. It is clear that the right to the soil, between high and low water mark, is prima facie in the crown. Then the onus of proving an adverse title is thrown upon the defend- ant. Upon the whole, we are of opinion, that the defendants have not made out any title to the soil of the place in ques- tion. But it is argued, that the prayer of the bill being to abate the erection as a nuisance, the Court can only con- THE ATTORNEY-GENERAL v. RICHARDS 167 sider that question, as alone supporting the relief prayed ; and it is contended, that this Court cannot give such a decree, or at least not without the intervention of a jury, the question of nuisance being, as laid down by Lord Hale, a question or fact, and not of law. That may be, where the question is of nuisance only, and the evidence doubtful. 2 But the cases 2 In the following cases the question whether a court of chancery will restrain a public nuisance before trial at law, is discussed: Attorney-General v. Johnson, 2 Wils. Ch. 87, 1819 (A. was erecting a wharf or embankment encroaching on the river Thames. Injunction to restrain granted by Lord Eldon on the filing of bill and affidavit. An indictment was pending at the time. Lord Eldon said : "But if the information can be supported, what is the effect of the court's now interfering by injunction? The matter in question may, as between the relator who is prosecutor, and the defendants, be tried in a few days from this time. If there should be a conviction on the indictment, there will be an end of the supposed right of the defendants to do the acts complained of by the information. On the other hand, if the in- dictment cannot be supported, the only mischief is, that the defendants, in consequence of the injunction, forbear to throw rubbish into the Thames during the very short interval between this time and the trial. In the one case they would be subject to all the difficulty and inconve- nience of removing the rubbish, and in the other the court merely treats that which the defendants are told is a great good, as being questionable. With great respect therefore for the opinion of the Vice- Chancellor, and although I agree with his Honor that there is some- times much danger in granting injunctions on ex parte applications, I think, that under the circumstances, this is a fair case for granting an injunction in the first instance, until answer or further order; with liberty to the defendants to move to dissolve it on Thursday next, the relator undertaking to give immediate notice to the defendants, of the injunction, and of the liberty given to them to apply to dissolve it." p. 97. Motion to dissolve injunction, on ground that proposed work was not a nuisance. Lord Eldon said: "In The Attorney-General v. Cleaver if I recollect rightly, there had been considerable delay in making the application: and if the King's subjects have permitted the erection of a building which they were aware would, when com- pleted, be a nuisance, without promptly applying to the court to prevent it, the court would not consider them entitled to the extraordinary as- sistance of a court of equity, but leave them to their legal remedy. But it is a different question whether the court will interfere to prevent a nuisance threatened but not completed, and which, if permitted, may produce irremediable mischief, and whether the court has not a juris- diction to stop the progress of the intended work until it shall be ascer- tained whether it is a nuisance or not. I am inclined to think that the injunction in this case may well be continued for the present. The questions for consideration will be, first, as to the fact of nuisance, and secondly, whether there has been such delay in the proceedings on the part of those who seek to restrain it, as will prevent the court from interposing, leaving them, as in other instances, to deal with it at law." p. 102. The injunction was continued. The defendants were convicted in the criminal prosecution and the work was abandoned). 168 NUISANCE cited, and those which Lord Hale has given us, in the treatise De Portibus Maris, clearly prove, that where the king claims and proves a right to the soil, where a purpres- ture and nuisance have been committed, he may have a de- cree to abate it. The case of the River Thames, and the Bristol and the Nezvcastle cases, cited by Lord Hale, are all authorities for this proposition. The case in Hardr. 162. was at first determined otherwise; but the reporter doubts its authority, as it was afterwards overturned. It is objected that these cases were in the time of Ch. I. ; but it must be remembered, that Lord Hale determined some of them, and approved the rest. Supported by such authority, we do not hesitate to declare, that the soil is the property of the Crown ; and of course, to decree, that these buildings be abated. 3 Commonwealth v. Rush, 14 Pa. 186, 1850 (Private buildings were erected by authority of a municipal corporation, upon land reserved as a public square. Bill filed by the attorney general praying for a per- petual injunction to enjoin the erection as a public nuisance. Injunc- tion granted. Where "the right is clear, and the threatened injury irreparable, an injunction will be awarded, although the right has not been established at law." p. 19s). Attorney General v. United Kingdom Electric Telegraph Co., 30 Beav. 287, 1861 (A telegraph company, without any parliamentary pow- ers, laid down their wires in tubes under a public highway. An infor- mation was filed complaining of those acts as a nuisance to the public. The court refused to grant an injunction until the right had been estab- lished at law, it being doubtful whether the acts complained of amounted to a nuisance). For the effect of legislation upon the question of necessity for trial at law, see ante p. 5 notes to Mowday v. Moore. Tnjunctions to restrain public nuisances, and purprestures at the suit of the state, were granted in the following cases : Obstruction of navigation : Attorney General v. Parmeter, 10 Price 378, 181 1 (Buildings and inclosures between high and low water marks in a harbor, interrupting the flux and reflux of the tide, were abated as a nuisance, although made under sanction of a corporation having a grant from the crown). People v. St. Louis, 10 111. 351, 1848 (Defendants were endeavor- ing to build a rocky road across the eastern channel of the Mississippi River and to turn the entire stream into the western channel. The plan was impracticable. Injunction granted to restrain defendants from de- positing stones in the channel). Attorney General v. Hudson R. R. R. Co., 9 N. J. Eq. 526, 1853 (The A. Co. was authorized to erect a bridge over a navigable stream and required to erect it in such a position as to do the least possible injury to navigation. The Attorney General brought a bill against the THE ATTORNEY-GENERAL v. RICHARDS 169 A. Co., alleging that the bridge about to be erected was not placed so as to do the least possible injury. Injunction granted until the proper position for the piers could be determined). Attorney General v. Lonsdale, L. R. 7 Eq. 377, 1868 (The erection of a jetty in the bed of a tidal navigable river, restrained). Attorney General v. Great Eastern Ry. Co., L. R. 6 Ch. App. 572, 1871 (A railway company was about to take a large quantity of water for the use of their station from a river. The consequent fall in the water of the river threatened to impede navigation. Injunction granted). Attorney General v. Woods, 108 Mass. 436, 1871 (A stream was used only by pleasure boats. The defendant was restrained from building a dam across the stream). Obstruction of highways: Attorney General v. Forbes, 2 My. & Cr. 123, 1836 (A bridge crossed a stream dividing counties A. and B. The magistrates of B. county proposed to cut the timbers supporting the bridge on their side of the stream. The Attorney General brought bill to restrain. Injunction granted. Accord: Attorney General v. Cam- bridge, 16 Gray 247, i860). Attorney General v. Cohoes Co., 6 Paige 133, 1836 (Defendant re- strained from breaking the embankment and appropriating the water of a state canal). Alabama v. Mayor, 5 Port. 279, 1837 (A city was restrained from building a market house in a street dedicated to the public. Accord : Mayor v. Jaques, 30 Ga. 506, i860). Attorney General v. The Great Northern R. R. Co., 4 De G. & Sm. 75, 1850 (A railway was illegally interfering with a public road by digging a ditch. Injunction to restrain granted). People v. Third Avenue R. R. Co., 45 Barb. 63, 1865 (The unau- thorized occupation of a public highway, by the tracks of a street rail- way company, restrained. Accord : Attorney General v. Lombard etc. Co., 1 W. N. C. (Pa.) 489, i875)- United States v. Cole, 18 D. C. 504, 1889 (A suit is properly brought in the name of the United States by their attorney in and for the Dis- trict of Columbia to restrain the erection of a building beyond the line of a street in the city of Washington). Smith v. McDowell, 148 111. 51, 1893 (A village ordinance attempted to authorize the use of a portion of a street for an area-way leading to an adjoining building. Injunction granted). In re Debs, 158 U. S. 564, 1894 (The Constitution of the United States confers on Congress the right to regulate commerce between the states. A. et at. combined to obstruct the operation of all railroads leaving Chicago. A bill in equity was filed by the local United States attorney at the direction of the Attorney General to restrain A. et al. from combining to interfere or interfering with the operation of cer- tain named interstate railroads. Injunction granted. A. was alleged in contempt and committed to jail. A. applied to the Supreme Court of the United States for a writ of habeas corpus, one of the grounds of the application being that the bill in equity stated a case over which a court of equity had no jurisdiction. Petition denied). Attorney General v. Brighton Ass'n,L. R. 1 Ch. Div. 276, 1900 (B. carried on a large business, at premises situated on a street, the road- way of which was less than twenty feet. He kept six vans at once, during every alternate hour in the daytime, loading and unloading goods before his premises, thus occupying half the width of the street and obstructing the passage of vehicles. Injunction granted). Attorney General v. Scott (1904). 1 K. B. 404 (A. hauled stone 170 NUISANCE from a quarry over a highway by a traction engine weighing eleven tons, to the alleged serious injury of the highway. A. did not deny the bad state of the highway, but claimed that this was owing to the man- ner in which the road had been built. Preliminary iruwrinn p-io I >. Compare with the above : Attorney General v. Sheffield Gas Con- sumers' Co., 3 De G., M. & G. 304, 1852 (An injunction, to restrain a corporation from digging up, without the consent of the municipal au- thorities, the surface of a highway for the purpose of laying gas pipes, refused. The nuisance caused only temporary and trifling injury. Accord: Attorney General v. Consumers' Gas Co., L. R. 4 Ch. App. 71, 1868; Attorney General v. Consumers' Gas Co., 142 Mass. 417, 1886). Bills not brought by the Attorney-General. By virtue of the delegated sovereignty of the state, whether ex- press or implied, cities, villages, towns and special departments of the same, are vested with the authority to file bills to prevent and remove public nuisances, within their respective limits. In the following cases nuisances were abated at the suit of a public corporation, representing a political or administrative subdivision of the state: Boards of Commissioners. Nuneaton Local Board v. Sewage Co., L. R. 20 Eq. 127, 1875; Board of Water Commissioners v. Detroit, 117 Mich. 458, 1898 (City leased a vessel. The vessel sunk in a river through the negligence of the city, at a point in the river within the jurisdiction of the Water Commissioners. Commissioners obtained a decree against the city to compel the removal of the obstruction). Boroughs. Commonwealth v. Stevens, 178 Pa. 543, 1897 (A wall along a stream was enjoined. The wall would have caused the water of the stream, in times of freshet, to overflow a portion of the bor- ough) ; Coast Co. v. Springlake, 56 N. J. Eq. 615, 1898. Cities. Mayor v. Bolt, 5 Ves. 129, 1799 (Defendant used several old buildings as warehouses for stowing sugar. The weight of the sugar caused two of the houses to collapse. The use of the remaining houses for a similar purpose restrained) ; New Orleans v. Lambert, 14 La. Ann. 247, 1859; Rochester v. Erickson, 46 Barb. 92, 1866; Taunton v. Taylor, 116 Mass. 254, 1874 (The statute of the state authorized the Board of Health of a city to forbid the exercise within the limits of the city of any trade which is a nuisance. Held, that a board of health had authority to bring, in the name of the city, a bill in equity to re- strain the exercise of an offensive trade, which it has prohibited) ; Metropolitan Co. v. Chicago, 96 111. 620, 1880 (Defendant, under a void ordinance, undertook to lay railway tracks in a city street. In- junction granted) ; Newark v. Delaware, etc., Co., 42 N. J. Eq. 196, 1886; Demopolis v. Webb, 87 Ala. 659, 1888; Eau Claire v. Matzke, 86 Wis. 291, 1893; City of Detroit v. Detroit City Ry. Co., 56 Fed. 867, 1893; San Francisco v. Buckman, 111 Cal. 25, 1896; Huron v. Bank of Volga, 8 S. Dak. 449, 1896 (Burnt ruins dangerous to the health and property of the citizens were ordered removed) ; Pittsburg v. Epping Co., 194 Pa. 318, 1900; Wauwatosa v. Dreutzer, 116 Wis. 117, 1902. Counties. County of Stearns v. St. Cloud Co., 36 Minn. 425, 1887 (Obstruction of highway enjoined. The county board "is by statute charged with the duty of 'general supervision of county roads,' with power to appropriate the county funds for opening, vacating, resurvey- ing or otherwise improving the same. In view of this duty and interest, there should be implied the corresponding power to maintain such ac- tions as may be appropriate to prevent or to abate a public nuisance destructive of the highway, or rendering it useless." p. 426) ; Clayton v. Herwig, 100 Iowa 631, 1897 (Obstruction of highway enjoined). THE ATTORNEY-GENERAL v. RICHARDS 171 Towns. Watertown v. Mayo, 109 Mass. 315, 1872; Burlington v. Schwarzman, 52 Conn. 181, 1884 (Erection of fence across street re- strained. The liability of the town to pay damages, in case a person was injured by the obstruction, was considered by the court as enabling the town to appear as a plaintiff in equity) ; Neshkoro v. Nest, 85 Wis. 126, 1893; Drew v. Genera, 150 Ind. 662, 1898; Cloverdale v. Smith, 128 Cal. 230, 1900 (A ditch diverting surface waters into the streets of the town enjoined. The water cut down the gutters). Townships. Commissioners v. Long, 1 Pars. Eq. 143, 1845 ; Easton Co. v. Greenwich, 25 N. J. Eq. 565, 1874; Hutchinson v. Filk, 44 Minn. 536, 1890 (The erection and maintenance of an obstruction to a highway enjoined). Villages. Watertown v. Cowen, 4 Paige 510, 1834 (Erection of buildings on public square enjoined) ; Pine City v. Munch, 42 Minn. 342, 1890; Oxford v. Willoughby, 181 N. Y. 155, 1905; Sand Point v. Doyle, 11 Idaho 642, 1905. Compare with the foregoing cases the following cases which are apparently contra: Putnam v. Valentine, 5 Ohio 187, 1831 (The supervisor of highways was required to repair and keep open roads, and required to bring suits at law for the recovery of penalties imposed for obstructing a highway. The supervisor of highways for the A. county brought a bill in equity to restrain the defendants, who were acting under orders of a town, from carrying away soil of a highway. Bill dismissed, the court be- lieving that such a bill could only be maintained by the state). Coykendall et al. v. Durkee, 13 Hun. 260, 1878 (Statutes of the state made it the duty of the highway commissioners of a town to lay out and repair highways. A. et al., township commissioners of the town of L-, brought a bill in equity to restrain the erection of a building in a highway. Bill dismissed on the ground that A. et al. were not proper persons to maintain the action). Proof of damage not necessary : To obtain an injunction to restrain an encroachment upon a public stream or highway, proof of actual damage is not necessary. Commonwealth v. P. & C. R. R. Co., 24 Pa. 159, 1854 (Defendant company partially obstructed a state canal. The part of the canal affected had seldom been used, and had been abandoned for several years. Injunction granted). People v. Vanderbilt, 26 N. Y. 287 1863 (The construction of a pier in a river outside of the line established by statute, can be restrained, irrespective of the question whether any damage arises therefrom). Attorney General v. Terry, L. R. 9 Ch. App. 423, 1874 (Piles in river restrained, though they only extended three feet into the stream, which was sixty feet wide). Attorney Gen- eral v. Eau Claire, 37 Wis. 400, 1875 (Dam across stream which was seldom used restrained). Attorney General v. Shrewsbury Bridge Co., L. R. 21 Ch. Div. 752, 1882 (Defendant company was incorporated and authorized to construct a bridge, road and other works. If the under- taking was not completed within five years, then the powers of the corporation were to cease, except as to so much as should be then completed. The period of five years had expired. The company had not completed the works within the period and were proceeding to construct them without authority. Injunction granted at the instance of the Attorney General, to restrain the commission of the act, without adducing any evidence of actual injury to the public). Attorney Gen- eral v. Tarr, 148 Mass. 309, 1889 (A landing place had been reserved by a town for the use of the inhabitants. Defendant erected a building within the limits of the landing olace, but on a part thereof not in gen- 172 NUISANCE eral use. Injunction granted). Revell v. The People, 177 III. 468, 1899 (Erection of piers in Lake Michigan restrained. Accord : Attor- ney General v. Smith, 109 Wis. 532, 1901). Attorney General v. Lon- don and North Western R. R. Co. (1900) 1 Q. B. 78 (An Act per- mitted a Railway Co. to cross a public highway at grade, but prohib- ited trains being run across the highway at a speed exceeding four miles an hour. Bill by Attorney General to restrain the violation of this speed limit. The company defended on the ground that the viola- tion of the Act was a benefit, not an injury, to the public, because compliance with the Act caused the highway to be blocked by the de- fendant's trains for a longer period than if the trains moved at a more rapid rate. Injunction granted. Collins : "The passing of the defend- ant's trains over the highway was a nuisance, and the defendant could only justify the nuisance by complying with the terms of the Act giving them permission to cross the highway"). Contra: People v. Davidson, 30 Cal. 379, 1866. Defense of Laches : A right to continue a public nuisance cannot be obtained by lapse of time. People v. Mining Co., 66 Cal. 138, 1884 (An action was brought by the Attorney General to restrain defendant from discharging min- ing debris so as to materially impede a navigable stream. Held, it was no defense that there had been some delay upon the part of the state in bringing the action). Compare the language in the following case at law : Mills v. Hall, 9 Wend. 315, 1832 (Sutherland, J., said, "There is no such thing as a prescriptive right or any other right to maintain a public nuisance. Admitting that the defendants' dam has been erected and maintained more than twenty years, and that during the whole of that period it has rendered the adjacent country unhealthy, such length of time can be no defence to a proceeding on the part of the public to abate it, or to an action by an individual for the special and peculiar damage which he may have suffered from it." p. 316). Accord: People v. Cunning- ham, 1 Denio 524, 1845. ATTY-GEN. and JOSEPH BELL et al. v. BLOUNT 173 ATTORNEY-GENERAL AND JOSEPH BELL et al., INHABITANTS OF THE TOWN OF TAR- BOROUGH v. BLOUNT. In the Supreme Court of North Carolina, 1826. 4 Hawks' Reports, 384. The Complainants in their Bill set forth, that the De- fendant intended to erect a mill and dam on a small stream in the vicinity of the town of Tarborough, and at a short dis- tance from the public academy of that place; that a mill, now destroyed, had formerly been erected near the place at which it was understood Defendant intended to build his, during the existence of which the health of the inhabitants of the town had materially suffered ; and alleged that if Defend- ant should be permitted to carry his intention into execution, great and irreparable mischief would ensue, as the noxious vapours arising from the pond would materially affect the salubrity of the town, and tend to the entire destruction of the academy. In conclusion, it sought the preventive aid of the Court, and therefore prayed a writ of Injunction. The Answer admitted the intention charged in the Bill to erect a dam and mill in the vicinity of the town, and at a short distance from the academy; but denied that the in- jurious consequences which were apprehended would be the necessary result 'of such erection. Upon the coming in of the Answer, a motion was made to dissolve the Injunction. The Court refused the motion, but retained the Injunction until hearing; and the cause having been set for hearing, was removed into this Court, and it was now moved to dismiss the Bill. The case was argued at a former term by, — Mordecai, in support of the motion. It is first necessary to ascertain what is the legal character of the apprehended mischief ; in other words, if this mill and dam when erected 174 NUISANCE would be a nuisance at all, would that nuisance be public or private? A private nuisance, is denned to be any thing done to the hurt or annoyance of the lands, tenements or hereditaments of another. (3 Btackstone' s Com. 216.) A public nuisance, is either the doing a thing to the annoyance of all the king's subjects, or the neglecting to do a thing which the common good requires. (4 Blackstone, 166.) This dam then, if erected, would, according to the Complainant's allegation, be a public nuisance, an offence against the public order and economical regimen of the State. Who shall apply for the redress of such a wrong ? The pub- lic. The offence must be punished by indictment, at the in- stance of the State, for it is the state which is injured. As no particular individual is specially injured, no individual can recover damages. (3 Blackstone, 219.) If the nuisance actually existed, these Complainants could sustain no action, even after the mischief has come upon them; because for a public wrong, no private action will lie; a fortiori then they cannot sustain this proceed- ing to avert the mischief. The case of Dunn v. Stone, (2 Law Rep. 263 ) is express, that for an act in the nature of a public nuisance, no individual is entitled to an action, unless he has received an extraordinary and particular damage, not common to the rest of the citizens. 1 The fears of man- kind, though well founded, do not make that a nuisance which at law is not so. So determined by Lord Hardwicke, in the case of Baines v. Baker, (Ambler 158. 2 Atkyns 751.) The case was one of an application to restrain, by injunction, the building of a hospital for inoculation. The Injunction was refused, and it was then held, that in cases of public nui- sance, there should be an information by the Attorney General on behalf of the public. ( 1 Maddock's Cham,. 1 28. ) 'For cases in accord with the position taken by the defendant's counsel that a public nuisance cannot be restrained at the suit of a private person unless he shows special damage, see Attorney General v. Fitzsimmons, infra, note 1. ATTY-GEN. and JOSEPH BELL et al. v. BLOUNT 175 Now if this be a nuisance, it must be public. But if the erec- tion of this dam and mill be an offence, it is one criminal in its nature, and to restrain the commission of a criminal act, an Injunction will not be granted, (i Maddocks 104.) And on the authority of the Attorney-General v. Utica Insurance Company (2 Johns Ch. Ca. 371) it may well be questioned whether this Court has any jurisdiction in cases of this kind. Gaston for Complainants. — The case stated in the bill is that of irreparable mischief, peculiarly affecting the Com- plainants, sought to be prevented by aid of this Court's pro- hibitory powers. As a remedy exists for every wrong, there must of necessity, be some tribunal in the land to which these Complainants may resort for relief. This Court is the proper tribunal. In cases where irreparable mischief may be done, in cases of waste, or in a plain case of nuisance, an Injunc- tion will immediately be granted, (2 Maddocks 174.) The prevention of mischief, which should be one of the principal objects of every system of jurisprudence, constitutes a very important branch of equitable jurisdiction. Bills quia timet proceed on this principle. So also do bills to prevent waste, to perpetuate testimony, to restrain the negotiations of biHs of exchange or promissory notes obtained by fraud; in which last case, as in plain cases of waste, &c, Courts of Equity will, on motion, grant an injunction immediately, on the bill being filed. — (Fonblanque 41 in notis.) As to the objection, that the fears of mankind will not make a nuisance, however well founded they may be, the injury apprehended in this case is by no means imaginary; and an accurate examination of the authorities will show that all that is meant by the rule is, that fears however reasonable, do not create or make that a nuisance which is not already declared to be such by law, but the apprehension of a real nuisance is the best cause for a bill qaia [sic] timet. It has been expressly decided, that infecting the air of a populous neighborhood with noisome smells is a real nui- sance, (1 Burrows 333,) then surely the evil apprehended 176 NUISANCE in this case, the poisoning it with pestilential vapours, is a nuisance also. In reply to the observation that this when completed will be, if a nuisance at all, public, and that there- fore individuals have no right to ask the preventive aid of this Court, it proceeds on the opinion that public nuisances are punishable only at the instance of the State. The fact is, that the distinction will be found to exist between nuisan- ces, which are private, such as are public, and such as are public and yet especially affect certain individuals; for the first class, the party injured alone can complain ; for the sec- ond the state ; for the third individuals as well as the state ; for it would be the strangest of solecisms, where individuals have a deep, peculiar and distinguished interest, to deny them the opportunity of asking protection for it. In accord- ance with this opinion we find that even at law, where a nuisance is public, yet those individuals affected by it have a right to sue, (5 Reports 73, Mosley v. Pragnell, Cro. Car, 510.) We find also the same doctrine prevailing in the Court of Equity {Corporation of London v. Bolt, 5 Ves. jun. 129.) The case of (the Atomey-General v. the Utica Insur- ance Company, 2 Johns. Ch. Ca. 371.) relied on by the De- fendant's Counsel confirms the same idea, for the Chancellor explicitly adverts to the fact, that in the case before him no individuals are disturbed in the enjoyment of their private rights, and recognizes as the origin of this species of juris- diction by Injunction, that head of mischief, or those mis- chievous consequences, which required a power to prevent as well as to remedy. As to the cases from Ambler and Atkyns, cited by De- fendant's Counsel, whether the reasoning there resorted to be correct or not, it is on a foundation not applicable in the case now before the Court. So important is the exercise of this preventive power, that an Injunction will be granted in urgent cases of nuisance ATTY-GEN. and JOSEPH BELL et al. v. BLOUNT 177 on mere petition and affidavit (2 Maddocks 174 — Corpora- tion of London v. Bolt, 5 Ves. jun. 129.) In the case of WingHeld v. Crenshaw (4 Hen. & Mun. 474, ) the doctrines for which I have contended are admitted, and if they be not correct, this Court is deprived of one of the most important branches of its jurisdiction. Seawell. — The grounds on which we have proceeded, in this motion to dismiss, are, that the apprehended injury Stated in the Bill, is of such nature, that these Complainants are not the proper persons to seek redress ; that the nuisance (admitting the erection of this mill and dam to be one) is public, and if so the proceeding should be by the Attorney- General, at the instance of the public; and further, that the fears of a community cannot frame a case justifying the ex- traordinary interference which is sought by this bill. The authorities which have been already cited in support of these grounds, it seems to me, are directly in point. But it is urged, that this is not the case of a nuisance purely pub- lic ; that it affects in a peculiar manner the inhabitants of Tar- borough. If, on this ground these Complainants may sustain their Bill, may not every individual in the State do the same, without regard to the locality of his residence? The injury to the town of Tarborough, and to the State at large, is precisely the same in kind, and differs only in the measure. But that each individual injured by this public nuisance could not seek a remedy for it, has been decided in Powell v. Stone (2 Law Rep. 263). If they cannot sue, after damages have actually befallen them, they surely cannot sue to prevent damage. It is not questioned that this Court has the power to interfere by Injunction in cases of irreparable mischief; but what are cases of irreparable mischief ? The true rule is, that Complainant must have sustained an injury, for which he has a remedy at law, but which cannot be repaired by pecuniary compensation — then a Court of Equity will inter- fere to prevent. If this idea of irreparable mischief be cor- rect, then the case cited by Complainant's Counsel, from 178 NUISANCE Hen. and Munford, is in favor of the Defendant. The evil which it was there sought to prevent, was likely to prove injurious to health an injury certainly admitting of no pe- cuniary compensation — yet the Chancellor, while he distinct- ly admitted his power to prevent irreparable mischief, re- fused the Injunction, on the ground that is was not a proper case for the interference of the Court. The case cited from 5 Vesey, jun, will be found, on examination, not applicable in the present case — It was probably the fact, that by a plan adopted by Parliament for the improvement of the city, the property was vested in the corporation of London ; and their application for an Injunction was merely that of a landlord against his tenant. This idea is countenanced by the re- mark of Lord Loughborough, in the case : "I can only in- terfere as between the landlord and tenant;" and by the observation of Chancellor Kent relative to the case, that it was "a private suit by Bill." (2 Johns. Ch. Ca. 383.) But the current of decisions is uniform to show, that Courts of Equity will not interfere by Injunction to prevent, unless it is obvious to the Court, that a nuisance is about to be created. The opinion is advanced by Lord Hardwicke, in Baines v. Baker {Ambler 158.) Accordingly, it is laid down (2 Maddocks 174) that Injunctions will be granted in "a plain case." The opinion is repeated by Lord Hard- wicke, in the Fishmongers Company v. the East-India Com- pany (1 Dickens 163). The same sentiment is adopted by Lord Eldon, in the Attorney-General v. Nichol (16 Ves. jun. 342) and in- theAttorney-General v. Cleaver (18 Ves. jun. 217.) In the latter of these cases, which was an in- formation at the relation of several inhabitants of Better- sea and Chelsea against the Defendants, as manufacturers of soap, praying an Injunction against them, until an in- dictment then pending against them should be tried. Lord Eldon observes, that "what is a nuisance, with reference to carrying on a trade, is a question of fact, which is not very easy to determine," and adds, "that he had frequently known ATTY-GEN. and JOSEPH BELL et al. v. BLOUNT 179 verdicts, deciding manufactories to be no nuisance, by which it cannot be denied, the whole comfort of life is destroyed, and health may in some degree be affected." The Injunction was refused, until the fact should be ascertained by the Jury. The case now before the Court, we believe, is not a plain case of nuisance. It does not necessarily follow, in the nature of things, that the evils dreaded will result from the erection of this mill. If they do, it will then be an in- jury to the public, and the public has its remedy through the medium of the proper law officer of the State. After argument, upon suggestion of the Court, the At- torney-General was made a party Complainant; curia adv. vult. Taylor, C. J. — Two enquiries are presented by the argument in this case; the first relates to the power of the Court to interpose the preventive remedy of an Injunction; the other, whether it is proper to exercise the power under the evidence and circumstances of this case. It is manifest, that without some jurisdiction compe- tent to prevent a threatened evil of a sort complained of, there would be a great defect of justice in this State, for when the injury if done, cannot be repaired in damages, it is essential to the protection of right, and this Court, whose process is alone adequate to the occasion, should in- terpose its summary remedy to compel persons so to use their own property as not to injure that of others. It has accordingly been long settled as a principle of the Court, that in cases where irreparable mischief may be done, as of waste, or in a plain case of nuisance, an injunction will immediate- ly be granted. Where there is a clear right to the enjoyment of the subject in question, and an injurious interruption of that right, which in no equity ought to be prevented, this Court will not withold its aid; and this rule is abundantly established by the authorities, i Vern. 120, 127, 275 — 2 Ves. 414 — 2 Atkyns 391, and many others. It appears to me that the evidence in this case approach- 180 NUISANCE es as nearly to ascertain the certainty of the apprehended evil, if not prevented as can be expected from the nature of the subject. There was formerly a millpond nearly in the situation where the Defendant proposes to establish his, and during the whole time of its being kept up, the whole community, particularly the younger part of it, were subject to destructive autumnal diseases. Soon after the mill was broke and the pond emptied, a visible improvement took place in the healthfulness of the place, children were raised to maturity, the population increased and a seminary of learning erected within what was before the sphere of pes- tilential influence; of these facts it is impossible to doubt after reading the depositions. It is not to be expected that the same causes, if put into operation, will produce the same effect? Nor is the probability of this lessened, by the pro- posed alteration in the site of the pond, its size, and the situation of the mill. The utmost allowance that can be made on this point is, that it may not render the town quite so unhealthf ul ; but if the Court sees, that not merely in the fears of the inhabitants, but a moral certainty exists, that if this work is suffered to proceed, the health of this com- munity will again be put in jeopardy, it is its bounden duty to interpose. Indeed it is impossible to shut our eyes to the fact, that in this climate, a collection of stagnant water in the neigborhood of a town, will render the inhabitants un- healthy; and however different theories may be pressed in- to the service of accounting for it, or plans proposed to mitigate the evil, the painful conviction forces itself upon us, that the effect invariably follows the cause, and no antidote is yet discovered. Under this observation and experience, a Court might be satisfied with much less evidence than has been adduced in this case. I am of opinion that the Injunction ought to be made perpetual. Hall, Judge — This is not a case where it is necessary to controvert the question whether this Court will inter- ATTY-GEN. and JOSEPH BELL et al. v. BLOUNT 181 fere by Injunction or not, before a trial at law is had, de- claring that to be a nuisance or not, which in the Bill is set forth to be one. No such question in this case can be tried at law, no nuisance exists — the object of the bill is to enjoin the Defendant from creating one. And it does appear to me, that it is a proper case for this Court's interference. The nuisance which it is apprehended will arise from the erection of the mill, does not appear to me to be a phan- tom created by the fears of the witnesses, but a reality bot- tomed upon past experience. It is not likely that the effects of ponded water would be less deleterous now than former- ly, the same causes produce the same effects. I think the Injunction ought to be made perpeual, with costs. Henderson, Judge, was of the same opinion, so the Injunction was made perpetual. 2 2 In the following cases the jurisdiction of a court of equity, at the instance of the Attorney General, to restrain acts adversely affecting the health of the people, was maintained : Anon., 3 Atk. 750, 1752 ( Injunction to restrain the building of a house to inoculate for smallpox denied. Lord Hardwicke said: "Had it been a nuisance, the proper method of proceeding would have been by injunction, in the name of the Attorney General." p. 751). Attorney General v. Cleaver, 18 Ves. 211, 181 1 (An interlocutory injunction to restrain the manufacture of soap was denied, but the court asserted that it had jurisdiction over nuisances detrimental to the health of a community). Attorney General v. Hunter, 1 Dev. Eq. 12, 1826 (Defendant had erected a mill dam in the vicinity of a city. Exhalations from the pond rendered the surrounding country unhealthy. Injunction granted). Attorney General v. Steward, 20 N. J. Eq. 415, 1869 (Pollution of a stream by blood of hogs slaughtered on the defendant's premises re- strained). Attorney General v. Jamaica Pond Corp., 133 Mass. 361, 1882 (De- fendant lowered the water of a pond, thereby exposing slime, mud and offensive vegetation. Injunction granted). Attorney General v. Heatley, L. R. 1897, 1 Ch. Div. 560 (A. owned a vacant lot in a thickly settled district. A. built a fence around the lot. People tore down the fence, and threw filth on the lot. Injunc- tion granted to restrain A. allowing the lot to remain in the above described condition. It is a common law duty of the owner of a vacant piece of land to prevent that land from being a public nuisance. To an indictment it is no defense to say "I did not put the filth on but somebody else did." See Lindley, L. J., p. 566). Missouri v. Illinois, 180 U. S. 208, 1900 (The state of Illinois con- structed an artificial channel through which the sewage of Chicago passed into the Mississippi River instead of into Lake Michigan, as formerly. Missouri brought a bill in equity against Illinois for an in- 182 NUISANCE junction, on the ground that the act of the defendant state was inju- rious to the health of the inhabitants of the plaintiff state living near the Mississippi. Defendants demurred to the bill for want of jurisdic- tion. Demurrer overruled. Subsequently the bill was dismissed on its merits; see 200 U. S. 496, 1906). Georgia v. The Tennessee Copper Co., 206 U. S. 230, 1907 (A copper company situated in Tennessee discharged noxious gas from their works over the territory of Georgia. The court, being satisfied that the sulphurous fumes caused damage on a considerable scale to the forests and vegetable life, if not to the health of the inhabitants, of the state of Georgia, sustained the right of that state to an injunction to restrain the company). The health of the public was protected by equity at the suit of a municipality in the following cases : New Orleans v. Lambert, 14 La. Ann. 247, 1859; Watertown v. Mayo, 109 Mass. 315, 1872; Taunton v. Taylor, 116 Mass. 254, 1874 (A board of health has authority to bring in the name of the city a bill in equity to restrain the exercise of an offensive trade, which it has prohibited) ; Nuneaton Local Board v. Sewage Co., L. R. 20 Eq. 127, 1875; Pine City v. Munch, 42 Minn. 342, 1890; Mercer Co. v. Harrodsburg, 23 Ky. Law Rep. 1744, 1902 (A board of health of a city could by injunction enjoin the erection of hitching posts). In the following case the jurisdiction of a court of equity, at the instance of the Attorney General, to restrain acts adversely affecting the comfort of the community, was maintained: Attorney General v. Cole, L. R. (1901) 1 Ch. Div. 205 (A carried on the trade of a fat-melter for over thirty years, but the neighborhood, which was formerly open country, had in the last few years been built up. Action by the Attorney General to restrain. Injunction granted). Where the Legislature, to preserve the health of comfort of the community, prohibits certain acts, the Attorney General may obtain an injunction to restrain the violation of those acts without showing that the public are actually injured. Attorney General v. Cockermouth Local Board, L. R. 18 Eq. 172, 1874 (An injunction issued at the instance of Attorney General, to re- strain defendants, a public body, from discharging the sewage of their district into a river so as to deteriorate the water at the point of dis- charge, as prohibited by act of parliament, although no nuisance was proved). Compare: Attorney General v. Oxford etc. Railway Co., 2 W. R. 330, 1854 (A statute conferred on a board of trade the duty to inspect railroads. If a road inspected was found to be properly constructed, the board issued a permit for its operation. An injunction was granted to restrain defendant from opening a line of railway, which had been declared dangerous by the board. The Attorney General refused to answer the defendant's affidavits that no injury was being caused by the operation of the road). THE STATE v. THE OHIO OIL COMPANY 183 THE STATE v. THE OHIO OIL COMPANY. In the Supreme Court of Indiana, 1898. 150 Indiana Reports, 21. McCabe, J. — The State of Indiana by her Attorney- General and the prosecuting attorney of the Madison Circuit Court, brought suit against the appellee, the Ohio Oil Com- pany, seeking to enjoin it from wasting natural gas. The circuit court sustained the defendant's demurrer to the com- plaint for want of sufficient fact to constitute a cause of ac- tion, and the plaintiff, electing to abide said demurrer, and refusing to amend its complaint or to plead further, the court rendered judgment that the plaintiff take nothing by its complaint and that the defendant recover costs. Upon this ruling alone the State assigns error. The substance of the complaint is, that for many years heretofore there has been underlying Madison, Grant, Howard, Delaware, Blackford, Tipton, Hamilton, Wells, and other counties in Indiana, a large deposit of natural gas, utilized for fuel and light by the people of those counties and of many other countries and cities in Indiana, includ- ing Indianapolis, Ft. Wayne, Richmond, Logansport, Lafay- ette and others of the most poplous cities of the State, to which cities the gas is conducted, after being brought through wells to the surface of the ground, by pipes and conduits, by means of which many hundreds of thousands of the people of Indiana are supplied with gas for light and fuel. The natural gas underlying the counties named, and other portions of Indiana, is contained in and percolates freely through a stratum of rock known as "Trenton Rock," comprising a vast reservoir in which the gas is confined under great pressure, and from which it escapes, when permitted to do so, with great force. 1 *A part of the court's statement of the facts is omitted. 184 NUISANCE It is charged that about May 25, 1897, the Ohio Oil Company, an Ohio corporation, as its name implies, caused a well to be drilled near Alexandria, Madison county, which produces natural gas and petroleum in large quantities. The location of this well is described, as well as that of five other wells drilled at about the same time as the one first named, all of which produce both natural gas and petroleum, and have done so ever since their completion. It is charged that, instead of securely anchoring the wells as drilled, so as to confine the gas produced by them within two days next after their completion, the defendant, ever since the completion of the wells, which have been completed for some time, has "unlawfully permitted the gas produced therein to flow and escape into the open air, whereby many millions of cubic feet of natural gas have been wasted and. lost, and whereby the State's supply of natural gas has been greatly diminished, and the property of its citizens within the said gas territory dependent upon the continued supply of. natural gas for fuel as aforesaid, has been greatly damaged' and decreased in value." It is also charged that the defend- ant avows its purpose to permit the gas to escape continu- ously and indefinitely hereafter from said wells, and refuses; to make any effort to confine it, and declares its purpose to drill other wells in the gas territory, and permit the gas therefrom to, flow and escape into the open air, and that if the gas continues to flow from the wells, the supply of natural gas upon which the citizens of the State depend will be greatly diminished ; that the pressure of gas as found in said Trenton rock will be greatly diminished, and that by the diminution of. such, pressure, water will accumulate in the, rock stratum and ultimately and entirely displace and overcome the gas supply ;. that because of the wrongful acts of the defendant above described, heretofore committed and now continuing, its property and that of its citizens has been and will continue to be essentially interfered with, and the comfortable enjoyment of the lives of its citizens greatly THE STATE v. THE OHIO OIL COMPANY 185 interrupted. And plaintiff avers "that it has no adequate remedy at law for the redress of its grievances complained of ; that it is impossible accurately to fix in dollars and cents the damage the plaintiff has sustained and will sustain by reason of the wrongful and unlawful acts of the defendant, if suffered to continue, and that the plaintiff's injuries on account thereof are and will be great and irreparable, and increase as said gas is permitted to flow, and the number of wells wherein the same is unconfined continues to increase; and that the ordinary remedies, though repeatedly resorted to by plaintiff, have proved ineffectual to restrain or check the wrongful action of defendant." It is charged that the penalties provided by law for the unlawful acts above described are wholly inadequate, and that the defendant has openly defied, and continues to defy, the lawfully constituted authorities of the State in their efforts to enforce and recover in the name of the State the penalties provided by law for such wrongful acts committed by the defendant, and that injunctive relief is necessary in order to restrain the continued wrongful acts of the defendant, and that, unless the same is given, one of the greatest natural resources of the State will be ulti- mately destroyed ; that, in order to obtain even a partial and inadequate remedy for the wrong done, a multiplicity of suits must be resorted to, entailing great expense, and affording no considerable relief, unless the defendant is restrained and prohibited by injunction from doing the things com- plained of. It is therefore prayed that upon final hearing the de- fendant and its agents, servants, and employes be per- petually enjoined and prohibited from further suffering or permitting the natural gas produced in said wells, or any of them, to escape from them, and that the defendant be ordered and directed forthwith to securely confine the same, either by anchoring each of the wells, or by confining the gas in tanks, pipes or other proper receptacles, - and that fail- 186 NUISANCE ing to do so, the sheriff of Madison county be ordered to anchor, secure and confine the natural gas in each of said wells, and that the expense of such anchoring be taxed as part of the costs of suit. 2 It is next contended that there is no authority or right of action in the State at common law, and especially that the State cannot maintain a suit in equity, either under the statute or at common law. This being a suit in equity, as the law existed prior to the adoption of the civil code of 1852, if the objection last mentioned be well taken, it is fatal to the complainant. The reason assigned in argument why the State cannot maintain the action for an injunction is that the statute provides a different remedy, namely, the recovery of a penalty of $200.00 for each violation of the act, and a further penalty of $200.00 for each ten days dur- ing which such violation shall continue, to be recovered in a civil action in the name of the State, for the use of the county in which such well is located, with attorney's fees and costs of suit. And another remedy provided in another section of the act is that certain persons in the vicinity are authorized to go upon the land where any well is situated from which gas or oil is allowed to escape in violation of the act, and shut up the same, and pack and tube said well so as to prevent the escape of gas or oil, and maintain a civil suit against the owner for the costs of such closing of said well, with attorney's fees and costs of suits. But this court has gone much further than to hold that the fact that the civil remedy given to recover penalties and the other remedies for violation of the act, does not bar the right to an in- junction. 3 ***** ! The court's discussion of the right of a state to sue in its own courts is omitted. 'The court's discussion of authorities is omitted. Those bearing on the question of equity jurisdiction decided are stated in note 4, infra. THE STATE v. THE OHIO OIL COMPANY 187 The continued waste and exhaustion of the natural gas of Indiana through appellee's wells would not only deny to the inhabitants the many valuable uses of the gas, but the State, whose many quasi public corporations have many millions of dollars invested in supplying gas to the State and its inhabitants, will suffer the destruction of such cor- porations, the loss of such investments and a source of large revenues. To use appellee's wells as they have been doing, they injure thousands and perhaps millions of the people of Indiana, and the injury, the exhaustion of natural gas, is not only an irreparable one, but it will be a great public calamity. The oil appellee produces is of very small consequence as compared with that calamity which it mer- cilessly and cruelly holds over the heads of the people of Indiana, and, in effect, says: "It is my property, to do as I please with, even to the destruction of one of the great- est interests the State has, and you people of Indiana help yourselves if you can. What are you going to do about it?" We had petroleum oil for more than a third of a century before its discovery in this State, imported from other states, and we could continue to do so if the produc- tion of oil should cease in this State. But we cannot have the blessings of natural gas unless the measures for the preser- vation thereof in this State are enforced against the law- less. We therefore conclude that the facts stated in the complaint make a case of a public nuisance which the appel- lant has a right to have abated by injunction, and that the complaint states facts sufficient to constitute a cause of action. Hence, the circuit court erred in sustaining appel- lee's demurrer to the complaint. The judgment is reversed, and the cause remanded, with instructions to overrule said demurrer, and require the defendant to answer the com- plaint, and for further proceedings in accordance with this opinion. 4 'The decision was affirmed by the Supreme Court of the United States in 177 U. S. 190. 1*8 NUISANCE Compare in accord : Texas v. Goodnight, 70 Texas 682, 1888 (The defendants enclosed large tracts of the public school lands. Injunction granted). Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 1891 (Phos- phate deposits in the bed of a navigable river were the property of a state. At the instance of the state the defendants were enjoined from digging and removing these deposits). In re Debs, 158 U. S. 564 (A. et al, combined to obstruct the carriage of the United States mails by certain railway companies. Held, that the United States had a sufficient property interest in the mails to enable it to file a bill in equity and obtain a decree restraining A. et al. from interfering with the operation of said railway companies). People v. Truckee Lumber Co., 116 Cal. 397, 1897 (Defendant oper- ated a sawmill upon a river stocked with fish. The sawdust which he allowed to pass into the stream had the effect of killing the fish. Such an act was a misdemeanor under the code. The Attorney General filed an information to restrain defendant. The court said, "The fish within our waters constitute the most important constituent of that species of property commonly designated as wild game, the general right and ownership of which is in the people of the state. . . . The complaint shows that by the repeated and continuous acts of defendant this public property right is being and will continue to be greatly interfered with and impaired ; and that such acts constitute a nuisance, both under our statute and at common law, is not open to serious question. . . . The fact that the acts of the character alleged are by the penal code made a misdemeanor, and punishable as such, does not make them less a nui- sance, nor imply that the legislature intended to make the criminal remedy exclusive of the civil." Injunction granted). Attorney General v. Williams, 174 Mass. 476, 1899 (A statute reg- ulated the height of buildings on and near a certain public square. The Attorney General filed a bill to prevent the erection and maintenance of that portion of a building on the square which was above the height limit. Knowlton, J., said, "The wrong alleged in the present case, if permitted, would work a permanent injury to the public, depriving them of that which the statute gives them. It is a purpresture which, while not in a strict and narrow sense a public nuisance, is in the nature of a public nuisance, is sometimes called a public nuisance, and in equity is to be dealt with as a public nuisance." p. 483. Injunction granted). Kansas v. Colorado, 185 U. S. 125, 1902 (The Arkansas River flows through Colorado and Kansas. Kansas filed a bill in equity in the Supreme Court of the United States against Colorado, alleging that the defendant was licensing certain persons and corporations to take water from the river for irrigation purposes in such large quan- tities that the inhabitants of the complainant state were deprived of the water accustomed to flow in the river, to the injury of lands located on its banks. The plaintiff prayed that the defendant be restrained from granting any charter or permit to any corporation or person for the diversion of the waters of the river. Defendant's demurrer to the jurisdiction overruled. Subsequently the bill" was dismissed on the merits; see 206 U. S. 46, 1907). ATTORNEY-GENERAL v. FITZSIMMONS et al. 189 ATTORNEY-GENERAL v. FITZSIMMONS et al. In the Chancery Court of Pulaski County, Arkansas, 1896. 35 American Law Register, N. S., 100. The bill prayed for an injunction to restrain a prize- fight between Corbett and Fitzsimmons. The defendant de- murred to the jurisdiction. Martin, C. The act of 1885 makes the Chancellor of the Pulaski Chancery Court a conservator of the peace throughout the state. Acts of 1885, p. 172. And our Supreme Court says what a judge of a court presided over by a single judge may do in vacation, the court may do in term time : Patton v. Vaughn, 39 Ark. 21 1 ; B~oon v. Bowers, 30 Miss. 246. 'A conservator is a preserver; one who has the care or office of keeping from detriment.' Wore. Diet. 'A conservator of the peace is one who has an especial duty by virtue of his office to see that the sovereign's peace be kept.' Bouv. Law Diet. p. 328. 'Under the act of 1885 and sees. 2380 of S. & H. Dig., I believe it is conceded that this court might have put Corbett and Fitzsimmons under bonds to keep the peace, in sums not exceeding $5,000; and from this, it is argued that no juris- diction exists to do more. The section of the digest last re- ferred to, applies to officers of courts of law particularly, though I doubt not this court also has the power to enforce it in a proper case. But is that remedy in a court of equity exclusive ? The bill alleges, and the demurrer .confesses, that a bond of $5,000, the maximum bond which, under the statute could be required, would not prevent the fight, and would not.pre- vent the other acts complained of in the bill, among them the 190 NUISANCE public nuisance, which is minutely described. It follows, then, as certainly as night the day, that unless the Chancellor could apply some other remedy than that of a mere bond to keep the peace, limited as it is to the sum of $5,000, that the power conferred, and the duty enjoined upon him, would fall far short of enabling him to adequately maintain the good order of the state government, whose peace he is to conserve. It were the rankest folly, the sheerest nonsense, to di- rect an officer to conserve the peace throughout the state, and then deny him the necessary jurisdiction and power to do so wherever an emergency should arise which demands the exercise of such powers as may be necessary to ac- complish the purpose. As I will show before I conclude, courts of equity have exercised jurisdiction by injunction to prevent the commission of certain crimes, indeed, they should of any crime involving the commission or mainte- nance of a public nuisance, as does the one charged in the bill in this case. In most cases, per force of circumstances, preventive justice cannot be enforced; because, first, the contemplated crime is not known ; and if it were, it can generally be pre- vented by the statutory peace, bond proceeding in a court of law. But there are exceptions to the rule ; and the exception proves the rule. Courts of equity will not generally, inter- fere by injunction to prevent the commission of ordinary crimes, and this is upon the principle that an adequate remedy exists at law. But what have we here as shown by the complaint and confessed by the demurrer ? A compara- tively small part of the state in league with a few prize- fighters and their trainers, bonded together in a collusive determination to openly violate the statutes of the state, fling- ing defiance in its face, and saying to the constituted authori- ties of the state government, 'we will be protected by local authorities, and you are powerless to vindicate the majesty ATTORNEY-GENERAL v. FITZSIMMONS et al. 191 of your laws, to preserve the good name of the state, to up- hold its institutions, or to conserve its peace.' The Governor has run the gamut of executive functions to find legal power or authority, lodged in him as the chief executive, to lay hold of the threatened infraction of the statutes, and by reason of the restrictive constitutional limita- tions upon his power, he could legally do nothing, without the aid of some court, to accomplish a proper conservation of the peace in that part of Arkansas' domain. The Attor- ney-General of the state for a few days preceding the day fixed for the fight was in the city of Hot Springs — on the ground — and on his return filed the bill in this case, which was by him duly verified. He says in the bill of complaint "that in open defiance of the laws of the state, of its peace and good order, of its good name and general welfare, all the defendants herein, and many others whose names are to the plaintiff unknown, undertook such measures as were deemed necessary by them to bring about said fight in said Garland County, in or near said city of Hot Springs. They publicly, bodily and defiantly proclaimed that said fight would occur. They advertised the fact throughout the entire country that the fight would oc- cur for the championship of the world, and in every way and by all means, sought to induce persons to come from all over the land to witness the fight, and openly stated that the attendance would be some fifty thousand people ; that ac- commodations would be made to seat that number to view the fight." He also avers in the bill 'that if said fight occurs, it will seriously endanger the lives of the participants who are gifted with extraordinary strength and skill, fight for a very large stake, as well as for the championship of the world, and en- tertain feelings of intense hostility towards each other. That it will bring together from all parts of the country a lawless, violent, turbulent and dangerous assemblage of many thou- sand of persons, and will cause riots and affrays, seriously 192 NUISANCE endangering the safety of many others, to the prejudice of the good name and general welfare of the state. That the assemblage and fight contemplated would constitute a public nuisance, which would endanger not only the lives of persons not engaged or participating in it, but property generally; and if the Governor of the state exercises his power to call out the militia, its efforts to prevent the fight will be resisted and many persons will be injured, perhaps killed, as defend- ants, their aiders and abettors, now declare." Can it be rationally conceived that any government would so frame its laws as to render itself powerless to main- tain its peace and compel an observance of its statutes ? Such a doctrine is utterly at variance with the idea of sovereignty. The three departments of government, executive, legistative and judicial, were created, inter alia, for purposes of main- taining order in society, and of enforcing sound and whole- some rules for its regulation ; and the power to formulate and enforce measures that are necessary to do this, must be lodged somewhere. It is conceded, under our law in its present state, not to be vested in the executive in a case like this ; nor in the law courts, by reason of their want of power to do more than put the parties under bond to keep the peace in a sum which is wholly inadequate to accomplish the pur- pose. It follows, that unless a court of equity has jurisdic- tion to prevent the contemplated acts complained of, there is practically no remedy, and the state would be powerless to prevent its laws being treated with contempt, and unable to put a quietus upon a vaunted defiance of its sovereignty and authority. Moreover, as has already been stated, pre- ventive justice is preferable to all species of justice, where it is obtainable. This proposition is sustained by reason, a sense of humanity, and an abundance of authorities: See Champ v. Kendrick, 130 Ind. 549; Fletcher v. Humble, 67 Ind. 444; McAfee v. Reynolds, 18 L. R. A. 211; Moss v. Moss, 44 Vt. 84; English v. Smock, 7 Am. Rep. 215. However, we need not resort to any consideration of a ATTORNEY-GENERAL v. FITZSIMMONS et al. 193 public necessity to maintain the laws and dignity of the state, nor to that principle of equity jurisprudence, that courts of chancery will intervene to prevent a multiplicity of suits, to sustain the jurisdiction of the court over the subject-matter of this action. While conceding that courts of equity have no power to enforce the criminal statutes of the state, and no jurisdiction to injoin the commission of crimes ordinarily, yet where the crime arises from, or is a constituent part of a public nuisance, they should not fail to exercise their extra- ordinary powers to abate the nuisance; and in doing this, they may, by proper orders, prevent the commission of the crime. Vice-Chancellor Shadwell so thought when he deliv- ered his opinion in Attorney-General v. R. Co., 4 De G. & S., 75. The case of Columbia Athletic Club v. State, 28 L. R. A. 727, from which a number of quotations have been made, and in which several cases cited in this opinion are used, was one instituted to enjoin an athletic association from "pull- ing off" an industriously advertised prize-fight, and to put the property of the association in the hands of a receiver. The Chief Justice, who delivered the opinion of the court, affirmed the judgment of the lower court in making the in- junction perpetual, and going a step farther than I have gone in this case, by appointing a receiver to take charge of the club house and grounds of the association, in order to pre- vent the fighting of the pugilists, says : "It would be mon- strous to adjudge that, because acts constituting the abuse of corporate privileges are crimes, therefore the corporation may persist in doing them. This would be to encourage cor- porations to perpetuate the gravest abuses, since, under such a rule, the graver the abuses the less the power of the civil branch of our law. It comes with an ill grace from a cor- poration to aver that, because the abuse of its corporate privi- leges consist of committing crime, civil remedies are unavail- able. It would outrage common sense unspeakably to give 194 NUISANCE ear to a corporation defending itself against a civil proceed- ing by asserting its own infamy and insisting that redress can only be had under the laws punishing the crimes." A like conclusion was reached in Massachusetts, in the case of Carleton v. Rugg, 149 Mass. 550, 5 L. R. A. 193, the lan- guage of the court being: "The fact that keeping a nuisance is a crime does not deprive a court of equity of the power to abate the nuisance." See, also, Morawetz Priv, Corp., par. 1043- "Judge Brewer, in re Petition of Debs. 158 U. S. 564, for the Supreme Court of the United States, says : The juris- diction of the court of chancery with regard to public nui- sances is founded on the irreparable damage to individuals, or the great public injury which is likely to ensue. 3 Dan- iell's Ch. Pr. 3d ed., Perkin's, 1740. Indeed, it may be af- firmed that in no well-considered case has the power of the court of equity to interfere by injunction in cases of public nuisance been denied, the only denial ever being that of a necessity for the exercise of that jurisdiction under the cir- cumstances of that particular case. Story's Eq. Jur. par. 921, 923, 924; Pomeroy's Eq. Jur. par. 1349; High on Injunc- tions, par. 745 and 1554; 2 Daniell's Ch. PI. and Pr. 4th ed., p. 1636." That the complaint filed by the Attorney-General in this case alleges facts which constitute a menace to the lives of citizens, with destruction of their property, the disturbance of the peace and tranquility of the community, the general welfare and reputation of the state, and a great public nuisance, (calling for the exercise of all the legitimate pow- ers of this court to abate and prevent the consummation of the threats alleged in the bill, I think, is not open to ques- tion Recurring to the remedy, I find that in cases of public nuisances, it must be either preventive or punitive, the one accomplished by injunction, and the other by an indictment on behalf of the public. ATTORNEY-GENERAL v. FITZSIMMONS et al. 195 The most efficient, humane and flexible remedy is that of injunction. Under this form the court carl prevent that from being done which, if done, would cause a nuisance ; it can command an observance of peace before it is broken ; it can save suffering, and sometimes disgrace, to those who are in no way responsible; in some instances, and I believe this case presents one of them, it can secure an obedience to the laws of the country that a court of law, pursuing the other remedy, could not do. 'My conclusions are : (i) That jurisdiction over the persons of such of the defendants as voluntarily came into Pulaski County, and were summoned here, is given by the statute quoted in this opinion ; (2) That the complaint charges such a state of facts as constitute a public nuisance in the eyes of the laws of this state; (3) That the demurrer admits the material allegations of the complaint to be true ; (4) That a court of equity has ample jurisdiction to prevent, or abate by injunction, a public nuisance, in a civil action instituted by the sovereign on the relation of her At- torney-General ; (5) That the power to prevent or abate the nuisance in- volves the jurisdiction to make all orders that may be neces- sary, and that of a preventative character, to effectuate the orders for prevention or abatement; and this involves the jurisdiction to enjoin the commission of a crime which in- heres in, or constitutes a part of the nuisance. 1 Compare in apparent accord with our principal case : State v. Crawford, 28 Kan. 726, 1882 (An Act made liquor selling a nuisance, and provided that when any place should be adjudged a nuisance by a competent tribunal the sheriff should be ordered to shut it up. The Attorney General brought a bill in equity to abate the de- fendant's alleged saloon as a nuisance. The court, though claiming the right to grant the relief prayed for. dismissed the bill because the rem- edy under the above recited statute was adequate). Columbian Athletic) Club v. State, 143 Ind. 98, 1895 (An informa- 196 NUISANCE tion was filed by the Attorney General alleging that the defendant cor- poration had misused its corporate powers and violated the statute of " the state prohibiting prize fighting, and after praying for a dissolution of the corporation, asked that an injunction issue to restrain the fight then advertised. The court said, "We have no doubt that equity may interpose to restrain its further operation, even though the acts charged in the information are criminal." Injunction granted. Accord: -State v. Olympic Club, 47 La. Ann. 1095, 1895; S. C. 46 La. Ann. 935). State v. Hobart, 11 Ohio Dec. 166, 1901 (The statutes of the state provided that persons about to engage in a prize fight could be bound over to keep the peace, and also that the sheriff could summon a posse to stop such a fight A. et al. were about to conduct a prize fight. Bill in equity to restrain A. et al. granted) . The following cases are apparently contra: State v. Uhrig, 14 Mo. App. 413, 1883 (Bill in equity to restrain an unlicensed dram shop. Court admitted that such a shop was a nui- sance, but dismissed the bill on the ground that equity only restrained three classes of nuisances, purprestures, nuisances dangerous to public health, and ultra vires acts of corporations injurious to public right, and that the exercise of equity jurisdiction in these three classes of cases is an exception to a uniform rule that equity has no juris- diction in matters of crime). State v. Patterson, 14 Tex. Civ. App. 465, 1896 (Defendants were carrying on an unlawful business of gambling and betting. Bill filed by officer of the State to restrain. Injunction denied. The mere neg- lect or refusal of the proper officers to perform their duty in enforcing the law against criminal offenders is no ground upon which a court of equity can interfere by enjoining the commission of criminal acts, which in no way violate public property or public civil rights). State v. O'Leary, 155 Ind. 526, 1900 (A. et al, were conducting a gambling house contrary to law. . The premises where the gambling was carried on being in the country, one-quarter of a mile from the nearest residence. Bill in equity by Attorney General for an injunction to restrain dismissed on the ground that courts of equity would. not interfere merely because the acts of the defendants constituted a crime ; that it must appear that the public were subject to actual annoyance, and there must also exist some circumstance to render the immediate interference of the court necessary). People v. Condon, 102 111. App. 449, 1902 (A. et al. conducted a gambling, pool selling business at race track. State's attorney brought bill in equity to restrain, alleging that the criminal laws of the state, as administered were ."inadequate to suppress such nuisance and continued violation of the criminal law." No injury to property in the vicinity of race track proved. Court dismissed the bill on the ground that equity had no jurisdiction to issue such an injunction where the state is the complainant, "unless it be clearly shown that such nuisance affects public property or public civil rights"). Public nuisance — Suits by private persons. A court of equity will not restrain a public nuisance at the suit of a private person unless the plaintiff shows special injury. Ware v. Regent's Canal Co., 3 De G. & J. 212, 1858 (The B. Co. was empowered by statute to build a reservoir. A. filed bill for an in- junction to restrain B. Co. from raising their embankments higher than the maximum height authorized by statute, so as to damage A.'s lands. No injury to A.'s property was proved. Injunction refused. Lord Chelmsford said, "Where there has been an excess qf the powers given by an Act of Parliament, but no injury has been occasioned to any indi- ATTORNEY-GENERAL v. FITZSIMMONS et al. 197 vidual, or is imminent and of irreparable consequences, I apprehend , that no one but the Attorney-General, on behalf of the public, has a right to apply to this court to check the exorbitance of the party in the exercise of the powers confided to him by the legislature." p. 228). Sparhawk v. The Union Passenger R. R. Co., 54 Pa. 401, 1867 (A passenger railway in a city ran cars on Sunday. A. et al., persons who owned property on the line of, the cars or who owned pews in places of public worship situated on the line of said road, brought a bill in equity against the company to restrain the running of the cars, alleging that the lawful peace of the day was being disturbed. Injunction re- fused on the ground that the plaintiffs showed no injury to their prop- erty for which damages could be recovered at law). Cope v. Fair Asso. of Flora, 99 111. 489, 1881 (A. was a stockholder in Fair Association. A. brought bill in equity to restrain Association from permitting for a pecuniary reward gamblers to congregate and ply their vocation on the grounds of the company. It did not appear that A. or the company had sustained any pecuniary loss. Bill dis- missed. "It is no part of the mission of equity to administer the crimi- nal law except so far as it may be incidental to the enforcement of property rights . and perhaps other matters of equitable cogni- zance." Compare contra language of Woodward, C. J., Sparhawk v. Union Passenger R. R. Co., 54 Pa., p. 452, 1867, where it was sug- gested that the jurisdiction could be maintained on the ground that continued violation of a criminal act might endanger the company's charter. See also in accord with this suggestion, Manderson v. The Commercial Bank, 28 Pa. 379, 1857). O'Brien v. Harris, 105 Ga. 732, 1898 (A. brought a bill in equity against B., alleging that B. was violating a penal statute relating to the sale of liquor. A. failed to show that his property or civil rights were affected by B.'s action. Bill dismissed. Accord : Tiede v. Schneidt, 99 Wis. 201, 1898, p. 213; Ocean City v. Schurch, 57 N. J. Eq. 268, 1898). The People v. District Court of Lake County, 26 Colo. 386, 1899 (A., the President of the Women's Christian Temperance Union, brought a bill in equity in the District Court against B. et al., to re- strain them from gambling, alleging that the law against this offence was not enforced. The court granted the injunction. The state, at the relation of B. et al. by a proceeding in the Supreme Court, obtained a writ prohibiting the District Court from putting its decree into effect, on the ground that the District Court, though a court of equity, had no jurisdiction to issue an injunction to restrain a crime which in no way injured property or property rights, and that the failure of the civil authorities to enforce the criminal law was not a legal reason for an injunction). 198 NUISANCE ATTORNEY-GENERAL v. GREAT NORTHERN RAILWAY COMPANY. In Chancery, Before Vice-Chancellor, Sir R. T. KlNDERSLEY, i860. 1 Drewry and Smale Reports, 154. This was an information by the Atorney-General at the relation of Thomas North, who was a stranger to the company, against the Great Northern Railway Company and the chairman. It alleged the incorporation of the company for mak- ing and maintaining a railway; that the Companies Clauses Consolidation Act, 1845, trie Lands Clauses Consolidation Act, and the Railway Clauses Consolidation Act were incor- porated in the special railway act; that neither of the acts recited nor any other acts enabled the company to trade in coals, nor to employ the funds of the company otherwise than for making and maintaining the railway, station, works, &c. , and for carrying on the ordinary business of a railway com- pany, and that it had the usual powers of such companies and no others. It then alleged that the company carried passen- gers, and also coals for coal merchants and others ; and then it alleged, and this was the ground of dispute, that the com- pany also dealt largely in coats, buying and selling in compe- tition with other coat merchants; that they endeavored to conceal that fact by certain contrivances, but that in fact they acted as a company as coal merchants to an enor- mous extent; and it prayed that the company might be re- strained from so dealing, and from employing their funds in such business. The fact of the trading was clearly proved 1 s The arguments of counsel are omitted. ATTORNEY-GENERAL v. GREAT NORTHERN RY. CO. 199 The Vice-Chancellor. I shall consider the several points in an order somewhat different from that in which they were argued. With regard to the question of fact, that the Great Northern Railway Company have for a long period been dealers in coal, I can entertain no doubt. The next question is, whether this is a legal act; and it appears to me that the case is hardly arguable on this point. The act as against law, and against the contract between the shareholders; and it is also against the implied con- tract created by the Act of Parliament, as between the com- pany and the public. The next question is, what effect this dealing in coal has upon the rights and interests of the public; because I agree with Mr. Stevens, that the question here is, whether this sort of proceeding is attended or threatens to be at- tended with such injury to the public that this Court should interfere to prevent it. Now why has the rule been established, that railway companies must not carry on any business other than that for which they were constituted. It is because these com- panies being armed with the power of raising large sums of money, if they were allowed to apply their funds to pur- poses other than those for which they were constituted, might acquire such a preponderating influence and command over some particular branch of trade or commerce, as would en- able them to drive the ordinary private traders out of the field, and create in their own favor a practical monopoly, whereby the interests of the public would be most seriously injured. It is hardly possibly to make out a case affording a better illustration of the principle than the present. The only remaining question is this : whether, if the in- terests of the public are injured or endangered by the prac- 200 NUISANCE tice complained of, it is competent for the Attorney-General, ex officio or on relation, to file an information to prevent it. On this point I entertain no doubt whatever. Wherever the interests of the public are damnified, by a company estab- lished for any particular purpose by Act of Parliament, act- ing illegally and in contravention of the powers conferred upon it, I conceive it is the function and duty of the Attor- ney-General to protect the interests of the public by an in- formation ; and that where, in the case of an injury to pri- vate interests, it would be competent for an individual to ap- ply for an injunction to restrain a company from using its powers, for purposes not warranted by the act creating it, it is competent for the Attorney-General, in cases of injury to public interests from such a cause, to file an information for an injunction. The cases in which the Attorney-General comes forward on behalf of the public, to ask this Court to restrain a nuisance, are an illustration of this principle. A nuisance may be detrimental to the public or to an individ- ual; and it is very usual for the Attorney-General to come forward for an injunction to restrain it, so far as it affects the public, just as an individual may apply for an injunc- tion to retain it, where it affects himself. It is true that every injury is not a nuisance; but the right of the public to be protected against injury by the information of the At- torney-General, is not confined to those injuries which come within the strict definition of a nuisance. Where it is the interests of the public to prevent an illegal act, such as this being committed, it is competent for the Attorney-General to file an information to restrain it. I consider, therefore, the Court has jurisdiction to grant the injunction on the information; but the injunction must be so worded as not to restrain the company from selling their present stock of coal. 2 ^Compare : Attorney General v. Utica Insurance Co., 2 Johns. Ch. 371, 1817 ATTORNEY-GENERAL v, GREAT NORTHERN RY. CO. 201 (B. was charged with engaging in banking operations contrary to the statute incorporating it. An information was filed by the Attorney General to restrain by injunction the usurpation of a franchise, which, if true, amounted to a breach of law and of public policy. Iniunct refused. There was no encroachment on the property of the state, nor mischief of a similar nature giving a court of equity jurisdiction. Accord: Attorney General v. Bank of Niagara, I Hopkins (N. Y.) Ch. 354, 1825; Attorney General v. Tudor Ice Co., 104 Mass. 239, 1870). Attorney General v. Birmingham and Oxford R. R. Co., 3 MacN. & G. 453, 1851 (A Railway Company was constituted to build a line from A. to B., with a branch to C. The company completed the main line, but did not take any steps to build the branch. Information filed to restrain the company from opening the main line except with the inten- tion of completing the branch. Refused because no express violation of any Act was threatened, and every neglect of a public duty does not necessarily enable the Attorney General to obtain relief in a court of equity). Attorney General v. Railroad Companies, 35 Wis. 425, 1874 (The maximum rate of toll to be charged by railroads was regulated by stat- ute. Defendants exacted tolls in excess of that rate. Information filed by the Attorney General to restrain defendants. Injunction granted. The Attorney General has his election to proceed against companies for their alleged violations of legal duty either by information in the nature of quo warranto, or by injunction as for quasi nuisance). Stockton v. Central R. R. Co., 50 N. J. Eq. 52, 1892 (A statute of the state prohibited a railroad company of one state from leasing its franchises and property to a corporation of another state. Held, that the Attorney General could bring a bill in equity to enjoin a violation of this statute). Louisville and Nashville R. R. Co. v. Commonwealth, 97 Ky. 675, 1895 (The state constitution prohibited a railroad company from pur- chasing the stock of a parallel line. The Attorney General brought a bill in equity to restrain the defendant railroad from making such a purchase. Jurisdiction sustained. Page 695). Trust Company v. Georgia, 109 Ga. 736, 1899 (The Attorney Gen- eral brought a bill against certain railroad companies, alleging that they were about to violate a provision of the constitution of the state which it was claimed prohibited one railroad company from purchasing the shares of another railroad company. The court maintain the right of the Attorney General to bring a bill in equity to restrain a corporation from doing an ultra vires act productive of public mischief, but dismiss the bill on the merits). In the following case the right of the Attorney General in a bill in equity to question the existence of a corporation organized under the forms of law was denied, the court maintaining that the right of such a corporation to exist can only be called in question by a writ of quo warranto : Stockton v. American Tobacco Co., 55 N. J. Eq. 352, 1897, aff. 42 Atl. 1117 sub nom. Miller v. American Tobacco Co. (The Attorney General brought a bill against a tobacco company, alleging that the conduct of the company was inimical to public interest because the company was not organized according to the laws of the state ; that it was not the intention of the corporators to transact any of their corporate business, or have an office within the state; that the ob- ject of the corporators was to obtain a monopoly of trade, and that they were so conducting their business as to prevent any jobber hand- ling the goods of the defendant and at the same time handling the 202 NUISANCE goods of others. The bill prayed for a declaration that the com- pany was organized for an illegal purpose and in an unlawful man- ner, and that it has no authority to use its corporate franchise for the purpose of destroying competition. Bill dismissed on the ground that the existence of a corporation should be challenged by a quo warranto and cannot be challenged by injunction, and that a court of equity does not have the power to enjoin an act done by a corporation organized under the forms of law within the powers con- ferred by its charter, merely because there were defects in the method of organization, or because it was organized with the design of exer- cising its powers illegally. The court was also of the opinion that the acts charged as being in restraint of trade were not illegal). State Legislature. In re Corporations: In the following States the Attorney-Gen- eral, or other designated public officer, is authorized, under the con- ditions indicated in the statute, to bring a bill in equity against a corporation, and obtain an order restraining the company from doing any business in the State. Alabama: Civil Code, 1896, Sec. 2580 (To restrain insurance com- pany, when insolvent, or when it has exceeded its powers, or has failed to comply with any provision of the law, so that its condition is such as to render its further proceedings hazardous to the public or its policy-holders ) . Iowa: Code, 1897, Sec. 1777 (To restrain insurance companies when their condition is such as to render their further business hazardous). Massachusetts: Revised Statutes, 1902, p. 1066 (To restrain sav- ing bank when its condition renders the continuance of its business hazardous to the public or those having funds in its custody) ; ibid., p. 1 107 (To restrain banking corporation under similar circumstances, and where it has exceeded its powers or failed to comply with all the rules of law) ; ibid., p. 1123 (To restrain insurance company, wnen insolvent, or when it has exceeded its powers, or failed to comply with all the rules of law). Minnesota: Revised Laws, 1905, Sec. 3170 (To restrain any corporation from assuming or exercising any franchise, liberty of privilege, or transacting any business not authorized by its act of incorporation, and to restrain any individual from exercising any corporate rights, privileges or franchises not granted by law) ; ibid., Sec. 3179 (To restrain any insurance company, or any corporation having banking privileges or the power to make loans, when it be- comes insolvent, or violates its charter, or any act obligatory upon it). Sec. 5169 (Temporary injunction to restrain corporation from doing business, pending an action for its dissolutjon because of violation of anti-trust laws) ; ibid. Missouri: Annotated Statutes, 1906, Sec. 1023 t,j.o icstrain foreign corporations not having a place of business in the State) ; ibid., Sec. 1392 (To restrain building and loan associations when in the opinion of the supervisor their affairs are in a condition to render further business injurious to the public) ; ibid., Sec. 1421 (To restrain fraternal and beneficial associations under similar conditions) ; ibid., 1469 (To restrain saving and safe deposit companies under similar conditions) ; ibid., 8023 (To restrain insurance companies under sim- ilar conditions). New Hampshire : Public Statutes, 1901, Chapter 162, § 12 (To re- ATTORNEY-GENERAL v. GREAT NORTHERN RY. CO. 203 strain any institution placed under the supervision of the bank commis- sioners which shall refuse to permit an examination of its affairs, or whenever, in the opinion of the commissioners, it is necessary for the public safety that such institution should not continue to transact business). , Rhode Island: General Laws, 1896, Chapter 178, Sec. 42 (To restrain any bank or institution for savings which has so acted as to render it liable to forfeit its charter at law, or render its further exercise of the rights conferred by its charter hazardous to the public or those having funds in its charge). Vermont: Statutes of 1894, Sec. 4208 (To restrain any insurance company which has violated the law, become insolvent, or whose continued transaction of business would be unsafe or inexpedient). In re violation of certain Acts: In the following States the Attorney-General, or other designated public official, may bring a bill in equity to restrain specific acts, or the violation of the orders of designated public officials : Iowa: Code, 1897, Sec. 21 19 (To enforce the orders of the Board of Railroad Commissioners). Kansas: General Statutes, 1905, Sec. 2316, 4463 (To restrain bucket shops and other gambling places mentioned) ; ibid., Sec. 4458 (To restrain monopolistic combinations). Maine: Revised Statutes, 1903, Chapter 22, Sec. 1 (To restrain sale of liquor, houses of ill fame and gambling houses) ; ibid., Chapter 129, Sees. 20, 21 (To restrain lotteries). Massachusetts : Revised Laws, 1902, p. 377 (To restrain violation of town laws in relation to electric lines) ; ibid., p. 390 (To restrain violation of laws relating to the height of buildings in cities) ; ibid., p. 680 (To restrain pollution of the water supply) ; ibid., p. 859 (To restrain houses of ill fame, gambling houses, and places for the illegal sale of liquor). Minnesota: Revised Laws, 1905, Sec. 1549 (To restrain the opera- tion of unlicensed drinking places) ; ibid, Sec. 1975 (To restrain car- riers or warehousemen violating orders of Commission) ; ibid.,. Sec. 2096 (To restrain the operation of an unlicensed, warehouse). Missouri: Annotated Statutes, 1906, Sec. 1 150 (To enforce the orders of the Board of Railroad Commissioners). New Hampshire : Public Statutes, 1901, Chapter 205, Sec 5 (To restrain any house of prostitution, gambling house, or place for the unlawful sale of liquor). Ohio: Revised Statutes, 1904, Sec. 3371 (To restrain a railroad from giving, contrary to the statute, more favorable terms to one shipper than another. It appears that the injunction will issue at the suit of either the State or the person discriminated against; see Sco- field v. Railway Company, 43 O. St. 571, 1885, remarks of Atherton, J.). Rhode Island: General Laws, 1896, Chapter 161, Sec. 2 (To re- strain a common carrier from giving, contrary to the statute, more favorable terms to one shipper than another. Query, whether the injunction will issue at the suit of the Attorney-General or at the suit of a shipper, or at the suits of both) ; ibid. : Chapter 187, Sec. 40 (To restrain the building for public use of an unauthorized railroad). Texas: Act of May 12, Aug. 14, 1888, Supp. to Sayles Civil Statutes, Art. 2873a (To restrain the violation of any revenue or penal law of the State). Vermont: Statutes, 1894, Sec. 3893 (To restrain the violation by railroad companies of certain provisions of the statute making it un- 204 NUISANCE lawful to abandon stations) ; ibid., Sec. 4522 (To restrain the further maintenance of a place for the unlawful sale of liquors after convic- tion for maintaining such place). West Virginia: Code, igo6, Sec. 411 (To restrain the operation of a coal mine considered dangerous by inspector) ; ibid., Sec. 936 (To restrain the illegal sale of liquor) ; ibid., Sees. 2857, 2858 (To restrain the waste of natural gas). In re suits by private citizens to restrain public wrongs: In the following States a citizen or a limited number of citizens may main- tain a suit to restrain a violation of a designated statute : Georgia: Acts of 1899, p. 73 (To restrain the unlawful sale of liquor) . I aim: Code 1897, Sec. 2405 (To restrain the sale of liquor con- trary to law). Kansas: General Statutes, 1905, Sec. 2316 (To restrain gambling places) ; ibid, Sec. 3783 (To restrain the illegal use and sale of liquor) ; ibid.. Sec. 4463 (To restrain bucket shops). Maine: Revised Statutes, 1903, Chapter 22, Sec. 1 (Twenty citi- zens may obtain injunction to restrain places for the sale of liquor, houses of ill fame, or gambling places). Massachusetts: Revised Statutes, 1902, p. 859 (Ten citizens may obtain injunction to restrain places for the illegal sale of liquor, gambling houses and houses of ill fame). North Dakota: Revised Code, 1905, Sec. 9374 (To restrain the sale of liquor). Vermont: Statutes 1894, Sec. 4522 (Ten persons, being lawful voters of the town where the common nuisance is situated, may restrain the further maintenance of a place for the unlawful sale of liquor or for gambling). West Virginia: Code, 1906, Sec. 936 (To restrain the illegal sale of liquor). Constitutionality of Legislation: Where, under the foregoing acts an injunction issues to prohibit the public wrong, a commitment for contempt of the order of the court does not deprive the person com- mitted of his liberty without due process of law contrary to the Four- teenth Amendment of the Constitution of the United States. Eilen- becker v. Dist. Court of Plymouth Co., 134, U. S. 31, 1890. In the following cases it has been held that such commitment does not violate a clause in a State Constitution, designed to prevent trial by jury in criminal cases. Littleton v. Fritz, 65 Iowa 488, 1885; Carle- ton v. Rugg, 149 Mass. 550, 1889 ; Davis v. Auld, 96 Me. 559, 1902. Federal Legislation. In recent years the Federal Government has begun to exercise the power conferred on it by the Constitution to regulate interstate and foreign commerce. The legislation affecting the equity jurisdiction of the Federal Courts relates (1) to common carriers, and (2) to com- binations in restraint of trade and commerce. The legislation relating to common carriers is found in the Interstate Commerce Act of February 4, 1887, as amended by the Act of March 2, 1889, as sup- plemented by the Elkin's Act of February 19, 1903, and as further greatly amended and extended by the Act of June 29, 1906. This legis- lation provides that railroads, express companies, sleeping car com- panies, and pipe line for the transportation of oil or other commodity except water and gas, engaged in interstate or foreign commerce, shall among other things, charge reasonable rates, shall not discriminate in ATTORNEY-GENERAL v. GREAT NORTHERN RY. CO. 205 their charges for a like service between individuals, associations, and localities, and shall publish their rates for the transportation of prop- erty. The acts create an Interstate Commerce Commission with power to investigate common carriers subject to the provision of the acts, to hear complaints of violations of the act, and in either case to made such orders as the law and the nature of the facts ascertained require. The commission is also empowered on complaint of any person affected to fix what shall, in the future be a maximum rate of charge, for the transportation of persons or property. As the com- mission is not a court its orders are subject to review in the courts. The Circuit Courts of the United States are given jurisdiction to enforce all legal orders of the commission by mandamus or injunction at the suit either of the Attorney-General of the United States acting at the instance of the commission; or on the petition of any company or person interested. Furthermore, the Circuit Courts have jurisdiction to enforce by mandamus that part of the legislation which relates to unjust dis- crimination and rebates on a petition filed by the aggrieved shipper. In other words, in such case the shipper discriminated against is not obliged to first appeal to the commission, though he may do so. By the Act of August 7, 1888, telegraph companies to which the United States has granted any subsidy, are required to operate their franchises by themselves alone, without discrimination, and to make all necessary arrangements for the interchange of business with any connecting telegraph company. The Interstate Commerce Commission can on complaint of any person or company injured by a violation of the law make whatever order is necessary to carry out the act, and this order may be enforced by writ of mandamus in the courts of the United States, in the name of the United States, at the relation of either of the Interstate Commerce Commissioners. The Federal Legislation in relation to combinations in restraint of trade and commerce is embodied in the Act of August 27, 1894, known as the Sherman Anti-trust Act, and in sections 73-77 of the Act of August 27, 1894, known as the Wilson Bill. The Sherman Act declares every "contract, combination in the form of trust or other- wise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations" illegal; while the fourth sec- tion declares that the Attorney-General may institute, in the Circuit Courts of the United States, proceedings to restrain violations of the Act. The Wilson Bill declares every contract or agreement between importers of foreign commodities illegal when such agreement or con- tract is intended to operate in restraint of trade, and the Circuit Courts of the United States are given jurisdiction on petition of the Attorney-General to restrain violations of the Act. The remaining recent Federal legislation pertaining to interstate and foreign commerce, namely, The Safety-Appliance Act of March 2, 1893, The Pure Food Act of June 30, 1906, The Meat Inspection Act of June 30, 1906, and The Hall-Mack, or Jewelers' Liability Bill, of June 13, 1906, do not contain provisions expressly enabling the courts of the United States to enforce their provisions, by mandamus or injunction at the instance of either the Attorney-General or inter- ested private persons. For the full text with annotations of all the Federal legislation referred to see Snyder's Annotated Interstate Commerce Act and Fed- eral Antitrust Laws, Edition, 1904, with Supplement of 1906. CASES ON RESTRAINT OF INFRINGEMENT OF INCORPOREAL RIGHTS A Collectioyi of Cases zvith Notes by Wffl. Draper Lewis, Ph. D. Dean of the Law Department of the University of Pennsylvania. Second Edition [Compiled in the Biddle Memorial Library of the University of Pennsylvania] PHILADELPHIA : INTERNATIONAL PRINTING CO. 1905 COPYRIGHT I905 WM. DRAPER LEWIS, PH. D. PREFACE. I have felt the need in my own work of a collection of cases that would deal with considerable thoroughness with the protection which our courts, in the exercise of their equity jurisdiction, afford against unlawful inter- ference in trade and business. The present collection is the result of an effort to supply this need. The term "incorporeal right" includes only those rights not exer- cised in a definite piece of real or personal property. All discussion, therefore, of violation of easements or inter- ference in franchises to use particular parts of the earth's surface, as the right of a railway to occupy a particular highway, have been omitted. The arrangement of the cases and notes needs a word of explanation. I believe that the way to study law is to follow from the original sources the development of leading principles. Under any topic the earliest case, or the earli- est case having any real effect in the development of the law, is printed first. The notes to this case contain exam- ples of cases in which the principle enunciated in the first case has been applied. Whenever the facts of the cases in the notes differ in any degree from the facts of the case printed in full, or the leading case, the facts of the case cited are stated, so that the student may study the appli- cation of the principle. The earliest case which really modifies the principle of the first case, or which deals with a different phase of the topic under discussion, is printed as the second case, the notes to this case being treated in the same way as the notes to the first case. The next modification or development of the law is treated in the third case, and so on. Wherever there exists a conflict in the present law on a matter of importance, while the first case discussing the subject appears in its proper chronological place, the latest judicial contribution to the argument is printed at the end of the topic. The i PREFACE. — Continued. result of this arrangement is that the student in studying a subject goes through as nearly as may be the same process of mental development as the law itself has undergone. Though I am aware of the many shortcom- ings of the present collection, I am a firm believer in the " theory" on which the collection has been constructed. Though the collection in primarily designed to dis- cuss questions pertaining to the jurisdiction of a Court of Equity, I have not hesitated to place in the notes a good deal of information on the substantive law involved, believing that any teacher using the collection, would be the best judge as to how much substantive law should be introduced. W. D. L. Philadelphia, Oct. i, 1905. CONTENTS. CHAPTER I. page Infringement of Patent Right . .... .... i CHAPTER II. Infringement of Literary and Artistic Property. Section A. — Common Law Property in Books ... ... 36 Section B. — Common Law Property in Letters . . . . . 40 Section C. — Common Law Property in Plays ... 60 Section D. — Common Law Property in Lec- tures . . . 72 Section E. — Common Law Property In News . ... . . . 79 Section F. — Statutory Copyright and Playright 87 CHAPTER III. Infringement of Property in Business Reputation — Trade Mark= — Trade Names — Unfair Trade Com- petition .... ... . .... IOC CHAPTER IV. Infringement in Property in Contracts, and the Right to Contract — Strikes and Boycotts — Un- fair Trade Competition Continued .... 201 ii TABLE OF CONTENTS. CHAPTER V. Infringement of Personal Rights. page Section A. — Libel 299 Section B. — Invasion of Privacy . . . 337 Section C. — Invasion of Personal Liberty 360 Appendix A. — Emperor of Austria v. Day . . . 363 Appendix B. — English Cases in Reference to the Restraint of Libel by Injunction Under the Judica- ture Act . . . 382 CASES REPORTED. PAGE. Arthur v. Oakes, 63 Federal 310 253 Atkins v. W. & A. Fletcher Co., 55 Atlantic Reporter 1074 281 Blanchard v. Hill, 2 Atkyn 484 100 Boston Diatite Co. v. Flor- ence Manufacturing Co. 114 Massachusetts 69 320 Boulton v. Bull, 3 Vesey Junior 140 4 Brace Brothers v. Evans, 18 Pittsburgh Law Journal 399 222 Brandreth v. Lance, 8 Paige 24 303 Burnett v. Chetwood, 2 Mer- rivale 441, note 299 Caird v. Sime, 12 Appeal Cases 326 73 Casey v. Cincinnati Typo- graphical Union, 45 Federal I3S 241 Chappell v. Stewart, 82 Mary- land 323 360 Clark v. Clark, 25 Barb. 77.. 139 Clark v. Freeman, 11 Bevan 112 133 Corliss v. Walker, 57 Federal 434 and 64 Federal 280 337 Cruttwell v. Lye, 17 Vesey 335 109 Cullen's Case, 12 Appeal Cases 332, note 2 72 Dennison Manufacturing Com- pany v. Thomas Manufac- turing Company, 94 Federal 651 m Donaldson v. Beckett, 2 Brown's Cases in Parlia- ment, Tomlin's ed., 129 and 4 Burrows 2408 36 Du Bost v. Beresford, 2 Campbell 511 302 Emack v. Kane, 34 Federal 46 326 Emperor of Austria v. Day, 3 DeGex, Fisher and Jones 217 363 PAGE. Erdman v. Mitchell, 207 Pennsylvania 79 290 Ford v. Foster, 7 Chancery Appeals 611 144 Gee v. Pritchard, 2 Swanson 402 44 General Electric Co. v. Re- New Lamp Co., 121 Federal 165 190 Gilbert v. Mackle, 4 Sand- ford's Chancery 357 308 Goodyear v. Day, 2 Wallace, Junior 283 10 Gout v. Aleploglu, 6 Bevan 69, note A 118 Gray v. Building Trades Council, in the Supreme Council, 97 N. W. 663 294 Halstead v. Houston, 111 Fed. 376 186 Hamilton-Brown Shoe Co. v. Saxey, 131 Missouri 212. 276 Hill v. Thompson, 3 Meri- vale 622 6 Hogg v. Kirby, 8 Vesey 215. . 102 Jaeger's Sanitary Woolen System Co. v. Le Boutil- lier, 24 New York Supple- ment 890 164 Jewelers' Mercantile Agency v. The Jewelers' Weekly Publishing Company, 155 New York 241 96 Kiernan v. Manhattan Quota- tion Telegraph Co., 50 Howard's Practice 194. ... 79 Knott v. Morgan, 2 Keen 213. 122 Life Association of America v. Boogher, 3 Missouri Ap- peals 173 323 Linoleum Manufacturing Co. v. Nairn, 7 Chancery Divis- ion 834 159 Lord Bryon v. Johnson, 2 Merivale 29 117 Lumley v. Wagner, I De Gex, Macnaghton and Gordon 604 201 Macklin v. Richardson, Am- bler 694 60 iii CASES REPORTED. PAGE. Mayer v. Journeymen Stone Cutters' Union, 47 New Jersey Equity 519 232 Moorman v. Hodge, 2 Saw- yer 78 150 Murdock v. Walker, 152 Pennsylvania 595 247 Palmer v. De Witt, 47 New York Appeals 532 64 Partridge v. Menck, 1 How- ard's Court of Appeal Cases 547 137 Pidding v. How, 8 Simon 477 125 Pontefact v. Isenberger, 106 Fed. 499 190 Prudential Assurance Co. v. Knott Law Reports, 10 Chancery Appeal Cases 142 314 Rein v. Clayton, 37 Fed. 354. 28 Read and Huggonson, In re, 2 Atkinson 469 ... 300 Reynolds v. Everett, 144 New York 189 270 PAGE. Roberson v. Rochester Fold- ing Box Co., 171 New York 538 354 Root v. Railway Co., 105 U. S. 189 13 Routh v. Webster, 10 Bevan 561 131 Schmaltz v. Wooley, 57 New Jersey Equity 303 182 Schuyler v. Curtis, 27 Ab- bott's New Cases 387, 64 Hun 594, 147 New York 434 344 Springhead Co. v. Riley, Law Reports, 6 Equity Cases 551 204 Taylor v. Carpenter, 11 Paige 292 128 Thomkins v. Halleck, 133 Mass 32 69 Thompson v. Lord Chester- field, Ambler 737 40 United States v. Kane, 23 Federal 748 212 Worthington v. Waring, 157 Mass. 421 25c CASES CITED IN NOTES. PAGE. Abernethy v. Hutchinson, 3 L. J. Ch. 209 73 Adams v. Bridgewater Iron Co., 26 Fed. 324 27 Adriance v. National Har- row Co., 98 Fed. 118 335 Adriance v. National Harrow Co., 121 Fed. 827 336 Ainsworth v. Walmsley, I Eq. Cas. 518 181 Allen v. Flood (1898), 1 A. C. 1 247,274 American Base Ball Asso- ciation v. Pickett, 8 Pa. C. C. 232 202 American Cable Ry. Co. v. Chicago City Ry. Co., 41 ' Fed. 522 27 American Cable Ry Co. v. Citizens' Ry. Co., 44 Fed 484 2 7 American Law Book Co. v. Edward Thompson Co., 84 N. Y. Supl. 225 203 American Steel and Wire Co. v. Wire Drawers' and Die Workers' Unions, 90 Fed. 608 249 Amoskeag Mfg. Co. v. Gar- ner, 55 Barb. 151 149 Amoskeag Mfg. Co. v. Spear, 2 Sandf. S. C. 599 120 Anonymous. 1 Vern 120 .... 6 Apollinaris Co. v. Scherer, 27 Fed. 18 190 Armstrong v. Arnit, 2 Tomes L. R. 887 384, 389 Arnheim v. Arnheim, 59 N. Y. Sup. 948 143 Arthur y. Oakes, 63 Federal 310 253 Atkins v. W. & A. Fletcher Co., 55 Atlantic Reporter 1074 281 Atkinson v. John E. Doherty, 121 Mich. 372 343, 353 Atwood v. The Portland Co., 10 Fed. 283 26 Back v. Railway Teamsters' Union, 42 L. R. A. 407 . . . 212 PAGE. Bacon v. Jones, 4 Myl. & Cr. 433 7 Baker v. Sanders, 80 Fed. 889 143 Balliet v. Cassidy, 104 Fed. 704 320 Baltimore Car Wheel Co. v. Bemis, 29 Fed. 95 322 Barr v. Essex Trades Coun- cil, 58 N. J. Eq. 101 245 Barrows v. Knight, 6 R. II. 434 "9 Bartlette v. Crittenden, 4 McLean 300 73 Batcheller v. Thomson, 93 Fed. 660 164 Bauer v. La Societe Anony- me de la Distillerie de Liq- ueur Benedictine de L'Ab- baye de Fecamp, 120 Fed. 74 181 Bauer v. Order of Carthusian Monks, 120 Fed. 78 181 Beard v. Turner, 13 L. T. n. s. 747 149 Beattie v. Gallaan, 81 N. Y. Sup. 413 203 Beck v. Railway Teamsters' Protective Union, 42 L. R. A. 407 246, 249, 280, 312 Beedle v. Bennett, 122 U. S. 71 27 Beeston v. Ford, 2 Coopr. Temp. Cot. fr. 58 8 Bell v. Locke, 8 Paige 74. .. . 108 Bell v. Singer Mfg. Co., 65 Ga. 452 32a Betts v. Menzie, 3 Jur. n. s. .357 8 Bickford v. Skewes, 8 L. J. Ch. n. s. 188 8 Bignall v. Harvey, 18 Blatch 353 27 Bindell v. Hagan, 54 Fed. 40 249 Bininger v. Wattles, 28 How. Pr. 206 181 Bissell Chilled Plow Works v. T. M. Bissell Co., 121 Fed. 357 149, 150 Bixby v. Dunlap, 56 N. H. 456 203 CASES CITED IN NOTES. PAGE. Blanchard v. Hill, 2 Atkyn 484 100 Board of Trade of Chicago v. Hadden-Krull Co., 109 Fed. 705 86 Board of Trade of Chicago v. O'Dell Commission Co. 11S Fed. 574 .... 86 Boardman v. Meriden Britan- nia Co., 35 Conn. 402 120 Bonn Manufacturing Co. v. Hollis, 54 Minn. 223 252, 253, 269, 274, 298 Bonnard v. Perryman (1891) 2 Ch. 269 384,392 Boston Diatite Co. v. Flor- ence Manufacturing Co., 114 Massachusetts 69 320 Boulton v. Bull, 3 Vesey Jun- ior 140 4 Boutwell v. Marr, 42 Atl. 607 270 Bowen v. Hall L. R., 6 Q. B. D- 333 203 Bowen v. Matheson, 96 Mass. 499 246 Boyer v. Western Union Tel. Co., 124 Fed 246 252 Brace Brothers v. Evans, 18 Pittsburgh Law Journal 399 222 Bradley v. Pierson, 149 Pa. 5°2 252 Bragg Mfg. Co. v. City of Hartford, 56 Fed. 292 27 Brandreth v. Lance, 8 Paige 24 303 Brewster v. Miller, 19 Kty. Law Rept. 593 253, 270 Brinsmead, In Re 1897, 1 Ch. 45 143 Brown v. Seidel, 153 Pa. 60. . 181 Brown Chemical Co. v. My- ers, 139 U. S. 540 120 Bucks Stove and Range Co. v. Kiechle, 76 Fed. 758 159 Bullock v. Chapman, 2 De G. & Sm. 211 313 Burgess v. Burgess, 3 De G. M. and G. 896 142 Burke v. Cassin, 45 Cal. 467. 120 Burnett v. Chetwood, 2 Meri- vale 441, note 299 Buster v. Wright, 69 S. W. 882 362 Caird y . Sime, 12 Appeal Cases 326 73 Caldwell v. Vanvlissingen, 9 Hare 415 8 PAGE. California Fig-Syrup Co. v. Worden, 95 Fed. 132 128 Callaghan v. Myers, 128 U. S. 617 39 Canal Co. v. Clark, 80 U. S. 311 120 Carew v. Rutherford, 106 Mass. 1 252 Carrier v. Carlisle, 31 Beav. 292 1 19 Casey v. Cincinnati Typo- graphical Union, 45 Federal 135 241 Casey v. Typographical Union, 45 Fed. 143 212 Caswell v. Davis, 58 N. Y. 223 120 Centaur Co. v. Hensfurter, 84 Fed. 955 164 Centaur Co. v. Robinson, 91 Fed. 889 128 Chadwick v. Covell, 151 Mass. 190 164 Chappell v. Stewart, 82 Mary- land 323 360 Chas. S. Higgins v. Higgins Soap Co., 144 N. Y. 462 . . 116 Chase v. Turtle, 27 Fed. no. . 322 Christy v. Murphy, 12 How. Pr- 77 117 Churton v. Douglas, John. 174 116 Clark v. Clark, 25 Barb. JJ . 139 Clark v. Freeman, n Bevan 112 133 Clark v. Freeman, n Bevan "2 313 Clark v. Wooster, 119 U. S. 322 27 Coats v. Holbrook, 2 Sand. Ch. 586 np ) 131 Coats v. Merrick- Thread Co., 36 Fed. 324 i6 4 Cochrane v. Deener, 94 U. S. 78o I2 Cceur d'Alene Consolidated Mining Co. v. Miners' Union, 51 Fed. 260. .211, 222, 280 Coffeen v. Bruuton, 4 Mc- Lean 516 r6 9 Coleman v. West Hartlepool Ry. Co., 8 W. R. 734 . . . . 30 , Collard v. Allinson, 4 Myl. & Cr. 487 8 Collard v. Marshall, [1892] 1 Ch. 571 384 Collins Co. v. Brown, 3 Jur. n. s. Pt. 1, 929 T3T CASES CITED IN NOTES. PAGE. Collins Co. v. Reeves, 28 L. J. Ch. 56 131 Colton v. Thomas, 2 Brews. 308 125 Computing Scale Co. v. Na- tional Computing Scale Co., 79 Fed. 962 335 Comstock v. Moore, 18 How. Pr. 421 164 Consolidated Steel and Wire Co. v. Murray, 80 Fed. 811 273, 280 Coulson v. Coulson, 3 Times, L. R. 846 384 Consumers' Gas Co. of Kan- sas City v. Kansas Gas, Light and Coke Co., 100 Mo. 501 322 Continental Insurance Co. v. Board of Fire Underwrit- ers of the Pacific, 67 Fed. 310 274, 313 Cook v. Dolan, 6 Dist. R. 524 249 Coons v. Christie, 53 N. Y. Supl. 668 269 Corliss v. Walker, $7 Federal 434 and 64 Federal 280... 337 Cote v. Murphy, 159 Pa. 420. 246 Cotton v. Gillard, 44 L. J. Ch. 90 138 Crawford v. Lans, 60 N. Y. Sup. 387 I2 S Crawshay v. Collins, 15 Ves. 218 116 Creamer v. Bowers, 30 Fed. 185 27 Croft v. Day, 7 Beav. 84 119 Croft v. Richardson, 59 How. Pr. 356 322 Crossley v. The Derby Gas Light Co., 4 L. J. Ch. 25. 28 Crowe v. Aiken, 6 Fed. Cas. 904 63 Cruttviell v. Lye, 17 Vesey 335 I0 9 Cullen's Case, 12 Appeal Cas. 332, note 2 72 Cumberland Glass Mfg. Co. v. Glass Bottle Blowers' As- sociation, 59 N. J. Eq- 49 249, 274 Curran v. Galen, 152 N. Y. 33 240, 246 Curtis v. Cutts, 8 L. J. Ch. 184 8 Dadirrian v. Yacubian, 98 Fed. 872 120 PAGE. Dailey v. Superior Court, 112 Cal. 94 302 Dale v. Smithson, 12 Abb. Pr. 237 128 Davenport v. Jepson, 4 De G. F. & J. 440 8 Davenport v. Richard, 3 L. T. n. s. 503 8 Davies v. Hodgson, 25 Beav. 177 116 Davis v. Kendall, 2 R. I. 566 119, 120 Davis v. United Engineers, 28 App. Div. 396 240 Davis v. Zimmerman, 28 App. Div. (N. Y.) 396 274 Davis v. Zimmerman, 91 Hun 489 248 Davison v. National Harrow Co., 103 Fed. 360 335 Day v. Brownrigg, 10 Ch. Div. 294 384 Debs, In re, 158 U. S. 564. . . 280 Delz v. Winfree, 80 Tex. 400 275 Dennison Manufacturing . Co. v. Thomas Manufacturing Co., 94 Federal 651 171 Dent v. Turpin, 2 J. & H. 139 139 Derringer v. Plate, 29 Cal. 292 200 Devlin v. Devlin, 69 N. Y. 212 142 De Wick v. Dobson, 18 App. Div. 399 .. 319 Dickson v. Dickson, 33 La. Ann. 1262 275 Dixon Crucible Co. v. Gug- genheim, 2 Brew. 321 ..116,128 Dixon v. Holden, L. R. 7 Eq. 488 313. 314 Donaldson v. Beckett, 2 Brown's Cases in Parlia- ment, Tomlin's Edition, 129 and 4 Burrows 2408 36 Doolittle, In re, 23 Fed. 544. . 217 Doremus v. Hennessey, 176 111. 608 203 Dr. David Kennedy Co. v. Kennedy, 165 N. Y. 353... 116 Draper v. Skenett, 116 Fed. 206 181 Du Bost v. Beresford, 2 Campbell 511 302 Duke of Queensberry v. Sheb- beare, 2 Eden. 329 38 Earl of Lytton v. Devey, 54 L. J. Ch. 293 59 CASES CITED IN NOTES. PAGE. East India Co. v. Sandys, I Vern. 127 6 Edleston v. Edleston, 9 Jur. 11. s. 479 119 Edleston v. Vick, 23 Eng. L. & E. 51 128 Electric Tele. Co. v. Nott, 2 Coop. 41 S Emack v. Kane, 34 Federal 46 326 Emack 1/. Kane, 34 Fed. 46. 212 Emerson v. Badger, 101 Mass. 82 121 Emigh v. B. & O. Co., 6 Fed. 283 27 Emperor of Austria v. Day, 3 De Gex, Fisher and Jones 217 363 Erdman v. Mitchell, 207 - Pennsylvania 79 290 Erdman v. Mitchell, 207 Pa. 79 273 Ertz v. Produce Exchange, 48 L. R. A. 90 252, 275 Estes v. Worthington, 22 Fed. 822 149 Exchange Tele. Co. v. The Central News Co., 45 W. R. 595 86 Exchange Tele. Co. v. Greg- ory, 1 Q. B. (1896) 147. ... 86 Eyre v. Higbee, 22 How. Pr. 198 59 Eyre v. Walker, 4 Burr. 2325 38 Faber v. Faber, 49 Barb. 357. 142 Fair v. Morales, 82 111. App. 494 J 38 Farmers' Loan and Trust Co. v. North. Pac. R. R. Co., 60 Fed. 803 253 A. B. Farquhar Co. v. Na- tional Harrow Co., 102 Fed. 714 335 Ferguson v. Mills, 2 Brew. 314 120 Fetridge v. Wells, 4 Abb. Pr. 144 127 Filley v. Fassett, 8 Am. L. Reg., n. s. 402 200 Flavel v. Harrison, 10 Hare 467 127, 128 Fleming v. Newton, 1 H. L. Cas. 363 313 Fleron v. Lackaye, 14 N. Y. Sup. 292 71 Ford v. Foster, 7 Chancery Appeals 611 144 PAGE. Ford v. Foster, 7 Ch. App. 611 128 Forrester v. Walker, Amb. 695 38 Foster v. Retail Clerks' Inter- national Union Protective Assoc, 78 N. Y. Supl 860 273 Francis v. Flinn, 118 U. S. 385 319 Frank v. Herold, 63 N. J. Eq. 443 249, 274 Frazer v. The Frazer Lubri- cator Oil Co., 18 111. Apps. 450 116 French v. Conelly, t N. Y. Dig. 196 71 French v. Maguire, 55 How. Pr. 471 71 Frohman v. Payton, 68 N. Y. Sup. 849 108 Fullwood v. Fullwood, 9 Ch. D. 176 149 Gatzow v. Buening, 49 L. R. A. 475 • 203 Gee v. Prit chard, 2 Swanson 402 44 General Electric Co. v. Re- New Lamp Co., 121 Federal 165 190 Gilbert v. Mackle, 4 Sand- ford's Chancery 357 308 Gilbert v. Mackle, 4 Sand. Ch. 357 212 Gilman v. Hennewell, 122 Mass. 139 143 Glen & Hall Mfg. Co. v. Hall, The, 61 N. Y. 226 125 Glenny v. Smith, 11 Jur. n. s. 964 125 Globe-Wernicke Co. v. Fred. Macey Co., 119 Fed. 696 .. 158 Goodwin v. Hamilton, 19 Pa. C. C. 652 125 Goodyear v. Day, 2 Wallace Junior 283 10 Goodyear Rubber Co. v. The Goodyear Rubber Mfg. Co., 21 Fed. 276 143 Gordon v. Anthony, 16 Blatch 234 26 Gout v. Aleploglu, 6 Bevan 69, note A 1 18 Granard v. Dunkin, I Ball & Bat. 207 43 Grand Rapids School Furni- ture Co. v. Haney School Furniture Co., 92 Mich. 558 335 CASES CITED IN NOTES. PAGE. Gray v. Building Trades Council, 97 N. W. 663 294 Gregg v. Bassett, 3 Ont. 263.138 Hagan v. Blindell, 56 Fed. 696 249 Haggerty, Ex parte, 124 Fed. 441 249 Hall v. Barrows, 9 Jur. n. s. 483 "6 Halstead v. Houston, in Fed. 376 186 Hamilton-Brown Shoe Co. v. Saxey, 131 Missouri 212 . . 276 Hammersmith Skating Rink Co. v. Dublin Skating Rink Co., 10 Ir. R. Eq. 235 .... 322 Hammond v. Douglas, 5 Ves. 539 "6 Harmer v. Plane, 14 Ves. 130 6 Harper v. Pearson, 3 L. T. n. s. 547 117 Harrison v. Taylor, n Jur. n. s. 408 150 Haskins v. Royster, 70 N. C. 601 203 Hayward v. Andrews, 106 U. S. 672 27 Herzog v. Fitzgerald, 74 N. Y. App. no 249 Heyward v. Tillson, 75 Me. 225 246 Higgins v. Keuffel, 140 U. S. 428 199 Hill v. Daries, 21 Ch. Div. 798 386 Hill v. Thompson, 3 Merivale 622 6 Hires v. Hires, 6 Pa. Dist. 285 143 Hohorst, In re, 150 U. S. 661 13 Hodecker v. Strieker, 39 N. Y. Supl. 515 322 Hogg v. Kirby, 8 Vesey 215. . 102 Holloway v. Holloway, 13 Beav. 209 142 Holmes v.- The Holmes, Booth and Atwood Co., 37 Conn. 278 116 Hopkins Amusement Co., The, v. Frohman, 202 111. 541 Io8 Hopkins v. Oxley Stove Co., 83 Fed. 912 245 Horseshoers' Protective As- sociation v. Quinlivan, 83 N. Y. App. 459 2 90 Horton Mfg. Co. v. Horton Mfg. Co., 18 Fed. 816 149 PAGE Houchens v. Houchens, 95 Md. 37 128 Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119 322 Howard v. Henriques, 3 Sand. S. C. 725 124 Howe v. Howe Machine Co., 50 Barb. 236 142 Howe v. Searing, 10 Abb. Pr. 264 115 Howes v. Nute, 4 Cliff. 173- • 26 Hoxie v. Chaney, 143 Mass. 592 116, 138 Hoyt v. Mackenzie, 3 Barb. Ch. 320 59 Hudson v. Osborne, 39 L. J. Ch. 79 116 Hunt v. Simonds, 19 Mo. 583 252 Huttley v. Simmons (1898), 1 Q. B. 181 247 Hygeia Water & Ice Co. v. the New York Hygeia Ice Co., 140 N. Y. 94 143 Illinois Cen. R. Co. v. Caf- frey, 128 Fed. 770 203 Imlay v. The Norwich & Worcester Ry. Co., 4 Blatch. 227 27 International & Great North- ern Ry. Co. v. Greenwood, 2 Tex. App. 76 246 International Tooth-Crown Co. v. Carmichael, 44 Fed. 350 33s J. R. Watkins Medical Co. v. Sands, 83 Minn. 326 120 Jaeger's Sanitary Woolen System Co. v. Le Boutillier, 24 New York Supplement 890 164 James v. James, 13 Eq. Cas. 421 117 Jefferys v. Boosey, 4 H. L. Cas. 815 39 Jenkinson v. Nield, 8 Times L. R. 540 252 Jennings v. Johnson, 37 Fed. 364 143 Jersey City Printing Co. v. Cassidy, 53 Atl. 230 249 Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759 203 Jeweler's Mercantile Agency v. The Jeweler's Weekly Publishing Company, 155 New York 241 96 CASES CITED IN NOTES. PAGE. Jewelers' Mercantile Associ- ation v. The Jewelers' Weekly Pub. Co., 155 N. Y. 241 39 John D. Park & Sons Co. v. National Wholesale Drug- gists' Ass'n, 175 N. Y. 1.. 246 Johnson v. Ewing, 7 App. Cas. 619 119 Johnston Harvester Co. v. Meinhardt, 60 How. Pr. 168 274 Kearney v. Lloyd, L- R., 26 Ir. 268 252 Keene v. Kimball, 82 Mass. 545 °3 Keene v. Wheatley, 9 Am. L. Reg. 33 &3 Kelly v. Ypsilanti Dress-Stay Mfg. Co., 44 Fed. 19 . .322, 335 Kenny v. Gillet, 70 Md. 574. 128 Kerbs v. Rosenstein, 67 N. Y. Supl. 385 273 Keuffel & Esser Co. v. H. S. Crocker Co., 118 Fed. 187. 181 Keyes v. Eureka Mining Co., 158 U. S. 150 27 Kidd v. Horry, 28 Fed. 773. . 322 Kidd v. Johnson, 100 U. S. 617 139 Kiernan v. Manhattan Quota- tion Telegraph Co., 50 Howard's Practice 194 .... 79 Kipling v. Putnam, 120 Fed. 631 ; 119 Kitcat v. Sharp, 52 L. J. Ch. 302 Knott v. Morgan, 2 Keen 213. 122 Kundsen v. Benn, 123 Fed. 636 274 Ladd v. Oxnard, 75 Fed. 705 . 39 Lake Erie & Western Ry. Co. v. Bailey, 61 Fed. 494 280 Larrabee v. Lewis, 67 Ga. 561 120 Lawrence Mfg. Co. v. Ten- nessee Mfg. Co., 138 U. S. 537 120 Leather Cloth Co. v. Ameri- can Leather Cloth Co., 4 De Gex, J. &. S. 137; 11 H. L. Cas. 523 169 Leather Cloth Co. v. The American Leather Cloth Co., 9 L. T. n. s. 558; 11 Jur. N. S. 513 138 Lee v. Gibbings, 67 L. T. Repts, n. s. 263 392 PAGE. Lee v. Haley, 5 Ch. App. 155 125 Lewin v. Welsbach Light Co., 81 Fed. 904 ■.. 33s Lewis v. Langdon, 7 Sim. 421 116 Levy v. Walker, 10 Ch. D. 436 "6, 133 Liebig's Extract of Beef Co. v. Walker, 115 Fed. 822.121, 169 Life Association of America v. Boogher, 3 Missouri Ap- peals 173 323 Linoleum Manufacturing Co. v. Nairn, 7 Chancery Divis- ion 834 159 Liverpool Household Stores Asso. v. Smith, 37 Ch. Div. 170 384, 389, 392 Livingston 11. Van Ingen, 9 Johns. 507 (N. Y.) 9 Livingston v. Van Ingen, 1 Paine 45; 9 Johns. 507.... 9 Loog v. Bean, 26 Ch. Div. 306 384 Longshore Printing Co. v. Howell, 26 Ore. 527 269 Lord v. Whitehead and Ath- erton Machine Co., 24 Fed. 801 27 Lord Byron v. Johnson, 2 Merivale 29 117 Louisville & N. R. Co. v. Bit- terman, 128 Fed. 176 203 Luke v. Clothing Cutters' and Trimmers' Assembly, 77 Md. 396 240, 246 Lumley v. Gye, 2 E. & B. 216 203 Lewis' Cases on Civ. Lib. Pt. 1 p. 1 203 Lumley v. Wagner, 1 De Gex. Macnaughton & Gordon 604 201 Lyons v. Wilkins, 78 L. T. 618 247, 250 McAndrew v. Bassett, 10 Jur. n. s. 492 121 McCoy v. Nelson, 121 U. S. 485 12 McLean v. Fleming, 96 U. S. 245 150, 164 Macauley v. Tierney, 19 R. I. 255 : 298 Mackall v. Ratchford, 82 Fed. 41 222, 248 Macklin v. Richardson, Am- bler 694 60 CASES CITED IN NOTES. xi PAGE. Macklin v. Richardson, Am- bler 694 60 Macmahan Pharmacal Co. v. Denver Mfg. Chemical Co., 113 Fed. 468 138 Manhattan Medicine Co. v. Wood, 108 U. S. 218 128 Marks v. Jaffa, 6 Misc. 290. . 354 Marlin Fire Arms Co. v. Shield, 171 N. Y. 384 .... 320 Marshall v. Pinkham, 52 Wis. 572 120 Martin v. Wright, 6 Sim. 297 303 Master Stevedores' Associa- tion v. Walsh, 2 Daly 1 . . 270 Matthews v. Shankland, 56 N. Y. Supl. 123 24S Mauger v. Dick, 55 How. Pr. 132 322 Maxwell v. Hogg, 2 Ch. A. C. 307 I21 May v. Wood, 172 Mass. n.. 274 Mayer v. Flanagan, 34 S. W. 785 138 Mayer v. Journeymen Stone Cutters' Union, 47 New Jer- sey Equity 519 232 Mayer v. Journeymen Stone Cutters' Union, 47 New Jer- sey Equity 519 3 : 9 Meener v. Braylon, 152 Mass. 101 186 Meneely v. Meneely, 62 N. Y. 427 J 43 Menendez v. Holt, 128 U. S. 514 x 49 Meriden Britannia Co. v. Parker, 39 Conn. 450.. 128, 142 Meyer v. Devries, 64 Md. 532 302 Millar v. Donaldson, 4 Burr. 2327 38 Millar v. Taylor, 4 Burr 2303 ' 38 Millington v. Fox, 3 Myl. & Cr. 338 "9 Mogul S. S. Co. v. McGregor, The, (1892), 1 A. C. 25.... 275 Monson v. Taussands [1894], 1 Q. B. 671 384 Montgomery v. Thompson, 1891 App. Cas. 217 121 Moores v. The Bricklayers' Union, 23 Ohio Weekly Law Bui. 48 246, 274 Moorman v. Hoge, 2 Saw- yer 78 J 5° Moorman v. Hoge, 2 Sawy. 78 199 PAGE. Morgan v. Schuyler, 79 N. Y. 490 nO Morris v. Kelley, I J. & W. 481 94 Motte v. Falkner, 4 Burr. 2325 38 Mouson Co. v. Boehm, 26 Ch. 398 150 Mulkern v. Ward, L. R. 13 Eq. 619 314 Murdock v. Walker, 152 Penn- sylvania S9S 247 Murray v. Elliston, 5 B. & Aid. 576 94 Murray v. Gast Lithographic and E. Co., 49 Alb. L. J. 288 354 M. K. Fairbank Co. v. Luckel, King & Cake Soap Co., 116 Fed. 332 ISO Nashville, Cent. & St. L. Ry. Co. v. McConnell, 82 Fed. 65 202 National Biscuit Co. v. Bak- er, 95 Fed. 135 119 National Protective Asso. v. Cumming, 170 N. Y. 315 . . 240, 247, 274 Nevins v. Treadwell, 3 Blatch 80 26 New York and Chicago Grain and Stock Exchange v. The Board of Trade of the City of Chicago, 127 111. 153 86 New York and Rosendale Ce- ment Co. v. Coplay Cement Co., 44 Fed. 277 121, 170 New York Bank Note Co. v. The Hamilton Bank Note Co., 83 Hun. 593 190 New York Belting and Pack- ing Co. v. New Jersey Car Spring Rubber Co., 47 Fed. 504 ; ;•• 27 New York Juvenile Guardian Soc. v. Roosevelt, 7 Daly 188 319, 326 New York, Lake Erie and Western R. R. Co. v. Wen- ger, et al. 9 Ohio Decisions Reprint 815 218 Newbey v. The Oregon Cen- tral R. R. Co., Deady 609. . 143 Newman v. Alvord, 4Q Barb. 588 121 Nicols v. Pitman, 26 Ch. Div. 374 73 Oakes v. St. Louis Candy Co. 48 S. W. 467 119 CASES CITED IN NOTES. PAGE. Oakes v. Tonsmierre, 4 Woods 547 143 Old Dominion S. S. Co. v. McKenna, 30 Fed. 48 275 Olin v. Bate, 98 111. 53 136 Olive v. Van Patton, 25 S. W. 428 275 Oliver v. Oliver, 11 C. B. n. s- 139 59 Osborne v. Donaldson, 4 Burr 2327 38 Osgood v. Rockwood, 11 Blatch 310 199 Otis Steel Co. v. Local Union, no Fed. 698 249 Owen v. Partridge, 82 N. Y. Supl. 248 308, 359 Pa. R. R. Co. v. Beekman, 30 Wash. Law Rep. 715 203 Palmer v. De Witt, 47 New York Appeals 532 64 Palmer v. Harris, 60 Pa. 156. 127 Partridge v. Menck, 1 How- ard's Court of Appeal Cases 547 137 Payne v. The Western Atl. Ry. Co., 13 Lea 507 246 Perceval v. Phipps, 2 V. & B. 19 .- 43 Perry v. Corning, 6 Blatch 134 27 Perry v. Truefitt, 6 Beav. 66 119, 127 Peterson v. Humphrey, 4 Abb. Pr. 394 "7 Phalon v. Wright, 5 Phila. 464 120, 127 Pidding v. How, 8 Simon 477 125 Pink v. Federation of Trades and Labour Unions, 67 L. T. n. s. 258 384, 386, 393 Plant v. Woods, 57 N. E. ion 240, 273, 275 Plympton v. Malcolmson, L. R. 20 Eq. Cas. 37 8 Pollard v. Photographic Co., L. R. 40 Ch. D. 34s 344 Pontefact v. Isenberger, 106 Fed. 499 190 Pope v. Curl, 2 Atk. 342 43 Preservaline Mfg. Co. v. Hel- ler Chemical Co., 118 Fed. 103 128 Prince Albert v. Strange, 2 De Gex. & Sm. 652; 1 Mac N. & G. 25 343 PAGE. Prince Mfg. Co. v. Prince's Metallic Paint Co., 135 N. Y. 24 128 Prudential Assurance Co. v. Knott, Law Reports, 10 Chancery Appeal Cases 142 314 Prudential Company v. Knott, Note ; to Springhead Co. v- Riley 383 Putnam Nail Co. v. Bennett, 43 Fed. 800 159 Quartz Hill Consolidated Gold Mining Company v. Beall, 20 Ch. D. 501 3S4, 386 Quinn v. Leathern, (1901), 1 A. C. 495 247 Raggett v. Findlater, 17 Eq. Cas. 29 120 Railroad v. Kurner, 47 Ohio Law Bui. 294 203 Ralph's Trade-Mark, In re, 25 Chan. Div. 194 164 Ransome v. Bentall, 3 L. J. n. s. Ch. 161 119 Raymond v. Russell, 143 Mass. 295 319 Read and Htiggonson, In re, 2 Atkinson 469 300 Reeves v. Denicke, 12 Abb. Pr. n. s. 92 116 Rein v. Clayton, 37 Fed. 354. . 28 Reinecke Coal Min. Co. v. Wood, ii2 Fed. 477 249 Reynolds v. Everett, 144 New York 189 270 Richards, Ex parte, 117 Fed. 658 222, 249 Richter v. Journeyman Tail- ors' Union, n Ohio Dec. Reprint 45 273, 319 Rickard v. Caton College Co., 92 N. W. 958 121 Ricker v. Leigh, 74 N. Y. App. Div. 138 '. 190 Robertson v. Berry, 50 Md. 591 lo8 Roberson v. Roc tester Fold- ing Box Co., 171 New York 538 3S4 Roberson v. Rochester Fold- ing Box Co., i/i N. Y. 538 343 Robinson v. Storm, 103 Tenn. 40 143 Rogers v. Evarts, 17 N. Y. Supl. 265 273, 274 CASES CITED IN NOTES. PAGE. Rogers v. Rogers, 53 Conn. 121 143 Rogers v. Taintor, 97 Mass. 291 139 Rollins v. Hinks, L. R. 13 Eq. 355 313 Root v. Railway Co., 105 U. S. 189 13 Root v. Railway Co., 105 U. S. 189 9, 12 Routh v. Webster, 10 Beavan 561 131 Routh v. Webster, 10 Beavan 56i 313 Royal Baking Powder Co. v. Royal, 122 Fed. 337 143 Russel v. Kern, 72 Off. Gaz. 590 27 Russia Cement Co. v. Katzen- stein, 109 Fed. 314 190 Russia Cement Co. v. Le Page, 147 Mass. 206 116 Ryan v. Burger and Hower Brewing Co., 13 N. Y. Supl. 660 253, 270 Salomons v. Knight [1891] 2 Ch. 294 397 Samuel v. Berger, 4 Abb. Pr. 88 138 Sarrazin v. W. R. Irby Cigar and Tobacco Co., 93 Fed. 634 199 Saxlehner v. Eisner and Men- delson Co. 179 U. S. 19 149. 150. 181 Sayles v. The Dubuque, Sioux City Ry. Co., 3 Bann. & Ard. 219 27 Scheer v. American Ice Co., 66 N. Y. Sup. 3 "5 Schmaltz v. Wooley, 57 New Jersey Equity. 303 182 Schmid v. De Grauw, 59 N. Y. Sup. 569 J 43 Schulten v. Bavarian Brewing Co., 96 Kty. 224 253 Schuyler v. Curtis, 27 Ab- bott's New Cases 387, 64 Hun 594, 147 New York 434 344 Scottish Co-operative Whole- sale Society v. Glasgow Flesher's Trade Defense Association, 35 Scottish L. R. 645 ••" 247 Seeley v. Fisher, 11 Sim. 583- 303 PAGE. Sexio v. Prorezenda, 1 Ch. App. 191 121 Shaw v. Earl of Jersey, 4 C. P. D. 120 384 Sherry v. Perkins, 147 Mass. 218 211 Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471 335 Shook v. Wood, 32 Leg. Int. 264 108 Sickles v. Gloucester Mfg. Co., 1 Fish. 222 27 Singer Mfg. Co. v. Charlebois, 16 Rap. Jud. Que. C. S. 167 181 Singer Mfg. Co. v. Domestic Sewing Machine Co., 49 Ga. 70 319 Singer Mfg. Co. v. Hippie, 109 Fed. 152 168 Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169 ....164, 181 Singer Mfg. Co. v. Lorg, 8 App. Cas. 15 164 Singer Mfg. Co. v. Wilson Sewing Machine Co., 38 Fed. 586 27 Singleton v. Bolton, 3 Doug. 293 101 Sinsheimer v. United Gar- ment Workers, 77 Hun 215. 273 Smith v. Baker, 1 Bann. & Ard. 117 27 Smith v. Jacobs, 13 Blatch 458 199 Smith v. Reynolds, 10 Blatch 85 199 Snodgrass v. Welle, 11 Mo. App. 590 120 Snowden v. Noah, 1 Hopk. 347 108 Some Leading English Cases on Trade and Labor Dis- putes, 51 Am. L. Reg. O. S., p. 125 203 Southern v. How, Popham 144 101 Southern R. Co. v. Machin- ists' Local Union, in Fed. 49 203, 249 Spottiswrode v. Clark, I Coop. Temp. Cot. 254. .108, 119 Springhead Co. v. Riley, Law Reports, 6 Equity Cases 551 204 CASES CITED IN NOTES. PAGE. Springhead Co. v. Riley, L. R., 6 Eq. Cas. 551 313 Standard Elevator Co. v. Crane Elevator Co., 9 U. S. Apps. 556 13 Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60; 30 N. Y. App. 564. . 203 Standard Tube and Forkside Co. v. International Union of Bicycle Workers, 9 Ohio Dec. 6g2 273 Sterling Remedy Co. v. Eu- reka Chemical Mfg. Co., 80 Fed. 105 119 Stevens v. Kas. Pac. Ry. Co., 5 Dill. 486 26 Stevens v. Keating, 2 Phillips Ch. 333 8 Stevens v. Paine, 18 L. T. n. s. 600 117 Sterling Remedy Co. v. Eure- ka Chemical Mfg. Co., 80 Fed. 105 119 Stirling v. Silk Mfg. Co., 46 Atl. 199 158 Tallman v. Gaillard, 57 N. Y. Supl. 419 240 Taylor v. Carpenter, II Paige 293 128 Taylor v. Carpenter, 11 Paige 292 ; 2 Wood. & M. 1 149 Taylor v. Taylor, 2 Eq. .Rep. 290 142 Telephone Mfg. Co. of Sum- ter v. The Sumter Tele- phone Mfg. Co., 63 S. C. 313 143 Temperton v. Russell, (1893), 1 Q- B- 715. ........ ...203, 246 Thomas v. Cincinnati, N. O. 6 T. P. Ry. Co., 62 Fed. 803 217, 273 Thomas v. Williams, 14 Ch. D. 864 386 Thomkins v. Halleck, 133 Mass. 32 69 Thompson v. Lord Chester- field, Ambler 737 40 Thorley's Cattle Food Com- pany v. Massam, -14 Ch. Div. 763 383, 38S Toledo, A. A. and N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730 280 Tonsen v. Collins, 4 Burr. 2327 38 PAGE. Tonsen v. Walker, 4 Burr. 2325 38 Trollope and Sons v. The London Building Trades Federation, 72 Law Times Reports 342 398 Tuck v. Priester, L. R. 19 Q. B. D. 639 344 Union Pac. Ry. Co. v. Ruef, 120 Fed. 102 222, 249 United States v. Debs, 64 Fed. 724 280 United States ex rel. Guaran- tee Trust Co. v. Haggerty, 116 Fed. 510 249 United States v. Kane, 23 Federal 748 748 United States v. Kane, 23 Fed 748 273 University of Oxford v. Richardson, 6 Ves. 689.... 6 Vacuum Oil Co. v. Climax Refining Co., 120 Fed. 254. 120 Vaughan v. East Tenn., Va., and Ga. Ry. Co., 2 Bann. & Ard. S37 27 Vegelahn v. Gunter, 167 Mass. 92 203, 248 Vucan v. Myers, 139 N. Y. 364 119 W. P. Davis Mach. Co. v. Robinson, 84 N. Y. Supl. 837 249, 275 W. & A. Fletcher Co. v. International Association of Machinists, 55 Atl. 1077... 273 Wabash R. Co., in re, 24 Fed. 217 217 Wabash R. Co. v. Hannahan, 121 Fed. 563 269 Waite v. Chichester Chair Co. 45 Fed. 258 28 Walker v. Cronin, 107 Mass. 555 20 3, 275 Walhoe v. Walker, 4 Burr. 2325 38 Walsh v. Dwight, 40 N. Y. App. Div. 513 275 Walter v. Ashton, 1902, 2 Ch. 282 133 Walton v, Crowley, 3 Blatch 440 131 Walton v. Holbrook, 3 Blatch 440 131 Warren v. Warren Thread Co., 134 Mass. 247 138 CASES CITED IN NOTES. PAGE. Washboard Co. v. Saginaw Mfg. Co., 103 Fed. 281 ... 169 Webb v. Rose, Amb. 695 .... 38 Weener v. Brayton, 152 Mass. 101; 25 N. E. 46; 8 L. R. A. 640 169 Weinstock v. Marks, 109 Cal. S29 125 Welch v. Knobb, 4 K. & J. 747 190 Wern v. Weild, L. R., 4 Q. B. 730 322 Wetherill v. New Jersey Zinc Co., 1 Bann. & Ard. 465.. 26 Wetmore v. Scovell, 3 Ed. Ch. SIS 59 Wheaton v. Peters, 8 Pet. 591 39 Whitehead v. Kitson, 119 Mass. 484 322 Whitney v. Carter, 29 Fed. Cas. 17, 583 9 PAGE. Wick China Co. v. Brown, 164 Pa. 449 248 William Rogers Mfg. Co. v. Rogers and Spurr Mfg. Co., 11 Fed. 495 143 Wise v. Grand Ave. Ry. Co., 33 Fed. 277 12 Wm. G. Rogers Co. v. In- ternational Silver Co., 118 Fed. 133 143 Wm. Rogers Mfg. Co. v. Rogers, 84 Fed. 634 143 Woodward v. Lazard, 21 Cal. 448 125 Woolsey v. Judd, 4 Duer 379. 59 Worden v. California Fig Sy- rup Co., 102 Fed. 334.... 128 IVorthington v. Waring, 157 Mass. 421 250 Wotherspoon v. Currie, 5 Eng. and Ir. Apps. 508 121 The Jurisdiction of Equity over Torts. INFRINGEMENT OF INCORPOREAL PROPERTY. CHAPTER I. INFRINGEMENT OF PATENT RIGHT. EDITORIAL NOTE ON PATENTS. English Patents: The common law has never recog- nized any property in an invention. In England the right to grant to inventors exclusive trade privileges is a prerog- ative of the Crown. This prerogative seems to be the result of the early conception of the King as a patron of industry. For a long time grants by the Crown of exclu- sive trade privileges were expressly designed to encourage the introduction of new industries from abroad. As early as 133 1, Edward III. granted letters of protection to John Kempe, a native of Flanders, to enable him to set up the industry of cloth making in England. (12 L. Q. R. 142.) From 1 56 1 there are a number of grants giving monopolis- tic trade privileges, records of which have been preserved. Two of the earliest of these may be regarded as grants to an inventor; one a patent in 1562 to John Medley for the exclusive right to use a machine for draining mines, and one a patent to James Acontius in 1565 for the manufac- ture of what are called "machines for grinding." The greater part, however, of the grants of this period are given as a reward to the grantee for the introduction of a new machine of foreign manufacture. (12 L. Q. R. 145 et sec.) 2 INFRINGEMENT OF PATENT RIGHT. The grant of a monopoly of an existing industry was always regarded with disfavor. One John Perchey was fined by Parliament for presuming to obtain such a monop- oly from Edward III. (3 Ins. 181.) The patent was ad- judged void. Under the Tudors the Crown assumed the right to grant a monopoly of an existing industry, but the common law courts persisted in declaring these grants un- lawful. The most celebrated case of this character is that of Darcy v. Allen, 11 Coke 84, 1660, usually known as the Case of Monopolies. The plaintiff had been granted by the Crown the sole right of importing, making, and selling playing cards. The making and selling of such cards was an existing industry. The grant or patent was declared void. Even the counsel of the patentee admitted that he must show that the grant was for the public good. In spite of this decision the objectionable practice of granting the exclusive right to carry on an existing trade was con- tinued by James I. Consequently, Parliament in 1623 passed the Statute of Monopolies: 21 Jac. 1, c. 3. This statute, which embodied the decision in the case of Darcy v. Allen, prohibited all monopolies "granted, or hereafter to be made or granted to any person * * * for the sole buy- ing, selling, making, working, or using anything within this realm." The sixth section of the Statute expressly ex- cepts from this prohibition monopolies granted to inventors. The wording of the section is as follows : "Provided also, and be it declared and enacted, That any declaration before mentioned shall not extend to any letters, patents and grants of privilege for the term of fourteen years or under, here- after to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use, so as also they.be not contrary to law, nor mischievous to the state, by raising prices of commodi- ties at home or hurt of trade, or generally inconvenient : The said fourteen years to be accounted from the date of the NOTE ON PATENTS. 3 first letters patents, or grant of such, privilege hereafter: to be made, but that the same shall be of such force as they should be, if this act had never been made, and of none other." , , This section is still in force. No other definition has been attempted of the things for which the crown can grant a patent. The issuing of patents in England is now systema- tised by 46 & 47 Vict. c. 57, but the grant of a : patent still remains an exercise of the King's prerogative, and there- fore to be interpreted most strongly against the grantee. United States Patents : The Constitution provides that, "The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Art. L, sec. 8, cl, 8. The first Act of Congress in relation to patents was passed April 10, 1790: 1 Stats., 109. Under this Act a patent for fourteen years could be granted to any person who "invented or dis- covered any useful art, manufacture, engine, machine or device, or any improvement therein not before known or used." The patentee, his heirs and assigns were given "the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention and discovery." The present law is based on the Act of 1870, 16 Stats., 198, the provisions of which have been embodied in sections 4883 to 4937 of the Revised Statutes. The present wording of the section dealing with the things for which a patent can be obtained, is as follows : "Any per- son who has invented or discovered any new or useful art, machine, manufacture or composition of matter or any new and useful improvement thereof, * * * may * * * obtain a patent therefor." The duration of the patent is now seventeen years: Rev. Stats, sec, 4884. Between the original Act of 1790 and the Act of 1870 there was considerable revision of the legislation. 1 The 'The statutes will be found collected in the appendix to Walker of Patents, Ed., 1904. 4 INFRINGEMENT OF PATENT RIGHT. principal changes are in reference to the rights of aliens, and the creation of design patents. The Act of 1793, 1 Stats., 318, limited the right to obtain patents to citizens of the United States. In 1800 the right was extended to for- eigners who had resided in the United States for a year and declared their intention of becoming citizens: 2 Stats., 37. Since 1836 the right has been extended to all for- eigners: 5 Stats., 117, sec. 9. Patents in design were first provided for in 1842 : 5 Stats., 543. The wording of the Revised Statutes is as follows: "Any person who by his own industry, genius, efforts, and expense, has invented or produced a new and original design for a manufacture, bust, statue, alto-relievo, or bas- relief ; any new or original design for the printing of wool- len, silk, cotton or other fabrics; any new and original im- pression, ornament, patent, print, or picture, to be printed, painted, cast or otherwise placed on or worked into any article of manufacture, or any new, useful, and original shape or configuration, of any article of manufacture * * * may * * * obtain a patent therefor." Sec- tion 4929. The duration of the patent obtained under this section is for three and one-half, seven or fourteen years, at the option of the applicant and according to the fee paid : Rev. Stats., sec. 4931. BOULTON v. BULL. In Chancery Before Lord Loughborough, 1796. 3 Vesey Junior 140. Boulton and Watts had obtained a patent for a fire- engine; under which they had been in possession twenty- seven years. The bill was filed for an injunction to restrain Defendants from infringing the patent; and an injunction BOULTON v. BULL. 5 was obtained, that the question as to the validity of the patent might be tried in an action. The Plaintiffs brought an action in the Court of Common Pleas; and obtained a verdict, subject to the opinion of the Court upon a case stated. Upon argument of that case the Court was equally divided. Mr. Graham and Mr. Alexander moved to dissolve the injunction. Attorney General (Sir John Scott), for the Plain- tiffs. It is the most ordinary jurisdiction of the Court to say, they will not alter the possession, till the right is decided. In the case of waste it is the specific right of the party to have the interference of the Court. In that Case the Court would not permit the timber to be cut upon giving security for the value. So here there is a specific right, which the law will protect. I admit, we are bound to bring another action. Lord Chancellor. I cannot put the patentees upon the acceptance of terms, that upon collateral reasons they think may be disadvantageous to the exercise of the right, of which they are in full possession : neither can I put them out of possession upon the difference of opinion of the Court. That is not the fault of the Plaintiffs. What has passed in the Court of Common Pleas does not shake their right; but strongly supports it. The verdict, though it has failed of effect, is not to be disregarded. The opinions of the Judges on both sides are deserving of great respect. If nothing can be done upon this, there must be another action. In the meantime the injunction must be continued. I will not put them to compensation. I will not disturb the pos- session of their specific right. It is of notoriety, that this fire-engine has been erected in many parts of the country with great advantage. For the Defendants. It was then desired, that the action might be brought in the Court of King's Bench: to which it was answered, that they might have a special ver- 6 INFRINGEMENT OF PATENT RIGHT. diet in the Common Pleas; upon which there might be a writ of error. Lord Chancellor. I will not lay them under any terms in bringing the action. 1 HILL v. THOMPSON. In Chancery Before Lord Eldon, 1817. 3 Mervale 622 The bill prayed an injunction to restrain the defendants from selling of certain iron manufactured by the use of the plaintiffs invention for which he held letters patent, dated the 26th of July, 1814. A preliminary injunction granted. The case was heard on motion to dissolve the injunction. 1 The Lord Chancellor : 2 The principle upon which the Court acts in cases of this description is the following: — Where a patent has been granted, and an exclusive pos- session of some duration under it, the Court will interpose its injunction, without putting the party previously to es- tablish the validity of his patent by an action at law. But 1 Prior to the Statute of Monopolies, 21 Jac. I, c. 3, the patentee protected his rights by proceedings in the Court of Star Chamber. The second section of that Act appears to have prohibited the Star Cham- ber from taking cognizance of patent cases. The Court itself was abolished in 1641. Apparently the only record of appeals to the Court of Chancery by patentees in the seventeenth century, are by the holders of grants of exclusive trade privileges not given as reward for inven- tion. The Court in these cases refused to take jurisdiction to pro- tect the patentee until he had established his right at law : Anony- mous, 1 Vern. 120, 1682; East India Co. v. Sandys, 1 Vern. 127, 1682; Hills v. University of Oxford, 1 Vern. 275, 1684. In accord with the principal case : University of Oxford v. Rich- ardson, 6 Ves. 68g, 1802 (Dicta per Lord Eldon) ; Harmer v. Plane, 14' Ves. 130, 1807. 'The facts of the case are re-stated. 'Only so much of the opinion is given as bears on the question of jurisdiction. HILL v. THOMPSON. 7 where the patent is but of yesterday, and, upon an applica- tion being made for an injunction, it is endeavoured to be shewn, in opposition to it, that there is no good specification, or otherwise, that the patent ought not to have been granted, the Court will not, from its own notions respect- ing the matter in dispute, act upon the presumed validity or invalidity of the patent, without the right having been ascertained by a previous trial ; but will send the patentee to law, and oblige him to establish the validity of his patent in a court of law, before it will grant him the benefit of an injunction. * * * But it is enough, in the present case, to resort to the principle already laid down, and which is the same that governed the cases (which have been cited) of Harmer it r Plane ( 14 Ves. 136) and Bolton v. Bull ; because it cannot he said, that there has been, in this case, such a possession or enjoyment under the patent, as would induce the Court to continue the injunction, upon such evidence as is here af- forded, until its validity has been tried at law. Here the patent bears date July, 1814, and the specification January, 181 5 ; and it appears by the affidavits, that the works were not completed so as to carry on the operations under the patent until July, 1816. His Lordship accordingly dissolved the injunction; but directed that an account should be kept of slags used and iron made by the defendants, according to the method described in the specification, the plaintiff undertaking to bring an action ; with liberty to apply to have the injunction revived, after trial of the action, or in case of any reason- able delay being interposed on the part of the defendants. 3 "An action was brought, and the plaintiff obtained a verdict. The plaintiff moved to revive the injunction. The defendants resisted the motion because they intended to move for a new trial. Lord Eldon directed the matter to stand over until the result of the application for a new trial could be ascertained; "the account to be taken in the meantime as before." In Bacon v. Jones, 4 Myl. & Cr. 433, 1839, the plaintiff at the hear- ing failed to make out a case which would have entitled him to 8 INFRINGEMENT OF PATENT RIGHT. a preliminary injunction had he asked for it. The court refused to grant an injunction until he could try his case at law. The other English cases dealing with the jurisdiction of the Court of Chancery to protect the owner of a patent against the infringer pending the trial of the question of infringement at law are Beeston v. Ford, 2 Coopr. Tern. Cot. fr. 58, 1830; Bickford v. Skewes 8 L. J. Ch., n. s., 188, 1839; Stevens v. Keating, 2 Phillips Ch. 333, 1847; Caldwell v. Vanvlissengen, 9 Hare 415, 1851. In these cases jurisdiction was taken because of the long exclusive enjoy- ment of the plaintiff. In the following cases the court refused to take jurisdiction until the plaintiff established his right at law : Curtis v. Cutts, 8 L. J. Ch. n. s., 184, 1839 (The patent was in use fourteen years, but the plaintiff had not had undisturbed possession). Collard v. Allinson, 4 Myl. & Cr. 487, 1839, ibid. ; Electric Tele. Co. v. Nott, 2 Coop. 41, 1847 (Doubt as to alleged infringement). Whether the preliminary injunction during the trial at law was or was not granted, the inconvenience to the patentee of requiring him to go to one court to establish his right and another for his only effective remedy, is manifest, The IS & 16 Vict. c. 83, s. 42, 1852, gave the Common Law Courts the right to issue injunctions in patent cases. The 15 & 16 Vict. c. 86, ss. 61, 62, provided that it should not be lawful for the Court of Chancery to send the plaintiff to law to try his right, but that the court itself should determine the legal right on which the equitable relief defended. The 25 and 26 Vict. C. 42, S. 2, 1862, permitted the Court to send a case to be tried at law, but left with Chancery the power to determine the right and give final relief. By the eighth clause of the twenty-fifth section of the Judicature Act of 1873, 36 and 37 Vict. C. 66, and the thirtieth section of the Patents Act of 18S3, 46 and 47 Vict. C. 57, any Judge or any Division of the High Court of Justice has the right to issue at any stage of the proceedings an injunction to protect a patent right. Where, before the statutes, an injunction would have been issued pending a trial at law, an interlocutory injunction will now be granted: Betts v. Menzie, 3 Jur. n. s. 357, 1857; Davenport v. Richard, 3 L. T., N. S., 503, i860; Davenport v. Jepson, 4 De G. F. & J. 440, 1862. Where before the statutes such an injunction pendente lite would have been refused, an interlocutory injunction will now be refused: Plympton v. Malcolm- son, L. R. 20, Eq. Cas. 37, 1875. ACT OF 1819. .9 CHAPTER XIX, SECOND SESSION OF THE FIF- TEENTH CONGRESS, 1819. 3 Statutes at large 481 The circuit courts of the United States shall have original cognizance, as well in equity as at law, of all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to authors •or inventors, the exclusive right to their respective writings, inventions, and other discoveries; and upon any bill in ■equity filed by any party agrieved in any such case, shall have authority to grant injunctions, according to the course and principles of courts, of equity, to prevent the violation of the rights of any authors or inventors, secured to them by any laws of the United States, on such terms and con- ditions as the said courts may deem fit and reasonable. 1 'The Act of 1819 as far as it relates to jurisdiction in patent cases, was embodied in the 17th section of the Patent Act of 1836; 5 Stats. 124, except that under the Act of 1836 the jurisdiction of the United States Courts was made expressly exclusive. Prior to 1819 the Patent Acts passed by Congress did not in express terms confer on the Courts of the United States equitable jurisdiction in patent cases. Indeed, the original Patent Act, that of 1790, while it provided that one who pirated a patent should pay damages to the owner and forfeit the infringing article, did not designate the court in which the patentee should proceed. The Act of 1793, however, con- ferred jurisdiction in actions founded on the Act, on the United States Circuit Courts: 1 Stats. 318, sec. 5. In Livingston v. Van Ingen, 1 Paine 45, 1811, it was held that the United States Court had no jurisdiction to prevent by injunction the violation of a patent. Whether this case represents the practice as it existed prior to the Act of 1819; that is whether prior to that Act there was any equitable jurisdiction in patent cases, may be re- garded as doubtful. When the controversy involved in Livingston v. Van Ingen came into the State Court (Livingston v. Van Ingen, 9 Johns. 507, N. Y., 1812, 587). Chancellor Kent took the position that •courts of equity have by implication the right to protect property recognized by law, and that in this respect there is no difference be- tween common law rights of property and those created by statute. He mentions a United States case, Whitney v. Fort, as an example of a de- cision illustrative of this principle. As given by the Chancellor, this is a •case, of course prior to the Act of 1819, in which a Federal Circuit Court issued an injunction to protect a patent. At this time the opinion in Whitney v. Fort was accessible. There is a quotation from it in Whitney v. Carter, 29 Fed. Cas.. 17, 583/ 1810. The report of the case has disappeared: 29 Fed. Cas. 17587, 17588- Justice Mathews in Root ■v. Railway Co., 105 U. S. 189, 1881, 192, says that the jurisdiction in 10 INFRINGEMENT OF PATENT RIGHT. GOODYEAR v. DAY. In the Circuit Court for the Third Circuit, 1852. 2 Wallace Junior 283 This was a case in equity for the infringement of a patent right in the manufacture of Vulcanized India Rubber. The bill prayed a perpetual injunction. The answer denied the allegations, and concluded by praying "a trial by jury of the various issues of fact formed by it." 1 Grier, J. It is true that in England the Chancellor will generally not grant a final and perpetual injunction in patent cases, when the answer denies the validity of the patent, without sending the parties to law to have that ques- tion decided. But even there the rule is not absolute or univer- sal ; it is a practice founded more on convenience than neces- sity. It always rests on the sound discretion of the Court. A trial at law is ordered by a Chancellor to inform his conscience; not because either party may demand it as a right, or that a court of equity is incompetent to judge of questions of fact, or of legal titles. In the courts of the United States, the practice is by no means so general as in England, or as it would be here, if the trouble of trying issues at law devolved upon a different court. Cases involving inquiries into the most complex and difficult questions of mechanics and philosophy, are becom- Whitney v. Fort, of course, depended on citizenship. This may be true, though there is no evidence for or against the statement. It may be inquired why the United States Courts had equitable jurisdiction in patent cases when the parties were citizens of different States, if they did not have such jurisdiction when the parties were citizens of the same State and they were proceeding under the Act. of 1793? Justice Mathews assumes that there was a jurisdiction in the State Courts in patent cases prior to the Act of 1836, when the Judicial jurisdiction was made expressly exclusive. The existence of such a jurisdiction in the State Courts is doubtful. See note to section 4921 of the Revised Statutes, infra. 1 Only so much of the report of the facts and the opinion is given as bears on the question of the defendant's right to a trial by jury prior to a degree for a perpetual injunction. GOODYEAR v. DAY. 11 ing numerous in the courts. Often questions of originality, and infringement of patents, do not depend so much on the credibility of witnesses or the weight of oral testimony, as on the application of principles of science and law to ad- mitted facts. It is true, that in matters of opinion, both mechanics and learned professors will differ widely. But still the question is not to be decided by number, credibility, or respectability, of such witnesses; but by the force and weight of the reasons given for their respective opinions. It is no reflection on trial by jury to say, that cases fre- quently occur, in which ten out of twelve jurors do not understand the principles of science, mathematics, or phil- osophy, necessary to a correct judgment of the case. Be- sides, much of the time of the courts is lost, where twelve men will not agree upon any verdict; or when they have agreed, the conscience of the Chancellor, instead of feeling enlightened, rejects it altogether. A select or special jury of philosophers, if they could be got, would perhaps not prove more satisfactory or obvi- ate the difficulty. In a late case involving the validity of Morse's telegraph patents, which was heard in Philadelphia, a final injunction was decreed without a verdict to establish the patents; and many other cases might be cited from other circuits, if necessary, in support of this practice, showing that the courts of the United States do not always consider it a proper exercise of their discretion to order such issues to be tried at law, before granting a final injunction. In the present case there are many reasons why the Court will not thus exercise their discretion : 1st. Because this case has been set down for final hearing on the exhibits and proofs, without any motion or order of the Court for such an issue. 2d. After a patient hearing of very able counsel, and a careful consideration of the testimony, the Court feel no doubt or difficulty on these questions, which would be removed or confirmed by a verdict. 12 INFRINGEMENT OF PATENT RIGHT. 3d. It would require three or four weeks at least, to try this case before a jury, if this library of testimony were read to them; and at least as many months, if the witnesses were examined viva voce, as they probably would be; and, after all this expenditure of time and labour, it is even more than probable, that from the confusion created by the great length of the testimony and argument in court, or the force and effect of those urged from without, no verdict would be obtained, and most certainly none that would alter the present conviction of the Court. Decree of Perpetual Injunction. REVISED STATUTES, SECTION 4921, 1878. The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant in- junctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the de- fendant, the damages the claimant has sustained thereby; and the court shall assess the same or cause the same to be assessed under its direction. And the court shall have the same power to increase such damages, in its discretion, as is given to increase the damages found by verdicts in actions in the nature of actions of tresspass upon the case. 1 * This section appears in the Revised Statutes of 1874. In Cochrane v. Deener, 94 U. S. 780, 1876, it was decided that the omission of the word "original" in the sentence in the above section vesting equity jurisdiction, did not deprive the United States Courts of original equitable iurisdiction, and that therefore the case of Goodyear v. Day was still law. In accord see Root v. Railway Co., 105 U. S. T89, 1881, 205, dicta; McCoy v. Nelson, 121 U. S. 485, 1886, 487 ; Wise v. Grand Ave. Ry. Co., 33 Fed. 277, 1888. ROOT v. RAILWAY CO. 18 ROOT v. RAILWAY CO. In the United States Supreme Court, 1881. 105 United States 189 Appeal from the Circuit Court of the United States for the Northern District of Illinois. Mr. Justice Matthews delivered the opinion of the court. Thomas Sayles, as assignee of the letters-patent orig- inally granted to Henry Tanner for an improvement in railroad car brakes, dated July 6, 1852, and which, on July 5, 1866, were renewed and extended for the additional term of seven years, which expired July 6, 1873, filed his Under section 4519 of the Revised Statutes, 1878, in an action on the case for the breach of his patent brought by the owner of the patent, the Judge, at his discretion, has a right to enter a verdict for the plaintiff in any amount that does not exceed three times the amount found by the jury. This is the provision referred to in the last sen- tence of section 4921. The Courts vested with jurisdiction in patent cases are : Circuit Courts, Rev. Stats. 629; District Courts of the Territories, Rev. Stats, sec. 1910 ; Supreme Court of the District of Columbia, Rev. Stats., Dist. of Columbia, 764. There is an appeal to the proper Circuit Court of ■Appeals. The judgment of the Circuit Court of Appeals is final, except where the Court itself certifies its opinion to the Supreme Court, or the Supreme Court itself brings the case before it on certiorari. 26' Stats, c. 517, 1891. The jurisdiction of the Federal Courts in patent cases is made, as in the Act of 1836, expressly exclusive ; Rev. Stats, sec. 711. It appears always to have been assumed that the United States has the right to vest in the United States Courts exclusive jurisdiction in patent cases. Whether in the absence of such jurisdiction there is jurisdiction in the State Courts is an unsettled question. Prior to the Act of 1836 no patentee appears to have sought relief in a State tribunal. See for an extended discussion of this question Walker on Patents, Edition of 1883, Sections 381 to 387. The discussion was called forth by the wording of 18 Stats. Pt. 3, sec. 11; Ch. 137, sec. 1, 1875, in which Congress appeared to recognize the concurrent juris- diction of the State Courts in patent cases. In re Hohorst, 150 U. S. 661, 1893, decided that the present Acts, as the Act of 1836, made the jurisdiction expressly exclusive. The discussion of the power of the State Courts in the absence of such action by Congress is omitted from the last edition of Mr. Walker's book. In the United States the issuing of preliminary injunctions in patent cases are governed by the same rules as in England. See note to Hill v. Thompson, supra; the owner must show either user acquiesced in by the public or a prior ajudication: Standard Elevator Co. v. Crane Elevator Co., 9 U. S. Apps. 556, 1893. and cases cited, Walker on Patents, Sec. 665, et sec, Ed. 1904 and cases cited. 14 INFRINGEMENT OF PATENT RIGHT. bill in the court below on December 9, 1878, against the Lake Shore and Michigan Southern Railway Company. He avers that, by virtue of the assignments to him, he was invested with all the rights of action for infringements of the patent which had occurred, and particularly those of which it was alleged the defendant had been guilty from August 6, 1869, to July 6, 1873, having, as is averred, during that period, used upon its railroad cars the patented brakes, but how many, the bill states, the complainant is ignorant and cannot set forth, but avers that the number so used was large, and that defendant had derived, re- ceived, and realized great gains and profits therefrom, but to what amount he is ignorant and cannot set forth. The prayer of the bill is that the defendant may be compelled to account for and pay to the complainant all the gains, profits, and savings which it derived, received, or realized from or by reason of the use of said brakes. To this bill a general demurrer was filed, alleging, as grounds thereof, that the bill does not contain any matter of equity on which the court could grant any relief, and that the complainant is not entitled to the relief prayed for, because he had a plain, adequate, and complete remedy at law, and also because it appeared on the face of the bill that the causes of complaint were barred by the Statutes of Limitation both of the United States and of the State of Illinois. This demurrer was sustained and the bill dismissed. The decree of the Circuit Court was brought here for re- view. Sayles having died, Charles T. Root was, as his executor, substituted in this court as the appellant. The propositions mainly relied upon by the appellee in support of the decree, are, — First, That after the expiration of a patent, equity has no jurisdiction to entertain a bill, merely for an account and the recovery of the profits of an infringer, during its ex- istence, the remedy being at law for damages ; and, ROOT v. RAILWAY CO. 15 Second, That, even if, in certain cases, such a jurisdic- tion exists, the present does not fall within it. On the other hand, it is contended on the part of the appellant that, in cases for the enforcement of the rights of patentees, resort may be had, as matter of right, to a court of equity, as a distinct head of its jurisdiction, for the mere purpose of establishing an infringement and ascer- taining and recovering the profits of the infringer, upon the independent equity that he is for that purpose a trustee of his gains for the use of the true owner of the patent and liable to account as such. In support of this contention, we are referred by his counsel to numerous decisions of the Circuit Courts, many of which, it is claimed, are directly upon the point, and to several cases in this court, in which, it is alleged, the same doctrine is either virtually decided or assumed; which, it is further argued, though not sup- ported by the modern decisions of the English chancery, is found in its earlier precedents. An examination of the practice and opinions of the Circuit Courts undoubtedly shows much diversity, incapable of reconciliation, and makes it necessary, as far as it can be done, by a deliberate judgment of this court, to remove the question out of its present uncertainty, by a settlement upon some basis of principle, in harmony with our system of equity jurisprudence, developed and modified by legisla- tion. To effect this satisfactorily and intelligently, it will be necessary to review the course of legislation, and judicial decision, in this court, so far as it bears upon the question from the beginning. * * ** It becomes necessary, therefore, to consider what support there is in the general doctrines of equity for the contention of the appellant. It is the fundamental characteristic and limit of the jurisdiction in equity that it cannot give relief when there 1 So much of the opinion of the Court as reviews the effect of the Acts of Congress is omitted. 16 INFRINGEMENT OF PATENT RIGHT. is a plain and adequate and complete remedy at law; and hence it had no original, independent, and inherent power to afford redress for breaches of contract or torts, by award- ing damages ; for to do that was the very office of proceed- ings at law. When, however, relief was sought which equity alone could give, as by way of injunction to prevent a continuance of the wrong, in order to avoid multiplicity of suits and to do complete justice, the court assumed juris- diction to award compensation for the past injury, not, how- ever, by assessing damages, which was the peculiar office of a jury, but requiring an account of profits, on the ground that if any had been made, it was equitable to require the wrong-doer to refund them, as it would be inequitable that he should make a profit out of his own wrong. As was said by Vice-Chancellor Wigram in Colburn v. Simms (2 Hare, 543), "the court does not by an account accurately measure the damage sustained by the proprietor of an expensive work from the invasion of his copy-right by the publication of a cheaper book," but, "as the nearest approxi- mation which it can make to justice, takes from the wrong- doer all the profits he has made by his piracy and gives them to the party who has been wronged." Whether a bill for an account of profits against a wrong-doer would lie, independently of other equitable grounds for the intervention of the Court, is a question, as was said by Lord Chancellor Brougham in Parrott v. Palmer (3 Myl. & K. 632), "which has been oftentimes agitated, and has, perhaps, never received a clear and a general decision; that is to say, a distinct judgment on the general .proposition, with its limitations." He concluded that, "from the whole it may be collected that, although as to timber there exists considerable discrepancy, yet the sound rule is to make the account the incident and not the principal, where there is a remedy at law; but that mines are to be otherwise considered, and that as to them the party may have an account even in cases where no injunc- tion would lie." ROOT v. RAILWAY CO. 17 The supposed exception in cases of mines seems to rest upon a dictum of Lord Hardwicke in Jesus College v. Bloome (3 Atk. 262), that "it was a sort of trade;" but the reference is to the case of Bishop of Winchester v. Knight (1 P. W. 406), where the bill prayed for an account of ore dug by the ancestor of the defendant, in respect to which the argument was, that being a personal tort it died with the person. The decision was that the plaintiff was not entitled; but on this point the Lord Chancellor said: "It would be a reproach to equity to say, where a man has taken my property, as my ore or timber, and disposed of it in his lifetime and dies, that in this case I would be without remedy. It is true as to the trespass of breaking tip meadow or ancient pasture ground, it dies with the person ; but as to the property of the ore or timber, it would be clear, even at law, if it came to the executor's hands, that trover would lie for it; and if it has been dis- posed of in the testator's lifetime, the executor, if assets are left, ought to answer it." It is plain from these obser- vations that the assumed ground of the equity jurisdiction was the absence of any remedy at law. Powell v. Aiken, 4 Kay & J. 343. It is now clearly established in the Eng- lish chancery "that a bill will not lie for an account of tim- ber felled any more than for any other money demand, except when the account is asked as an incident to an in- junction, and that when the plaintiff has no right to an injunction, he has no right to an account, and his remedy is at law alone." Per Sir Wm. M. James, L. J., in Hig- ginbotham v. Hawkins, Law Rep. 7 Ch. App. 676. The same rule is applied by the modern decisions in cases of mines, where, as incident to the relief sought by a bill, an account is asked of profits against trespassers. It appears that as to the mode of assessing compensation, in such suits, to an owner of coal which has been improperly worked by the owner of an adjoining mine, a different principle is applicable when the coal is taken inadvertently, or under a bone Me belief of title, and when it is taken 18 INFRINGEMENT OF PATENT RIGHT. fraudulently, with knowledge of the wrong. In cases of the latter description, at law, the strict rule of damages laid down in Martin v. Porter (5 Mee. & W. 351) was to charge the value of the coal without allowing any of the expenses of getting it ; but in those of the former descrip- tion a milder rule was applied in Morgan v. Powell (3 Q. B. 278) and Wood v. Morewood (id. 440), which was to give to the plaintiff the fair value of the coals as if the coal-field had been purchased from him by the defendant. This distinction was adopted and the latter rule applied in equity, by Vice-Chancellor Malins in Hilton v. Woods (Law Rep. 4 Eq. 432), and by Lord Chancellor Hatherley in Jegon v. Vivian (Law Rep. 6 Ch. App. 742), the latter remarking that "this court never allows a man to make profit by a wrong." This rule was adopted in Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80. The same rule applies in England in patent and copy- right cases. The Vice-Chancellor Page- Wood, in Smith v. London & Southwestern Railway Co. (Kay, 408), said: "The true ground of relief in these cases is laid down in Baily v. Taylor (1 Russ. & M. 73), where Sir J. Leach, M. R., says 'The Court has no jurisdiction to give to a plaintiff a remedy for an alleged piracy, unless he can make out that he is entitled to the equitable interposition of this court by injunction ; and in such case the court will also give him an account, that his remedy here may be complete. If this court do not interfere by injunction, then his remedy, as in the case of any other injury to his prop- erty, must be at law.' Unless that primary right to an injunction exists, this court has no jurisdiction with refer- ence to a mere question of damages." The Vice-Chancellor further observed that, as has often been stated by Lord Eldon, as the object of the court in interfering by injunc- tion was the prevention of a multiplicity of suits, which might be rendered necessary by continued infringements of the patent, he was at a loss to see how the jurisdiction could attach or the relief by injunction be arrived at, after ROOT v. RAILWAY CO. 19 the expiration of the patent, unless a case were made out, of a numerous series of past infringements, from which the parties were still deriving advantage. He then re- ferred to Crossley v. Beverley (Web. P. C. 119) as a case where there was a specific ground for that relief, that the defendants had been manufacturing the patented articles, secretly and fraudulently, for the purpose of pouring into the market the articles so manufactured directly the patent should have expired. In that case the bill was filed before the expiration of the patent, and the right to sue having been thus acquired, the courts extended it to restrain using the articles so manufactured after the patent had expired. "Such a case," continues the Vice-Chancellor, "of a fraudu- lent attempt to evade the patent might occur, as would enable the court to restrain the use of articles made in in- fringement of the patent and kept back until it expired, even after its expiration, and the plaintiff having thus ob- tained, a right to the injunction, the right to an account would follow." In the case of Price's Pat. Candle Co. v. Bauwen's Pat. Candle Co. (4 Kay & J. 727), the bill was dismissed, because the patent having expired pendente lite, the relief by injunction could not be granted at the hearing; but in Davenport v. Ry lands (Law Rep. 1 Eq. 302), the same judge retained the bill, under similar circumstances, for the purposes of an inquiry as to damages, because the act of 21 & 22 Vict., c. 27, commonly called Cairn's Act, passed after the former decision, had altered the rule. That statute declared that in all cases in which the court has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrong- ful act, or for the specific performance of any covenant, contract or agreement, the same court may award dam- ages to the party injured either in addition to or in substi- tution for such injunction or specific performance, and such damages may be assessed in such manner as the court shall 20 INFRINGEMENT OF PATENT RIGHT. direct, — a provision which no doubt suggested the like ex- tension of the jurisdiction of the court in patent cases, con- tained in our Patent Act of 1870. But even after the pas- sage of Cairn's Act, it was decided by Vice-Chancellor Sir Wm. M. James, in Betts v. Gallais (Law Rep. 10 Eq. 392), that the court would not entertain a bill for the mere pur- poses of giving relief in damages for the infringement of a patent, when the bill had been filed so immediately be- fore the expiration of the patent as to render it impossible to have obtained an interlocutory injunction. He charac- terized it as "a mere device to transfer a plain jurisdiction to award damages from the court to which that jurisdiction properly belongs, to this court." Mr. Kerr, in his treatise on Injunctions, 41, summar- izes the result of many decisions, which he cites, under this statute, as follows : "The statute, did not transfer to the court the general jurisdiction of common law by way of damages, or extend its jurisdiction to cases where previ- ously to the statute it had no jurisdiction, or could not, consistently with its rules and principles, have interfered. The statute merely empowered the court to give dam- ages in cases involving elements or ingredients of an equita- ble character. If the case as presented to the court was an equitable one, so that the subject-matter of the applica- tion is properly cognizable in equity, the court had juris- diction under the statute to entertain the question of dam- ages. If, on the other hand, the plaintiff had no equitable right at the time of bringing the action, so that the matter has been improperly brought into equity, the statute had no application. Damages may be awarded under the sta- tute if it appear that at the time of bringing the action there was an equitable case, although the case for an in- junction fails, or although an injunction is not competent from circumstances which have occurred since the filing of the bill." It will be observed that the British statute does not touch the question of the account of profits by an infringer, ROOT v. RAILWAY CO. 21 leaving that as it stood before the passage of the act. The unavoidable inference is that damages can only be given under the act, in cases in which an account might be de- creed; and that the patentee must, as it was expressly de- cided by the House of Lords, in De Vitre v. Betts (Law Rep. 6 H. L. 319), in all cases when he has a decree, elect whether he will have an account of profits or an inquiry as to damages, and cannot have both. Under the act of Congress of 1870,, he may recover damages in addition to the profits to be accounted for by the defendant; but as the recovery is limited by the act to the actual damages, it is manifest that the recovery of damages and profits is not intended to be double, but that when necessary the damages are to supplement that loss of the complainant which the profits found to have been received are insuffi- cient to compensate, subject to the power of the court as to their increase, as in case of verdicts. This firm and indisputable doctrine of the English chancery has been recognized and declared by this court, in Hipp v. Babin (19 How. 271) to be part of the system of equity jurisprudence administered by the courts of the United States, founded not only upon the legislative dec- laration in the Judiciary Act of 1789, "that suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may he had at law," but also upon the intrinsic distinctions between the different jurisdictions of law and equity. In delivering the opinion of the court in that case, Mr. Justice Campbell remarked that "the practice of the courts of the United States corresponds with that of the chancery of Great Britain, except where it has been changed by rule, or is modified by local circumstances or local con- venience" ; and cited the instances in which "this court has denied relief in cases of equity, where the remedy at law has been plain, adequate, and complete, though the question was not raised by the defendants in their plead- ings nor suggested by the counsel in their arguments. He 22 INFRINGEMENT OF PATENT RIGHT. then adds : "And the result of the argument is that when- ever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, be- cause the defendant has a constitutional right to a trial by jury." It was contented in that case that, notwithstanding this general principle, the bill ought to be maintained, be- cause the complainants, being minors, were authorized to call upon the defendants, who had intruded into possession of their lands, for an account as guardians, and that the Court of Chancery was better fitted to take an account for rents, profits, and improvements, and might decide the question of title as incidental to the account. In reply to these points, Mr. Justice Campbell remarked that "there are precedents in which the right on an infant to treat a person who enters upon his estate with notice of his title, as guardian or bailiff, and to exact an account in equity for the profits for the whole period of his occupancy, is recognized." "But," he added, "in those cases the title must, if disputed, be established at law, or other grounds of jurisdiction must be shown." "Nor can the court retain the bill under an impression that a court of chancery is better adapted for the adjustment of the account for rents, profits, and improvements. The rule of the court is, that when a suit for the recovery of the possession can be prop- erly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a possession which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds have been stated, to show that courts of law could not give a plain, adequate, and complete remedy. No instances exist where a person who had been successful at law -has been allowed to file a bill for an account of rents and profits ROOT v. RAILWAY CO. 23 during the tortious possession held against him, or in which the complexity of the account has afforded a motive for the interposition of the Court of Chancery to decide the title and to adjust the account." These principles were announced in a case for the recovery of the possession of real estate held adversely, but they are of general application, and embrace, as well, the case of torts to personality, and infringements of patent and copy rights. The distinct ground upon which the opposite view is presented to us in argument is, that the infringer of a patent-right is, by construction of law, a trustee of the profits derived from his wrong, for the patentee, and that a court of equity, in the exercise of its acknowledged juris- diction over trusts and trustees, will require him to ac- count as trustee, without reference to any other relief. And in support of this contention we are referred to passages in the judgments of this court in the cases of Packet Com- pany v. Sickles, [19 Wall. 611], Burdell v. Denig, and Birdsall v. Coolidge, [19 Wall. 716], all of which have been already cited in this opinion. [In part of opinion omitted.] But the inference sought to be drawn from the ex- pressions referred to is not warranted. It is true that it is declared in those cases that, in suits in equity for relief against infringements of patents, the patentee, succeeding in establishing his right, is entitled to an account of the profits realized by the infringer, and that the rule for ascer- taining the amount of such profits is that of treating the infringer as though he were a trustee for the patentee, in respect to profits. But it is nowhere said that the patentee's right to an account is based upon the idea that there is a fiduciary relation created between him and the wrong-doer by the fact of infringement, thus conferring jurisdiction upon a court of equity to administer the trust and to com- pel the trustee to account. That would be a reductio ad absurdum, and, if accepted, would extend the jurisdiction 24 INFRINGEMENT OF PATENT RIGHT. of equity to every case of tort, where the wrong-doer had realized a pecuniary profit from his wrong. All that was meant in the opinions referred to was to declare according to what rule of computation and measurement the compen- sation of a complainant would be ascertained in a court of equity, which, having acquired jurisdiction upon some equitable grounds to grant relief, would retain the cause for the sake of administering an entire remedy and com- plete justice, rather than send him to a court of law for redress in a second action. The rule adopted was that which the court in fact applies in cases of trustees who have committed breaches of trust by an unlawful use of the trust property for their own advantage; that is, to re- quire them to refund the amount of profit which they have actually realized. This rule was adopted, not for the pur- pose of acquiring jurisdiction, but, in cases where, having jurisdiction to grant equitable relief, the court was not permitted by the principles and practice in equity to award damages in the sense in which the law gives them, but a substitute for damages, at the election of the complainant, for the purpose of preventing multiplicity of suits. And the particular rule was formulated, as will be seen by ref- erence to the cases already referred to, out of tenderness to defendants in order to mitigate the severity of the pun- ishment to which they might be subjected in an action at law for damages, and because it was thought more equita- ble merely to deprive them of the actual profits arising from their wrong, than to make no allowances, in estimat- ing damages, for the cost and expense of the business in the prosecution of which they had violated the rights of the complainant. The same reason operated in the estab- lishment of the similar rule acted upon in the cases of Hil- ton v. Woods and Jegon v. Vivian, already cited in the previous part of this opinion, supra, p. 18. The rule itself is reasonable and just, though sometimes perverted and abused. It has been constantly acted upon by the courts. But it is a rule of administration and not of jurisdiction; ROOT v. RAILWAY CO. 25 and although the creature of equity, it is recognized as well at law as one of the measures, though not the limit, for the recovery of damages. The case is not within the principle, according to which, in certain circumstances, a court of equity decrees a wrong-doer to be a trustee de son tort, and exerts its juris- diction over him in that character. Where a defendant has wrongfully intermeddled with property already im- pressed with a trust, he may be required as a trustee to account for it, as was done in the case of People v, Houghta- ling (7 Cal. 348), because trust property may be followed, wherever it can be traced, into whosesoever possession it comes, except that of a bona fide purchaser without notice. It is the character of the property, and not the wrong done in converting or withholding it, that constitutes the wrong- doer a trustee. Our conclusion is, that a bill in equity for a naked ac- count of profits and damages against an infringer of a patent cannot be sustained; that such relief ordinarily is incidental to some other equity, the right to enforce which secures to the patentee his standing in court ; that the most general ground for equitable interposition is, to insure to the patentee the enjoyment of his specific right by injunc- tion against a continuance of the infringement; but, that grounds of equitable relief may arise, other than by way of injunction, as where the title of the complainant is equita- ble merely, or equitable interposition is necessary on ac- count of the impediments which prevent a resort to rem- edies purely legal; and such an equity may arise out of, and adhere in, the nature of the account itself, springing from special and peculiar circumstances which disable the patentee from a recovery at law altogether, or render his remedy in a legal tribunal difficult, inadequate, and incom- plete; and as such cases cannot be defined more exactly, each must rest upon its own particular circumstances, as fur- nishing a clear and satisfactory ground of exception from the general rule. 26 INFRINGEMENT OF PATENT RIGHT. The case of Garth v. Cotton (i Dick. 183) furnishes an interesting and curious illustration of one of the ex- cepted cases. In that case Lord Hardwicke sustained a bill in equity, in a case of waste, for an account of timber felled and sold, where there could be no injunction, in favor of a complainant unborn at the time of its commis- sion, whose estate was a contingent remainder, supported by a limitation to trustees to preserve it, the defendant being the owner of a prior term of years, and the ultimate remainder-man in fee. The Lord Chancellor proceeded on the ground of collusion between the defendants and a nominal or imputed breach of trust on the part of the trustees to preserve the contingent remainder in permitting the wrong ; and distinguished the case from Jesus College v. Bloome (3 Atk. 262), particularly on the ground that the complainant could have no remedy at law. Another in- stance of an exception is mentioned by Vice-Chancellor Page-Wood in the extract from his judgment in the case of Smith v. The London & Southwestern Railway Co., (Kay, 408), contained in a previous part of this opinion. It does not appear from the allegations of the bill in the present case that there are any circumstances which would render an action at law for the recovery of damages an inadequate remedy for the wrongs complained of; and, as no ground for equitable relief is presented, we are of opinion that the Circuit Court did not' err in sustaining the demurrer and dismissing the bill. Decree affirmed. Mr. Justice Gray did not sit in this case, nor take any part in deciding it. 2 2 This, case overruled the following cases: Nevins v. Treadwell, 3 Blatch. 80, 1853, per Nelson, Associate Justice; Howes v. Nute, 4 Cliff. 173, 1870, per Clifford, Associate Justice ; Wetherill v. New Jersey Zinc Co., 1 Bann & Ard. 465, 1874. (The plaintiff did not ask for an injunction; only for an account. Not stated that patent had expired before filing the bill. Jurisdiction taken) ; Gordon v. Anthony, 16 Blatch. 234, 1879; Stevens v. Kas. Pac. Ry. Co., 5 Dill. 486, 1879,. per Miller, Associate Justice; Atwood v. The Portland Co., 10 Fed- 283, 1880. ROOT v. RAILWAY CO 27 In Perry v. Corning, 6 Blatch. 134, 1868, the plaintiff asked for discovery and an account, but not for an injunction. Jurisdiction was taken. See to the same effect : Vaughan v. East Tenn., Va., and Ga. Ry. Co., 2 Bar.n. & Ard. 537, 1877; Sayles v. The Dubuque & Sioux City Ry. Co., 3 Bann. & Ard. 219, 1878. Quare whether in view of our prin- cipal case these cases are still law? In accord with the principal case: Hayward v. Andrews, 106 U. S. 672, 1882 (A. owned patent. Assigned to B., with right to sue for infringements prior to assignment. Patent expired. B. brought bill against C, alleging infringement prior to assignment, and his inability to sue C. in his own name at law. Bill dismissed) ; Lord v. Whitehead, and Atherton Machine Go., 24 Fed. 801, 1885 (A. owned patent. Patent expired. A. brought bill against B. for account of infringement before expiration of patent, alleging secret infringement and his inability to estimate his damages. Bill dismissed. See page 803, and for an iden- tical case, Adams v. Bridgewater Iron Co., 26 Fed. 324, 1886, 325) ; Creamer v. Bowers, 30 Fed. 185, 1887 (In this case a decree for an account of profits had been ordered. The Court's attention was then called to the fact that the patent had expired before bill filed. The decree was opened and the bill dismissed) ; New York Belting and Packing Co. v. New Jersey Car Spring Rubber Co., 47 Fed. 504, 1891 (A. filed bill against B. to restrain infringement and for an account. Pending suit A. assigned to C. and then joined C. as party plaintiff, but showed no infringement by B. after assignment. Held, that C. was improperly joined.) In Clark v. Wooster, 119 U. S. 322, 1886, a bill was filed for an injunction to restrain an infringement of a patent and to recover profits and damages fifteen days before the expiration of the patent. Under the rules four days' notice of an application for a preliminary injunction was required. Whether such an injunction was applied for is doubtful. A decree was made after patent expired, referring it to a master to state an account of profits and damages. This case and Beedle v. Bennett, 122 U. S. 71, 1887, apparently stand for the proposition that, if the patent "was in force at the time the bill was filed, and the complainants were entitled to a preliminary injunction at that time, the jurisdiction of the Court is not defeated by the expiration of the patent by lapse of time before final decree." See 122 U. S. 75- In neither case is it clear that the complainants asked for a preliminary injunction. Compare Bragg Mfg. Co. v. City of Hartford, 56 Fed. 292, 1893. Similar actions prior to the decision in Root v. Railway Co., are Sickles v. Gloucester Mfg. Co., 1 Fish. 222, 1856; Imlay v. The Norwich & Worcester Ry. Co., 4 Blatch. 227, 1858; Smith v. Baker, 1 Bann. & Ard. 117, 1874 (Defendant died prior to decree and no injunction could therefore be issued) ; Bignall v. Harvey, 18 Blatch, 353, 1880; Emigh v. B. & O. Co., 6 Fed. 283, 1881. In Clark v. Wooster, 119 U. S. 322, 1886, 324, Bradley, J., said that, if by the course of the Court no injunction could be obtained be- fore the expiration of the patent, the bill should be dismissed. This principle was applied in American Cable Ry. Co. v. Chicago City Ry. Co., 41 Fed. 522, 1890, and Russel v. Kern, 72 Off. Gaz. 590, 1895, where the patent expired before the return day, and in American Cable Ry. Co. v. Citizens' Ry. Co., 44 Fed. 484, 1891, where the patent expired on the day of filing the bill ; also in Keyes v. Eureka Mining Co., 158 U. S. 150, 1894, where the plaintiff showed no right to a preliminary injunction and there was no possibility of obtaining a final decree before the expiration of the patent. In Singer Mfg. Co. v. Wilson Sewing Machine Co., 38 Fed. 586, 1889, the jurisdiction was taken because in the ordinary course a final decree would have been 28 INFRINGEMENT OF PATENT RIGHT. REIN v. CLAYTON. In the Circuit Court for the Eastern District of Michigan, 1889. 37 Federal 354 In Equity. On motion for an injunction. This was a bill to enjoin the use of an invention be- longing to plaintiffs, for which they had not yet obtained a patent. The bill averred the plaintiffs to be the joint in- ventors and owners of an invention of an improvement in plumbers' and jewelers' furnaces, for which they had made application for a patent on September 11, 1888. A copy of the application, with the specifications, drawings, and claims, was annexed to the bill. The bill, which was filed October 11, 1888, further averred that the plaintiffs had been diligently prosecuting their application, which was still pending; that they were the original and first inven- tors of said improvement; and that they were informed by their solicitors that the same was new and patentable. Fol- lowing this were the usual averments of infringement. Alexander Brown, for plaintiff. George W. Radford, for defendants. Brown, /. We are confronted upon the threshold of this case with the important question whether an inventor can maintain a bill for an injunction before the issue of a patent. The question has been directly decided in but a single case, viz., Butler v. Ball, 28 Fed. Rep. 754; and it is upon this case alone that plaintiffs rely for the mainte- nance of this suit. The learned judge, who delivered the had before the expiration of the patent, though the final decree was not actually given until long after the patent had expired. Compare with the above cases Waite v. Chichester Chair Co., 45 Fed. 258, 1891 (A. owned patent. For five years he knew B. in- fringed. He then brought bill to restrain infringement and for profits against B. The Court refused the injunction on the ground of laches, but retained the bill and decreed an account of profits and damages). In England it has been held that after a patent has expired the owner has a right to an injunction to prevent the sale of articles manu- factured in violation of the patent. Crossley v. The Derby Gas Light Co., 4 L. J. Ch. 25, per Lord Chancellor Brougham. REIN v. CLAYTON. 29 opinion in this case, does not discuss the question upon principle, but cites two authorities as settling it in favor of the jurisdiction. The first case (Evans v. Weiss, 2 Wash. C. C. 342) was an action at law against a person who had made use of plaintiff's invention for some years prior to the passage of a special act granting him a patent for such invention, and the question was whether he was liable as an infringer, for using the improvement after he had received notice of the granting of plaintiff's patent; and the court held that he was, notwithstanding a proviso in the special act that "no person who shall have used the said improvements, or erected the same for use, before the issuing of said patent, shall be liable therefor." In deliver- ing the opinion Mr. Justice Washington observed "that the right to the patent belongs to him who is the first in- ventor, even before the patent is granted; and therefore any person who, knowing that another is the first inventor, yet doubting whether that other will ever apply for a patent, proceeds to construct a machine, of which it may afterwards appear he is not the first inventor, acts at his peril, and with a full knowledge of the law that, by relation back to the first invention, a subsequent patent may cut him out of the use of the machine thus erected." It is entirely clear that in saying that the right to the patent belongs to the first inventor, even before the patent is granted, he refers only to the plaintiff's property in his invention, and his right to a patent therefor, and not to his right to enjoin an infringer before the patent is issued. The real question was whether the defendant, who had purchased the patented article before the patent was issued, and was then using it, had the right to continue to use it after the patent was granted, and it was held that he had not. The principle of this case was subsequently affirmed by the supreme court in Evans v. Jordan, 9 Cranch, 199. In the other case, also (Jones v. Sewall, 6 Fish. Pat. Cas. 343), suit was brought upon letters patent, and in opening his opinion Mr. Justice Clifford made the incidental remark that inventions 30 INFRINGEMENT OF PATENT RIGHT. lawfully secured by letters patent are the property of the inventors, and as much entitled to legal protection as any other species of property. "They are indeed property, even before they are patented, and continue to be such, even without that protection, until the inventor abandons the same to the public, unless he suffers the patented pro- duct to be in public use or on sale, with his consent and allowance, for more than two years before he files his ap- plication." He is evidently speaking here of the right of an inventor to a patent in case he makes his application within two years after his device has been made public; and this right is a species of property which remains unim- paired during the continuance of the two years. But there is no intimation here that the inventor may apply for an injunction before his right is lawfully secured by letters patent; indeed, the intimation is the other way. He is evidently speaking of the same right of property to which Mr. Justice Hunt alludes in Manufacturing Co. v. Vul- canite Co., 13 Blatchf. 375, 383: "So far as the plaintiff's own use or manufacture is concerned, it needs no act of Congress to enable it to make, use, and vend the article, and it obtains no such right from Congress. The benefit of the patent law is that the plaintiff may prevent others from making, using, or vending its invention. To itself, to its own right to make, use, or vend, no right or authority is added by those statutes." We think that neither of these cases is authority for the proposition laid down in the case of Butler v. Ball. Let us now examine the question upon principle. At common law there was no special property in an invention, because the policy of the law was opposed to this as to all other monopolies. Walk. Pat. sec. 159. Indeed, the in- ventive genius of the English-speaking people did not be- gin to manifest itself to any considerable extent before the middle of the last century, and it is only within the past 60 years that the business of the patent-office has been con- sidered of any great importance. Patents for inventions REIN v. CLAYTON. 3J were at first treated as a royal prerogative, and granted as a matter of favor, and never as a legal right. They were in fact a branch of that extensive system of monopolies which became so odious during the reign of Elizabeth and her suc- cessors, the Stuarts. In the reign of James I. a statute known as the "Statute of Monopolies" was passed, de- claring all monopolies contrary to law, and void, except as to patents, not exceeding the grant of 14 years, to au- thors of new inventions, and some others not material to be noticed here. This was the earliest recognition of the right of an inventor to a monopoly of the manufacture, sale, and use of his invention. It still remained, however, a royal prerogative, which was granted or refused at the pleasure of the crown. This statute was followed by oth- ers, securing to the inventor a monopoly, as a matter of right, and providing the proper machinery for procuring and enforcing it. In this country patents have been rec- ognized as existing only by virtue of positive law. The constitution of the United States conferred upon congress the power "to promote the progress of science and useful art by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discov- eries." The adoption of the constitution was followed the next year by the first federal statute upon the subject, which became the foundation of the patent law of this country. That the right of an inventor to a monopoly is purely a feature of the statute was recognized by the supreme court in Brown v. Duchesne, 19 How. 183, 195, in which Mr. Chief Justice Taney observed : "But the right of property which the patentee has in his invention, and his right to its exclusive use, is derived altogether from these statutory provisions; and this court have always held that an inventor has no right of property in his invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the acts of congress ; and that his rights are to be regulated and measured by these laws, and cannot go beyond them." 32 INFRINGEMENT OF PATENT RIGHT. Still stronger language is used by him in Gayler v. Wilder, 10 How. 477, 493, in which he says : "The inventor of a new and useful improvement cer- tainly has no exclusive right to it, until he obtains a pat- ent. This right is created by the patent, and no suit can be maintained by the inventor against any one for using it before the patent is issued. But the discoverer of a new and useful improvement is vested by law with an in- choate right to its exclusive use, which he may perfect and make absolute by proceeding in the manner the law re- quires. * * * The monopoly did not exist at common law, and the rights, therefore, which may be exercised under it, cannot be regulated by the rules of the common law. It is created by the act of congress; and no rights can be acquired in it unless authorized by statute, and in the man- ner the statute prescribes." And in the recent unreported case of Marsh v. Nich- ols (9 Sup. Ct. Rep. 168, 15 Fed. Rep. 914), appealed from this court, in which the point decided was that a patent not signed by the secretary of the interior is abso- lutely void, it is said: "The invention is the product of the inventor's brain, and, if made known, would be made subject to the use of any one, if that use were not secured to him. Such security is afforded by the act of congress, when his priority of invention is established by the officers of the patent-office,, and the patent is issued. The patent is the evidence of his exclusive right to his use of the invention. It therefore may be said to create a property interest in that inven- tion. Until the patent is issued, there is no property right in it; that is, no such right as the inventor can enforce. Until then there is no power over its use, which is one of the elements of a right of property in anything capable of ownership." A similar observation was made by Judge Shepley in Machine Co. v. Tool Co., 4 Fish. Pat. Cas. 284, 294. "An inventor," says he, "has no right to his invention at REIN v. CLAYTON. 33 common law. He has no right or property in it originally. The right which he derives is the creature of statute and of grant." See also, Sargent v. Seagrave, 2 Curt. 553, 555- The power of a court to deal with patents is now reg- ulated by the fifty-fifth section of the patent act of 1870, incorporated into Rev. St. sec. 4921, which declares that "the several courts vested with jurisdiction of cases aris- ing under the patent laws shall have power to grant injunc- tions, according to the course and principles of the courts of equity, to prevent violation by any rights secured by patent, on such terms as the court may deem reasonable." It is impossible to deduce from this language any recogni- tion of a power to grant such injunction before the right has been "secured by patent." Indeed, if it does not abso- lutely inhibit that power, it points very strongly in that direction. While no court has decided that it would not grant an injunction after application for but prior to the issue of a patent, it has been frequently held that after a patent has been surrendered no action will lie upon it, and all actions founded upon it abate, notwithstanding an application for a reissue for the same be pending. Mof- fitt v. Garr, 1 Black, 273; Peck v. Collins, 103 U. S. 664. This particular defect has since been remedied by the act of 1870, declaring that the surrender shall take effect upon the issue of the amended patent, but the principle of these decisions is not affected. Now, if a hill will not lie upon a patent surrendered, though an application for a reissue be pending, it is impossible to see upon what ground it can be sustained before any patent whatever has been issued. There are also certain practical difficulties in the way of assuming jurisdiction of a bill like the one under consid- eration. Courts of justice have no original cognizance of the subject of inventions. Congress has provided a com- missioner of patents, has furnished him with a library of such scientific works and periodicals, both 'foreign and 34 INFRINGEMENT OF PATENT RIGHT. American, as may aid him in the discharge of his duties, with copies of models of all patents heretofore granted, together with a large corps of intelligent and experienced assistants, whose duty it is to examine every application; to compare it with patents previously issued, (that two may not be issued for the same invention) ; to correct the speci- fications and claims; to give notice to the patentee of inter- ferences; and to determine questions of priority between rival inventors of the same device. It is a matter of com- mon knowledge that the commissioner is in the habit of limiting, altering, and expunging claims, and that it is impossible to say, after the specifications and claims have been filed in what shape, and with what limitations, they will emerge from the patent-office. It is absolutely impos- sible for courts of justice to deal with questions of this description. We are asked in this case to assume that a patent will be issued covering five different claims, yet we have no assurance whatever that, if a patent be issued, any one of these claims will be allowed in the language in which it is couched. Besides, the effect of assuming cog- nizance of a patent before the patent is granted would be to extend the life of the patent beyond the statutory period of 17 years, by the time, which may be months, and even years, during which the application is pending in the pat- ent-office. The jurisdiction of courts to determine the validity of patents is purely appellate. It is conferred upon the theory that, application for patents being made ex parte, in the pressure of business, patents may be granted by in- advertence or mistake, or rival claimants may not have an opportunity of being heard; and because there is no other method provided by law of determining whether persons using similar devices are or are not infringers upon the rights of the patentee. It is obvious that when parties are represented by experienced counsel, and witnesses are examined with that care and deliberation which is only attainable in judicial proceedings, a correct result is much REIN v. CLAYTON. 35 more likely to be reached than upon the hurried examina- tion of an examiner in the patent-office. These considera- tions, however, do not by any means justify us in antici- pating his decision, or intermeddling in any way with his action before it has been consummated by the issuance or refusal of the patent. A decree will therefore be entered denying the in- junction, and dismissing the bill for want of jurisdiction. 36 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY CHAPTER II. INFRINGEMENT OF LITERARY AND AR- TISTIC PROPERTY. SECTION A. COMMON LAW PROPERTY IN BOOKS. DONALDSON v. BECKETT. In the House of Lords, 1774. 2 Brown's Cases in Parliament Tomlin's Edition 129, and 4 Bur- rows 2408' Iii 1729 James Thompson assigned his rights in' cer- tain poems written by him. The rights under these assign- ments became vested in one Andrew Millar. James Thom- son died in 1768; Andrew Millar died, and the respondents purchased whatever rights he had from his executors. Af- ter this purchase the appellants published and sold several thousand copies of the poems called "Spring, Summer, Autumn, and Winter," and the Hymn on the Succession of the Seasons, in a volume entitled The Seasons, by James Thomson: Edinburgh, printed by A. Donaldson, 1768: and thereby acquired considerable profits, to the great loss and prejudice of the respondents. Whereupon the respond- ents, on the 2 1 st of January, 177 1, filed a bill in Chancery against the appellants, * * * praying that the appel- lants might come to an account with the respondents, for the money which the appellants had received by the sale of the 1 Only selections from each report are here printed. Sec. a.] DONALDSON v. BECKETT. " 37 said poems and hymn ; and that the appellants might forever after be restrained, by the injunction of the court, from pub- lishing the said poems and hymn, and from selling any copies of them in future. * * * On the 1 6th of November, 1772, the cause was heard before the Lord Chancellor Bathurst, when his Lordship was pleased to decree that the injunction which had been before granted in the cause, should be made perpetual. The matter was appealed to the House of Lords. Ordered, that the Judges be directed to deliver their opinions upon the following questions, viz. : 1. Whether at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and might bring an ac- tion against any person who printed, published and sold the same without his consent? 2. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person after- ward reprint and sell, for his own benefit, such book or lite- rary composition, against the will of the author? 3. If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author by the said statute precluded from every remedy, except on the foundation of the said statute, and on the terms and conditions prescribed thereby? Ordered, that the Judges do deliver their opinions upon the following questions, viz. : Whether the author of any literary composition and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law?. Whether this right is any way impeached, restrained, or taken away by the statute 8th Anne ? Whereupon the Judges desiring that some time might be allowed them for that purpose. Eight out of the eleven Judges answered the first question in the affirmative. Seven Judges thought that an 38 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY author did not lose his right at common law by printing and publishing such book or literary composition. Six of the eleven Judges thought that the right was taken away by the Statute of Anne. It was notorious, that Lord Mansfield adhered to his opinion; and therefore concurred with the eight, upon the first question; with the seven, upon the second, and with the five, upon the third. But it being very unusual (from reasons of delicacy), for a Peer to support his own judg- ment, upon an appeal to the House of Lords, he did not speak. And the Lord Chancellor seconding Lord Camden's motion "to reverse," the decree was reversed. 2 For the provisions of the Statute of Anne, see infra, section E. Prior to our principal case it had been decided that an author has a common law right of property in the ideas expressed in his unpub- lished manuscript, and that Chancery has jurisdiction to protect a violation of this right: Webb v. Rose, Amb. 695, 1733 (A. had the manuscript of his work on Precedents in Chancery stolen and pub- lished. The Court restrained the publication) ; Forrester v. Walker, Amb. 695, 1741 (A. lent his manuscript of Talbot's Equity Cases to B. ; B.'s clerk made a copy of the manuscript. The Court restrained the publication of a book printed from this copy) ; Duke of Queens- berry v. Shebbeare, 2 Eden. 329, 1758 (Lord Clarendon's son gave B. the right to copy the manuscript of his history. The executor of the son secured an injunction to restrain the publication of a book printed from this copy). Since the answer of the Judges to the first question in our principal case — the right of an author to protect his property in his unpublished manuscript has never been doubted. Prior to the decision in our principal case common law copyright, or the right of an author after publication to prevent others publish- ing editions of his work without his consent, was recognized and pro- tected in several cases. Thus in Eyre v. Walker, 4 Burr, 1735, Sir Joseph Jekyll restrained the defendant from printing "The Whole Duty of Man,'' though, as the book was written in 1657, no copyright could have been secured under the Statute of Anne. See also Motte v. Falkner, 4 Burr. 2325, 1735, where the author's rights were protected though the statutary copyright on many of the letters in the book in question had expired. See in further accord: Walhoe v. Walker, 4 Burr. 2325, 1736; Tonsen v. Walker, 4 Burr, 2325, 1752; semble, Tonsen v. Collins, 4 Burr. 2327, 1762. See contra and in accord with the decision in our principal case, Millar v. Donaldson, and Osborne v. Donaldson, 4 Burr. 2327, 1765. The case of Millar v. Taylor, 4 Burr. 2303, 1769, a case at law, is identical with our principal case, except that the action was brought by Millar against one who pirated the work after the expiration of the statutary copyright. The Court held by a vote of three to one, Lord Mansfield voting in the affirmative, that Sec. a.] DONALDSON v. BECKETT. 39 the common law vested in authors the exclusive right of multiplying and publishing copies of their works, and that this right was not taken away by the Statute of Anne. The defendant allowed his writ of error to the House of Lords to be non prossed. Since the decision in Donaldson v. Beckett the common law rights of an author after publication have been discussed in two cases, Whea- ton v. Peters, 8 Pet. 591, 1834, and Jefferys v. Boosey, 4 H. L. Cas. 8l5» I 8S4- In the former the Court decided by a vote of three to two, Marshall and Story voting in the affirmative, that after publication the rights of an author were the creation of the Copyright Acts, and therefore that one who had not complied with those Acts could not restrain a piracy, even within the period of statutory copyright. The question was not directly involved in Jefferys v. Boosey, but Lords Brougham and St. Leonards agree with the majority in Wheaton v. Peters, that copyright did not exist at common law. Regarding the common law right of the author as lost by publi- cation, it has been held that the deposit of a book in a public library is a publication, Callaghan v. Myers, 128 U. S. 617, 1889; semble, Ladd v. Oxnard, 75 Fed. 705, 1891. Compare The Jewelers' Merchantile Asso. v. The Jewelers' Weekly Pub. Co., 155, N. R. 241, 18^8, reported infra, sec. E. Of course the usual method of publication is by selling copies of the printed book. 40 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY SECTION B. COMMON LAW PROPERTY IN LETTERS. THOMPSON v. LORD CHESTERFIELD. In Chancery, before Lord Apsley, 1774. Ambler 737 The late Earl of Chesterfield had a natural son, Philip Stanhope, who went abroad, and was in a public char- acter. Before he died, Lord Chesterfield corresponded with him for many years; in some of his letters drew the characters of persons, and wrote upon the subject of poli- tics; in others he wrote upon education, and instructions to his son for his conduct in life; and it was said that those letters formed a complete system of education. On the death of Philip, the defendant, his widow, and two sons, came over to England in 1769, and were affection- ately received by Lord Chesterfield, who put the children to school, and by his will left each of them an annuity of 100/. and also gave them 10,000/. The widow delivered up to Lord Chesterfield the characters, having first taken copies of them, but did not deliver up the other letters; and after his death, which happened in 1772, the widow agreed with the defendant Dodsley, who is a Bookseller, for printing and publishing the letters on education and instructions to his son; and public notice was given of it in the newspapers by several advertisements, the first of which was in November last. Bill by the plaintiffs, to restrain the defendants from printing and publishing the letters, and to have the original letters and copies delivered up to the plaintiffs. The defendant, the widow, in her answer said, Being frequently in company with Lord Chesterfield, she one day mentioned to him, that she thought the letters he wrote Sec. b.] THOMPSON v. LORD CHESTERFIELD. 41 to her late husband, would form a fine system of education if published, or to that effect; to which his Lordship an- swered, " Why, that is true, but there is too much Latin in them ;" but did not express any disapprobation in publish- ing the same; and that some little time after such conver- sation, Lord Chesterfield requested her to restore to him some characters, which he had given to her' late husband, declaring at the same time, upon his word and honour, that he desired to have those characters which were of particular people returned to him, only with an intent to burn or destroy them ; and that she soon afterwards, about the latter end of the summer 1769, carried the characters to him, at his house at Blackheath, and at the same time took with her the letters, and that Lord Chesterfield took the original characters, and assured her upon his honour, that he meant to burn or destroy them, but declined taking the letters, or even looking at them, and told her she might keep them, or to that effect. She admitted that she has copies of the characters which she delivered to Lord Chesterfield, but the same are not nor ever were intended to be pub- lished in the books advertised to be sold, or any otherwise. And now the plaintiffs moved for an injunction to stay printing and publishing the letters and characters. For the plaintiff it was insisted, That a person has no right to print and publish letters which he receives, with- out the consent of the correspondent who wrote them. That his property in the letters does not extend so far. If it did, mischievous consequences would follow in abundance of cases. That the consent of Lord Chesterfield was necessary in his life time, and of his executors after his death. That neither the one nor the other have given their consent. That Lord Chesterfield taking the characters and leaving the let- ters in her hands, is not evidence of his consent to her print- ing the letters. He did not choose that the characters should be shown to any body, nor seen even by chance, and therefore burnt them. And as to the letters, the answer says, that he declined taking them, and told her, not that 42 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY she might print and make any use of them she pleased, but only that she might keep them. That the widow appears to have misbehaved in keeping copies of the characters; and though she says they were not intended to be published in the books advertised, or any otherwise, yet she may alter her mind, and do it some time or other, unless restrained by injunction. On the other side it was argued, That the letters con- tain a system of education, and useful instructions, and would be serviceable to the public. That Lord Chester- field, if living, would have no objections, to their being printed, and in fact did make no objection, when the wi- dow mentioned to him in conversation, that they would form a system of education if published, but said there was too much Latin in them. That when Lord Ches- terfield declining taking the letters, and told her she might keep them, he meant she might do as she pleased with them. That if the words of the then conversation do not of themselves import so much, yet coupled with the former conversation, when publication was mentioned by her, they do import so much. That the executors are to be presumed to have given their consent, for they did not forbid the printing, nor file their bill till the first of this month, though the advertisements had been in the public newspapers ever since November. That they ought not to have laid by and permitted the defendants to put themselves to the expense of printing the letters, which is very great, and just as they are going to be published, to interfere and stop the publication. Lord Apsley, Chancellor, was very clear that an in- junction ought to be granted. That the widow had no right to print the letters without the consent of Lord Ches- terfield, or his executors. That she has obtained neither the one nor the other. That Lord Chesterfield, when he declined taking the letters, and said she might keep them, did not mean to give her leave to print and publish them. That she did very ill in keeping copies of the characters, when Sec. b.] THOMPSON v. LORD CHESTERFIELD. 43 Lord Chesterfield meant that they should be destroyed and forgot. That the executors cannot be said to have given their consent, though his Lordship thought they would have done better if they had applied earlier, before the ex- pence of printing was incurred. He said it was within the reason of several cases where injunctions had been granted, and cited the case of Mr. Forrester, of Mr. Webb, of Mr. Pope's letters printed by Curl, and Lord Clarendon' s^ Life, advertised to be published by Dr. Shebbeare. Ordered an injunction till hearing, but recommended it to the executors to permit the publication, in case they saw no objection to the work upon reading it, and hav- ing the copies delivered to them. 1 'In the case of Pope v. Curl, 2 Atk. 342,- 1741, Lord Hardwicke said : "It is certain that no works have done more service to man- kind, than those which have appeared in this shape, upon familiar subjects, and which perhaps were never intended to be published; and it is this makes them so valuable; for I must confess for my own part, that letters which are very elaborately written, and originally intended for the press, are generally the most insignificant, and very little worth any person's reading." The case did not involve the question discussed in our principal case. The principle of the decision in Thompson v. Lord Chesterfield seems to be questioned in the following cases : Granard v. Dunkin, 1 Ball. & Bat. 207, 1809 (A wrote letters to B; C secured the letters from B's private desk. A became B's executor. A restrained C from pub- lishing the letters, not on the ground of his own right as writer, but as executor of B) ; Perceval v. Phipps, 2 V. & B. 19, 1813 (Sir Thomas Plumer doubted whether the writer could restrain the receiver of a letter from publishing the letter. He refused the injunction in the case before him, the defendant in his answer showing that the publica- tion might be necessary to vindidate his character). 44 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY GEE v. PRITCHARD. In Chancery, before Lord Eldon, 1818. 2 Swans on 402 A bill was brought by Ann Paxton against Prichard and Anderson, charging that the late husband of the plaintiff, William Gee, supported and educated the defend- ant, the Rev. William Pritchard, and that until his mar- riage, when not at school, he resided at Beddington Park, the home of the plaintiff and her husband. The bill farther stated, that William Gee died in July 1815, having first, by his will, divided his property between the Plaintiff and Pritchard, and made such pro- vision for Pritchard therein as he thought proper and just; that, for many years during the time the Plaintiff was so acquainted with Pritchard, she was in the habit of writing letters to, and receiving letters from him, on various family and other subjects, some of them of a private and confi- dential nature, and some as the Plaintiff believes, relating to his morals and conduct in life, and containing advice to him ; that for some time past the Plaintiff had had great reason to be displeased and dissatisfied with Pritchard and his conduct, and in consequence thereof, they had ceased to be on terms of friendship; and Pritchard, from resent- ment, as the Plaintiff believed, had threatened and intended to print and publish copies of the letters which were so written by the Plaintiff to him, or extracts therefrom ; and wrote a letter to the Plaintiff, dated the 14th of May 1818, contain- ing the following passage :"My life, as far back as memory serves, more particularly from my first residence at Bed- dington, together with the grounds I had for being differ- ently situated, viz. your professions contained in your letters, will be published in the middle of June." The bill also charged that Prichard, if he ever had any interest in the letters, had parted with the same, for that he some time since sent to the Plaintiff a parcel of letters and papers, accompanied by a letter from him, stating, that Sec. b.] GEE v. PRITCHARD. . . 45 the parcel contained the original letters which the Plaintiff had so written to him (the parcel of letters being then in the Plaintiff's possession;) but the Plaintiff charged, that Pritchard, before he sent to the Plaintiff the parcel of original letters, and without the consent of' the Plaintiff, took, or caused to be taken, a copy thereof, from which cop}' so taken he intended to print and publish copies or extracts. The defendant Anderson was the bookseller who had an- nounced the publication of the book containing the letters. The bill prayed that the defendants be restrained from printing or publishing the letters. An injunction was grant- ed. A motion was made on behalf of the defendant to dis- solve the injunction. In his affidavit in support of the motion the defendant stated that he had always been led to expect that he was to inherit the property of William Gee; that these expectations were authorized by the conduct and expressions of Air. Gee, and of the plaintiff herself, and having, in his intercourse with his neighbours and ac- quaintance, conducted himself as having such expectations, and having in his conversation occasionally alluded to the same, and especially having, upon his marriage, represented to his wife and her parents, that he had such expectations, the Plaintiff had, as the Defendant had been informed and believed, stated or represented, that neither herself nor Mr. Gee ever gave the Defendant any reason to entertain any such expectations, and that, therefore, the Defendant's rep- resentations in that respect were wholly without foundation, or to that effect; from which circumstance, and from the great influence with which the large property of the Plain- tiff, in the country, and her great character invested her, doubts had been entertained of the Defendant's veracity in such his representations; that the Defendant was the rector of Walton on the Hill, and many of his parishioners were tenants of the Plaintiff ; and from the alteration in the Plaintiff's behaviour to the Defendant, he found himself greatly hurt and lowered in the estimation of his parishion- ers, and felt it absolutely necessary to lay a statement of 46 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY the circumstances of his case and conduct before the public, which, supported by the letters of the Plaintiff as necessary documents to authenticate the statement he conceived to be the only means of vindicating his character and conduct to his parishioners and acquaintance, and the noblemen and gentlemen with whom he had been in the habit of associ- ating; and he accordingly had written and prepared such a statement, under the title mentioned in the bill, which, with the permission of the Court, he intended to publish and dis- tribute gratuitously, among his acquaintances and neigh- bours, but which he never intended should be sold, nor had he the least view to gain a profit on such publication; that he had therein no vindictive object or motive of re- sentment, nor any wish to lay open or publish to the world any of the Plaintiff's secrets, or to wound her feelings, or to compel or induce her to comply with any application made to her by the Defendant, nor any other object than the De- fendant's own vindication; that the letters, and parts of letters, which he intended to publish, related solely to the Defendant and his wife, as connected with the Plaintiff and Mr. Gee ; and that several of the facts before stated he could have supported, by inserting some of the Plaintiff's letters ; but, in deference to the decision of the Court in granting the injunction, he had forborne so to do. The affidavit of the plaintiff in opposition to the motion stated that it was her belief that Prichard had been induced to threaten to publish the letters in order to compel her to comply with his demands for money, and not of vindicating his character and conduct; that on the 18th of March, she received a letter from him, addressed to her, whereby he expressed himself, amongst other things, as follows : — "I allude to the interest of the 17,000/., which, if you will allow me, without farther comment, to receive the interest of, at S. W's., I shall give you no farther uneasiness, either by my presence or by farther application;" that the letter mentioned in the bill to have been written by Pritchard, and sent to her with the original letters which she had formerly Sec. b.] GEE v. PRITCHARD. 47 written to him, was dated the 6th of April then last; and therein, after accusing himself of ingratitude to the Plain- tiff, and apologizing to her for his past conduct, he begged her forgiveness, and disclaimed or abandoned all rights to the letters, as being unworthy of the sentiments and ex- pressions of kindness contained in them. 1 Mr. Hart, Mr. Wetherell, and Mr. Sidebottom, in support of the motion. This injunction cannot be supported, except on the gen- eral principle, that the writer of a letter is entitled at any time to restrain the publication, and to re- cover the possession from the person to whom it was addressed. No such principle has ever been rec- ognized in the jurisprudence of this country, and is negatived by the only recent decision on this subject, Lord and Lady Perceval v. Phillips. In Hudson's Treatise on the Court of Star Chamber, no trace is found of any in- terference of that tribunal, by injunction or otherwise, on the subject of letters, unless the publication was libellous. The Lord Chancellor: It will not be necessary to trouble you with that view of the case. The publication of the libel is a crime; and I have no jurisdiction to prevent the commission of crimes; excepting, of course, such cases as belong to the protection of infants, where a dealing with an infant may amount to a crime — an exception arising from that peculiar jurisdiction of this Court. Argument in support of the motion resumed. An attempt will be made to sustain the injunction, on the ground that the publication of the letters will be painful to the feelings of the Plaintiff. The Lord Chancellor : I will relieve you also from that argument. The question will be, whether the bill has stated facts of which the Court can take notice, as a case of civil property, which it is bound to protect. The injunction, that cannot be maintained on any principle of "The statement of facts as reported is abbreviated. 48 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY this sort, that if a letter has been written in the way of friendship, either the continuance or the discontinuance of that friendship affords a reason for the interference of the Court. Argument in support of the motion resumed. The injunction then must rest on one of two grounds: i. That the Plaintiff possesses, in the letters, a property either general or literary; 2. That the publication of them is a breach of trust. It will be difficult to establish that letters may be the subject of literary property. The cases of Pope v. Curl, and Thompson v. Stanhope, render it doubtful to what extent the Court recognizes the doctrine of property in letters. Thus Pliny's letters are said to have been written or revised for publication. The Lord Chancellor: My predecessors did not in- quire whether the intention of the writer was or was not directed to publication. The difficulty which I have felt in all these cases is this : If I had written a letter on the subject of an individual, for whom both the person to whom I wrote and myself had a common regard, and the question arose for the first time, I should have found it difficult to satisfy my mind that there is a property in the letter; but it is my duty to submit my judgment to the authority of those who have gone before me; and it will not be easy to remove the weight of the decisions of Lord Hardwicke and Lord Apsley. The doctrines of this Court ought to be as well settled, and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are not to be applied according to the cir- cumstances of each case. I cannot agree that the doctrines of this Court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quit- ting this place, than the recollection that I had done any- thing to justify the reproach that the equity of this Court varies like the Chancellor's foot. Sec. b.] GEE v. PRITCHARD. 49 I understand the Vice-Chancellor, in the case of Lord and Lady Perceval v. Phipps, not to have denied Lady Perceval's property in the letters, but to have inferred, from the circumstances, that she had authorized, and for that reason could not complain of, the publica- tion. Argument in support of the- motion resumed. Letters between public functionaries on public business, or between private individuals on private business, where the nature of the subject discussed made it evident that the correspondence could not be designed for publication, may constitute an exception. The Lord Chancellor: Are the cases which estab- lish the jurisdiction founded in a right to restore the pro- perty, or to restrain the publication? I think that the de- cisions represent the property as qualified is some respects; that by sending the letter, the writer had given, for the pur- pose of reading, and, in some cases, of keeping it, a pro- perty to the person to whom the letter was addressed, yet, that the gift was so restrained, that ultra the purposes for which the letter was sent, the property was in the sender. If that is the principle, it is immaterial whether the publi- cation is for the purpose of profit or not. If for profit, the party is then selling, if not for profit, he is giving, that, a portion of which belongs to the writer. I doubt whether the Court has proceeded so far as to decree the restoration of letters ; for the principle on which it interferes recognises a joint property in the writer and the person to whom they are addressed. Argument in support of the motion resumed. It is clear that the Defendant was entitled to retain the letters, and retaining, to read and show them to his friends or to strangers. These modes of publication there is no pre- tence for restraining : upon what principle then can the pub- lication by printing be restrained? Any equity, or just proprietatis in the Plaintiff, must apply equally to every mode of publication, and, confessedly, not authorizing the 50 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY restraint of some modes, cannot by any rational distinction authorize the restraint of any mode. The argument is the same, whether the supposed right of the Plaintiff is founded in property or breach of confidence. The Lord Chancellor: Does the common injunction ever go so far? When the Court enjoins a Defendant from publishing the book of another, has it ever restrained him from reading it, or showing it to his friends? Such an in- junction will not prevent the Defendant from carrying the book to a reading-room, or reciting it in public company; but is that a reason for not restraining publication? The usage limits the extent of the jurisdiction. Argument in support of the motion resumed. Admitting that the right of property in the person receiving the letter is qualified, the question whether that right of property including a right of publication must de- pend on the circumstances of each case. Whenever the writer is entitled to the restoration of the letter, the party from whom he is entitled to recover it can have no right of publication. The exclusive property in the manuscript .in- cludes every right of using it, and, among other uses, for the purpose of publication. But where the correspondent is entitled to retain the manuscript, great difficulty occurs in restricting his right of publication. In this case the Defendant was unquestionably entitled to retain the letters; and he is now entitled to publish them for the vindication of his character. The cases of Pope v. Curl, and Thompson v. Stanhope, proceed, on the supposition, that the person in possession of the letters was the depositary only, and not the proprietor ; but whenever the person to whom they are sent is entitled to retain them, being proprietor of the substance on which they are written, he is proprietor of their contents, and may therefore publish them. The injunction in v. Eaton was granted on the fact of purchase of the letters by the writer from the Defendant. Sec. b.] GEE v. PRITCHARD. 51 On the ground of breach of trust, of which there is no evidence, the injunction could not be maintained; this Court interferes with publications only as the subject of property- — Southey v. Sherwood. The injunction in the Earl of Granard v. Dunkin was founded on a right of property in the receiver of the letters. The Lord Chancellor: The question is, what is the conduct of the Plaintiff, which by the Defendant's affidavit, is represented as his justification in the publication of the letters? If the Court possess jurisdiction by reason of a right of property, and if the principle of the decision in Lord and Lady Perseval v. Phipps would require me to declare, that, notwithstanding that right of property, the Plaintiff's conduct had been such, that she was not entitled to the interference of the Court, the Defendant is at liberty to insist on either or both of those points ; provided that he is not concluded by the act which Lord Apsley so strongly censured, of returning the originals and retaining copies. That act is particularly stated in the bill as an abandonment of property. If the Defendant had any right of property, it was in the originals. He has not averred that the letters will prove the statement in his affidavit, though that is to be inferred. The Defendant might destroy the letters, and so destroy the Plaintiff's expectation of profit from them. Sir Samuel Romilly and Mr. Roupell for the injunction, It has been decided, fortunately for the welfare of so- ciety, and the writer of letters, though written without any purpose of profit, or any idea of literary property, pos- sesses such a right of property in them, that they cannot be published without his consent, unless the purpose of justice, civil or criminal, require .the publication. It is not necessary that they should be written for profit : Dr. -Paley having pre- pared sermons designed for gratuitous distribution among his parishioners, the Court held that his executors possessed a property in them, and, at their instance, interfered to restrain the publication by a bookseller. The question here is, whether the Defendant has established that he is about 52 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY to publish these letters for purposes essential to justice? Without that proof he cannot avail himself of the decision in Lord and Lady Perceval v. Phipps, a decision which ad- mits much remark. No such case is established by his affi- davit, and for the purpose of establishing one, a course more effectual than any affidavit would have been the production of the intended publication. The publication, not of a simple narrative of facts, but of a novel, is an extraordinary ex- pedient for the vindication of character. The Lord Chancellor: The decision of the Vice- Chancellor proceeded on the principle, that in that case the publication was necessary for the purposes of justice; the letter of the Defendant, written in April, is decisive, that the publication here is not necessary for those purposes. What occasion was there for the Defendant to inform the public, that he intended certain papers for distribution among his private friends? Argument for the injunction resumed. The present decision will constitute a most important precedent. If, on these affidavits, the injunction is dis- solved, no man can be restrained from publishing the letters which he has received from another; all that will be neces- sary to authorize the publication, is a quarrel, and an asser- tion, that the disclosure is required for the vindication of his character. When the Defendant returned the originals, clandestinely retaining copies, he abandoned all right of property in the letters. The Lord Chancellor : This case came originally be- fore me on a motion made ex parte by the Plaintiff Mrs. Gee, the widow of the father of the defendant, who is repre- sented in the pleadings as his illegitimate son. The affidavit of the Defendant states his introduction in that character; that he was known and received as a son, and treated by his father and his wife with great kindness; the affidavit seems to intimate some dissatisfaction with the representa- tion made in the bill, of the circumstances of his introduc- tion ; that is, perhaps, not very material, not a matter which Sec. b.] GEE v. PRITCHARD. 53 much blends itself with the consideration that I must give to the subject: but this introduction is certainly represented differently in the bill and in his affidavit. It is stated, that the Plaintiff entertained a great kindness for him, and that she expressed that kindness by letters in the life of his father. I collect from the last affidavit that Mr. Gee gave to the Defendant a legacy of 4000/. ; the interest, for life, of 6000Z., devoting the principal of that sum for the benefit of his children ; and that he gave to the Plaintiff the interest of 17,000/. for her life, with a power, which, under the cir- cumstances, appears to me not unfit, to appoint that sum, not by deed merely, but by deed or will ; and I am bound to take it to be his pleasure, that she should have the power, during the whole course of her life, of judging to whom, at her death, it should devolve ; an absolute power, of the exercise of which no person has any right to complain. The testator also declares, that if his widow does not think proper to make a different disposition, that sum shall go to the De- fendant; but as, between the Defendant and the Plaintiff, the rule by which I am governed, is the will of his father. I understand that it was the intention, that he should have the living which he now has, which was in the gift of Mr. Gee's brother, but not vacant at his death : the Plaintiff con- tends, that she in some sense obtained it for him; it is not going far to conjecture, that if she had opposed, it would not have been given to him. The Defendant has thus received 4000/. from his father's bounty, and the interest of 6000/., and had this contingent right in 17,000/., with the prospect of the rectory. The Plaintiff represents, that during many years she had addressed to the defendant letters of a private and con- fidential nature; that she afterwards had reason to be dissatisfied with his conduct, and they had ceased to be on terms of friendship; and as evidence of his inten- tion to publish the letters, her affidavit states the advertise- ment. The Defendant represents that he neither did nor does intend to publish the letters for profit; and insists, 54 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY that it is too hard a criticism to infer from the words, "to publish," after this explanation, that he must be understood to mean publication for sale; and yet I cannot but think, that the Defendant will, on reflection, admit, that if it was his intention merely to give these letters to his friends and relations, it was not prudent to announce his intention by advertisement. The advertisement thus held out to the public, though a publication intended only for private circu- lation, has this effect, that those who see the publication know its nature, but those who saw only the advertisement, might have been led to believe, that there was something in the letters more to the disadvantage of those concerned, than they really contained; and I cannot think this a prudent course. It has been said, that the bill contains no allegation of a right of property : but there is an express charge, that by returning the originals, the Defendant Pritchard abandoned any right of property which he might have had in the letters. The Defendant Anderson has not filed any answer or affidavit; but I am bound, by the affidavit of the De- fendant Pritchard, to believe, that he did not intend to pub- lish the letters for sale. With reference to charges of wounding feelings, look- ing at the jurisdiction of the Court to be, if not entirely, mainly, relative to the question, whether the Plaintiff has or not, property, I shall trouble myself no farther than by simply stating the circumstances of the case as they appear in the affidavits : if they prove a breach of trust, a violation of a pledge which has been given to the Plaintiff, concern- ing these letters, that is not the ground on which I profess to proceed; but it is necessary to refer to this for the pur- pose of pointing out the extreme difference between this case and the case of Lord and Lady Perceval v. Phipps. The argument of Mr. Wetherill has confirmed doubts which have often passed in my mind relative to the juris- diction of this Court Over the publication of letters; but I profess this principle, that if I find doctrines settled for Sec. is.] GEE v. PRITCHARD. 55 forty years together, I will not unsettle them. I have the opinion of Lord Hardwicke and Lord Apsley, pronounced in cases of this nature, which I am unable to distinguish from the present. Those opinions have been acquiesced in without application to a higher court. If I am to be called to lend my assistance to unsettle them, on any doubts which I might entertain, I will lend it. only when the parties bring them into question before the House of Lords. The statement of the Defendant's affidavit I take to be true, as I must have taken his answer. I cannot trust myself with any such question, as whether Mr. Gee should have left to him a larger fortune; what were the expecta- tions that he might form in consequence of what passed between him and his father, is a point on which I cannot enter. The provision made by the will is that which this Court is bound to say, as between the father and the son, must be considered proper. The Defendant may most honestly entertain an opinion that more was intended; but when I see such a power given to the widow, I must un- derstand that his father meant that, to the time of her death, her will should be free. Supposing the affidavit of the Defendant to have stated, with a great deal more precision, the representations which seem to him to call in question his veracity, and in consequence of which he is under a belief that it becomes him to set himself right in the opinion of the world, the Plaintiff's' representations that the Defendant's marriage was disapproved by herself and her husband, and so as to all the rest ; it would have been a more welcome duty to have considered, first, Whether the Court has jurisdiction on this subject; secondly, Whether the motives which led to this publication were so created by the Plaintiff's conduct, that I ought to follow the example of the Vice-Chancellor in Lord and Lady Perceval v. Phipps, and to say, that, let it be ever so clear that the Plaintiff has either a sole or joint property in the letters, the Court will not interfere between the parties ; but the affidavits state a transaction 56 INFRINGEMENT OF LETTERS AND ARTISTIC PROPERTY with regard to the letters, with no part of which am I ac- quainted, except what appears in the affidavits. Repeating that the testator had left 17,000/. to the discretion of the Plaintiff, that she had given to the Defendant 4000/. since the testator's death, and had, at least in her own judgment, been instrumental in obtaining the living which he now holds, her affidavit, asserting her husband's intention to intrust to her a control on the Defendant's conduct, (and I take the facts to be, that she had given to him various sums, and that he continued to press for money,) proceeds to state, that the Defendant returned her letters, having first taken copies, and now threatens to publish them. Whether that is an act which, if it can be done, ought to be done, the Defendant is to decide. I am to decide whether it can be done. If it is supposed, that by reading the letter any im- pression will be made on my mind different from that which I am about to state, I will forbear to state it, till I have read them ; otherwise I am now ready to proceed. The counsel for the Defendant intimated, that they had read one of the letters and thought it unimportant. The Lord Chancellor: I am of opinion, that the Plaintiff has a sufficient property in the original letters to authorize an injunction, unless she has by some act deprived herself of it. Laying out of the case much of what Mr. Wetherell has urged with so much ingenuity, I say only that though a letter is a subject of property, capable of being much more largely dealt with, in communication, than books, as, by reading to others, repeating passages, &c, yet the Court has never been alarmed out of the practice of granting injunctions relative to letters to the extent to which it grants them in the case of books, because persons may assemble others, and read and recite to them: it is not de- terred from giving that relief because it cannot give other relief more effectual. In stating what Lord Hardwicke says on the subject, though I cannot at the moment refer to cases, I state that which, in cases, has been handed down as the law of the Sec. b.] GEE v. PRITCHARD. 57 Court. In Pope v. Curl, Lord Hardwicke went out of his way to state what he thought the doctrine on the subject of letters. Though the letters of eminent men, no one can suppose that they were all meant for publication ; there are many passages in Swift's letters which he would be unwil- ling to have published. Lord Hardwicke says, "Another objection has been made by the Defendant's counsel that where a man writes a letter it is in the nature of a gift to the receiver; but I am of opinion that it is only a special property in the receiver: possibly the property of the paper may belong to him, but this does not give a license to any person whatsoever to publish them to the world." If he had stopped there, doubt might have been entertained whether the receiver was not at liberty to publish them to the world, but as he proceeds, "for, at most, the receiver has only a joint property with the writer." No one can read the case of Thompson v. Stanhope without seeing that this was understood at that time to be the doctrine of the Court. Publication was there advertised in November, and the application to the Court not made till March, and on that circumstance Lord Apsley proceeded in recommending the arrangement which he afterwards mentions : "The executors cannot be said to have given their consent, though his Lordship thought they would have done better if they had applied earlier, before the expense of printing was incurred." That is a strong part of the case. Those were letters of two classes, written by a father to his son ; one class relating to the characters of individuals. The communication being made by letter is prima facie evidence, that that is all the communication which, on the subject of those characters, the writer intends to make. So of what relates to education : though they concern public char- acters, and a public subject — education, no one can main- tain, that those discussions found in private letters gave to the person who received the letters a right to carry into public the opinions of the writer on those public characters, and the system of education. Lord Apsley therefore grant- 58 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY. ed the injunction, observing, that the Defendant "did very ill in keeping copies of the characters, when Lord Chester- field meant that they should be destroyed and forgotten." Lord Apsley also cites the case of Mr. Forrester, which certainly does apply to letters. I believe the parties came to a compromise. The doctrine is thus laid down, following the principle of Lord Hardwicke: I do not say that I am to interfere because the letters are written in confidence, or because the publication of them may wound the feelings of the Plaintiff; but if mischievous effects of that kind can be apprehended in cases in which this Court has been accus- tomed, on the. ground of property, to forbid publication, it would not become me to abandon the jurisdiction which my predecessors have exercised, and refuse to forbid it. Such is my opinion; and it is not shaken by the case of Lord and Lady Perceval v. Phipps. I will not say that there may not be a case of exception, but if there is, the exception must be established on examination of the let- ters; and I think that it will be extremely difficult to say where the distinction is to be found between private let- ters of one nature, and private letters of another nature. For the purposes of public justice publicly administered, according to the established institutions of the country, the letters must always be produced; I do not say that of justice administered by private hands; nor do I say that there may not be a case, such as the Vice Chancellor thought the case before him, where the acts of the parties supply reasons for not interfering: but that differs most materially from this case. In April last, the Defendant having so much of property in these letters as belongs to the receiver, and of interest in them as possessor, thinks proper to return them to the person who has in them, as Lord Hardwicke says, a joint property, keeping copies of them without apprising her, and assigning such a reason as he assigns for the return. Now I say, that, if in the case before the Vice-Chancellor, Lady Perceval had given Sec. b.] GEE v. PRITCHARD. 59 to Phipps a right to publish her letters, this case is the converse of that; and that the Defendant, if he previously- had it, has renounced the right of publication. On these grounds the injunction must be continued. Motion refused. 2 J In the first American cases, Wetmore v. Scovell, 3 Ed. Ch. 515, N. Y., 1842, and Hoyt v. Mackenzie, 3 Barb. Ch. 320, N. Y., 1848, the right of property in the author of private letters having no literary value was denied, and an injunction to restrain the publication of such letters by the receiver at the instance of the writer was refused. These cases were repudiated in Woolsey v. Judd, 4 Duer 379, N. Y., 1855. See in further accord with our principal case, Earl of Eytton v. Devey, 54 L. J. Ch. 293, 1884. The following cases at law are of interest: Oliver v. Oliver, n C. B. n. s. 139, 1861 (The receiver of letters maintained trover against a stranger) ; Eyre v. Higbee, 22 How. Pr. 198, N. Y., 1861 (The receiver died. Held, that as the letters were not assets, they passed to his widow, not to his heir). 60 INFRINGEMENT OF LETTERS AND ARTISTIC PROPERTY SECTION C. COMMON LAW PROPERTY IN PLAYS. MACKLIN v. RICHARDSON. In Chancery, before the Lords Commissioners, 1770. Ambler 694 Plaintiff was the author of a farce called "Love a la Mode," consisting of two acts, which was performed, by his particular permission, at the different theatres, several times in 1760, and the following years, but was never printed or published by him. And it appeared in evidence, that it never was acted but by his permission; that when the farce was over he used to take the copy away from the prompter ; that two of the actors applied to him, to have it performed at their benefits; and that he made them pay, once 20 guineas, and at another time 30 guineas, for one night's performance of it. In 1766, the defendants Rich- ardson and Urquhart, who are proprietors of the Court Miscellany, or Gentleman and Lady's Magazine, employed one Gurney to go to the play-house, and take down the words of the farce from the mouths of the actors, for which they paid him a guinea. Having so done, and cor- rected his notes from the memory of the defendant Urqu- hart, they published, in the Miscellany for the month of April, 1766, No. 10, the first act, with the names of the actors, and added a print by way of frontispiece, and titled it, "The First Act of Love a la Mode" ; and at the end gave notice, that the Second Act would be published in the next month's Miscellany. The defendants printed 4500 of the Miscellany for that month, and sold 3400. Bill by plaintiff, for an account of the profits made by the defendants, and to refrain them from printing or pub- lishing the Miscellany so containing the First Act of Love a la Mode,, and from printing or publishing the Second Sec. c] MACKLIN v. RICHARDSON. 61 Act. The common injunction being obtained till answer, was afterwards continued till hearing. The cause came on to be heard beford Lord Camden ; but the cause of Miller v. Taylor, relative to literary property, being then depend- ing before the Court of King's Bench, and it not being for- seen how far the determination in that case might affect the present case, his Lordship ordered this cause to stand over till after the other should be determined. Since that, the Court of King's Bench have given their opinion, three Judges against one, That the author of a book has a property in his work, independent of the statute of Queen Anne : and now this cause came on to be heard. It was argued for the plaintiff, That this is a much stronger case in favour of the author than those cases where the author has printed and published his work; the ground upon which the Question in those cases arose being, Whether the publication was not to be considered as a gift to the public ? That where the author did not print or pub- lish his work, it never was doubted that no other person had a right to print or publish it. That in the case of Mr. Webb and Mr. Forrester; the former of whom had his Precedents of Conveyancing stole out of his chambers, and printed ; and the latter had his notes copied by a clerk to the gentleman to whom he had lent the notes, and were printed; the Court, without the least hesitation, restrained the parties from printing and publishing them. That the representation of the farce, in this case, upon the theatre, was no gift to the public, nor entitled the defendants to print and publish it. That it was an invasion of the plain- tiff's right and property, who might chuse whether it should be printed and published or not, and if it was, had the sole right to the profits arising from thence. That the profits which he received from the representation on the stage did not take from him the right to the profits of printing and publishing: That he was remarkably cautious to preserve this property to himself, by not permitting it to be acted without his special leave, and by constantly taking his copy away from the prompter as soon as the farce was over, and 62 INFRINGEMENT OF LETTERS AND ARTISTIC PROPERTY by making two of the actors pay for the performance of it for their benefit. That this was not the case of an abridg- ment, nor extract, but professedly the work itself, one whole act being published, and the other intended to be published. That the defendants having said in their an- swer, that it was not the same as the farce itself through- out, but differed from it in some part, was an aggravation of the offence, because it misrepresented the work. On the other side it was argued, That a Court of Equity will not interfere in all cases of printing and pub- lishing another man's work; but it depended upon circum- stances. That this was not like the case of Mr. Webb and Mr. Forrester, by reason of the representation of the farce upon the stage, which gave a right to any of the audience to carry away what they could, and make any use of it. That it likewise differed from the case of a book published by the author. That the Court will not restrain the print- ing and publishing an abridgment of a book, nor a critical review. That Magazines are useful, and are an article of trade, and often of service to authors, by giving a specimen of their works, and by that means serve as a recommenda- tion of them, where they are deserving of it. That the plaintiff has not sustained, nor can sustain, any damage, as he has, and will continue to receive the advantage arising from the representation upon the stage. That the Court, under these circumstances, will leave him to his remedy at law. And the case of Dodsley v. Kinnersley, at the Rolls, 15th June 1 76 1, was cited; where the Master of the Rolls would not restrain the proprietor of a monthly magazine from printing part of a pamphlet called "The Prince of Abyssinia." Lord Commissioner Smythe, without hearing the reply : It has been argued to be a publication, by being acted ; and therefore the printing is no injury to the plaintiff: but that is a mistake; for besides the advantage from the per- formance, the author has another means of profit, from "Sec. c] MACKLIN v. RICHARDSON. 63 the printing and publishing; and there is as much reason that he should be protected in that right as any other author. It was said to be only a small part of the magazine, and therefore the Court should not interfere. That is not the true question; but, What proportion the part published in the magazine bears to the whole work out of which it is taken? Here it is avowed, and declared to be half the work, one whole act; and the defendants engage to publish the other half.. This is not an abridgment; but the work itself, and not like the case of Dodsley v. Kinnersley, which was only an extract. Lord Commissioner Bathurst : The printing it before the author has, is doing him a great injury. Strong case. The plaintiff waving the account of profits, the injunc- tion, restraining the defendants from printing and publish- ing the farce, or any part, was made perpetual. 1 1 In Keene v. Wheatley, 9 Am. L. Reg. 33, i860, 49, Judge Cadwala- der asserts that acting an unpublished play is a publication. In the case before him he restrained the defendants from acting the play pro- duced by the plaintiff, solely because the defendants had secured the lines of the play from the manuscript in England, and not by attending the plaintiff's theatre and taking notes. In Keene v. Kimball 82 Mass. 545, i860, the court denied an application for an injunction to restrain the defendants from acting the unpublished play of the plaintiff, on the ground that anyone has a right to attend an unpublished play, memorize the lines, and then perform the play at a rival theatre. There is a qualified commendation of the idea on which Keene v. ' Kimball, supra, 43 is decided in Crowe v. Aiken, 6 Fed. Cas. 904, 1870, 907. In this case, however, the injunction was granted because the defendant had obtained a copy of the play, not only by attending the plaintiff's theatre, but by taking stenographic notes. For cases contra see Tompkins v. Halleck, resorted infra. 64 INFRINGEMENT OF LETTERS AND ARTISTIC PROPERTY PALMER v. DeWITT. In the Court of Appeals of New York, 1872. 47 New York Appeals 532. Appeal from order of the General Term of the New York Superior Court, reversing judgment of Special Term in favor of defendant and granting a new trial. This action was brought to restrain defendant from the printing of an uncopyrighted and unpublished manu- script drama. Prior to the 1st day of February, 1868, T. W. Rob- ertson, a resident of the city of London, and a citizen of Great Britain, composed a drama called "Play." On the 1st day of February, 1868, Robertson, by an instrument in writing, and for a valuable consideration, sold, assigned and set over to the plaintiff in this case the exculsive right and privilege of printing and publishing, enacting, performing, representing and producing on the stage, licensing or permitting to be printed, published acted, performed, represented, produced on the stage, and through- out the United States, the said drama, and all benefits to be derived therefrom, and delivered the manuscript of said drama to the plaintiff. On the 15th of February, 1868, and for a great number of times thereafter, the drama "Play" was publicly performed and represented at the Prince of Wales Theatre in the city of London, by and with the sanction of the author, in the presence of large audiences, with no notice or prohibition against carrying the same away and making such use of the same as any of the audience saw fit. On the 25th of March, 1868, the defendant, a resident of New York city, and a citizen of the United States, printed and sold copies of the drama called "Play" in the city of New York, having received the drama from parties or per- sons who had seen and heard it represented and performed at the Prince of Wales Theatre in London. Sec. c] PALMER v. DeWITT. 65 On the 8th of April, 1868, the plaintiff commenced this action in the Superior Court of the city of New York, asking for an injunction against the defendant, restraining him from printing and selling this drama, and for an ac- count, and that he deliver up such copies as he had on hand unsold. He obtained an injunction ex parte, which the defend- ant moved to vacate. That motion was granted. The case was then tried, and a judgment rendered for the defendant. 1 Allen, /. Whatever rights the plaintiff has in the drama, which is the subject of the controversy, exist at common law, independent of any statute either of the State or the United States. The protection he seeks is of property, and a right of property which is well established and recog- nized wherever the common-law prevails, and not of a fran- chise or privilege conferred by statute. The State courts have jurisdiction, as in other actions affecting common-law rights or property interests. It may be doubtful whether the act of congress of 1831 (chapter 116, section 9, 4th Statutes at Large, 436) gives an action in respect to manu- scripts, other than such as may be the subject of a copy- wright, under the laws of the United States. In Keene v. Wheatley (9 American Law Register, 45), the Circuit Court of the United States had jurisdiction by reason of the citizenship of the parties, and the case was decided by the rules of the common-law and upon the authority of adjudged cases in this country and in England. But if jurisdiction is, by the statute, conferred upon the federal courts in a case like this, the act does not purport to and does not make the jurisdiction exclusive, or deprive State courts of jurisdiction in actions, legal or equitable, touching the common-law rights of authors. At most, the statute gives parties within its provisions, and not claiming the benefits of a copy-right under the laws of the United States, 'The arguments of counsel are omitted. 66 INFRINGEMENT OF LETTERS AND ARTISTIC PROPERTY a cumulative remedy and a choice of tribunals. The juris- diction of the State courts in cases in which it had before been exercised, was not taken away or in any respect im- paired. * * * The Alienage of the author is no obstacle to him or his assignee in proceeding in our courts for a violation, or to prevent a violation of his rights of property in his unpublished works. The assignability of a copywright before publication is not questioned. The right of sale and tranfer is one of the inseparable incidents of property, and the property in a • manuscript may be transfered, and upon the death of the owner goes to the personal representatives or next of kin of the owner, as other personal property. A literary man realizes the product of his labor either by the sale of his manuscript or the publication and sale of his works. * * * The only question remaining is whether this common- law right, "copywright before publication," has been lost or surrendered. There is no complaint that the defendant is representing or intends to represent or produce the drama upon the stage. The alleged violation of the plaintiff's right consists in printing and publishing the work. After the transfer to the plaintiff, this play was brought out and represented on the stage in one of the London theatres, and has also been performed in the city of New York, by the agency or permission of the plaintiff. The fact is found that the defendant received the words of this comedy and a description of the arrangements, general stage directions, division of acts and scenes, as printed by him, from one or more persons who had seen or heard the same publicly performed in England. It is not found that it was reported by the witnesses of the performance from memory and it would be entirely consistent with the findings that copies of the play as performed, with the stage directions, etc., were surreptitiously obtained and put in the possession of the de- fendant. Whether upon the fact, as found, the defendant Sec. c.J PALMER v. DeWITT. 67 might lawfully produce or represent the play upon the stage, is not before us. The relief demanded by the complaint is, that the defendant be restrained from printing, publishing, selling or offering for sale the drama called "Play," or causing the same to be printed, published etc., and for an accounting. The right publicly to represent a dramatic composi- tion for profit, and the right to print and publish the same composition to the exclusion of others, are entirely dis- tinct, and the one may exist without the other. The copy- wright acts which secured to authors the exclusive right, for a limited time, to print and publish their works, did not secure to them the exclusive right of the public represen- tation of their dramatic compositions. Until the passage in England of the statutes 3 and 4 William IV (chap.15.), an author could not prevent any one from publicly per- forming on the stage any drama in which the author pos- sessed the copyright. He could only prevent the publi- cation of his work by multiplication of copies of it. It could be produced on the stage from published copies, and repeating a piece on the stage from memory was not a publication in violation of the author's right first to print and publish; that is, the right known as "copyright before publication." (Coleman v. Waltham, 5 J. R. 245; Murray v. Elliston, 5 B. & Aid., 657; Russel v. Smith, 12 Ad. & Ells., 217, per Lord Duncan, Ch. J.) The act of 3 and 4 William IV, secured to the author, or his assignee, of any dramatic piece, the sole right of having it repre- sented within the British dominions for a limited period; and, in 1856, by act of Congress (11 Stats, at Large, 138), a like right was given to authors and proprietors of dra- matic compositions, for which a copyright should there- after be granted under the laws of the United States. So far as is disclosed by the case, the drama remained in manuscript until printed by the defendant, and there is no claim that it has been published by the author or the plaintiff, or with their assent, except by its public per- 68 INFRINGEMENT OF LETTERS AND ARTISTIC PROPERTY formance on the stage; and if it has not, by that act, be- come publici juris, it still remains the private property of the author or his assignee, who alone have the exclusive right to it, and may prevent its publication. When a lit- erary work is exhibted for a particular purpose, or to a limited number of persons, it will not be construed as a gen- eral gift or authority for any purpose of profit or publica- tion by others. An author retains his right in his manu- script until he relinquishes it by contract, or some unequivo- cal act indicating an intent to dedicate it to the public. An unqualified publication by printing and offering for sale is such a dedication. The rights of an author of a drama in his composition are two-fold. He is entitled to the profit arising from its performance, and also from the sale of the manuscript, or the printing and publishing it. Lectures and plays are not, by their public delivery or performance, in the presence of all who choose to attend, so dedicated to the public that they can be printed and published without the author's permission. It does not give to the hearer any title to the manuscript or a copy of it, or a right to the use of a copy. The manuscript and the right of the author therein are still within the protection of the law, the same as they had never been communicated to the public in any form. The permission to act a play at a public theatre does not amount to an abandonment by the author of his title to it, or to a dedication of it to the public. It was so decided in 1770 in Macklin v. Richardson (Am- bler, 694), and the rule as then adjudged has never been departed from. (2 Story Eq. Juris., sec. 950; Keane v. Wheatley, supra; Boucicault v. Fox, 5 Blatch., 98; Crowe v. Aiken, 4 Am. Law Review, 450; Keene v. Kemball, 16 Gray, 545.) The printing and selling copies of the drama by the defendant was a violation of the legal and equitable rights of the plaintiff, as the sole proprietor of the right to print and publish the work within the United States; and the plaintiff was entitled, upon the case made to the relief demanded. Sec. c] THOMPKINS v. HALLECK. 69 The order granting a new trial should be affirmed, and judgment absolute given for the plaintiff pursuant to stipulation.. All concur. Folger J., absent. Judgment accordingly. THOMPKINS v. HALLECK. For the Supreme Judicial Court of Massachusetts, 1882. 133 Massachusetts 32. Devens, 7. 1 This is a bill in equity to restrain the defendant from representing at his theatre in Boston a drama called "The World," and for further relief. It appears from the report of the judge who heard the case that this drama was originally composed in England, where, after being presented, it was sold to one Colville in New York, who caused it to be altered and amended, to suit the presumed taste of an American audience, by one Steven- son. It was successfully represented at Wallack's Theatre in New York, and was then assigned to the plaintiffs, with the exclusive right to present the same in the New Eng- land States. The drama does not appear ever to have been copyrighted or printed. While represented at Wallack's Theatre, one Byron and one Mora attended the represen- tation, on three or more occasions, with the intent of copy- ing and reproducing the drama as there enacted. Byron committed as much of the play as he could to memory, and, after each performance, dictated it to Mora until the copy was completed. It was not shown that either took any notes or written memoranda in the theatre. Byron subse- quently made an agreement with the defendant to produce 'His discussion of other cases is omitted. 70 INFRINGEMENT OF LETTERS AND ARTISTIC PROPERTY the same; and, against the remonstrance of plaintiffs, who informed him of their ownership, it was advertised and produced by the defendant at his theatre, known as the Alhambra. As produced by the defendant it was called "The World," and is found to be in all substantial particu- lars identical with the plaintiffs' drama of the same name. * * * These facts bring the case clearly within the principles decided in Keene v. Kimball, 16 Gray, 545; and it is frankly admitted by the counsel for the plaintiffs that, unless that decision shall be reconsidered and reversed, no injunc- tion can issue according to the prayer of the bill. * * * The decision in Keene v. Kimball must be sustained, if at all, upon the ground that there is a distinction between the use of a copy of a manuscript play obtained by means of the memory or combined memories of those who may attend the play as spectators, it having been publicly repre- sented for money, and of one obtained by notes, stenogra- phy, or similar means, by persons attending the representa- tion; — that in the former case the unauthorized representa- tion of the play would be legal, while in the latter it would not be. * * * The theory that the lawful right to represent a play may he acquired through the exercise of the memory, but not through the use of stenography, writing or notes, is entirely unsatisfactory. "The public," it is true, as is said in Keene v. Kimball, "acquire a right to the extent of the dedication, whether complete or partial, which the proprietor has made of it to the public." But the question is as to the extent of that dedication. It is not easy to understand why the author, by admitting the public to the performance of his manuscript play, any more concedes to them the right to exercise their memory in getting possession of his play for the purpose of subsequent representation, that he does the privilege of using writing or stenography for that pur- pose. Drone on Copyright, 568, 569. The spectator of a play is entitled to all the enjoyment he can derive from Sec. c] THOMPKINS v. HALLECK. 71 its exhibition. He may make it afterwards the subject of conversation, of agreeable recollection, or of just criticism, but we cannot perceive that in paying for his ticket of ad- mission he has paid for any right to reproduce it. The mode in which the literary property of another is taken pos- session of, cannot be important. The rights of the author cannot be made to depend merely on his capacity to enforce them, or those of the spectator on his ability to assert them. One may abandon his property, or may dedicate it to the use of the public ; but while it remains his, the fact that an- other is able to get possession of it in no ways affects his rights. . The plaintiffs are entitled to a decree restraining the defendant from exhibiting the play called "The World," and referring the case to a master to assess the damages sustained by them by reason of its unauthorized exhibition by the defendant. Decree reversed. 2 "The decision in our principal case had already been reached in two cases: French v. Conelly, I Weekly Dig. 196, N. Y., 1875, per Curtis, J., and French v. Maguire, 55 How. Pr. 471, N. Y., 1878. In further accord, see, Fleron v. Lackaye, 14 N. Y. Sup. 292, 1891 (The defendant was employed to act in the plaintiff's unpublished play, after leaving the plaintiff's employ, he attempted to act in the same play in a rival theatre. He was restrained). 72 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY SECTION £>. COMMON LAW PROPERTY IN LECTURES. CULLEN'S CASE. In Chancery, before Lord Chancellor Apsley, 1771. 12 Appeal Cases 332. Note 2 On the 1 2th of December, 1771, Dr. Wm. Cullen, Professor of Medicine in the University of Edinburgh, com- menced a Chancery action before the Lord Chancellor, Lord Apsley (Bathurst) against the publisher Lowndes of Fleet Street, for an injunction to restrain Lowndes from selling a book purporting to be "Lectures on the Materia Medica" as delivered by William Cullen, M. D., Professor of Medi- cine in the University of Edinburgh. The plaintiff's bill, which is preserved in the Record Office (Woodford, 1758 to 1800 No. 1033), narrates that in the latter end of the year 1761, the professorship of medicine in the university being then vacant by the death of Dr. Alston, and it being about the time when by the rules of the university the lec- tures on medical subjects ought to begin, and the plaintiff being then professor of chemistry in the same University, he offered his services to the university to read a course of lectures on the materia medica to the students for the season, and which offer being accepted, the plaintiff did ac- cordingly compose a course of lectures on the materia medica, and did at the end of 1761 and the beginning of 1762 read the same in the public school of the university, which lectures were attended by a great number of students. That the plaintiff had ever since in his custody the manu- script of the lectures. The bill then alleges that Lowndes had fraudulently and surreptitiously obtained a copy of the lectures so read, and had printed them without the plain- tiff's knowledge or consent. The Lord Chancellor granted an injunction the 13th of December, 1771 (Order A., No. Sec. d.] CAIRD v. SIME. 78 16). In Mr. John Thompson's life of Dr. Cullen (ed. 1832, p. 143 and Q appendix, p. 611, and ed. 1859, p. 617), a letter is given from the physician who furnished the MSS. to Lowndes, stating that he did so that the lectures should not be lost. Dr. Cullen having received this information allowed the sale of the book to proceed. 1 CAIRD v. SIME. In the House of Lords, 1887. 12 Appeal Cases 326 The pursuer, a professor in the University of Glasgow, delivered lectures on Moral Philosophy to the students of that University. A student took short hand notes, sold them to the defender, a bookseller, who was about to publish them under the title, "An Aid to the Study of Moral Phil- osophy." The pursuer applied for an interdict. The sheriff-substitute of Lanarkshire found that the pamphlets were in substance reproductions of the profes- sor's lectures; that the lectures were the property of the professor, and that the respondent had not shewn that the professor had in any way lost his right of property in them, or that the respondent had acquired from the professor the 'See additional preface to "Materia Medica" by Dr. Cullen, London, 1773, and Dr. Cullen's own book on the same subject 1789; both in the British Museum. In Abernethy v. Hutchinson, 3 L. J. Ch. 209, 1825, the plaintiff, the distinguished surgeon, gave medical lectures at a hospital to all students who signed their names in a book and paid the fees. One of the students took short hand notes, and the lectures, substantially as delivered were being published by the defendant. Lord Eldon finally restrained this publication on the ground of the breach of an implied contract. The injunction was afterwards dissolved, though for what cause does not appear. See 12 App. Cas., p. 347. In Bartlette v. Crittenden, 4 McLean 300, Ohio, 1847. A. taught a system of bookkeeping by means of cards. He permitted the students to copy these cards. B, a student under an assistant of A's, was re- strained from publishing the cards. In Nicols v. Pitman, 26 Ch. Div. 374, 1884, Kay, J., restrained the publication by the defendant of a lecture delivered by the plaintiff on "The Dog as the Friend of Man;" the lecture was delivered from memory at a public college, admission being obtained by tickets for which no money was charged. 74 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY right to publish or reproduce them; and he ordered all copies of the publications to be delivered up. The respond- ent appealed to the Second Division, and their Lordships, on account of the importance of the case, ordered the par- ties to prepare minutes of their arguments, to be laid before all the judges of their opinions. The opinions of the con- sulted judges were returned on the 15th of July, 1885. There were two questions submitted, one of fact, and the other of law. The question of fact was whether the pam- phlets were reproductions of large parts of the appellant's lectures. The question of law was whether a professor in a university has or has not the right to prevent his lectures being printed and published without his authority. The Lord President (Inglis), Lord Shand, Rutherford Clark, Adam, Lee, Fraser, McLaren, Kinnear, and Trayner, held that in fact the publication was a reproduction ; against that opinion were Lords Mure Young, and Craighill. The Lord Justice-Clerk (Moncreiff) held it unecessary to pro- nounce an opinion on the point. As to the question of law Lord Shand, Rutherford-Clark, Adam, Fraser, Kin- near, and Trayner held that a professor in a university had a right to restrain the publication of his lec- tures; while the Lord President, the Lord Justice-Clerk, Lords Mure, Lee, and McLaren held in the negative; Lord Young holding it unecessary to decide that general question, being of the opinion that the publications complained of were not of a character to anticipate or prejudice a subse- quent publication by the appellant himself of his lectures. Lord Craighill gave no opinion on the question of law, being content to rest his decision on the ground that no piracy has been committed. On the 23rd of October, 1885, the Second Division delivered the interlocutor which is the subject of this ap- peal. 1 1 The statement of facts is abbreviated, and the arguments of counsel are omitted. The report of the case in the Scotish Courts will be found in 13 Session Cas. 4 Sers, Ct. of Session, 23. Sec. d.] CAIRD v. SIME. 75 Lord Halsbury, L. C. 2 My Lords, the question which it was intended to raise was the legal right of the repondent to publish, in the form of a pamphlet, certain lit- erary compositions of the appellant, which were orally de- livered to the students of the University of Glasgow attend- ing his class. A majority of the Court has determined that the pamphlet in question is a reproduction of the appellant's literary compositions; and I do not stop to discuss what some of their Lordships appear to have considered impor- tant, that in respect of certain particulars it was a blunder- ing and unsuccessful reproduction of the appellant's work. I confess I am unable to understand what place such topics find in the argument. Assume an unlawful reproduction of an author's literary work; it does not become less an injury to the legal right because the reproducer has dis- figured his reproduction with ignorant or foolish additions of his own. It is not denied, and it cannot in the present state of the law be denied, that an author has a proprietary right in his unpublished literary productions. It is further incapable of denial that the proprietary right may still continue notwithstanding some kind of communication to others. The case of private letters which, though conveniently described by the word "private," in- volve publication of a certain kind to others than the author of them, is an illustration of a communication which does not permit the infringement of the proprietary right which could be involved in their unauthorized general publica- tion. The doubt which I have entertained in the course of the argument has been whether the extent and degree of publication in the case now under debate was not a question of fact which should have been determined on the evidence before the Court, and which if it had been determined would not have been open to your Lordships to review. But, as I have said, ' 2 His discussion of the form in which the case was presented is omitted. 7S INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY I have come to the conclusion that in the form in which it has arisen it may be treated as a question of law, that is to say, whether on the agreed state of fact such a publi- cation as is proved here must as a matter of law deprive the author of the literary composition in question of his proprietary right, and whether the facts that he is professor of moral philosophy, teaching in his class-room by the literary composition which is now the subject of debate, makes his delivery of that literary composition necessarily public to the whole world, so as to entitle any one who heard it to republish it without the permission of its author. Now, my Lords, I have designedly used the phrase "literary composition" to avoid the ambiquity of the word "lecture," becaue I thing the word "lecture" involves an assumption which may give rise to error. If by it is sig- nified a lecture delivered on behalf of the University, and, so to speak, as the lecture of the University itself, as the authorized exposition of the University teaching, I can well understand that by the nature of the thing, from the circum- stances of its delivery, and the object with which it was delivered, it would be impossible to say that it was intended by those on whose behalf the professor was lecturing or by himself to limit the right of communication to others. Whether that limitation of the right arises from implied contract or from the existing relation between the hearers and the author, it is intelligible that where a person speaks a speech to which all the world is invited, either expressly or impliedly, to listen, or preaches a sermon in a church, the doors of which are thrown open to all mankind, the mode and manner of publication negative, as it appears to me, any limitation. But without using any phrase which by force of its ordinary meaning implies either a kind of pub- lication or involves a limitation of the right of publication, what are the facts here as found by a majority of the Court? A teacher is in his class-room with his students. For the purpose of teaching them he uses a composition of his own, in this case called "The Law of Moral Philosophy." Sup- Sec d.] CAIRD v. SIME. 77 pose it had been exercises in grammar, arithmetic or foreign language. The object and purpose is to teach the students, to enable them to become proficient in the various subjects of which the teacher is the professor. The student is en- titled to avail himself of the teaching. The object is to make him a good grammarian, a good arithmetician, or a proficient in the particular language that it taught. But could it be contended that by rea- son of such communication to such students each of them was entitled to publish the professor's exercises, dialogues, dictionary, or the like? My Lords, it seems to me that it might be, and indeed there is some suggestion here that it is, contrary both to the spirit and meaning of what is called a lecture that students should be supplied with some mode of answering questions on the subject of their lec- tures, without that process of mental digestion which is intended to form the substance of the teaching. Illustra- tions might be infinitely multiplied in which the whole purpose of a professor's teaching might be rendered nuga- tory by the unauthorized reproduction of his modes of teaching. The ground on which I have been able to come to the conclusion that the particular form of literary composition, and the degree of communication which is established to a limited class, may be treated as a question of law is, that it appears to have been decided that, notwithstanding the professor's desire to prevent such reproduction, and con- trary to his intention, the delivery of his lecture — of his composition — to a limited class of students, operates, as a matter of law, to make his composition public, and to pre- vent his enforcing any proprietary right. My Lords, I am not aware of any university regulation, or any bargain with its professors, which either expressly or impliedly enforces on the professors the making public of their literary compositions, of whatever class these com- positions may be, and whether merely educational and in- tended for the use of their students, or intended for mere 78 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY general diffusion. I am disposed to think, although it does not become necessary to discuss it in the present case, that if a professor had entered into a specific bargain to make public the lectures which he was delivering to his students, but, contrary to that bargain, had enforced on his students the condition of secrecy, though the university which em- ployed him on that express bargain might be at liberty to seek their remedy against him for a breach of his undertak- ing, it would not necessarily make public that which the lecturer himself had neither expressly nor impliedly commu- nicated for general reproduction. * * * 3 I am therefore of opinion that the appellant ought to succeed, and I concur in the suggested form of judgment which has been prepared by my noble and learned friend Lord Watson, and I move your Lordships accordingly. 4 Order. It is declared that the delivery of the said lectures by the appellant to his students, as part of his ordinary course, was not equivalent to publication thereof, and that the appellant is entitled notwithstanding such delivery to restrain all other persons from publishing the said lectures without his consent, and, subject to this declaration, that the cause be remitted to the Second Division of the Court of Session with directions to affirm the interlocutor of the Sheriff-Substitute dated the 15th of February, 1884, and to find the appellant entitled to the expenses of process incurred by him in the Court of Session. And it is. further Ordered that the respondent do pay to the appellant his costs of the appeal to this House. "His references to Abernethy's case and the Act of 5 and 6 Will. IV. c. 65 (see infra), are omitted. *The concurring opinion of Lord Watson, and the dissenting opinion of Lord FitzGerald, are omitted. The dissenting opinion, like similar opinions in the Scotish Court, is based on the view, that one who is hired to lecture in a public university, by delivering his lec- tures, publishes them. Sec. k] KIERNANv. MANHATTAN QUOTATION TELE. CO. 79 SECTION E.— COMMON LAW PROPERTY IN NEWS. KIERNAN v. MANHATTAN QUOTATION TELE- GRAPH CO. In the Supreme Court of New York, 1876. SO Howard's Practice 194 1- Van Brunt, /. The questions to be determined in the decision of this case are three in number : First. Had the plaintiff any right of property in the foreign financial news obtained by him from the Associated Press Corporation, and transmitted by him to his cus- tomers ? Second. Has the defendant, the Manhattan Quotation Telegraph Company, made use of this news by transmitting it over the wires to its customers ? Third. If the plaintiff had a right of property in the news received by him from the Associated Press, did he abandon such right when he transmitted the news to his customers ? The Associated Press is a corporation which has for its business the collection of news in all parts of the world by its agents, and which is transmitted to the city of New York for the use of its members. Among the many classes of intelligence thus transmitted from Europe is what is called "foreign financial news," consisting of quotations of consols, rentes, U. S. bonds, railroad stocks, the rates of interest, and increase and decrease of the specie in the banks of England and France. The Gold and Stock Telegraph Company is a corpora- tion formed for the purpose of transmitting to its customers, by telegraph, "foreign financial news," and also "domestic *His recital of the facts of cases the facts of which are given in this collection, are omitted. 80 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY financial news," including the quotations of the Stock Ex- change. The plaintiff was engaged in furnishing to his cus- tomers, by telegraph, "foreign financial news." The de- fendant, "The Manhattan Quotation Telegraph Company," was also engaged in the business of furnishing to its cus- tomers both foreign and domestic financial news; and the defendant Abbot was its agent for procuring the same. The Gold and Stock Telegraph Company had a contract or agreement by which it had the exclusive use of all "for- eign financial news" for the space of thirty minutes after its receipt by the Associated Press in this city. On the ioth of January, 1873, the Gold and Stock Telegraph Company made a contract with the plaintiff, by which they gave to him the exclusive use of all "foreign financial news" received from the Associated Press for the space of fifteen minutes after its receipt by them. The manner in which this business is conducted is as follows : Any news, collected by the agents of the Associated Press abroad is telegraphed by cable to the Associated Press, the message being in cypher. The message is then translated by an employe of the Associated Press, and such part as comes under the head of foreign financial news is handed over to the Gold and Stock Telegraph Company, who send it at once by a Morse wire to the office of Mr. Kiernan; it is then sent back by Mr. Kiernan to the Gold and Stock Telegraph Company, with instructions to trans- mit it to his subscribers, which is immediately done. The messages thus sent are received by Mr. Kiernan's subscribers in from. one to three minutes after their receipt by the Gold and Stock Telegraph Company from the As- sociated Press. If the Associated Press have any right of property in the news transmitted to it by telegraph by its agents abroad, then clearly the plaintiff has succeeded to such right, as far as relates to "foreign financial news," for the space of at Sec. e.] KIERNAN v. MANHATTAN QUOTATION TELE. CO. 81 least fifteen minutes after its receipt from the Associated Press by the Gold and Stock Telegraph Company. It is claimed by the defendants that no such right of property exists in news, upon the ground that before this intelligence was gathered together by the agents of the Associated Press in Europe, it was public property and open to all the world, and that it was not made the exclusive prop- erty of the Associated Press because it had been collected and telegraphed to them by its agents. That before it was gathered the first comer had a perfect right to have this news and publish it. It may be perfectly true that no person could be restrain- ed from the publication of this news in Europe, but it is diffi- cult to see how such a right can be extended so far as to authorize the publication of news which has been collected by the agents of the Associated Press, and telegraphed to them at great expense without its consent. It would be an atrocious doctrine to hold that dis- patches, the result of the diligence and expenditure of one man, could with impunity be pilfered and published by another. It is undoubtedly true that in respect to news, its pub- lication cannot be interfered with where the party procures the intelligence by the diligence of his own agents; but if he seeks to profit by the superior diligence of his rivals, it is unjust that he should be allowed to do so until the right of property has been abandoned by publication. The mere fact that a certain class of information is open to all that seek it, is no answer to a claim to a right of property in such information made by a person who, at his own expense and by his own labor, has collected it. V. C. Wood, in Kelly v. Morris (i Law Rep. [Eq.], 697, a case between publishers of rival business directories, says : "The defendant has been most completely mistaken in what he assumes to be his right to deal with the labor and property of others. In the case of a dictionary, map, guide- book or directory, when there are certain objects of infor- 82 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY mation which must, if described correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself that which the first compiler has done. In the case of a roads-book, he must count the mile- stones for himself. In the case of a map of a newly discov- ered island, he must go through the whole process of trian- gulation just as if he had never seen any former map. No doubt the expense of procuring the information in a legiti- mate way is very great. But the defendant goes on in his affidavit to propound a most extraordinary doctrine as to the right of publicity in the names of private residents, who had, as he expressed it, given their names for public use. What he has done has been just to copy the plaintiff's book, and then send out canvassers to see if the informal ion, so copied, was correct. If the canvassers did not find the occu- pant of the house at home or could get no answer from him, then the information copied from the plaintiff's book was printed bodily, as if it was a question for the occupier of the house only, and not for the compiler of the previous direc- tory." V. C. Malins, in Cox v. Land and Water Journal Com- pany (9 Law R. [Eq.J, 322), a case respecting a list of hounds, says : "It is clear that in this case, the getting the names of masters of hounds, the num- ber of hounds, the huntsmen and whips, and so forth, is information open to all who seek to obtain it; but they must get it at their own expense, as the result of their own labor, and they are not to be entitled to the results of the labors undergone by others." These cases clearly sustain the doctrine that a man may impress upon materials, which are open to all the world, a right of property when he has, as the result of his own ef- forts and expenditure, collected and reduced to a form ser- viceable to the public such material. This right of property, however, does not preclude an- other person, as the result of his own efforts and diligence, Sec. e.] KIERNAN v. MANHATTAN QUOTATION TELE. CO. 83 from collecting independently, and utilizing as he may see fit, the same materials. Applying this principle to the case of the Associated Press, it is clear that it has a right of property in all. news transmitted to it by its agents, until it abandons that right by publication. The agents of the Associated Press abroad, it is true, only do that which any other person could do if they felt so disposed; but the collection of news being the result of their own labor, and its value as news being im- pressed upon it by the fact of such collection, and by the fact of its being telegraphed by cable at -great expense, clearly brings such dispatches within the principles of the cases cited. To say that the Associated Press could not restrain the publication of its dispatches by any person who should sur- reptitiously obtain them would be to hold that no private individual could prevent the publication of his own private dispatches- if they should happen to relate to public events. It seems to me clear, therefore, that there is a right of property which will be protected by the court, in the news collected by the Associated Press abroad and telegraphed to it by its agents, so long as that right is not abandoned by publication; and as Mr. Kiernan has succeeded to the rights of the Associated Press, as far as relates to "foreign •financial news," he is entitled to protection in the use of that news, unless he abandons it by publication. The next question to be considered is, has the defend- ant, the Manhattan Quotation Telegraph Company, made use of news belonging to the plaintiff, by transmitting it over its wires to its customers. It appears, by the undisputed evidence in the case, that, at least up to the time of the commencement of this action, the Manhattan Quotation Telegraph Company obtained all its foreign financial news through the defendant Francis A. Abbot, who was its agent. There was no evidence pro- duced before me that Abbot had any means of information whatever, except such as he derived from the inspection 84 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY of the tapes of Mr. Kiernan, and those of the Gold and Stock Telegraph Company, and of the manifold slips of Mr. Kiernan in the offices of their customers. It was affirm- atively shown by the plaintiff that, in more than one in- stance, Mr. Abbot had been seen copying dispatches from Mr. Kiernan's instruments or manifold slips, and which almost immediately appeared upon the tapes of the defend- ant's company. We also find that, on more than one occa- sion, the same errors were committed by the Manhattan Company as had been committed by Mr. Kiernan but a moment before. In one instance, we find a dispatch appearing upon the tapes of the Manhattan Company, purporting to be a spe- cial message from London, which had its entire origin in the manifold slip hung up by Mr. Kiernan in the rooms of the Gold Board. It is shown, by the testimony of Mr. Abbot, that he did procure his dispatches from the customers of Mr. Kiernan; and that although he pretended that he obtained informa- tion through bankers in the city of New York, no evidence, upon the trial of this case, was produced that Mr. Abbot had, in a single instance, obtained a particle of "foreign financial news" from such a source; and the conclusion is irresistible that the great bulk of such information he ob- tained from the tapes of Mr. Kiernan's machine, or from his manifold slips sent to his customers. On behalf of the Manhattan Quotation Telegraph Company, it is claimed that although Mr. Abbot may have illegitimately and wrongfully obtained the news which he furnished to them, that they being ignorant of these facts are not to be held liable for the wrongful acts of their agent. It is undoubtedly true, generally, that a principal is not liable for the wrongful acts of his agents ; but the prin- cipal cannot avail himself and knowlingly profit by the wrongful acts of his agents without being liable therefor. The Manhattan Company seems to have acted toward its Sec. e.] KIERNAN v. MANHATTAN QUOTATION TELE. CO. 35 agent, Abbot, in precisely the same way as Abbot acted toward his man, Bowen. Bowen, according to Abbot's testimony, was accustom- ed to go out and get for Abbot foreign financial news, which Abbot furnished to the Manhattan Company; but Abbot took particular care never to inquire from Bowen where he got his news from ; and so, the Manhattan Com- pany, although frequently informed that Abbot had no sources of his own of information as to foreign financial news, used the news furnished by him without ever think- ing it necessary to make any investigation of the subject. It would appear as though, as long as they got the news, the less they knew about the source from which it came the better they were pleased. It is no defense to a principal, when sought to be charg- ed for the wrongful acts of his agent, the profits of which he has reaped, to say that he did not know of such wrong- ful acts, when it appears that he had been informed that such acts were wrongful, and has neglected to make any investigation as to the truth of the allegation. Having now determined that the plaintiff had a right of property in his foreign financial news, and that the Man- hattan Company has made use of such news, the only re- maining question to be considered is : Does the plaintiff abandon such right by transmitting such news to his cus- tomers ? If such transmission amounts to a general publica- tion then it is clear that all rights of the plaintiff are lost. It is not necessary that I should here discuss the question as to the right of the court to protect such right of property. It is a question which has been decided by our highest court, and must be considered as the settled law of this state. * * * The telegraph is simply a means which modern science has adapted to the purposes of communication be- tween persons at a distance from each other. And I am unable to see that it makes any difference in the principle governing written communications whether Mr. Kiernan, sitting in his office, by means of the telegraph writes his , 86. 'INFRINGEMENT OF LITERARY AND ARTJSTIC PROPERTY i communication upon paper in the office of the customer; or whether he writes the communication, in his own office and then sends, it to:his .customers. It was claimed, upon the trial of this cause, that Mr. Kiernan having placed his machines in the office of his customers, without restricting their use of the information which he conveys to them by means of said machines, can- not restrain their making arty use of it which they may :wish. ■.. It seems to me that this proposition cannot be sus- tained, because, although there may not have been any distinct restriction placed by Mr. Kiernan upon the cus- tomer's use of the information conveyed to him, yet it is evident that the customer must have understood, from the very nature of the transaction, that he had no right to use or publish the said information, except in connection with his own business. * * * It would, therefore, seem that the transmission by Mr. Kiernan of his foreign financial news to his customers was but a qualified publication, which did not forfeit his right of property therein. The plaintiff is, therefore, entitled to judgment re- straining them from the publication of the foreign financial reports of the plaintiff, 2 "Accord: Board of Trade of Chicago V. Hadden-Krull Co., 109 Fed. 705, 1901 (The. news in question was the stock quotations on the Chicago Board of Trade furnished to subscribers by the Board. In a similar case, Board of Trade of Chicago v. O'Dell Commission Co., US Fed. 574, 1902, the injunction was refused, on the ground that as over ninety-five per cent of the transactions on the Board were gambling transactions and therefore illegal under the laws of Illinois, the plaintiff could have no property in the quotation of prices on the exchange. Compare, New York and Chicago Grain and Stock Ex- change v. The Board of Trade of the City of Chicago, 127 111. 153, 1889). In further accord with the principal case see: Exchange Tele. Co. v. Gregory, (1896) 1 Q. B. 147, and Exchange Tele. Co. v. The Central News Co., 45 W. R. 595, 1897. In both of these cases the subscriber had expressly stipulated not to transfer the news furnished by the plaintiff, and the defendant knowing of this contract, had obtained the news from a subscriber. Sec. f.] ENGLISH AND UNITED STATES STATUTES. W SECTION F.— STATUTORY COPYRIGHT AND PLAYRIGHT. EDITORIAL NOTE ON ENGLISH AND UNITED STATES STATUTES. The first English Copyright Act, 8 Anne, c. 19, 1709, provided that the author of any book or -his assigns should have the sole liberty of printing and reprinting the same for a term of fourteen years "from the day of first publish- ing the same, and no longer." If, at the end of fourteen years, the author was alive, the exclusive liberty of printing, "returned to the author for another period of fourteen years. 1 No change was made in the copyright in books by the British Parliament during the remainder of the eigh- teenth century. 2 The 54 Geo. Ill, c. 156, 1814, extended the copyright in books to all parts of the British Domin- ion, and extended the first term to a period of twenty-eight years, with the right in the author if living at the end of the first period, to a second period of fourteen years. The extreme possible term of copyright thus became forty- two years. *If anyone violated the copyright by printing or importing a book during the statutory period without the consent of the proprietor, in an action by the proprietor, he forfeited the copies and paid one penny for every sheet found in his possession, one half the amount so recov- ered going to the plaintiff and one half to the Crown. In order to subject anyone to these penalties it was necessary to register the title of the book, before publication in the Register Book of the company of stationers. 'The 41 Geo. 111, c. 107, 1801, gave to the author of any book an action on the case for violation of his rights besides increasing the penalty which could be recovered in an action of debt to three pence per page. The benefit of the Act and that of the 8 Anne were extended to all the European possessions of Great Britain.. The Act also pro- vided that if a book was printed in any part of the United Kingdom anyone who within twenty years imported a foreign reprint, forfeited it, and had to pay a fine of ten pounds and double the value of the imported book. Thus the proprietor of a copyright was protected against editions printed in foreign countries, after his statutory right to prevent his fellow subjects reprinting his works had ceased.' S8 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY The present law of England in relation to Statutory Copyright in books rests on the 5 and 6 Vict., c. 45, 1842. The term of the copyright is a single period of forty-two years, or seven years after the author's death, whichever method makes the longest term. The meaning of the word book was considerably enlarged, the Act declaring the word should be taken to mean "every volume, pamphlet, sheet of letter press, sheet of music, map, chart,, or plan separ- ately published." The 8 Geo. II, c. 13, 1735, gave a copyright in prints; the Act providing that "every person who shall invent, design, engrave, etch, or work in Mezzotinto or Chiaro Oscuro, or, from his own works or inven- tion, shall cause to be designed, etc. * * any his- torical or other print or prints, shall have the sole right and liberty of printing and reprinting the same for the term of fourteen years." There was no renewal of this right as in the case of books. The 7 Geo. Ill, c. 38, 1766, ex- tended the copyright in etchings, works in Mezzotinto, etc., to those etchings which were copies of any picture, model or sculpture either ancient or modern. This Act also ex- tended the period of this class of copyright to a single term of twenty-eight years. 3 By 15 and 16 Vict., c. 12, sec. 14, 1852, the doubts existing as to whether statutory copyright in prints extended to lithographs was removed ; the Act declaring that it did, or to any other mechanical process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely. The end of the eighteenth century saw the first statu- tory copyright in models or casts, the 38 Geo. 3, c. 71, 1798, provided that those who make new models, or copies or casts from such new models of animals or human beings and put their names on such models or casts before pub- s The 17 Geo. 3 c. 57, 1777, gave to the proprietors of prints an action on the case against those who violated the right in which action they could recover the actual damages sustained and double costs. Sec. f.] ENGLISH AND UNITED STATES STATUTES. 89 lishing, had an exclusive right of copy for fourteen years. The present law relating to copyright in sculpture rests on the 54 Geo. 3, c. 56, 1814, which extends the right to sculp- tures, models, copies and casts of any subject, and gives to the author if living at the expiration of fourteen years, a copyright for a further period of fourteen years. Playright, or the sale right of dramatic production, was first given by the 3 and 4 Will. IV, c. 15, 1833. This Act gave to the author of any unpublished play the sole right of representing it or causing it to be represented for a term of twenty-eight years, with a right of renewal under the same conditions as already existed in the case of books, for another period of fourteen years. The 5 and 6 Vict., c. 45, 1842, extended the term, as in the case of books, to a single period of forty-two years, or seven years after the author's death, whichever period should be the longer. The 15 and 16 Vict., c. 12, also recognized a playright in musical composition. 4 While the English Statutes recognized copyright ir? prints since 1735, and in statutory since 1798, it was not until 1862 that there was any statutory recognition of the right of the authors of paintings, drawings or photographs to the exclusive right of copying, engraving, reproducing and multiplying them. The 25 and 26 Vict., c. 68, recog- nized this right, giving to the authors of paintings, draw- ings, etc., the exclusive right to produce them for the term of their natural lives and seven years thereafter. The sale of a painting, drawing, etc., is declared to be an assignment of the right of reproduction unless the author expressly reserves the copyright. 'The formalities to enable an author to protect his playright in musical compositions was increased by 45 and 46 Vict. c. 40, 1882. A recent Act, 2 Ed. VII, c. is, 1902, gives to the owner of a musical copyright a summary remedy for the violation of the right. The alleged pirated copies can be seized by a constable at the direction of any court of summary jurisdiction, and the court on proof of their piratical character may order them destroyed. The principal of this Act might well be extended to copyright in books generally. #0 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY An attempt was made in the 5 and 6 Wm. IV., c. 65, 1835, to provide a statutory right to the publication in print of an unprinted lecture. The Act provided that a person who delivers a lecture shall have the sole right of printing and publishing it for twenty-eight years or during his nat- ural life. The Act, however, is rendered practical!)' iii 7 operative by the fact that it expressly excludes from its benefits any lecture delivered in a college, university, or on any public or private foundation. It also requires that the lecturer shall give notice of the intended lecture two days in advance to two justices of the peace living within five miles of the place where the lecture is to be delivered. The Act, instead of benefiting lecturers, was positively harmful, because it assumes that there is no common law right in the lecturer, especially a lecturer at a public college, to the first publication in print of his lecture. 5 This resume of the English Statutes shows us that at present the statutory law of England recognizes copyright in all forms of printed matter, in all forms of artistic prints, and an exclusive right in artists to reproduce by any process their paintings, drawings and statues. The Acts also rec- ognize a playright in the authors of dramatic pieces and musical compositions. For violations of copyright or play- right, the proprietor of the right can always recover at law his actual damages, and also, in some cases, a fixed sum for each violation of the right. Unfortunately copyright and playright in each class of original literary or artistic production depend on a different series of statutes. The law of England is in urgent need of modification and sim- plification. 6 'See supra, Section d. "The subject of copyright in the British Colonies is still further complicated. Under the Act of 1842, 5 and 6, Vict. c. 45, a British sub- ject resident in England, obtained a copyright good in all the colonies; but the colonial subject had to depend on his colonial laws and Orders in Council. By the 10 and 11 Vict. c. 95. the Crown by Orders in Council was allowed to admit foreign reprints into a colony. Under Orders in Council based on this Act nearly all the colonies admit on different conditions foreign reprints. Since 1886, by 49 and 50, Vict. c. Seo f.] ENGLISH AND UNITED STATES STATUTES.-.- * 9T The first copyright act in the United States is that of the 31st of May, 1790; 1. Stats. 125. This Statute gave, to the author of any "maps, chart, book or books" a copy- right for fourteen years, with a right in the author, if living at the expiration of the term, to renew the right for another period of fourteen years. 7 It will thus be seen that the Act embodied the chief features of the Statute of Anne, combining^ however, a copyright in prints, at least to the extent of maps and charts. 8 The Act of 1802, 2 Stats. 171, gave copyright to all "who should invent, or design, engrave, etch, or work" any prints, for the same term and under the same conditions as the then existing copyright in books. In 1 83 1 the copyright law was revised: 4 Stats. 436, c. 16. The term was extended to twenty-eight years, with a right in the author if living to a renewal for a further period of fourteen years. Copyright was recognized in musical compositions. The Act of August 18, 1856, 11 Stat. 138, Ch. 169, provided for playright in copyrighted dramatic compositions, during the life of the copyright. 8 33,a book first produced in a colony obtains the same copyright through- out the British dominions as if it had been first produced in the United Kingdom. There seems, however, to be some doubt about the right of a colonial author of a work of Art. See Scrutton. on Copy- right, 3 Ed. 1896, p. 199. T In order to obtain the right the title had to be registered in the United States District Court and a copy sent within six months of publication to the Secretary of State. The proprietor could recover against anyone publishing a copy without his consent fifty cents for each page, one half of which went to the United States Government. "The Act also gave to authors who had their manuscripts published without their consent an action on the case in which they could recov- er their actual damages. The Act did not require that notice of copyright should be printed on each copy of the book or map. Such notice, however, has been required in this country since 1802: 2 Stats. 171. c. 36. 'The act also gave the right to the owner of the playright to recover his actual damage in a suit in a United States Court; these damages, however, cannot be assessed at less than $100 for the first, and $50 for each subsequent performance. 92 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY The Act of March 3, 1865, 13 Stat. 540, Ch. 126, granted copyright in photographs. 10 The present Copyright Law of the United States rests on the Acts of July 8, 1870, 16 Stats. 198 Ch. 230; the Act of June 18, 1874, 18 Stats. Pt. 3, 78, Ch. 301, which have been combined in the Revised Statutes, 1878, Tit. 60, Ch. 3, sections 4948 to 4971 inclusive, as amended by the Act of March 3, 1891, 26 Stats. 1106, Ch. 565. The Act of 1870 gives all the rights to authors which they had under previous Acts. It creates a copyright in models, statuary and paintings. It also provides that an author may re- serve the right to dramatize or to translate his own work. While the Act still keeps the feature of two terms, one for twenty-eight, the second for fourteen years, it provides that if the author is dead at the end of the first term, his widow or children may renew the right for the second term. 11 Prior to the Act of 1891, 26 Stats. 1156, Ch. 565, Statutory Copyright in the United States could only vest in the citizens and residents of the United States. The principle of international copyright, that is, the right of '"This act also provided that a copy of the book, map, print, etc., should be sent to the library of Congress, the copyright to lapse if this was not done within one month after demand by librarian. The Act of February 18, 1867, 14 Stat. 39s Ch. 43, provided a fine of twenty- five dollars for not sending a copy of the book to the Library of Con- gress. "In the case of violation of copyright in books, the proprietor, besides securing the forfeiture to him of the pirated copy, can recover his actual damages; in the case of violations of dramatic playright the provisions of the Act of 1856, are retained. In the case of violations of copyright in models, statues and prints, the proprietor is limited to the recovery of a fixed sum for each violation. The recording of copyright and executive work connected therewith, originally in charge of the Secretary of State, and by the Act of February 5, 1859, 11 Stats., 380, Ch. 22, given to the Department of the Interior, is by this Act given to the Librarian of Congress. The Act of 1874 permits the word "copyright" to be printed in each volume as a notice of copyright instead of the old form "Entered according to Act of Congress, etc. ." The Act of 1891 requires that in order to obtain a copyright the printed title or description shall be deposited with the Librarian of Congress before or on the day of publication, and on the day of publication two copies of the work must be delivered to the Library of Congress, or mailed to the Librarian from some post office in the United States. Sec. f.] ENGLISH AND UNITED STATES STATUTES. 93 a foreign author, not resident in the country, to secure the exclusive right to reproduce his works, was recognized in England as early as 1838. By 1 and 2 Vict, c. 59, the Queen was authorized by orders in Council to grant to for- eign authors of books, prints, etc., in foreign countries, an English copyright. The Statute 7 and 8 Vict., c. 12, 1844, extended this right to the authors of foreign works of art, and also enabled the Crown to confer by similar orders playright on foreign authors of dramatic pieces and musical compositions. The Crown was prohibited from granting any rights to the citizens of foreign countries not granting similar rights to citizens of Great Britain. International Copyright in Great Britain rested on the Act of 1844 and the numerous orders in Council made under it until 1886. Citizens of the United States could have no copyright in England because, as stated, the statutory law of the United States did not recognize the right of a foreigner, not being a resident of the United States, to obtain a copyright or playright in this country. In 1885 a conference of Euro- pean nations was held at Berne, and a draft of a Copyright Convention was drawn. By the 49 and 50 Vict., c. 33, 1886, the Queen was authorized to issue orders in Council embodying the chief features of the conven- tion. The principle that no greater rights can be obtained in England than the citizen of Great Britain can obtain in the country of which the applicant for a copyright is a citizen, was retained. In order, therefore, to ascertain the rights of an American citizen in England it is neces- sary to know two things: the rights which England con- fers on its own citizens, and the rights which by the Act of 189 1 we confer upon English authors desiring an Amer- ican copyright. This Act grants to foreign authors the same copyright and playright in the United States as that enjoyed by citizens and residents of the United States. The foreign author, however, to obtain a copyright in this country is subject to the same conditions as citizens of the United States. On the day of publication in this or any 94 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY foreign country he must deposit in the Library at Wash- ington, or mail from a post office in the United States to the Librarian two copies of his work printed from type set in the United States, or in the case of prints, two copies from plates or negatives or drawings on stone made within the limits of the United States. If the. foreigner obtains a copyright, he or any one else, cannot during the existence of the right import a copy of the same. 12 This resume of the Copyright Acts of the United States shows that at the present time, while the statutory law in this country is in a much simpler form than in Eng- land, there is no substantial difference between the things subject to statutory copyright in the two countries. Minor differences may be noted. In the United States there is no statutory playright where the play has not been both pub- lished in print and copyrighted. As the courts in this country (see supra, notes to Tomkins v. Hallett), have held that there is a common law playright in the author of a dramatic composition which has been represented, but not printed, this omission is of no importance. 13 In- the United States the .playright and copy- right go together. On the other hand it may fairly be considered doubtful from the wording- of section 4952 of the Revised Statutes, as amended by the Act of 1891, 26 Stats. 1 106, section 1, whether with us there is any statu- tory playright in musical compositions, where the compo- sition has been printed and copyrighted. A song set to music may be considered a dramatic composition and there- fore be the subject of statutory playright. The principal difference between the two countries, however, is in the length of the term. In England the shortest possible term is forty-two years from the first "Any society incorporated for educational purposes, or any college or school may import, subject to the regulations of the Secretary of the Treasury, two foreign copies. See 26 Stats. 604, and 26 Stats. 1107. 1S See Scrutton on Copyright, 3 Ed. 1896, pp. 75 et sec. ; Morris v. Kelly, 1 J. & W. 481, 1820. Compare Murray v. Elliston, 5 B. and Aid. 576, 1822. Sec. f.] EARLY INJUNCTIONS UPON STATUTE OF ANNE. 95 publication, and in any event it lasts during the life of the author and for seven years afterwards. With us the short- est term is twenty-eight years. The right may last for forty-two years, provided the author, or his wife, or child is living at the end of twenty-eight years, and the neces- sary steps are taken to renew the right for a second term of fourteen years. This difference affects not only the right of the citizen of the Uinted States in the United States, but his right in England. EARLY INJUNCTIONS UPON THE RIGHT GIVEN BY THE STATUTE OF QUEEN ANNE. 2 Brown's Cases in Parliament Tomlin's Edition 137 * 9th November, 1722. Naplock v. Curl, for printing Prideaux's Directions to Church-wardens. nth December, 1722. Tonson v. Clifton, for Sir Richard Steele's Conscious Lovers. 19th and 23d May, 1729. Gulliver v. Watson, for printing Pope's Dunciad. 26th November, 1735. Motte v. Falkiner, for Pope and Swift's Miscellanies. 27th January, 1736. Walthoe v. Walker, for Nel- .son's Festivals. 6th December, 1737. Ballex v. Watson, for Gay's Polly. 13th March, 1740. Gyles v. Wilcox, for Hale's Pleas of the Crown. 19th May, 1746. Read v. Hodges, for the History of Peter the Great. 'This list is given in the argument for the Appellants in DonaldsQn ■V. Beckett, reported supra, section A. 96 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY 6th November, 1757. Tonson v. Mitchell, for Byng's Expedition to Sicily. 2 SECTION 4970 OF THE REVISED STATUTES, 1878. The Circuit Courts and District Courts having the jurisdiction of Circuit Courts, shall have power upon bill in equity, filed by any party aggrieved to grant injunctions to prevent the violation of any right secured by the laws respecting copyrights according to the course and principles of courts of equity, on such terms as the court may deem reasonable. 1 THE JEWELERS' MERCANTILE AGENCY v. THE JEWELERS' WEEKLY PUBLISHING COMPANY. In the Court of Appeals of New York, 1898. 155 New York 241 Appeal from a judgment of the late General Term of the Supreme Court in the first judicial department, entered January 26, 1895, upon an order affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. 2 The editor is not aware that the jurisdiction of Chancery in Eng- land to protect the rights covered by the copyright and playright acts has ever been questioned. It would appear that prior to the Statute of Anne, Chancery protected by injunction those who claimed under Royal patent the exclusive right to publish particular books. See for a list of such cases, 2 Bro. P. C. 137. Sed. quare as to their exact character ? 1 The express statutory equitable jurisdiction of the Federal Courts has existed since 1819. For the text of the Act of 1819 see supra, Chap- ter I. The Acts after 1819 and prior to the Revised Statutes, in relation to the equitable jurisdiction of the Federal Courts, are: 4 Stats. 438, Ch. 16, sec. 9, 1831 ; 16 Stats. 21s, Ch. 230, sec. 106, 1870. None of the Acts make the jurisdiction of the Federal Courts expressly exclusive. An appeal in copyright cases lies to the proper Circuit Court of Appeal and then to the Supreme Court if the matter in controversy is over $7000. 26 Stats. 828, 1891. Sec. f.] JEWELERS' MER. AGENCY v. JEWELERS' PUB. CO. 97 The judgment appealed from enjoined the defendant from making any use of the plaintiff's reference books or confidential sheets, and from copying, appropriating, print- ing, publishing or using, in any way, information taken therefrom, or furnishing such information to others. The plaintiff, a domestic corporation, has ever since its incorporation, in 1883, been engaged in the business of a mercantile agency, which consisted in obtaining informa- tion regarding the business, street addresses, kinds and ex- tent of business, commercial standing and mercantile credit of individuals, firms and corporations engaged in the jew- elry trade in the United States and Canada. This informa- tion is printed twice a year in the form of a reference book. On the 28th day of June, 1890, the plaintiff, in pur- suance of the copyright laws of the United States, deposited in the copyright office with the librarian of Congress the title of the plaintiff's book of July, 1890. And on the 28th day of June, 1890, the plaintiff, in further pursuance of said copyright law, deposited in the office of the libra- rian of Congress two copies of said reference book. And the said plaintiff printed on the page following the title page in the said book of July, 1890, the following notice: "Entered according to Act of Congress, in the year 1890, by the Jewelers' Mercantile Agency, Limited, in the office of the Librarian of Congress at Washington." The plain- tiff did not sell the book outright, but lent it to subscribers who expressly agreed to return the book on receiving the amount of the subscription for the unexpired term. Each book leased contained the statement: "This is the property of the Jewelers' Mercantile Agency." It does not appear that the reference book was confined exclusively to the jewelry trade, nor does it appear but that any one could ob- tain a copy of the same by subscribing for it according to the terms of such contract. The defendant is also a domestic corporation, organ- ized in January, 1891. It took the business which had be- fore been carried on by the defendant Rothschild, and ear- lier by both Rothschild and Ulmann. 98 INFRINGEMENT OF LITERARY AND ARTISTIC PROPERTY, The defendant took and appropriated from the plain- tiff's reference book certain material information therein contained, and made use of it in a publication of its own, which came into competition with the plaintiff's publica- tion. 1 Parker, Ch. J. Thus far in the progress of this suit the plaintiff has succeeded in its attempt to convince the court that the original common-law right in the reference books, so called, has not been divested and, therefore, it is entitled to invoke the restraining power of the court to pre- vent the defendant from using in any way any information obtained therefrom. To the claim of the defendant, that the plaintiff divested itself of its common-law right by copy- righting the reference books pursuant to the provisions of the Revised Statutes of the United States, the plaintiff makes answer that it had not in fact perfected a copyright of the book and, therefore, its common-law right remains. It is true that plaintiff recorded the title of the book before publication; caused a copyright notice to be printed on the title page and then delivered to the librarian of Congress two printed copies of the book with the notice of copyright printed on the title page, in pursuance of the statute which requires that such a number of copies shall be delivered to the librarian within ten days after publica- tion. So far as the record discloses, therefore, it would necessarily appear to any one making an examination of it for the purpose of ascertaining whether the plaintiff had secured to itself the benefit of copyright as to the reference book, that it had succeeded. But the plaintiff insists that its attempt, or pretended attempt, to secure a copyright was ineffectual, because of the omission on its part to pub- lish the reference book. We are not concerned in inquiring whether the plain- tiff's steps, apparently looking to a copyright of the book, 1 The statement of the case in the report is abbreviated. Sec. f.] JEWELERS' MER. AGENCY v. JEWELERS' PUB. CO. 99 were taken for the purpose of procuring a copyright in good faith, or merely for the purpose of securing such ad- vantage as might accrue from the appearance of copy- right. It, of course, cannot have at the same time the benefit of the copyright statute and also retain its common- law right. No proposition is better settled than that a sta- tutory copyright operates to divest a party of the common- law right. If then what the plaintiff did amounted to such a publication of the reference book as was requisite in con- nection with the other steps taken to perfect a copyright, its common-law rights were divested and its remedy against violators of the rights thus secured would have been by suit in the United States courts. But publication also oper- ates to destroy the common-law rights, whether a copyright be secured or not. * * *- But our examination leads us to the conclusion that the present state of the law is that if a book be put within reach of the general public, so that all may have access to it, no matter what limitations be put upon the use of it by the individual subscriber or lessee, it is published, and what is known as the common-law copy- right, or right of first publication, is gone. So far as is disclosed by this record, the plaintiff was in that situation at the time of the commencement of this action. The judgment should be reversed and a new trial granted, with costs to abide the event. Gray, O'Brien and Haight, JJ., concur, and Bartlett Martin and Vann, JJ., concur for reversal upon special ground, as follows : We concur in the result upon the ground that the plain- tiff, by depositing two copies of its reference book in the office of the librarian of Congress, published the same, even if it obtained no copyright; that if it did obtain a copyright, it thereby waived its common-law right of lit- erary property in said book and its statutory rights under Federal legislation can be protected only in the Federal courts. Judgment reversed. ! His discussion whether the plaintiff's acts amounted to a pub- lication is omitted. 100 INFRINGEMENT OF BUSINESS REPUTATION. CHAPTER III. INFRINGEMENT OF PROPERTY IN BUSI- NESS REPUTATION. Trade-Marks — Trade-Names — Unfair Trade Competition. BLANCHARD v. HILL. In Chancer y,, before Lord Hardwicke, 1742. 2 Atkyn 484 A motion was made, on behalf of the plaintiff, for an injunction, to restrain the defendant from making use of the Great Mogul as a stamp upon his cards, to the prejudice of the plaintiff, upon a suggestion, that the plaintiff had the sole right to stamp, having appropriated it to himself, con- formable to the charter granted to the card-makers company, by King Charles the First. Lord Chancellor. I think the intention of the char- ter is illegal, though, indeed, all the clauses that establish the corporation, and give them power to make by-laws, are legal. In the first place, the motion is to restrain the de- fendent from making cards with the same mark, which the plaintiff has appropriated to himself. And, in this respect, there is no foundation for this court to grant such an in- junction. Every particular trader has some particular mark or stamp; but I do not know any instance of granting an injunction here, to restrain one trader from using the same mark with another ; and I think it would be of mischevious consequence to do it. Mr. Attorney General has mentioned a case, where an action at law was brought by a cloth- worker, against another of the same trade, for using the same mark, and a judgment was given that the action would lie. Poph. 151. But it was the single act of making use BLANCHARD v. HILL. 101 of the mark that was sufficient to maintain the action, but doing it with a fradulent design, to put off bad cloth by this means, or to draw away customers from the other clothier : And there is no difference between a tradesman's putting up the same sign, and making use of the same mark, with another of the same trade. 1 Upon the whole, there are no grounds in this case to grant an injunction against the defendant, till the hearing of the cause. 2 'So much of the opinion as discusses the effect of the charter is omitted. 2 The case mentioned by the Attorney General was one spoken of by Mr. Justice Doderidge in the course of his opinion in Southern v. How, 1591. The report in Popham is as follows : "Doderidge said, that 22 Eliz. an action upon the case was brought in the Com- mon Pleas by a clothier, that whereas he had gained great repu- tation for his making of his cloth, by reason whereof he had great utterance to his great benefit, and profit, and that he used to set his mark to his cloth, whereby it should be known to be his cloth : And another clothier perceiving it, used the same mark to his ill-made cloth on purpose to deceive him, and it was resolved that the action did well lye." Page 144. The report in Croke temp. James states that the deceived purchaser is the person who brought the action. "Dode- ridge cited a case to be adjudged 33. Eliz. in the common pleas: A clothier of Gloucestershire sold very good cloth, so that in Lon- don if they saw any cloth of his mark, they would buy it without search- ing thereof ; and another who made ill cloth put his mark upon it with- out his privity; and an action upon the case was brought by him who bought the cloth, for this deceit; and adjudged maintainable." Page 471. It is said in 2 Rolle's Reports 28, that the justice did not say which had the action, but merely that there was an action. In Singleton v. Bolton, 3 Doug. 293, 1783, Lord Mansfield said, that if the defendant in the case before him "had sold a medicine of his own under the plaintiff's name or mark that would be a fraud for which an action would lie." 102 INFRINGEMENT OF BUSINESS .REPUTATION. HOGG v. KIRBY. In Chancery, before Lord Eldon, 1803. 8 Vesey 215 The plaintiff was proprietor of a work, published in monthly numbers, commencing in August, 1802, under the title of The Wonderful Magazine, by William Granger, Esq. ; that name being, (according to the bill) as is usual in works of that description, inserted in the title page, merely as the nominal author; and, under an agreement for that purpose, the name of the Defendant Kirby was used as the publisher; and the numbers were sold at his shop upon commission : but the publication was under the management and at the expense of the Plaintiff. The undertaking pro- ceeded in this maner till the publication of the fifth number ; when a dispute arose in consequence of an alteration in the title ; and Kirby refused to permit his name to appear to the work any longer; and in December a final setlement of ac- counts took place; and the Plaintiff circulated hand-bills dated the 20th of December, stating, that the succeeding numbers would be published by him, and the sixth number would be published by him on Friday next ; and that number was accordingly published by him on the 31st of December. On the 1st of January, 1803, the first number of a periodical work was published by the Defendants Kirby and Scott, under a similar title, described as a New Series 'Improved : printed for Kirby and Scott ; and expressed in the title to be continued monthly; and they published advertisements to the same effect. The bill prayed an injunction to restrain the Defend- ants from selling any copies of their publication, and from printing or publishing any future or other number either under the same or any similar appellation, and from borrow- ing and using the title and appellation, or copying the orna- ments, or any part of the Plaintiff's original publication, and from pirating the same in any other manner, whatever ; HOGG v. KIRBV. 103 and to restrain Kirby from printing and publishing any of the letters or communications received by him as the pub- lisher of the Plaintiff's work ; and that they may be delivered up ; and an account. Upon the motion for an injunction, the publications being produced, the Defendant's appeared, upon inspection, though not exactly similar, to have a resemblance, that gave it the appearance of being the succeeding number of the Plaintiff's. The device on the cover was the same ; though not exactly similar in the execution. Kirby's number took up the same article in continuation, which had been left unfin- ished in the middle of a sentence by the Plaintiff's fifth number, and commenced with the word at the bottom of the last page. A description and a print of a remarkable char- acter were introduced, which had been promised in the Plaintiff's fifth number, as part of the contents of the sixth. The Defendant's number also contained in a separate half sheet a short index of the contents of the Plaintiff's first five numbers, under the name of an index to the first part. The execution of the two works was generally similar. The answer represented, that the continuation of the unfinished article and the index were not inserted with a view to deceive the public by attempting to assimiliate the Defendant's work with the Plaintiff's, but that such of the purchasers of the Plaintiff's first five numbers as preferred the Defendant's work to the continuation of the Plaintiff's might make a separate volume of those five numbers. They denied, that they represented their work as a continuation; and submitted their right to publish a work under a similar title. 1 The Lord Chancellor. Upon all the circumstances of this case there is no doubt, Kirby agreed to let his name stand in the fifth number of the Plaintiff's work with the intention to accomplish the purpose he carried into effect by the publication of his first number. The resemblance is such, 'The arguments of counsel are omitted. 104 INFRINGEMENT OF BUSINESS REPUTATION. that the books must have been bought and read, before it could have been discovered, that they were not the same. The argument in support of the injunction has occupied the several grounds of copyright, fraud, and contract; which satisfies me, that it was not distinctly ascertained, which in particular was to be occupied. As to copyright, I do not see why, if a person collects an account of natural curiosities, and such articles, and employs the labor of his mind by giv- ing a description of them, that is not as much a literary work as many others, that are protected by injunction and by action. It is equally competent to any other person, per- ceiving the success of such a work, to set about a simliar work, bona fide his own. But it must be in substance a new and original work; and must be handed out to the world as such ; and upon that footing this Defendant, independent of special circumstances, might come into the market as well as any other person. The argument in support of the injunction has been also in some degree founded upon the usage of booksellers, that sort of comity among them, by which, if one has pre-occupied a certain work, he shall be considered a sort of proprietor. But their dealings upon that understanding among them, unless sanctioned by the Law of England, are not of a species which it is very neces- sary to encourage. I know it is considered an unhandsome thing for one bookseller to bid against another at an auction, and that it is better that a private auction should take place among them afterwards. With reference to the interests of the public therefore I should not be inclined to make a decree upon the understanding among booksellers. The consideration, what constitutes good faith between man and man, is very different. Upon that it is said, Kirby having become the publisher of the Plaintiff must not inter- fere with him afterwards; though all the rest of the world may ; and that it is against conscience that he should set up a work of this kind, even if different. The inference from Kirby's undertaking to be the publisher and apparent pro- prietor, to be turned out, as the Plaintiff represents, when- HOGG v. KIRBY. 105 ever he pleased, the purpose for which he wanted Kirby's name for a time being answered, that therefore Kirby had contracted, that he would never become the editor, proprietor or publisher of any work similar in species, but different in the contents, and therefore in that sense bona fide new, is much too strong; and it is admitted that he has not ex- pressly so contracted. Then if such property is protected by the law, can he publish a work such in all circumstances as this ; and insist, that neither in Law nor in Equity it can be complained of by action, or the more extensive relief given here by injunction? This is a question, as applied to such circumstances as exist here, somewhat new. My opinion is that he was at full liberty to publish a work really new. But the question is whether he has not published this work, not as his own original work, but as a continuation of the work of another person. Then what is the consequence in Law and in Equity? If that question is determined in the affirmative, a Court of Equity in these cases is not con- tent with an action for damages ; for it is nearly impossible to know the extent of the damage ; and therefore the remedy here, though not compensating the pecuniary damage except by an account of the profits, is the best; the remedy by an injunction and account. Most of the cases have been, not, where a new work has been published as part of the old work, but where under color of a new work the old work has been republished, and copies multiplied. The question then is, whether the regu- lating principle of those cases can be applied to this ; and I admit, there is considerable hazard of miscarriage. It is a very delicate and difficult point : the more so, as this is not like those cases in which the injunction can be granted or dissolved, without great prejudice to the party in the inter- val before the hearing. But in these cases, which are very well expounded by Lord Mansfield in the case of literary property, a Court of Equity takes upon itself to determine, as well as it can, the right in this period, and, with a convic- tion, that, if then the cause was hearing, they would act upon the same rule. The Court takes upon itself that, 106 INFRINGEMENT OF BUSINESS REPUTATION. which may involve it in mistake; to determine the legal question; and the observations of Mr. Justice Yates. are very material upon this point; particularly if he was accurate in saying he did not consider these cases upon injunction as determining the legal question ; which if he meant, as in no sense determining it, is not accurate ; as it is, if he meant only that it is a decision by a Judge, sitting in Equity, upon a legal question, and therefore not having all the au- thority of a decision by a Court of Law; but giving an opinion : and pledged to maintain it, unless there should be occasion to alter it. The principle of granting the injunc- tion in those cases is, that damages do not give adequate relief; and that the sale of copies by the Defendant is in each instance not only taking away the profit upon the indi- vidual book, which the Plaintiff probably would have sold, but may injure him to an incalculable extent, which no inquiry for the purpose of damages can ascertain. In this case, protesting against the argument, that a man is not at liberty to do any thing, which can affect the sale of another work of this kind, and that, because the sale is affected, therefore there is an inquiry (for if there is a fair competition by another original work, really new, be the loss what it may, there is no damage or injury), I shall state the question to be, not whether this work is the same, but, in a question between these parties, whether the De- fendant has not represented it to be the same ; and whether the injury to the Plaintiff is not as great, and the loss accru- ing ought not to be regarded in Equity upon the same prin- ciples between them, as if it was in fact the same work. Upon the point whether the work was in fact meant to be represented to the public as the same, I do not say that is not a question proper for a Jury. But I must act upon the inference from the circumstances ; and it is impossible not to say, till this is better explained, an intention does appear both upon the transaction as to the fifth number and the other circumstances, in some degree upon the appear- ance of the outside, in a great degree up the first page, the index, and the promised contents, to state this as a continuation of the former work, in a new series indeed. HOGG v. KIRBY. 107 I am not here to speculate upon the probable consequences of such conduct; for I have the actual consequences as far as fair reasoning can determine, that out of 2000 purchasers 1800 have bought this as part of the old work. The point whether he, who carries his work into the world as that of another person, shall not as between them be considered as publishing that work, if the consequences are the same, is new, and therefore fit to be discussed elsewhere as well as here. I must incur the hazard of occasioning finally some injurious consequence to one party or the other. The proper course will be to alter the terms of this injunction; so as to make it clear that it is to operate upon nothing but the publication handed out to the world as the continua- tion of the Plaintiff's work; and to direct, that as to these numbers, that are handed out as such continuation, the Plaintiff shall bring an action : the Defendant to plead with- out delay ; that it may be tried with all due speed ; and then they may apply to dissolve the injunction, if so, advised. I am anxious that nothing in this injunction shall imply, that reviews, magazines, and other works of this species may not be multiplied; and therefore shall alter the injunction my- self. I have considerable difficulty as to the false colors under which the original publication appears. Though this is very usual, I cannot represent it to my mind otherwise than as something excessively like a fraud on the public. But it will be better to leave that as an ingredient in the action for damages; which will reach it, if anything can be grounded upon it. The order afterwards made declared that, as it ap- peared to the Court, that the work in the pleadings named had been published and exposed to sale as and for a continu- ation of the Plaintiff's work, the Defendants, their agents, etc., be restrained from publishing or exposing to sale any copy or copies of the defendant's said work, arid from printing, publishing, or exposing to sale any other work or publication as or being a continuation of the Plaintiff's work, or of the Defendant's work, which had been so pub- 108 INFRINGEMENT OF BUSINESS REPUTATION. lished as such continuation as aforesaid; and from printing all or any part or parts of the Plaintiff's said work; and that the injunction should be continued as to any letters, etc., admitted by the answer to have been received from corre- spondents by the Defendant, while publishing for the Plaintiff. No direction was given for bringing an action; the Defendant's Counsel observing that it would be of no use with respect to the injunction ; as the Defendant would pub- lish a work of his own ; upon which the Plaintiff waived that right as to what had been already published. 2 Tn the following cases the owner of a paper was refused an in- junction restraining the owner of a rival paper from using a similar name, because the court believed that the public would not mistake one paper for the other. Snowden \. Noah, I Hopk. 347, N. Y., 1825 (The plaintiff's paper was called "National Advocate." The defendant had recently established the "New York National Advocate," and in com- municating with the subscribers of the first paper he called attention to the fact that his paper was a new paper). Bell v. Locke, 8 Paige 74, 1840 (The plaintiff's paper was called "Democratic Republican New Era," the defendant's "New Era") ; Spottiswoode v. Clark, 1 Coop. Temp. Cot. 254; 1846; Robertson v. Berry, 50 Md. 591, 1878. A court will restrain one from calling his dramatic composition, which he is about to put on the stage, by the same title as that of a dramatic composition which has already been acted, even though the body of the second play is entirely different from that of the first play. Shook v. Wood, 32 Leg. Int. 264, Pa. C. C, 1875; Frohman v. Payton, 68 N. Y., Sup. 849, 1901 ; The Hopkins Amusement Co. v. Frohman, 202 111. 541, 1903, CRUTTWELL v. LYE. 109 CRUTTWELL v. LYE. In Chancery, before Lord Eldon, 1810. 17 Vesey 335 In the year 1804 George Lye, being at that time en- gaged in the carrying trade by wagons from Bristol through Bath and Warminster to Salisbury, purchased from the ex- ecutor of Wiltshire his carrying trade by wagons fromBristol through Bath to London ; with the premises, engaged in that business ; consisting of a warehouse in Peter street, Bristol, and extensive warehouses in Bath. He afterwards took his son Edward Lye into partnership with him; and they continued to carry on both those concerns, until a Commis- sion of Bankruptcy issued against them; having extended the Warminster and Salisbury concern by setting up a wagon from Salisbury to London. The assignees under the Commission put up to sale by auction the whole of this carrying business in different lots ; the particular describing Lot 1, as the carrying business of George and Edward Lye, together with the good-will of the extensive premises in Broad Street, Bath, used for many years in the business of a common carrier from Bath to London, &c. ; also the premises in Peter street, Bristol, together with the good-will of the long-established trade, &c. : Lot 2 was described, generally, as the interest of the bankrupts in the carrying trade from Bristol to Warminster and Salisbury: stating that the purchaser was to take the stock upon the respective premises ; and specifying some par- ticulars, as to the hours, at which the wagon would be at the respective places, &c. The first lot was puchased by the Plaintiff for 4000/. The second lot was purchased by the nephew of one of the assignees ; and after Edward Lye had obtained his certificate, he was again put into business in that concern ; on which occasion he stated both by advertise- ment, and by hand-bills distributed, that being reinstated by his friends in the carrying business, he informs the public 110 INFRINGEMENT OF. BUSINESS REPUTATION. that his wagons set out at the usual hours ; describing the course, not by the direct road to London, but by the road through Warminster and Salisbury. It was stated by affi- davit, that one of the assignees, an uncle of the bankrupt, assisted him by the use of his books in soliciting the custo- mers. 1 The Lord Chancellor. This motion is novel in its circumstances, if not in principle; and is of very great importance. I therefore, did not grant the Injunction immediately; but desired to hear it discussed at the Bar; as on the one hand, if this Court does not interpose, the Plaintiff cannot possibly have what he really intended to purchase : on the other, if the Defendant has a right to carry on his trade, I should by interfering destroy that right to an extent, which I could never remedy. It struck me, that the Plaintiff's right must be founded either in the cov- enant of the bankrupt; or in considerations, arising out of his conduct; or in the fact, that he is not carrying on that trade, which he purchased, or which, independent of pur- chase, he has a right to carry on; but under that color is carrying on the trade purchased by the Plaintiff. I do not enter into the question as to the effect of a covenant by a bankrupt, whose property has been sold by his assignees with the good-will, never to engage again in such a trade. The circumstances do not lead to that; as here is no such cov- enant. With regard to conduct a man might stand by ; and give encouragement, generating a confidence that he would not engage in such a trade ; inducing other persons to involve themselves; on the ground of which conduct this Court might interpose : but it does not appear to me, that either by the effect of the contract, attending to the description of the subject, comprised in Lot 2, or by any circumstances con- nected with it, the purchaser would have been, or the bank- rupt now is, precluded from carrying on the trade he is now engaged in. I lay entirely out of the case the fact, that, l The arguments of counsel are omitted. CRUTTWELL v. LYE. Ill while the bankrupts were carrying on both the original War- minster concern and Wiltshire's, they started a wagon fronj Salisbury to London ; the description of Lot 2, representing it as a concern from Bristol to Warminster and Salisbury; as distinctive therefore from the other concern as before the purchase by Lye. The question then is, whether upon a fair understand- ing, or representation, agreeable to the fact, this person is carrying on the Plaintiff's trade ; and in this view of the case I refer to Hogg v. Kirby; where the Defendant had a clear right to publish a similar work, under the same title as the Plaintiff's, represented as distinct and original : but was prevented from publishing his book as the work of the Plaintiff; which had been partly published: the Injunction not going farther than to restrain the publication as the same with, or a continuation of, the Plaintiff's work. So there can be no doubt, that this Court would interpose against that sort of fraud, which has been attempted by setting up the same trade, in the same place, under the same sign, or name ; the party giving himself out as the same per- son. The case of Keene v. Harris has not much relation to this subject. The Defendant, engaged as foreman by the widow, who had conceived an attachment to him, partly in the very house, and with the types, of the old concern, pub- lished a paper of the same name as that, which she had been in the habit of publishing, as trustee; the Bath Chronicle. That was a gross breach of trust; of which the Defendant could not take the benefit. Another case, to which this is compared, Chandler v. Gardiner, bears little upon it. The Legislature destroyed beneficial interests, which individuals had in the concerns and habits of their lives; giving them a compensation for interests of that substantial, though not very tangible, na- ture ; something like good will. I conceived, that the ques- tion was only, whether that was an interest, capable of dis- 112 INFRINGEMENT OF BUSINESS REPUTATION. position ; and decided, with great relucetance, that, as it was an interest in the bankrupt, comprehended in the terms of the Bankrupt Acts, it was capable of being disposed of ; and belonged to his assignees. This Defendant cannot carry on the trade from Bristol to London, holding himself out as carrying on the trade, which the purchaser of Lot i brought ; and there is no doubt, that he gave a very considerable part of his purchase-money for the good will. This leads to a consideration of the facts, under which this Injunction is sought. The advertisement, published by the bankrupt, having obtained his certificate, has very incautious expressions ; if he meant to hold out merely, that he was about to set up again in business ; as there is no doubt he was entitled to do ; and to give the pub- lic that general information : whatever may be said of par- ticular applications to customers. The expression, "being reinstated by his friends in the carrying business" will bear either sense : the old, or the new, trade : but the information, to the public, that his wagons set out at the usual hours, not being more clearly pointed to the Warminster trade, must be referred to the old concern. I do not understand, as it has been argued, that, having relation to some trade between Bristol and London, it means the direct trade from London : but, if required, I will put him to explain that upon his oath. The description of his course appears to me in some degree connected with the intention of taking in goods from Ports- mouth, the Isle of Wight, Southampton, &c. ; and, if that was the object, this contract of sale raises no ground against his carrying it on. The utmost extent would be, that he should not travel the road from Bristol to London, which the old concern used ; and whether that could be maintained is a more difficult question. By traveling only a part of the way between Bristol and London he does some injury to the old concern; and completing the course is only prejudicial in a greater degree. If he is really carrying on his own trade, and not the Plaintiff's through this course, it would CRUTTVVELL v. LYE. 113 be too much to put an end to it; but, if under the color of chalking out a different course of trading he is really carry- ing on for his own benefit the trade of others, that will give a ground for Injunction; and unless the affidavits can dis- place the Defendant's representation, I cannot think there is a ground. 1810, Nov. 21st. The Lord Chancellor. I take this to be the short result of the facts of this case. Excluding what passed between the year 1804 and the sale, the Warminster concern was originally distinct: and the representation as to Lot 2 gives no notice, that the purchaser of that lot would have any concern with any wagon trans- actions, connected with London. I take it also to be clear, that Lye, one of the bankrupts, having purchased Lot 2, did set up the wagon trade from Bristol through Bath, and by a different line of road to London : in a sense the same trade as that wagon trade, purchased by the Plaintiff ; that direct solicitation was addressed by Lye to the public; inviting their custom in the trade between Bristol, Bath and London ; according to the true interpretation, by a different line of road ; and that solicitation was made, not merely by adver- tisement, but by cards handed about. There is farther upon the affidavits so much probability of direct solicitation to the customers of the old concern in some few instances, that the fact may be fairly assumed ; and under these circumstances the question is, whether the injunction can be maintained against the bankrupt, carrying on this trade between Bristol, Bath and London ; as he does carry it on : or more broadly, whether, if he carried it on in a more direct course than ap- pears upon these affidavits, the Injunction would be justified. Attending to the fact, that carrying on the trade from Bristol to London, though by a different course, the bank- rupt must convey goods, which, if he was not engaged in that trade, would be conveyed by the Plaintiff, it is also extremely clear, that there may be a great proportion of business between those Termini, in which the Plaintiff really 114 INFRINGEMENT OF BUSINESS REPUTATION. would have no concern ; and one of the difficulties, that have pressed me throughout this case, is, to what extent upon the principle this Injunction is to go ; as there is no doubt, that the Defendant, by taking goods from Bristol to Hounslow, where the roads meet, would to a certain extent prejudice the Plaintiff; and so every removal from Bristol towards Lon- don would be an injury to him in a greater, or less degree. It is necessary first to consider, whether the sale under the bankruptcy of Lot No. I, and the good-will, belonging to those premises, or the trade established upon them, would if there was nothing more, upon any principle prevent the bankrupt's immediately, by the assistance of his friends, again setting up the trade from Bristol to London by the very same road : and I cannot say, that any of those interests, which a bankrupt is supposed to have by the effect of the certificate, or in the surplus of his estate, after payment of his debts, form a principle, upon which he should not be per- mitted to engage again in the like trade; which in this sort of case is materially distinguished from the same trade. In Hogg v. Kirby the Defendant's magazine, being published as a continuation of the Plaintiff's was the same. Suppos- ing the bankrupt therefore not to have had any other inter- est, there is no principle, upon which this Court could hold, that he should not engage in the direct trade by the same road. The bankrupt however happens to become the pur- chaser at the same sale of the Warminster interest ; and the farther question is, whether that fact affords a principle, not arising out of any engagement, expressed as between the vendor and vendee of Lot i, or any description of Lot 2, of which the bankrupt was the purchaser, upon which it can- not be maintained, that, being at liberty to use the Warmin- ster trade, he shall not be at liberty to become a trader in the like trade from Bath to London; and the converse must hold ; that the Plaintiff also by a similar equity cannot con- vey anything from Bristol through Bath and Warminster to CRUTTWELL v. LYE. 115 Salisbury. That is a great deal too much to be inferred from any thing, that has passed. The good-will, which has been the subject of sale, is nothing more than the probabil- ity, that the old customers will resort to the old place. Fraud would form a different consideration : but, if that effect is prevented by no other means than those, which belong to the fair course of improving a trade, in which it was lawful to engage, I should by interposing carry the effect of Injunc- tion to a much greater length than any decision has author- ized, or imagination ever suggested. What farther was done ? The bankrupt advertises that he is reinstated in the carrying business; and, though that expression may have a tendency to misconception, yet he is in a fair sense reinstated, if, being at liberty, he has availed himself of that situation to set up again that carrying busi- ness. It amounts to no more than that he asserts a right to set up this trade ; and has set it up, as the like, but not the same, trade with that sold ; taking only those means, which he has a right to take, to improve it; and there is no fact, amounting to fraud upon the contract, made with the Plain- tiff. The question, whether under the circumstances the Plaintiff is to carry the agreement into execution, if the as- signees have taken from him actively the benefit of that con- tract, is very different; but, whatever opinion may be held upon this transaction in that view of it, I do not see the fraud, upon which, as a Judge in Equity, I can lay my hand ; and I dare not from this place so deal with it. The injunction was accordingly refused. 2 2 The assignee of the good will of a business has been restrained from using the name of the assignor in such a way as to lead third per- sons to believe that the assignor is still conducting the business. Howe v. Searing, 10 Abb. Pr. 264, N. Y., i860 (A. conducted a business under his own name. He assigned to C. who assigned to B. A. re- strained B. from conducting the business under the name of A). Scheer v. American Ice Co., 66 N. Y., Sup. 3, 1900 (B. bought A's business. A. agreed not to engage in the same business for a specified time. A. restrained B. from conducting the business under his, A's, name). On the other hand the assignee of the good will can restrain the assignor from using his own name again in the conduct of a similar 116 INFRINGEMENT OF BUSINESS REPUTATION. business. Churton v. Douglas, John 174, 1859 (A., B. and C. were in business under the firm name of "A. and Co." A. withdrew, and assigned the good will to B., C. and D., who continued the business under their own names, as "successors to A. and Co." A. entered a similar business styling himself "A. and Co." Held, that though A. could enter a similar business, he should be restrained from using the name "A. and Co.") ; Hudson v. Osborne, 39 L. J. Ch. 79, 1870; Levy v. Walker, 10 Ch. D. 436, 1879, 448, dicta per James L. J. A fortiorc, the assignor of the good will of a business will be restrained from using his own name in the conduct of a similar business, where he expressly assigns the right to use his own name in connection with the products of the business : Dixon Crucible Co. v. Guggenheim, 2 Brew. 321, Pa. C. P., 1869, per Paxon, J. ; Frazer v. The Frazer Lubricator Oil Co., 18 111. App. 450, 1886; Hoxie v. Chaney, 143 Mass. 592, 1887; Russia Cement Co. v. Le Page, 147 Mass. 206, 1888 (Le Page made a glue and sold it under his own name. He assigned his business and the right to use his name to the Russia Cement Co. The company sold "Le Page's Liquid Glue, manufactured by the Russia Cement Co." Le Page was restrained from selling glue under his own name) ; Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y.- 462, 1895 (Higgins, a manufacturer of soap, organized the plaintiff company and assigned to it the right to use his name. He subsequently organized the de- fendant company and became its president. The court restrained the defendant company from calling itself the "Higgins Soap Co."). Com- pare, Holmes v. The Holmes, Booth and Atwood Co., 37 Conn. 278, 1870, 294 (A., B. and C. formed a corporation giving their names as the name of the company. They subsequently withdrew from the com- pany, and formed a second company. At the instance of the first company the court restrained them from giving their names as the name of the second company). These last two cases might have been also decided on the ground, that one corporation cannot adopt the name of an existing corporation. See, note 2, Clark v. Clark, reported infra. On some of the possible consequences of allowing a person to assign the right to use his name in connection with the business which is also assigned, see Dr. David Kennedy Co. v. Kennedy, 165 N. Y. 353, 1901 (Kennedy, a resident of Rondout, sold a patent medicine. He assigned the business and the right to use his name to a company. Subsequently mail intended for the managers of the business now car- ried on by the company was confused with mail intended for Kennedy. The court appointed a person to receive and distribute all mail addressed to Dr. D. Kennedy or Dr. David Kennedy of Rondout. For a dis- cussion of this question in the lower courts, see 55 N. Y. Sup. 917; 66 N. Y. Sup. 225. The assignment of partnership property does not carry with it the good will of the business, and therefore he who has merely purchased the property of a business can be restrained from announcing that he is a successor of the assignee. Reeves v. Denicke, 12 Abb. Pr. n. s., 92, 1871 ; Morgan v. Schuyler, 79 N. Y. 490, 1880. The executor of a deceased partner will be restrained from using the firm name. See Lewis v. Langdon, 7 Sim. 421, 1835. Compare, Davies v. Hodgson, 25 Beav. 177, 1858, and Hall v. Barrows, 9 Jur., n. s., 483, 1863. The principle that upon the death of a partner the good will vests in the surviving partners, on which the decision of Lewis v. Langdon rests, was first stated by Lord Rosslyn, in Hammond v. Doug- las, 5 Ves. 539, 1800. It was doubted by Lord Eldon in Crawshay v. Collins, 15 Ves. 218, 1808, 227. On the dissolution of a partnership either partner can restrain the others or any one of them from doing LORD BYRON v. JOHNSON. 117 LORD BYRON v. JOHNSON. In Chancery, before Lord Eldon, 1816. 2 Merivale 29 The Defendant, a publisher, advertised for sale certain poems, which he represented by the advertisement to be the work of Lord Byron, on whose behalf a Bill was filed (His Lordship being himself abroad,) for an Injunction to re- strain the publication under the title described in the adver- tisement ; and, on affidavits made by His Lordship's agents, both as to their belief and also as to circumstances render- ' ing it highly probable that the work was not His Lordship's, an application was made to the Vice-Chancellor accordingly ; when His Honour, upon the ground that the affidavits were not sufficiently positive, and might be contradicted, ordered that notice of the motion should be given to the Defendant. Notice having been given pursuant to this order, the application was now rendered before the Lord Chancellor, who approved of the course which had been taken by the Vice-Chancellor ; and, upon the Defendant declining to swear as to his belief that the poem in question was actually the work of Lord Byron, granted the motion. An Injunction was issued accordingly, to restrain the Defendant from publishing, in the Plaintiff's name, or as his work, the several poems mentioned in the advertisement, or any parts thereof, till answer or further order. 1 business under the name of the dissolved firm. Peterson v. Humphrey, 4 Abb. Pr. 394, N. Y., 1857. Compare Routh v. Webster, reported infra. The court will restrain one person from issuing a circular cal- culated to leave the impression on the mind of those who read it, that the person who issued it has succeeded to the plaintiff's business, the assertion being false, and the plaintiff still being in business. Har- per v. Pearson, 3 L. T., n. s., 547, 1861 ; Stevens v. Paine, 18 L. T., n. s., 600, 1868; James v. James, 13 Eq. Cas. 421, 1872. "■Accord: Christy v. Murphy, 12 How. Pr. 77, 1856 (The Plaintiff conducted minstrels under his own name. He restrained the defendant from calling his, the defendant's, minstrels, "Christy's Minstrels.") 118 INFRINGEMENT OF BUSINESS REPUTATION. GOUT v. ALEPLOGLU. In Chancery, before Vice-Chancellor Shadwell, 1833- 6 Bevan 69 note a This case seems to have been as follows : — The Plaintiff Gout had been accustomed to manufacture watches for the Turkish market, in which country they had acquired a great repute, and were known by the marks engraved thereon, as after stated. The Plaintiff had been accustomed to engrave upon the inside of his watches, and in Turkish characters, his name, and the word "Pessendede," which signifies "war- ranted or approved." There was also R. G. and a crescent put in relief, and a sprig and crescent. In 183 1 the Defendant applied to the Plaintiff to under- take an order for the manfacture of watches to be consigned to Constantinople, but conceiving he might injure his agent there, the Plaintiff refused to excute such order. The Defendant afterwards got Messrs. Parkinson to manufacture watches for him, on which there were engraved in Turkish characters, the words "Ralph Gout" and "Pes- sendede" on the same part of the watch as those of the Plain- tiff, and which the Defendant Aleploglu consigned to Con- stantinople, and sold there to the prejudice of the Plaintiff's trade. Mr. Knight and Mr. Koe moved for an injunction. Mr. Spence, contra. The Vice-Chancellor granted an injunction in the terms of the notice of motion, restraining Aleplogu from sending or permitting to go to Constantinople and Turkey, or to any other places, and from selling and disposing of any watches with the name of Plaintiff thereon in Turkish characters, or the word "Pessendede" thereon in Turkish characters, or any watches in imitation of the Plaintiff's watches ; and also re- GOUT v. ALEPLOGLU. 110 straining Aleploglu and Messrs. Parkinson from manufac- turing or vending such watches. Reg. Lib. 1832. A. 1247. 1 'Some examples of the protection of trade-marks by injunction are: Ransome v. Bentall, 3 L. J., n. s., Ch. 161, 1834 (The mark con- sisted of letters of the alphabet and a numeral) ; Millington v. Fox, 3 Myl. and Cr. 338, 1838 (The mark consisted of the name "Crowley," a person of that name having at one time been a member of the plaintiff firm) ; Taylor v. Carpenter, 11 Paige 292, N. Y., 1844 (The mark con- sisted of the name of the plaintiff and a fancy name) ; Croft v. Day, 7 Beav. 84, 1843 (The mark consisted of the name of the plaintiff and a fancy design) ; Coats v. Holbrook, 2 Sand. Ch. 586, N. Y., 1845, ibid; Davis v. Kendall, 2 R. I. 266, 1850 (The mark consisted of a fancy name) ; Barrows v. Knight, 6 R. I. 434, i860 (The mark consisted of the name of a famous person long since dead) ; Sterling Remedy Co. v. Eureka Chemical Mfg. Co., 80 Fed. 105, 1897, (The mark consisted of two common words mis-spelled, "No-To-Bac." It was applied to a medicine for the cure of the tobacco habit) ; National Biscuit Co. v. Baker, 95 Fed. 135, 1899 (The mark was "Uneeda." It was applied to a biscuit). Compare with the last two cases, Oakes v. St. Louis Candy Co., 48 S. W. 467, Mo., 1898, where the mark consisted of three common words not mis-spelled ; namely, "What is it ?" The court re- fused to protect an infringement. In Kipling v. Putman, 120 Fed. 631, C. C. A., 1903, 635, there is a discussion as to whether an author can acquire a trade-mark in an ornamental devise stamped on the binding of his works, and prevent a publisher who purchases unbound copies from using a similar impression on the binding. The fact that the defendant did not intend to simulate the plain- tiff's mark does not prevent the injunction from being issued: Milling- ton v. Fox, 3 Myl. and Cr. 338, 1838, 352; Vucan v. Myers, 139 N. Y. 364, 1893. There seems to be some conflict of authority in respect to the right of the plaintiff, under such circumstances, to make the de- fendant account for the profits which he has received as a result of his unintentional simulation of the plaintiff's mark. An account was given in Cartier v. Carlisle, 31 Beav. 292, 1862. See contra, Edleston v. Edleston, 9 Jur., n. s., 479, 1863, 480, per Lord Westbury. The plaintiff does not have to prove that anyone has been de- ceived by the imitation of his mark. He need show merely that there is danger that the public will be deceived. Johnson v. Ewing, 7 App. Cas. 619, 1882. A word denoting a quality of the article sold cannot be appropri- ated as a trade-mark : Perry v. Truefitt, 6 Beav. 66, 1842. In this case Lord Langdale decided that the words "Medicated Mexican Balm," as applied to a hair grease, could not be appropriated as the mark of one vendor, as the public could not be expected to believe that there was only one maker of medicated Mexican balm. Another and less questionable reason for the rule was given by Lord Cottenham in Spottiswoode v. Clark, I Coop. Temp. Cot. 254, 1846: "In the course of the argument it was contended, on the part of the plaintiff, that an exclusive right might be acquired to the use of a gen- eral word, like the word "Pictorial," as the title of the work, in the same way as the exclusive right to a trade-mark, or label, is acquired. But the Lord Chancellor .observed there would be great difficulty in sustaining such a proposition. For instance, it was not disputed that all, who though fit, might publish almanacs with pictures in them. Now those, who started first, would exhaust all the terms- of descrip- tion, which our language would well furnish. One man would adopt 120 INFRINGEMENT OF BUSINESS REPUTATION. for his almanac the word "Pictorial ;" another would adopt for his almanac the word "Illustrated;" and so on. All the the words of de- scription being thus taken, where must the titles for the new alma- nacs be found ? According to the admission, all, who thought fit, might make and publish almanacs with pictures in them, but words would not be left unappropriated for describing them without com- mitting a piracy. There was obviously a difference between the use of a general word and the use of trade-marks and labels. He would not, however, say, that a general word might not be so used in con- nection with other circumstances, as to manifest an intention of com- mitting a fraud, and then the Court would know what to do." In the following cases, in accord with Lord Cottenham's reasoning it has been held that the words given could not be appropriated as a trade-mark : The Amoskeag Mfg. Co. v. Spear, 2 Sand. S. C. 599, N. Y., 1849 (Letters "C. C. A." as denoting first quality. Accord: Ferguson v. Mills, 2 Brews. 314, Pa. C. P., 1868; Lawrence Mfg. Co. v. Tennes- see Mfg. Co., 138 U. S. 537, 1891. Compare, however, Boardman v. Meriden Britannia Co., 35 Conn. 402, 1868, 417) ; Phalon v. Wright, 5 Phila. 464, 1864 ("Extract of Night-Blooming Cerius") ; Raggett v. Findlater, 17 Eq. Cas. 29, 1873 ("Nourishing Stout") ; Burke v. Cassin, 45 Cal. 467, 1873, "Schiedam Schnapps" as a name for a so-called tonic made of gin, the word "Schnapps" being a coloquial word in Germany for gin) ; Caswell v. Davis, 58 N. Y. 223, 1874 (Ferro- Phosphorated Elixir of Calisaya Bark") ; Marshall v. Pinkham, 52 Wis. .572, 1881 ("Old Dr. Marshall's Celebrated Liniment"); Larra- bee v. Lewis, 67 Ga. 561, 1881, ("Snowflake" as applied to bread or crackers); Snodgrass v. Welle, 11 Mo. App. 590, 1882 ("Vienna Bread") Brown Chemical Co. v. Myers, 139 tj. S. 540, 1890 ("Iron Bitters") ; Dadirrian v. Yacubian, 9S Fed. 872, 1900 ("Matgoon" as applied to a preparation of milk, that being the name applied to the preparation in Turkey, by Armenians. The plaintiff, who sought pro- tection for the mark was the first to introduce the preparation into this country) ; J. R. Watkins Medical Co. v. Sands, 83 Minn. 326, 1901 ("Vegetable Anodyne" as applied to a linement) ; Vacuum Oil Co. v. Climax Refining Oil Co., 120 Fed. 254, C. C. A., 1903 ("600 W.," as applied to oil, the number 600 being in use among manufacturers to denote quality). In Davis v. Kendall, 2 R. I. 566, 1850, the word "Pain-Killer" as applied to a medicine was protected as a trade-mark. Is has been held that a word descriptive of the locality in which the goods are produced cannot be appropriated as a trade-mark. The Supreme Court, in Canal Co. v. Clark, 80 U. S., 311, 1871, per Strong, J., said ; "It must then be considered as sound doctrine that no one can ap- ply the name of a district or country to a well-known article of commerce, and obtain thereby such an exclusive right to the application as to pre- vent others inhabitating the district or dealing in similar articles com- ing from the district, from truthfully using the same designation. It is only when the adoption or imitation of what is claimed to be a trade-mark amounts to a false representation, expressed or implied, de- signed or incidental, that there is any title to relief against it. True it may be that the use by a second producer, in describing truthfully his product, of a name or a combination of words already in use by another, may have the effect of causing the public to mistake as to the origin or ownership of the product, but if it is just as true in its ap- plication to his goods as it is to those of another who first applied it, and who therefore claims an exclusive right # to use it, there is no legal or moral wrong done. Purchasers may be mistaken, but they are not deceived by false representations, and equity will not enjoin against telling the truth." GOUT v. ALEPLOGLU. 121 This was said in connection with an attempt on the part of the plaintiff to restrain the defendant, who mined coal in the Lackawana Valley, from calling his coal "Lackawana Coal," a name by which the plaintiff's coal had long been exclusively known. The principle just expressed was extended by Bradley, J., in New York and Rosendale Cement Co. v. Coplay Cement Co., 44 Fed. 277, 1890 (A., in common with other Rosendale cement manufactureres, made cement which they called "Rosendale Cement." B., not located in Rosendale, made ce- ment and called it "Rosendale Cement." Held, that A. could not re- strain B. from using the word "Rosendale" in connection with cement). Compare with this last case, Newman v. Alvord, 49 Barb. 588, N. Y., 1867 (A. manufactured in Akron, Ohio, a cement which he called "Akron Cement." B., et al., manufactuered in Onondaga County, New York, a cement which they called "Onondaga Akron Cement." The Court, at the instance of A., restrained B. from using the word "Akron" ' as part of their trade-mark). See also, Rickard v. Caton College Co., 92 N. W. 958, Minn., igo3 (A. called his school "Minnesota School of Business." He had an established reputation. B. et al. advertised their school as "Caton College, Minnesota's School of Business," the last words being most prominent in the advertisements. B. et al. were restrained from using or imitating the words "Minnesota School of Business"). Compare with these cases the following English cases : McAndrew v. Bassett, 10 Jur., n. s., 492, 1864 (A number of licorice manufacturers imported roots from the district in Spain once called "Anatolia." A., one of these manufacturers began to use the word "Anatolia" as part of his trade-mark. Held, he could prevent the other manufacturers from adopting this word as part of their trade-marks) ; Sexio v. Provezenda, 1 Ch. App. 191, 1866 (A. and B. each had a place in Spain with the same name. A. used the name as part of his trade- mark to designate wine made from grapes grown on his place. B. began to use the same word to designate his wine. Held, that A. could restrain B. from using the word in connection with his wine). Wotherspoon v. Currie, 5 Eng. and Ir. Apps. 508, 1872 (A. manu- factured starch at a small place called Glenfield, and his starch ac- quired a wide reputation as "Glenfield starch." B. started similar works in Glenfield. Held, that B. could not call his starch, "Glenfield Starch") ; Montgomery v. Thompson, 1891, A. C. 217 (A. was a brewer in Stone, a place of 6000 inhabitants. A.'s "Stone Ale" had an estab- lished reputation. B. began to brew ale in Stone. Held, he could not sell his ale as "Stone Ale"). A common law right to a trade-mark cannot be acquired before user in connection with the sale of property. Maxwell v. Hogg, 2 Ch. A. C. 307, 1867. The user must be exclusive. Emerson v. Bad- ger, 101 Mass. 82, 1869; Liebig Extract of Beef Co. v. Walker, 115 Fed. 822, 1902. 122 INFRINGEMENT OF BUSINESS REPUTATION. KNOTT v. MORGAN. In Chancery, before Lord Langdale, Master of the Rolls, 1836. 2 Keen 213 An ex parte injunction was obtained on the 27th of July, restraining the Defendant, Robert Morgan, his agents and servants, from running, or in any manner using or causing to be used, for the conveyance of passengers, his omnibus in the bill mentioned, with the names "London Con- veyance" and "Original Conveyance for Company," or either of such names painted, stamped, printed, or written thereon, or in any manner affixed thereto; and also from running, or in any manner using or causing to be used, for the conveyance of passengers, any omnibus, carriage, or vehicle having the names "Conveyance Company," and "London Conveyance Company," or either of such names, or any colorable imitation of such names, or either of them painted, stamped, printed, or written thereon, or in any man- ner affixed thereto. The bill was filed by four of the proprietors of the Lon- don Conveyance Company, on behalf of themselves and the other proprietors ; and it stated that the company was estab- lished under a deed, which was set forth in the bill, for the purpose of running omnibuses between Puddington and the Bank; that their omnibuses were of a novel and superior construction ; and that the Defendant, with the view and de- sign of fradulently procuring the custom of persons who were in the habit of using the omnibuses of the Plaintiffs, began to run between Puddington and the Bank an omnibus, on which were painted the words, "Conveyance Company" and "London Conveyance Company," in such characters and parts of the omnibuses as exactly to resemble the same words on the omnibuses of the Plaintiffs ; that a star and Defendant, so as exactly to resemble the same symbol on the garter were, in like manner, painted on the omnibus of the KNOTT v. MORGAN. 123 omnibuses of the Plaintiffs; and that the green livery and gold hat-bands, by which the Plaintiffs distinguished the coachmen and conductors of their omnibuses, were in like manner imitated by the Defendant. The bill further stated, that the Plaintiffs served a notice upon the Defendant, inti- mating that an injunction would be applied for, if the De- fendant continued to use the title and insignia by which the omnibuses of the Plaintiff's were distinguished; and that, after such notice, the Defendant obliterated from the back of his omnibus the word "Company," and painted on each side of his omnibus over the words "Conveyance Company," the word "Original," and between the words "Conveyance" and "Company," the word "for" in very small and invisible characters, so that there were then painted on the back of the Defendant's omnibus, the words "London Conveyance," and on each side, the words "Original Conveyance for Com- pany." The bill stated that the coachmen and conductors employed by the Defendant continued to wear the same livery; and it charged that such colourable imitation of the name and title of the London Conveyance Company was a fraud upon the Plaintiffs and the public; and it prayed an injunction. A motion was now made to dissolve the injunction. 1 The Master of the Rolls. The first question is, whether the Plaintiffs are entitled to sue ; and I think that, in the absence of any evidence to the contrary, I must pre- sume that the commissioners of stamps, in whom the act of parliament has vested the power of licensing the propri- etors of stage carriages, have granted to the Plaintiffs a proper license, and that the Plaintiffs have, consequently, a right to sue. The only other question is, whether the Defendant fraudulently imitated the title and insignia used by the Plaintiffs for the purpose of injuring them in their trade; and, upon the affidavits and evidence before me, I have not 'The arguments of counsel are omitted. 124 INFRINGEMENT OF BUSINESS REPUTATION. the least doubt that the Defendant did intend to induce the public to believe that the omnibus which he painted and ap- pointed, so as to resemble the carriages of the Plaintiffs, was, in fact, an omnibus belonging to the Plaintiffs and the other proprietors of the London Conveyance Company. It is not to be said that the Plaintiffs have any exclusive right to the words "Conveyance Company," or "London Conveyance Company," or any other words; but they have a right to call upon this Court to restrain the Defendant from fraudu- lently using precisely the same words and devices which they have taken for the purpose of distinguishing their property, and thereby depriving them of the fair profits of their busi- ness by attracting custom on the false representation that carriages, really the Defendant's, belong to, and are under the management of, the Plaintiffs. I am not satisfied that the injunction has been drawn up exactly in the words in which it ought to have been framed. Let the order, dated the 27th day of July last, be varied, therefore, so that the injunction may be awarded to restrain the Defendant, Rob- ert Morgan, and his servants and agents, from running, or in any manner using or causing to be used, for the convey- ance of passengers, his omnibus in the bill mentioned, or any other omnibus, having painted, stamped, printed, or written thereon the words or names "London Conveyance," or "Original Conveyance for Company," or any other names, words, or devices painted, stamped, printed, or written there- on, in such manner as to form or be a colourable imitation of the names, words, and devices painted, stamped, printed, or written on the omnibuses of the Plaintiffs; and let the Defendant pay to the Plaintiffs their costs of this applica- tion. An appeal motion to discharge this order was heard at the Lord Chancellor's house on the 18th and 19th of August, and dismissed by his Lordship with costs. 2 'Accord : Howard v. Henriques, 3 Sand. S. C. 725, N. Y., 1851 (A called his hotel the "Irving House." B. was restrained from setting PIDDING v. HOW. 125 PIDDING v. HOW. In Chancery, before Vice-Chancellor Shadwell, 1837- 8 Simon 477 In 1832, the Plaintiff began to sell, in London, a mixed tea, composed of many different sorts of black tea, under the name of Howqua's mixture, in packages weighing a catty each and having Chinese characters and the figures of a male and female Chinese on three of the sides, and a printed label, containing the words "Howqua's Mixture," and some other particulars relating to the tea, on the fourth side. The Defendant having sold tea under the same name and in packages with labels resembling those used by the Plaintiff, the Plaintiff obtained an ex parte injunction to re- strain him from so doing. The Defendant now moved to dissolve the injunction. The case made by the Plaintiff, was that the mixture in question was originally made by one of the Hong merchants at Canton, and named Howqua, for his own private use ; that the Plaintiff, when he was at Canton, had been intimate with Howqua, and had frequently drunk tea, made from the up a hotel in the same town under the same name) ; Woodward v. Lazard, 21 Cal. 448, 1863, (Ibid), except that the plaintiff had built a new hotel, and the defendant had moved into the old house) ; Lee v. Haley, 5 Ch. App. 155, 1869 (The plaintiffs designated their business as "The Guinea Coal Co." The defendant was restrained from desig- nating his business as "The Pall Mall Guinea Coal Co.") ; Glenny v. Smith, 11 Jur. n. s. 964, 1865; Colton v. Thomas, 2 Brews. 308, Pa. C. P., 1868; The Glen and Hall Mfg. Co. v. Hall, 61 N. Y., 226, 1874 (The plaintiff's business being on Water street, the plaintiff advertised his business as "No. 10 Water street." The number was arbitrary. Held, that his neighbor engaging in a similar business could not adopt this number) ; Weinstock v. Marks, 109 Cal. 529, 1895. (The plaintiff call- ed his store, "Mechanics' Store ;" defendant erected a store near-by for the sale of the same class of goods, adopted the same architecture as the plaintiff, and called his store the "Mechanical Store." He was restrained from using this name) ; Goodwin v. Hamilton, 19 Pa. C. C. •652, 1897; Crawford v. Lans, 60 N. Y. Sup. 387, 1899. 126 INFRINGEMENT OF BUSINESS REPUTATION. mixture, at his house ; that, having ascertained the particular kind of tea which gave, to the mixture, its peculiar flavour, he in 1832 purchased, from Howqua and brought to Eng- land, a large quantity of that tea and also of other black teas, and made a mixture of them similar to that used by How- qua, and that he had continued to sell large quantities of it, under the name and in the packages before mentioned. The Plaintiff, in his labels and advertisements, inti- mated that the mixture was made, by Howqua, in Canton, and was purchased from him and imported into this country, by the Plaintiff in the packages in which it was sold; that the tea which gave it is peculiar flavour, was very rare and high priced even in China, and was grown in only one pro- vince of that country, named Kyiang Nan ; and that it could not be procured, in England at any price. The affidavits on the Defendant's behalf, were made by persons some of whom had been acquainted with Howqua. They stated that the mixed tea sold by the Plaintiff as Howqua's mixture, was neither made nor used by Howqua : that it was composed of scented orange pekoe (which gave it its peculiar flavour) and of other black teas of the ordinary kinds : that orange pekoe was not considered, in China, to be one of the best teas; and that that sort of tea had been imported into England and sold in England previously to 1832, and had been, since, generally imported and sold by persons engaged in the tea trade : that no black tea, but only green tea, was produced in the province of Kyiang Nan: that the plaintiff did not purchase the teas, from which the mixture was made, from Howqua, or import them from China, but that he purchased them in England, and that the packages in which the mixture was sold were made, not in China, but in England. 1 The Vice-Chancellor. The view that I have taken of this case is this. The Plaintiff having acquired, either by 1 Statements of counsel omitted. PIDDING v. HOW. 127 some communication from Howqua or in some other man- ner, the method of compounding a mixed tea, which has been so agreeable to the public as to induce them to purchase it, be- gan, some years ago, to sell it under the name of Howqua's mixture ; and the Defendant, finding that the Plaintiff's mix- ture was in considerable demand, has recently begun to sell a mixture of his own, which I take to be different from the Plaintiff's, under the same designation. I apprehend that, prima facie, the Defendant was not at liberty to do that. There has been, however, such a degree of representation, which I take to be false, held out to the public about the mode of procuring and making up the Plaintiff's mixture, that, in my opinion, a court of equity ought not to interfere to protect the Plaintiff until he has established his title at law. As be- tween the Plaintiff and the Defendant, the course pursued by the Defendant has not been a proper one : but it is a clear rule, laid down by courts of equity, not to extend their pro- tection to persons whose case is not founded in truth. And, as the Plaintiff, in this case, has thought fit to mix up that which may be true with that which is false, in introducing his tea to the public, my opinion is, that unless he establish his title at law, the Court cannot interfere on his behalf. What, therefore, I intend to do is to dissolve the in- junction, and to give the Plaintiff liberty to bring such ac- tion as he may be advised. Let there be liberty to both par- ties to apply; and reserve the consideration of costs. 2 "In the following cases protection to the plaintiff's trade-mark was denied because of false statements in the mark itself or in the* plaintiff's advertisements connected with his mark: Perry v. Truefitt, 6 Beav. 66, 1843, 76 (The plaintiff sold his hair grease, as made from an original receipt of the learned physiologist, Von Blumenback. The receipt was in reality invented by one Leathart) ; Flavel v. Harrison, 10 Hare 467, 1853 (The plaintiff's mark for his kitchen range was, "Flavel's Patent Kitchener." He had no patent. See dicta, p. 472) ; Fetridge v. Wells, 4 Abb. Pr. 144, N. Y., 1857, (The plaintiff's mark for his cosmetic was, "Balm of a Thousand Flowers." It .was not made from flowers) ; Phalon v. .Wright, 5 Phila. 464, Pa. C. P., 1864. (The plaintiff's mark for his extract was, "Extract of Night Blooming Cereus. The extract was not made from the flower) ; Pal- mer v. Harris, 60 Pa. 156, 1869. (The plaintiff's mark for his cigar 128 INFRINGEMENT OF BUSINESS REPUTATION. TAYLOR v. CARPENTER. In the Court of Chancery, New York., before Chan- cellor Walworth, 1844. II Paige 292 The bill in this cause was filed for the purpose of obtain- ing a perpetual injunction, restraining the defendant from vising the trade-marks of the complainants. The bill stated that the complainants, who resided in England, were en- gaged in manufacturing cotton sewing thread, and vending the same not only in England but in the United States, and particularly in the city. and state of New York; that their said it was. made in Habana. The cigar was made in New York); Manhattan Medicine Co. v. Wood, 108 U. S. 218, 1882, Ibid.; Kenny v. Gillet, 70 Md. 574, 1889 (The plaintiff's mark for his tea conveyed the idea, which was false, that there was a kind of tea in China known as "He-No") ; The Prince Mfg. Co. v. Prince's Metallic Paint Co., 135 N. Y. 24, 1892 (The plaintiff's mark for his paint was, "Prince's Metallic Paint." This meant to the trade that the paint was made from metal mined at the Prince mine. This was not true) ; Preserva- line Mfg. Co. v. Heller Chemical Co., 118 Fed. 103, 1902 (The plaintiff sold his goods as "patented" after the patent had expired) ; Houchens v. Houchens, 95 Md. 37, 1902 (The plaintiff sold his medicine as "The Great Smallpox Cure, cures the worse cases without marking." This statement false). Compare with the foregoing cases the following, in which the Court protected the plaintiff's marks from imitation : Edleston v. Vick, 23 Eng. L. and E. SI, 1853 (The plaintiff sold his goods as "patented." The patent had expired. See contra, Preservaline Mfg. Co. v. Heller Chemical Co., supra) ; Ford v. Foster, 7 Ch. App. 611, 1872 (The plaintiff sold his goods as "patented." He never had a patent. See contra, Flavel v. Harrison, supra) ; Dale v. Smithson, 12 Abb. Pr. 237, N. Y., 1861 (The plaintiff sold his goods under a ficti- tious name) ; The Joseph Dixon Crucible Co. v. Guggenheim, 2 Brews. 321, Pa. C. P., 1869, ibid; Meriden Britannia Co. v. Parker, 39 Conn. 450, 1872 (The name of the original maker of certain goods became a trade-mark. The original maker sold his business to the plaintiff, who employed the original maker, and continued to use his name as a trade-mark) ; Centaur Co. v. Robinson, 91 Fed. 889, 1899 (The plaintiff sold a compound as a "Vegetable Compound." The compound was not made exclusively from vegetables. The ingred- ients were correctly stated in each advertisement) ; California Fig- Syrup Co. v. Worden, 95 Fed. 132, 1899, aff. in, Worden v. Co., 102 Fed. 334, C. C. A., 1900 (Plaintiff sold a compound as "fig syrup." It was not made from figs, but this fact was stated in each advertisement. The plaintiff's advertisements stated that the compound would always cure a particular disease. It would probably do good in some cases, but would not cure). TAYLOR v. CARPENTER. 129 thread was put up for sale on spools labelled on the top of the spool, "Taylor's Persian Thread." The complainants further stated, in their bill, that the defendant, had engaged extensively in the manufacture of cotton sewing thread; that he had caused the same to be put up for sale, on spools similar to those used by the complainants, and so colored, stamped, and labelled, as exactly to resemble the spools used by them. The complainants therefore prayed for a perpetual in- junction, restraining the defendant and his agents from manufacturing and selling, or offering for sale, such simu- lated thread, under the name of Taylor's Persian Thread, or by an imitation of their labels or marks, &c. ; and that the defendant might be decreed to account for the profits which had been made by the sale of such simulated thread, or which the complainants would have made upon the sale of their genuine thread but for his inequitable and wilful piracy of their names, spools, and labels. The defendant, by his an- swer, admitted all the material allegations in the bill; and particularly that he was and had been engaged in manufac- turing and putting up for sale cotton sewing thread with the complainants' marks, and so colored, stamped, and labelled as to resemble exactly, or as nearly as the same could be done, the spools used by the complainant. But he denied that the thread manufactured and sold by him was an infer- ior article, and insisted that it was as good, in all respects, as the thread of the complainants, and contained the same number of yards upon a spool. The cause was heard upon bill and answer. 1 The Chancellor. The fact that the complainants are subjects of another government, and that the defendant is a citizen of the United States, as stated in the answer, cannot alter the rights of the parties, or deprive the com- 'The report of the facts is abbreviated, and the arguments of counsel are omitted. 2 His statement relative to the power of a court of equity to pro- tect trade-marks is omitted. 130 INFRINGEMENT OF BUSINESS REPUTATION. plainants of the favorable interposition of this court if those rights have been violated by the defendant. So far as the subject matter of this suit is concerned, there is no difference between citizens and aliens. And the only question proper to be considered is whether the defendant has the right, as he insists he has, to pirate the trade-marks of the complain- ants with impunity ; and to palm off upon the community a simulated article, as the genuine Taylor's Persian Thread manufactured and put up for sale by them. 2 In the case under consideration, the defendant admits that he has intentionally .pirated the complainants' name as well as their other marks ; that he put up the spools of thread manufactured by him, and stamped and marked them with their marks; and that he so colored, stamped and labelled them as to resemble exactly, or as nearly as could be done, the spools used by the complainants. After such an avowal, no one can doubt for a moment that the defendant did this for the fraudulent purpose of inducing the public, or those who were dealing in the article, to believe that it was in fact the thread manufactured and put up by the complainants; with the intention of supplanting them in the good will of their trade and business. And it is wholly immaterial whether the simulated article, manufactured by the defend- ant, is or is not of equal goodness and value with the real "Taylor's Persian Thread," manufactured and put up for sale by the complainants. They are therefore entitled to the relief prayed for in this bill. The injunction must be made perpetual and the defend- ant must pay to the complainants their costs of this suit. If the complainants wish it, they may also have a reference to a master to ascertain and report the amount of their dam- ages ; and a decree that the defendant pay the amount of such damages upon the coming in and confirmation of the mas- ter's report. 3 ! A bill was also filed and an injunction granted in the Federal Courts: 7 Law Reporter 437, 1844, per Story, J. ROUTH v. WEBSTER. 131 ROUTH v. WEBSTER. In Chancery, before Lord Langdale., Master of the Rolls, 1847. 10 Bevan 561 In 1846 a joint-stock company, called "The Economic Conveyance Company," was established, having for its ob- ject the carrying passengers by steamboat and omnibus at the average rate of id. a mile. The Defendants, the pro- visional Directors, had published prospectuses, in which the name of the Plaintiff was used, without his authority, as a trustee of the Company. They also paid monies into the Bankers of the Company to the Plaintiff's account as trus- tee. The Plaintiff, conceiving that he might be subjected to responsibility by the unauthorized use of his name, filed his bill against the Directors, and now moved for an injunction to restrain them from using his name in connection with the Company. 1 The Master of the Rolls. The sort of opposition made to the application to prevent the unauthorized use of the Plaintiff's name furnishes a specimen of the anxiety of the Defendants to avoid unnecessary litigation. I think that the Plaintiff is entitled to the injunction. I have no doubt that the Plaintiff never did consent to be a trustee. The Defendant Webster might have thought he In accord with our principle case, that the alienage of the plaintiff is immaterial; see Coats v. Holbrook, 2 Sand. Ch. 586, N. Y., 1845. Those who import the goods of a foreigner and sell them under the foreigner's mark have a right to restrain others from simulating the mark. Walton v. Crowley, 3 Blatch. 440, 1856. In Collins Co. v. Brown, 3 Jur., n. s., pt. 1, 929, 1857, Wood V. C, decided that a foreigner, who had acquired a trade-mark in his own country, but who had never used it in England, had a right to restrain a British subject from using it in England. Accord: Collins Co. v. Reeves, 28 L. J. Ch. 56, 1859. l The statements of counsel are omitted. 132 INFRINGEMENT OF BUSINESS REPUTATION. did : if he did, his belief rested upon a very slight founda- tion. However, the name of Mr. Routh, who desired to have nothing to do with this concern, has been published to the world as a trustee : his name was also used at the bank- ers; and though he may not be subjected to the duties of trustee, yet it is plain that he is exposed to some risk by the unauthorized act of the Defendants in using his name. Money was placed in his name at the bankers, and he is left to get rid of his responsibility as he can. The Defendants, having published his name as a trustee, some negotiation took place for giving the Plaintiff an indemnity, and which he was willing to accept as a con- dition for his not applying for an injunction. This was not given, and then the matter remained as it was before. He now moves for an injunction to prevent the Defendants pro- ceeding in the same course for the future, and the Defend- ants, not pretending that they have a right to continue the use of his name, and disavowing any intention of doing so, nevertheless file affidavits in opposition to the application. I am of opinion that the Plaintiff is entitled to the in- junction; and, if it subjects the Defendants to expense, let it be a warning to them as well as to others not to use the names of other persons without their authority. What! Are they to be allowed to use the name of any person they please, representing him as responsible in their speculations, and to involve him in all sorts of liabilities, and are they then to be allowed to escape the consequences by saying they have done it by inadvertence? Certainly not. Is not the Plaintiff entitled to be protected against a repetition of those misrepresentations which have already been made? I am willing to believe the statement made on behalf of the Defendants, that they do not intend to re- peat their misrepresentations ; but I think the Plaintiff is not bound to rely on their assurance, and that he is entitled to be protected by the order and injunction of this Court. CLARK v. FREEMAN. 133 Abstract of Order. Restrain the Defendants "from printing, publishing, or circulating any prospectus or other document or of relating to a certain Company called the Economic Conveyance Com- pany, mentioned on referred to in the Plaintiff's bill in this cause, with the Plaintiff's name thereto, and from, in any manner, using the name of the Plaintiff, so as to identify him as a party interested or associated with the said Com- pany. 2 CLARK v. FREEMAN. In Chancery, before Lord Langdale, Master qf the Rolls, 1848. 11 Bevan 112 This was a motion, on notice, for an injunction, to re- strain the Defendant "from selling or exposing to sale, or procuring to be sold, any pills or other medicine described as or purporting to be those of the Plaintiff, and from pub- lishing or circulating, or causing to be published or circu- lated, advertisements or hand-bills, so contrived or expressed as to represent that any medicine sold or proposed to be sold by the Defendant was so sold by him, as the agent, or on be- half of, or under the sanction or approbation, or with the authority of the Plaintiff." The facts, as appeared, were as follows : — The Plain- tiff, Sir James Clark, was a very eminent physician, practis- ing in London, and Physician in Ordinary to Her Majesty. He had devoted especial attention to the treatment of con- sumptive diseases, and had written and published certain works thereon, and was well-known to the medical profes- 2 Accord: Walter v. Ashton, 1902, 2 Ch. 282 (The defendant was restrained from advertising his cycles as sold by "The Times News- paper." The Times was not in the business of selling cycles). Contra, dicta, per Jessel, M. R., in Levey v. Walker, 10 Ch. D.. 436, 1878, 444 134 INFRINGEMENT OF BUSINESS REPUTATION. sion and to the public in general as a physician peculiarly- conversant with consumptive complaints. A considerable portion of his practice consisted in the treatment of patients afflicted with consumptive and analogous diseases, and a corresponding portion of his professional income had arisen from that source. The Defendant Freeman, a chemist and druggist in the neighborhood of London, had recently been offering for sale, and extensively advertising, certain pills, which he called "Sir J. Clarke's Consumption Pills." One advertisement published in the public papers by him, was as follows : — "By Her Majesty, the Queen's Permission. Sir James Clarke's Consumption Pills. A certain cure for consump- tion, and an unfailing remedy for coughs, asthma, difficulty of breathing, &c. In the long list of maladies which inflict mankind, none can be regarded with more terror than con- sumption; so stealthily is it in its approach, and so insidious and fatal in its effects, that many, who imagine themselves merely laboring under a temporary cough or shortness of breathing, are already within the fatal grasp of this powerful enemy, whose terrible inflictions have rendered desolate so many thousands of happy homes, and blighted the hopes of so many anxious and doting parents. When we reflect upon the prevalence of pulmonary consumption, and the fatal ter- mination which in almost every instance follows, under the ordinary mode of treatment, we cannot but regard this dis- covery as an invaluable boon to Society, for averting so deadly a scourge. Such is the unfailing nature of the medi- cine now offered to the public, that numbers who have been pronounced past recovery are now in the enjoyment of per- fect health, and can scarcely imagine that at one time, they were suffering from that hitherto fatal disease, consumption. Agent Mr. R. Freeman, Kennington Road, and to be had of any medicine vendor, price 2s. gd." He had also published handbills and advertisements, to a similar effect, commencing thus — "By her Majesty the CLARK v. FREEMAN. 135 Queen's permission, Sir James Clarke's Consumption Pills. I am fully aware that by introducing my cure for consump- tion as a Patent Medicine, it will create some astonishment in the minds of the profession ; but it is only by having recourse to such means, that the knowledge of this discovery can be disseminated amongst those unfortunate persons whom it has been my great aim to relieve." The advertisements then proceeded to recommend these pills as a patent medi- cine, and to expatiate on their great merits. 1 The Master of the Rolls. It does not appear to me, that I can grant the present application ; but if any cases can be found warranting the application, I will allow the matter to be mentioned again. My notion is, that the Court can interfere in cases of mischief being done to property by the fradulent misuse of the name of another, by which his profits are diminished. Where the legal right is established the Court usually interferes. This is an application to have the injunction in the first instance. Now, supposing this publication to be, what I am very much inclined to think it is, an attempt to impute to a gentleman of high position and character, that he is somehow concerned in vending quack medicines, then, no doubt, it is a serious injury to him in the way of slander; and it may also be an injury to the public, who may be in- duced, by reason of the sanction of the Plaintiff's name, to adopt as a remedy a medicine which may be in the highest degree prejudicial. This I conceive would be in the nature of a public offence. Now, if this Court had jurisdiction in cases of the kind, you must first establish the offence at law. A Judge sitting here cannot decide it. If, after that has been done, you find that an injury is thereby done to the Plain- tiff's property, or to his means of subsistence or of gaining a livelihood, I will not say that in such a case the Court might 'The statement of the case is abbreviated and the argument of the plaintiff's council omitted. 136 INFRINGEMENT OF BUSINESS REPUTATION not interfere by injunction and prevent the repetition of sim- ilar actions. I do not g-o along with the notion, that this physician, eminent as he is, and an honor to any country, has been seriously injured in his reputation by any such false state- ments as have been published by the Defendant. It is one of the taxes to which persons in his station become subjected, by the very eminence they have acquired in the world. Other persons try to avail themselves of their names and reputations for the purpose of making profit for themselves : that unfortunately continually happens. I cannot grant this injunction : I cannot liken this case to that of Croft v. Day, where a man fradulently attempted to make his own goods pass off as the goods of another, to the prejudice of that other. This the Court would not allow. Its jurisdiction is well established, but I am afraid that if I were to interfere as is now asked, I should be reviv- ing the criminal jurisdiction of the Star Chamber. Mr. Turner afterwards mentioned the cases of Lord Byron v. Johnston and Routh v. Webster. The Master of the Rolls. I do not think the cases apply. If Sir James Clarke had been in the habit of manu- facturing and selling pills it would be very like the other cases, in which the Court has interfered for the protection of property. I regret that the report of the case in Merivale does not assist me by stating the reasons for mak- ing the order. I cannot grant this injunction. The case of the Defendant is disgraceful ; but I think the granting the injunction in this case would imply that the Court has juris- diction to stay the publication of a libel, and I cannot think it has. 2 2 Compare, Olin v. Bate, 98 111. 53, 1881 (B. changed his name to A. G. Olin. He came to Chicago and advertised in the newspapers that he treated venereal diseases. Henry Olin, a celebrated eye and ear specialist, subsequently moved to Chicago. Held, that Henry Olin could not restrain B. from calling himself A. G. Olin, though Henry Olin was thereby subject to embarrassment and disgrace). PARTRIDGE v. MENCK. 137 PARTRIDGE v. MENCK. In the Court of Appeals of New York, 1848. 1 Howard's Court of Appeal Cases 547 One Partridge purchased of A. Golsh the exclusive right to the use of the imprint of a " bee hive" and the words "A. Golsh," which composed the material part of the label and designation of the "Golsh Matches." Part- ridge brings this bill to restrain the Defendant Menck and others from imitating this mark. 1 Gardiner, Judge. If the statements of the bill are analyzed, it will be found that the complainant claims the exclusive right to impose upon the public matches made by himself as those manufactured by A. Golsh. He alleges that "the label hertofore spoken of, which was used by said Golsh, had an imprint of a bee-hive, and the words of 'A. Golsh, friction matches, 124 Twelfth-street, between 5th and 6th Avenues, New York,' which label has been and now is used by your orator without varia- tion." In every essential particular, as it respected the com- plainant, the statement of the label was false. The matches were not Golsh's matches, in the sense in which it was in- tended that purchasers should understand these terms. He was in Europe, and had no interest or agency in their manu- facture. Verbal declarations to a purchaser, of the same kind, with a view to a sale of this article, it was conceded would have been fradulent. That they were made to as- sume a more permanent form, and one better calculated to impose upon those who relied upon the reputation, personal skill, and integrity of Golsh, can make no difference in the character of the transaction. It is no sufficient answer to this view of the subject that the complainant obtained from Golsh the secret of the manner in which his matches were prepared, or that he manufactured an article in all respects l The facts are restated 138 INFRINGEMENT OF BUSINESS REPUTATION. equal to that offered by the former proprietor. So also did the defendants, if we may trust their answer. Nor does it alter the case that the complainant purchased the right to use the name of Golsh. The privilege of deceiving the public, even for their own benefit, is not a legitimate subject of commerce ; and at all events, if the maxim that he who asks equity must come with pure hands, is not altogether obsolete, the complainant has no right to invoke the extraordinary jurisdiction of a court of chancery in favor of such a monopoly. The bill is, therefore, defective for want of equity, and for this reason as well as for those assigned by the vice-chancellor and chancellor, I think the order of the latter should be affirmed. 2 'Wright, J., concurred on the ground that the defendant had not simulated the plaintiff's mark. In accord with our principal case see : Samuel v. Berger, 4 Abb. Pr. 88, N. Y., 1856 (C. was a watchmaker of reputation. He sold the right to stamp his name on watches to A. Subsequently C. sold watches to B. Held, that A. could not prevent B. from stamping C.'s name on the watches bought from C.) ; The Leather Cloth Co. v. The American Leather Cloth Co., 9 L. T., n. s., 558, 1864; Cotton v. Gil- lard, 44 L. J. Ch. 90, 1874 (A. made a sauce which he called "Licensed Victualler's Relish." He allowed B. to whom he did not communicate the secret of the composition of the sauce, to sell it and describe him- self, B., as the proprietor. B. became a bankrupt. His assignee pre- tended to sell the trade-mark. Held, that nothing passed to the vendee); The Fair v. Morales, 82 111. App. 494, 1899; Macmahan Pharmacal Co. v. Denver Chemical Mfg. Co., 113 Fed. 468, 1901 ; Gregg v. Bassett, 1892, 3 Ont. 263 (Plaintiff failed to obtain an in- junction to protect a trade-mark bought at sheriff's sale, apart from the good will of the business). A contract to purchase a trade-mark, apart from the good will of the business with which it has been con- nected is without consideration. Mayer v. Flanagan, 34 S. W. 785, Tx., 1896. One who sells the good will of a business can assign the trade- marks used in connection with the products of the business : Warren v. Warren Thread Co., 134 Mass. 247, 1883, even though the trade- mark is the name of the assignor, Hoxie v. Chaney, 143 Mass, 592, 1887, and cases cited in note 2, to Cruttwell v. Lye, supra. Where the trade-mark is the name of the assignor the mark must not imply that the goods are produced by the assignor's personal skill ; The Leather Cloth Co. v. The American Leather Cloth Co., n Jur., n. s., pt. 1, 513, 1865, per Lord Kingsdown, but merely that the goods are from the formula or by the process of the assignor : Hoxie v. Chaney, supra. (Held, that the trade-mark "A. N. Hoxie's Mineral Soap" was assignable by A. N. Hoxie, in connection with the assignment of his business of soap-making and a formula for making soap owned by him). CLARK v. CLARK. 139 CLARK v. CLARK. In the Supreme Court of New York, 1857. 25 Barbour "}J * Mitchell, J} The plaintiffs are manufacturers, at Mile End, Glasgow, of spool cotton. In 1843, tne y use ^ their present trade mark, consisting of four concentric circles ; the inner one in gold, the next in silver, the next in black with letters in gold, and the next in silver ; the whole bounded by two concentric black lines. In the inner circle is the No. of the cotton; in the next "J- Clark, Jr., & Co., Mile End, Glas- gow." J. Clark, Jr., & Co." being at the top, and "Mile End, Glasgow" at the bottom. In the next circle are the words "Six cord cabled thread warr'd 200 yards." In the outer circle are the words "Sole agent Wm. Whitewright, New York." J. & J. Clark & Co. are also manufacturers of the same article at Seed Hill, Paisley, and the defendant is their agent. They have both sold largely of the article, in the United States. The defendant, some years after the plaintiffs' trade mark was well known, adopted one for his cotton to be sold in the United States, consisting of concen- tric spaces of precisely the same dimensions as those of the One who sells a manufacturing plant can assign the trade-mark of the goods made at the plant, even though the trade-mark is the name of the assignor. Kidd v. Johnson, 100 U. S. 617, 1879 (S. N. Pike owned a distillery in Ohio. He sold the whiskey under the mark "S. N. Pike's Magnolia Whiskey, Cincinnati, Ohio." He took B. and C. into partnership. The distillery remained the property of Pike. The firm ran the business and used the trade-mark until Pike sold the distillery and the right to use the trade-mark to A. Held, that A's as- signees had a right to restrain the successors of the firm from selling whiskey with the above recited mark). It was held in Dent v. Turpin, 2 J. and H. 139, 1861, that where a man carried on the business of making and selling watches in three places, using the same trade- mark on all his goods, that he could assign one plant to one person, and another plant to another, and that each could prevent imitation of the mark. See contra, Rogers v. Taintor, 97 Mass. 291, 1867, 297, See further, Fuller v. Fuller, reported infra. 'The statement of facts as given in the report is omitted. 140 INFRINGEMENT OF BUSINESS REPUTATION plaintiffs, of the same colors, in the same order, with the' letters in black or in gold, as in the plaintiffs. There is the same No. for the inner circle, with the same kind of stamp. In the next circle are the words, "Clark & Co., Seed Hill, Paisley;" "Clark & Co." being at the top, as in the plaintiffs', and the same words, as far they go, as in the plaintiffs, and the other words below and in the reverse order, as are also the plaintiffs' ; though these last words are entirely different from the plaintiffs'. Then in the next circle "Six Cord Cabled thread warr'd 200 yards," precisely as in the plain- tiffs', in black ground and gold letters ; and in the outer circle the words "Sole agent, George Clark, New York." The words "Sole agent — New York," being the same as the plaintiffs' in every respect, even to their position ; the place of their beginning and ending, and the stamp for the letters being exactly alike, also, in both. There is thus an evident design to imitate the plaintiffs' mark, and it is successfully carried out by actually transfer- ring the face of the plaintiff's dye to the defendants,' in all respects, except that the plaintiffs have on theirs "Wffl. Whitewright"— "Mile End, Glasgow"— J. Clark, Jr., & Co." where the defendants have "George Clark" — "Seed Hill, Paisley"— "Clark & Co." The effect of this imitation must be that all except very cautious purchasers would be deceived. Some who may have known that Wm. White- wright was the agent of the plaintiffs, would naturally sup- pose that George Clark had been substituted. So that the difference in the names of the agents would not prevent deception. The name "Clark & Co." is so near to "J. Clark, Jr., & Co." that it would pass for the same; especially when placed in the same position, in the same kind of letters, and on the same ground. The difference in residence, being stamped so as to be read in the reverse of the rest of that circle, might pass unnoticed. The law of trade marks is of recent origin, and may be comprehended in the proposition that a dealer "has a prop- CLARK v. CLARK. 141 erty in his trade mark." The ownership is allowed to him, that he may have the exclusive benefit of the reputation which his skill has given to articles made by him, and that no other person may be able to sell to the public, as his, that which is not his. An imitation of his mark, with par- tial differences such as the public would not observe, does him the same harm as an entire counterfeit. If the whole- sale buyer, who is .most conversant with the marks, is not misled, but the small retailer or the consumer is, the injury is the same in law, and differs only in degree. The right of action must exist for the last, as well as the first. If all con- sumers do not discriminate in the end, it would be indiffer- ent, even to the wholesale buyers, from which of the two they bought, and thus the extent, also, of the injury would be as great as if they also were deceived. It would follow that the defendants in this case should be enjoined from using the mark which they now use, and from any imitation of it with only colorable differences. But the injunction should not be as broad as it was originally granted. It should be so expressed that the defendants might distinctly understand what is prohibited. Their firm name is T. & J. Clark & Co. They manufacture six cord cabled thread: They have George Clark as their agent in New York. All this they may express, as well as the number of their thread. But they should express it so as not to appear to imitate the plaintiffs. This could be done by inserting their firm name, instead of only a part of it ; by changing the order of the col- ors in the concentric circles, and the style of the lettering and figures, and the position of the letters. There will be still a similarity between the labels of the two, that may mislead some. But this results from two persons of nearly the same name being engaged in the same business, and the undoubted right of each to use his own name, and to describe the arti- cle which he sells by its well known name ; but does not result from an imitation of the mark of the other. The injunction should be modified accordingly. 142 INFRINGEMENT OF BUSINESS REPUTATION. The plaintiffs complain that the defendants caused to be inserted in the newspapers an advertisement that "Clark's spool cotton was sold wholesale onlv by George A. Clark," and that their cotton had obtained the designation of "Clark's spool cotton." The defendants show that this ad- vertisement was inserted in consequence of the plaintiffs having previously caused to be inserted in the daily papers an advertisement that "Clark's spool cotton, the genuine arti- cle, has the name of Wm. Whiltewright on every spool." Both parties deal in spool cotton, and as both are of the same name, each is entitled to have his called by the name of "Clark's spool cotton." The advertisements of each was therefore unjustifiable. The defendant's advertisement, if intended only indirectly to negative the plaintiffs', must be considered as part of a war of advertisements, in which neither has the right to call upon the court to interfere in his behalf until he lays down the hostile weapons which he has assumed, and comes, in a peaceful attitude, to ask for the protection of the law. For this reason the injunction should not be continued as to the advertisement, unless the plaintiffs stipulate to for- bear such advertisements as they have published. The in- junction should be modified in this respect also. 2 Lord Langdale, in Holloway v. Holloway, 13 Beav. 209, 1850, 213, had already expressed the principle on which Clark v. Clark rests. He said : "The defendant's name being Holloway, has a right to constitute himself a vendor of Holloway's pills * * * But he has no right to do so with such additions to his own name as to deceive the public and make them believe he is selling the plaintiff's pills." Taylor v. Taylor, 2 Eq. Rep. 200, 1854, semble. The Court of Appeal in Burgess v. Burgess, 3 De G. M. and G. 896, 1853, refused to inter- fere in any way with the defendant's selling an essence of anchovies under his own name, though the plaintiff had an established reputa- tion, and the wording of the defendant's advertisements were similar to those heretofore employed by the plaintiff. In accord with the position taken in Burgess v. Burgess, Sutherland, J., in Faber v. Faber, 49 Barb. 337, N. Y., 1867, 358, said, that when the injury results from the defendant's use of his own name the plaintiff is without remedy. Compare, however, his opinion in Howe v. Howe Machine Co., 50 Barb. 236, N. Y. 1867, 243. In accord with the principal case and Halloway v. Halloway, see : Meriden Britannia Co. v. Parker, 39 Conn. 450, 1872 ; Devlin v. Devlin, 69 N. Y. 212, 1877; William Rogers Mfg. Co. v. Rogers and CLARK v. CLARK. 143 Spurr Mfg. Co., n Fed. 49s, 1882; Oakes v. Tonsmierre, 4 Woods 547, 1883, semble; Jennings v. Johnson, 37 Fed. 364, 1888; Hires v. Hires, 6 Dist. 285, Pa. C. P., 1896; Arnheim v. Arnheim, 59 N. Y. Sup. 948, 1899. (The similar arrangement of the defendant's store to that of the plaintiff was considered evidence that the defendant was trying to deceive the public). Robinson v. Storm, 103 Tenn. 40, 1899, 48; Wm. G. Rogers Co. v. International Silver Co., 118 Fed. 133, C. C. A., 1902. For examples of the proper use of one's own name in the sale of goods, though another of the same name has an established reputa- tion for similar goods, see : Meneely v. Meneely, 62 N. Y. 427, 1875 ; Gilman v. Hannewell, 122 Mass. 139, 1877; Rogers v. Rogers, S3 Conn. 121, 1885. Where one has an established reputation in the manufacture of a class of goods, he has a right to require another of the same name as himself, making the same goods, to indicate that he is not the original maker of that name. Baker v. Sanders, 80 Fed. 889, C. C. A. 889, 1897 (Walter Baker had a wide reputation as a chocolate manu- facturer. The defendant W. H. Baker, a manufacturer of chocolate, was obliged by the decree of the court to place on each package sold under his own name the statement, "W. H. Baker is distinct from and has no connection with the old chocolate manufactory of Walter Baker & Co.). For a similar decree, see In re Brinsmead, 1897, I Ch. 45. In accord with the. principle of these cases, see: Royal Baking Powder Co. v. Royal, 122 Fed. 337, 1903 (Royal was the fancy name applied by the plaintiffs to their baking powder. They had an established reputation. It is not customary for vendors of bak- ing powder to place their own name on the front label of their cans. The defendant, whose name was Royal, was restrained from using his name on the front label of his can). In Wm. Rogers Mfg. Co. v. Rogers, 84 Fed. 634, 1898, a decree similar to that in Baker v. Sau- ders, supra, was refused. In Schmid v. De Grauw, 59 N. Y. Sup. 569, 1899, it was decided that a person having the same name as the plaintiff, could not give his name to a corporation in which he was interested, for the purpose of attracting to the corporation the customers of the plaintiff. A corporation will be restrained from adopting a name which is sufficiently similar to that of the plaintiff corporation in the same business, to cause the public to be deceived as to the identity of the defendant corporation. Newbey v. The Oregon Central R. R. Co., Deady 609, 1869; Goodyear Rubber Co. v. The Goodyear Rubber Mfg. Co., 21 Fed. 276, 1884; Telephone Mfg. Co. of Sumter v. The Sumter Telephone Mfg. Co., 63 S. C. 313, 1901. In the following case the court refused the injunction, not thinking that the public would be deceived: The Hygeia Water & Ice Co. v. New York Hygeia Ice Co., 140 N. Y. 94, 1893. 144 INFRINGEMENT OF BUSINESS REPUTATION. FORD v. FOSTER. In the Court of Appeal in Chancery, 1872. 7 Chancery Appeals 611 This was an appeal from a decree of Vice-Chancellor Bacon. 1 Sir W. M. James, L. J. : In this case the plaintiff com- plains of the defendants that they have invaded his trade mark. The plaintiff's case is that he, being a shirt-maker in London, invented a particular form of shirt, to which he gave the name of "Eureka," and that he used as a trade mark, which he affixed to the shirts, the words "Ford's Eureka Shirt;" and he complains that he having used this trade mark for several years, the Defendants have used the word "Eureka," affixing it to a shirt in exactly the same place as the Plaintiff affixed his mark; and that they have also used boxes containing small quantities of shirts, just as much as one purchaser would buy, with the mark "Foster, Porter, & Company's Improved Eureka." * * * The plaintiff makes this prima facie case — that he has a plain trade mark, a material and substantial part of which has been taken by the Defendants. Then the onus is, under those circumstances, cast upon the Defendants to relieve them- selves from that prima facie liability. Their defence con- sists in substance of two parts. One is that the word "Eu- reka" had become publici juris — that it had ceased, in fact, to be part of the Plaintiff's trade mark, or essential to any trade mark; that it had become a word like "Wellington" as applied to boots, descriptive, not of the Plaintiff's shirts, but descriptive of a form of shirt, and that it was known in the market and to all the public as the name and description of that particular form. 1 The statement of facts and arguments of counsel as given in the report are omitted, and only so much of the opinions of James, L. J., and Mellish, L. J., are printed as relates to the effect of the plaintiff's laches on his rights. FORD v. FOSTER. 145 Now, in considering the question as to whether or not it is publici juris, I think it is important to regard a little the history and chronology of the case. [His Lordship referred to the evidence: — ] It appears to me to be clearly made out that, at the time when one of the Defendants' shirts was sent to Mclntyre, Hogg, & Co. by the defendants, and shirts were made by Mclntyre, Hogg, & Co. for them of the Eureka shape, and up to that time, there was not any use of the word "Eureka" as applied to shirts in any sense whatever in the market. There was, during an interval — I think during one year, the year 1854 — a relation of the Plaintiff of the name of Ford, who seems to have sold shirts (it does not appear whether they were marked or not) as "Ford's Eureka Shirts," and he was not, apparently, interfered with by the Plaintiff. That, however, did not last for more than a year, and whatever wound that might have inflicted upon the Plaintiff's property, it appears to me that must be con- sidered to have been entirely healed long before this trans- action of the Defendants' took place. With the exception of that, so far as the evidence goes, it appears that not a single shirt had even been advertised, or marked in such a way as to get into the hands of the public, with the name "Eureka." It is in evidence that the shape itself became from the first very popular, and that a great number of per- sons used the shape, as they lawfully might; and to some extent it appears that, as between the shirt-maker and his cutters, as between persons engaged in the trade, with regard to whom the use of the word would not be calculated to deceive, the word "Eureka" was used. A man might say, "I want one hundred dozen Eurekas," or he might say "I want one hundred dozen Fords" — that is to say, between them that signified so many dozen shirts made after the pattern of Mr. Ford's shirts, which was perfectly lawful; but at the time when the Defendants began their operations it does not appear to me that there was any use of the word "Eureka" as between any seller and any ordinary buyer, or that there was anything whatever which tended to show 146 INFRINGEMENT OF BUSINESS REPUTATION. that the word "Eureka" meant at that time anything but the shirt manufactured by the Plaintiff himself. That was, in my judgment, the state of things at the time when the piracy by the Defendants began; and I think it is to be la- mented that Mr. Walton and Mr. Hogg did what they did — that is to say, used the word Eureka, and stamped that word in exactly the same place as that in which the Plain- tiff placed his trademark. They did not apparently with an unconsciousness — as they they naively disclose in their evi- dence — that it was a most improper attempt to obtain the benefit of the reputation which Mr. Ford had acquired for his shirts by the merit of the manufacture itself, and by his persistent and expensive advertisement of it in all parts of the kingdom. At all events, it was in my judgment, a most improper violation of the Plaintiff's right at that time, and if the Plaintiff had then discovered it, and had then filed his bill to restrain the use of that word "Eureka" by the De- fendants, he must have succeeded in his suit. Then what has occurred since ? A great deal of evidence has been given as to the common use of the word "Eureka;" but if we eliminate from that mass the evidence of the use of the word which is to be traced directly to the operations of the Defendants themselves — the use of it by the persons who are the shopkeepers who have bought from the Defendants, the use of it by shippers who have bought from the Defend- ants for the purpose of shipping to the colonies, where the Eureka shirts seem to be in request — it appears to me that the evidence of the use of the word publici juris is reduced to a very small amount indeed. It is not to be overlooked that, with the single exception of Stroud, who for the last year or two is proved to have put over his door "Stroud's Eureka Shirts," where the evident intention to distinguish his shirts from "Ford's Eureka Shirts might, perhaps, have made it difficult to interfere with him, there is no evidence that in the whole of London there has been any use of the word "Eureka" in such a way as to affect the question before FORD v. FOSTER. 147 us by any person whatever except the Defendants. It has been said that one murder makes a villain and millions a hero ; but I think it would hardly do to act on that principle in such matters as this, and to say that the extent of a man's piratical invasions of his neighbour's rights is to convert his piracy into a lawful trade. That ground of defence, there- fore, in my judgment, fails. Sir G. Mellish, L. J. For the reasons given by the Lord Justice James, which I do not repeat, I am clearly of opinion that originally, at any rate, the Plaintiff was entitled to be protected against the use of the word "Eureka" by the shirt-makers as a violation of his trade mark. Then the question is, has it become publici juris? And there is no doubt, I think, that a word which was originally a trade mark, to the exclusive use of which a particular trader, or his successors in trade, may have been entitled, may subsequently become publici juris, as in the case which has been cited of Harvey's Sauce. It was admitted that, al- though that originally had been the name of a sauce made by a particular individual, it had become publici juris, and that all the world were entitled to call the sauce they made Harvey's Sauce if they pleased. Then what is the test by which a decision is to be arrived at whether a word which was originally a trade mark has become publici juris? I think the test must be, whether the use of it by other persons is still calculated to deceive the public, whether it may still have the effect of inducing the public to buy goods not made by the original owner of the trade mark as if they were his goods. If the mark has come to be so public and in such universal use that nobody can be deceived by the use of K, and can be induced from the use of it to believe that he is buying the goods of the original trader, it appears to me, however hard to some extent it my appear on the trader, yet practically, as the right to a trade mark is simply a right to prevent the trader from being being cheated by other persons' goods being sold as his goods through the 148 INFRINGEMENT OF BUSINESS REPUTATION. fraudulent use of the trade mark, the right to the trade mark must be gone. Therefore I have examined the evidence in this case for the purpose of determining whether the use of the word "Eureka" has become publici juris in that sense, and I have come to the conclusion upon the whole, that as between the wholesale dealer and the retail dealer it has to this extent become publici juris, that by the use of it in the trade circu- lars, which are issued only to retail dealers, or by the shirts being invoiced by the wholesale dealers "Eureka Shirts," no retail dealer would be likely to be deceived or to buy shirts which were not made by Ford believing they were Ford's shirts. But I have come to the conclusion that a very con- siderable portion of the public, who buy the shirts for the pur- pose of wearing them, are still very liable to be deceived by the use of the word "Eureka" as a mark on the shirt itself, particularly when it is affixed in the very place where Mr. Ford has been accustomed to place his mark. And the reason why I come to that conclusion is principally this : Mr. Ford is the only person who has ever advertised these shirts as "Eureka" shirts, and who has ever advertised that he marks them in that particular place. There is evidence that, to a very large extent, indeed for a series of years, Mr. Ford has advertised that he marks his shirts in a particular part of them, and that none of them, except those that are marked "Ford's Eureka Shirts" are genuine. Then, no doubt, it is said that he has always put "Ford's Eureka Shirt," and that would prevent the public being deceived. I. cannot think that that would be its practical effect. It is quite obvious that, although he puts the word "Ford" to it for the purpose of inducing people to come to him, yet a very large number of persons who read these ad- vertisements would be attracted by and would remember the word "Eureka" who would wholly forget the word "Ford." And persons who had been accustomed to buy these shirts marked "Ford's Eureka Shirt," and persons who FORD v. FOSTER. 149 had been accustomed to read his advertisement and see that the shirts were extensively advertised as "Ford's Eureka Shirts" when they came and saw in a shop, either in this country or in the colonies, marked as the Defendants' shirts are marked, "The Eureka Shirt," they would not neces- sarily remember the name of Ford, but they would sup- pose that these were the advertised shirts which had obtained such celebrity. There can be no doubt that there are many persons who, if there were no difference as regards the fit of two shirts, would prefer buying a shirt from the original maker, and the word "Eureka" marked upon a shirt would be calculated to make such persons believe that it was made by the man who originally found out and advertised the "Eureka." I am, therefore, of opinion on the first point that the trade mark has not been made so publici juris as to debar the Plaintiff from maintaining his suit. Decree reversed and injunction issued. 2 "Accord: Horton Mfg. Co. v. Horton Mfg. Co., 18 Fed. 816, 1883; Bissel CKilled Plow Works v. T. M. Bissell Co., 121 Fed. 357, 1902 (Defendant adopted a name similar to that of the plaintiff. The plaintiff delayed six years before bringing his action. Injunction granted). Where the mark consists of a fancy name or design the right may be lost by the owner failing to take action until the defendant has, by advertising the mark, increased its value, Estes v. Worthington, 22 Fed. 822, 1885; or the fancy name has become the generic name of the class of goods, on which the mark has been placed : Saxlehner v. Eisner and Mendelson Co., 179 U. S. 19, 1900. It was at one time thought, that where the mark was a fancy name or design, the neglect of the owner to bring an action for in- fringement would of itself prove abandonment. See Beard v. Turner, 13 L. T., n. s., 747 (Dicta per Wood, V. C, declares two years' delay on part of plaintiff sufficient to defeat his right) ; Amoskeag Mfg. Co. v. Garner, 55 Barb. 151, N. Y., 1869 (Delay of nine years regarded as sufficient. Dicta, as plaintiff failed to show he ever had a trade- mark). In an early case at law, Taylor v. Carpenter, 2 Wood & M. 1, 1846, 19, Woodbury, J., expressed the idea that the right in a trade- mark could not be lost short of the period of the statute of limita- tions relating to deceit. This idea is adopted by Fry, J., in Fullwood v. Fullwood, 9 Ch. D. 176, 1878. The idea is based on the assumption that the prayer of the plaintiff to restrain an infringement of his' trade-mark "is in the nature of an action for deceit." In Menendez v. Holt, 128 U. S. 514, 1888, the court refused to consider the defense that the owner of a trade-mark, consisting of a fancy name, had permitted the defendant to copy the mark. Fuller, C. J., said: "The intentional use of another's trade-mark is a fraud; and when the excuse is that the owner permitted such use, that 150 INFRINGEMENT OF BUSINESS REPUTATION. MOORMAN v. HOGE. In the Circuit Court for the District of California, 1871. 2 Sawyer 78 Bill in Equity, the object of which, is, to obtain a decree restraining an alleged infringement of complainants' trade-mark. From some time prior to 1857, till July 2, i860, one J. H. Cutter, and complainant, Moorman, were doing busi- ness as partners at Louisville, Kentucky, under the name of "J. H. Cutter & Co." The firm was engaged in the manufacture and sale of whisky. Their whisky acquired throughout the country and particularly in the State of California, a high reputation for excellence, and, was gener- ally known as "Cutter Whiskey. " The said "J. H. Cutter & Co.," adopted for their California trade, a barrel of pecu- liar shape and size, in which their whiskies for said market, were put up, shipped and sold. The said barrel was adopted as a trade-mark, in part, to enable dealers in whiskies to excuse is disposed of by affirmative action to put a stop to it. Per- sistence then in the use is not innocent; and the wrong is a continuing one, demanding restraint by judicial interposition when properly in- voked. Mere delay or acquiescence cannot defeat the remedy by injunction in support of the legal right, unless it has been continued so long and under such circumstances as to defeat the right itself." Compare with this, the assumption that an abandonment to the public can be shown by proving an intention to abandon, which was made in Mouson Co. v. Boehm, 26 Ch. 398, 1884, and in Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19, 1900, 31. In neither of these cases was the intention proved. Quare what would prove an intention to abandon a trade-mark, and whether, in view of the fact that a trade-mark can- not be assigned in gross, any legal effect can be given such an in- tention ? Both before and after our principal case the laches of the plaintiff in asserting his rights has been held sufficient to bar his right to an account for injuries sustained, though in the same case, the court has granted the plaintiff an injunction against future violations. Har- rison v. Taylor, 11 Jur. U. S., 408, 1865; McLean v. Fleming, 96 U. S. 245, 1877, 251; N. K. Fairbank Co. v. Luckel, King and Cake Soap Co., 116 Fed. 332, C. C. A.. 1902; Bissell Chilled Plow Works v. T. M. Bissell Co., 121 Fed. 357, 1902. MOORMAN v. HOGE. 151 more readily distinguish the whiskies of said firm, from those manufactured and sold by other parties. The said barrel is made of staves thirty-eight inches in length, and one and one fourth inches thick. It is twenty inches in diameter at the head, has sixteen wooden, and four heavy iron hoops, and is of the capacity of fifty gallons ; while ordinary whisky barrels are but thirty-two inches long, with staves of half that thickness, and fewer hoops, and have a capacity of only forty gallons. These barrels and marks were used by said J. H. Cutter & Co., in their whisky trade till on, or about, July 2, i860, when said J. H. Cutter, for a valuable consideration, sold and transferred all his right, title and interest in the business, and to the trade-marks and brands, and the sole right to use, and sell the same, to the complainants in this case; and the said complainants under the firm name of "C. P. Moorman & Co.," have continued to carry on the said business, of manufacturing and selling whiskies at Louisville, Kentucky, and putting them up and selling them in said barrels, branded with said marks, from said date to the present time claiming the said barrel, and said marks as their trade-mark. The defendants are agents at San Francisco, California, for the sale of whiskies on the Pacific coast, for Jesse Moore & Co., a firm engaged in the manufacture and sale of whisky at Louisville, Kentucky. Within the two years next preceding the filing of the bill, said Jesse Moore & Co. shipped to defendants at San Francisco, several hundred barrels of whiskey for sale, and the said defendants have sold, and they are now engaged in selling, said whiskies in California, and elsewhere on the Pacific coast. Said whis- kies are put up in barrels, which are in all respects as to size, shape, and general appearance, so far as the barrel itself is concerned, a close imitation of the barrel which complainants use for their "Cutter Whiskey." The appearance of the two barrels is manifestly alike, 152 INFRINGEMENT OF BUSINESS REPUTATION. and any party looking at the two barrels, without regarding the marks on them, would at once pronounce them the same barrel. The defendants, doubtless, intended the bar- rels to be alike; for they directed their principals to send their whiskey in such barrels, and that they might do so, sent them the measures of the barrel used by the complain- ants, and called the "Cutter Barrel." But the marks on the barrels are wholly different. 1 Sawyer, Circuit Judge. The complainants do not claim that there is any infringement upon that part of what they claim to be their trade-mark, which consists of the words and devices stamped upon the barrel. The claim is that there is an infringement by the use of the barrel only. Is the plaintiff entitled to the exclusive use of a barrel of this peculiar form, construction and capacity, without regard to any mark or device impressed upon, or connected with it? Can a barrel of this description be appropriated as a trade mark, or substantive part of a trade-mark, so as to exclude the rest of the world from using it in the same branch of business? If so, the complainants, in my judg- ment, are entitled to the relief sought, otherwise, not. * * * 2 This brings us to the great, and highly important ques- tion, whether a barrel of peculiar form and dimensions, without any marks, symbols, or devices of any kind im- pressed upon, or connected with it, can, in fact and in law, become a trade-mark, or a substantive part of a trade-mark, so as to invest the claimant with an exclusive right to use it. It will be observed that the statute, under which the claim is made, does not define the term, "trade-mark," or say of what it shall consist. The term is used as though its signification was already known in the law. It speaks of it as an already existing thing, and protects it as such. The thing to be protected must be an existing lawful "trade- 1 The report of the statement of facts is abbreviated. * His discussion of the Act of Congress of July 8, 1870, 16 Stats. 198, relating to the registration of trade-marks is in large part omitted. MOORMAN v. HOGE. 153 mark," or something that may then for the first time be adopted as a lawful trade-mark independent of the statute. There must be a lawful trade-mark adopted without refer- ence to the statute, and then, by taking the prescribed steps, that trade-mark so already created and existing, may receive certain further protection under the statute. This is appa- rent from the language of the seventy-seventh section, which speaks of parties, "who are entitled to the exclusive use of any lawful trade-mark, or who intend to adopt and use any trade-mark for exclusive use," etc., and, by the seventy-ninth section, which forbids the commissioner to re- ceive and record any proposed trade-mark which is not, and cannot become a lawful trade-mark. It does not say what shall constitute a lawful trade-mark. We must, therefore, go to the law of the land, outside this statute, to ascertain what is, or what may become a lawful trade-mark; for the statute leaves the definition of a trade-mark to the law, as it before stood. The definition of a trade-mark, given by Mr. Upton, is as follows, to wit : "A trade-mark is the name, symbol, figure, letter, form, or device, adopted and used by a manufacturer, or merchant, in order to designate the goods that he manufactures or sells, and distinguish them from those manufactured or sold by another; to the end that they may be known in the market as his, and thus enable him to secure such profits as result from a reputation for superior skill, industry, or enterprise." (Upton on Trade-marks, p. 9.) This is a good general definition, broad enough in its terms, probably, to cover every case to be found in the books, but it would not alone, perhaps, be sufficient as a test by which every individual claim of a device, as a proper trade- mark, can be tried and determined, without looking into the cases from which the definition is compiled, to see what names, symbols, figures, letters, forms, and devices have been recognized and protected as trade-marks. The words "form," and "device," for instance, are very broad terms, and 154 INFRINGEMENT OF BUSINESS REPUTATION. they might, in a general and comprehensive sense, embrace the form of a barrel, or package, or of the article of mer- chandize itself sold. But the words of definition are all used in connection with the word, "mark," and the word mark, in its first and usual signification is defined, by Web- ster, to be "a visible sign, made or left upon any thing; a line, point stamp, figure, or the like, drawn or impressed, so as to attract the attention, and carry some information, or intimation; a token; a trace." And some such mark used in connection with, impressed, cut, or stamped upon, or attached to the article manufactured, or sold, in the ordinary course of trade, embraces the usual and ordinary idea, of a "trade-mark." The primary and the sole object of the trade- mark, is to distinguish the goods as being a particular manu- facture, or as belonging to a particular party. It is cut, stamped, engraved, impressed upon, attached, or in some way appended to the goods, the vessel containing them, or the covering wrapped around the goods for this sole pur- pose. The object of using a barrel, box, or other package, is to contain, carry, protect, and preserve the goods, or for their convenient handling; and form of some kind and dimensions, are essential in a box, barrel, or package, with- out which it can have no existence. But the size or shape of the barrel, box, or package can scarcely be considered a mark, nor can that be the sense in which the terms, "form" or "device," are used when employed as a definition of a mark, used for purposes of trade. So general is the idea that the symbol, figure, letter, form, or device, used for a trade-mark, must be a mark impressed, cut, engraved, stamped, cast upon, or in some way wrapped around, or ap- pended to, the article, or the package, as something independ- ent of the aticle itself, or the package used to contain it, that it is carried into the statutes of some States, where it is, doubtless, only intended to adopt the common law definition. Thus, in the statute of California, the language used is, "any peculiar name, letter, mark, device, figure, or other trade-mark, or name, cut, stamped, cast, or engraved upon, MOORMAN v. HOGE. 155 or in any manner attached to, or connected with, any article, or with the covering or wrapping thereof manufactured, or sold," etc. This indicates that it was not supposed that the barrel, package, covering or wrapping itself, which is used for another purpose could properly be used as a trade-mark, but that the trade-mark must be some mark of the kind in- dicated in some way, impressed, cut, cast upon, or con- nected with such package, covering, etc., or the article itself. The complainants in this case prior to the passage of the act of congress in question, filed their trade-mark in the office of the secretary of state, of California, and, in so doing, they omitted the barrel as a part of their trade-mark, although it had, long before that time been adopted and used by them in their California trade. The reason assigned for this omission by their counsel, on the argument of this cause, in answer to the suggestion that the omission con- stituted an abandonment of the barrel, was, that, under this statute of California, they could not adopt the barrel as a trade-mark, for that the trade-mark, under the Act, must be cut, engraved, stamped, impressed, cast, etc., on the bar- rel, package, etc., and this, I apprehend, is the true idea of a trade-mark at common law with respect to this point. I have examined with care a large number of cases in- volving infringements of trade-marks, including all the recent cases, which I have been able to find, so far as they bear upon the question in hand. It would be an arduous and unprofitable task to comment upon them all, and I shall content myself with stating briefly the result of my exam- ination In every case there was a trade-mark proper, such as is indicated in this opinion, embracing some name, symbols, figure, letter, form or device, cut stamped, cast, impressed or engraved upon, blown into, or, in some manner attached to or connected with the article manufactured or sold, or the package containing it, or the covering or wrapping thereof. Where the vessel containing the article was of glass, iron or 156 INFRINGEMENT OF BUSINESS REPUTATION. other metal, whether of peculiar shape and dimensions or not, the trade-mark proper was often blown, or cast, in the vessel, sometimes on a shoulder, sometimes in the body of the vessel. There were various ways of impressing upon, or connecting with the vessel, package or article, the mark ; but there always was a mark in fact, other than the shape or size of the vessel, or package. I find no case where the vessel, box, package, or whatever contained the article, has been held to constitute a trade-mark by reason of its pecu- liar form or dimensions, independent of any symbol, figure or device impressed upon, or connected with it for a trade- mark. I find no case where the use of a package of pecu- liar form and dimensions has been restrained without having imprinted upon, or connected with it, some other symbol, word, letter, or form, adopted as a trade-mark. There are numerous cases where the use of a bottle, or other vessel, or package, having upon it the device adopted as a trade-mark, has been injoined, but, I find none restraining the use of the bottle, vessel or package without the device impressed upon, or connected with it. A manuscript copy of a recent decree rendered by the Court of Chancery. at Louisville, Kentucky, in the case of Wilder v. Wilder, has been furnished me by complainants' counsel, as a case in point. But in that case, the defendants were restrained from selling "any preparation or compound under the name and style of 'J- B. Wilder & Co.'s Stomach Bitters,' printed, stamped, or engraved upon the bottles, labels, wrappers, covers, boxes, packages thereof. Also, from using the bottle herein exhibited marked 'B. 2,' and from imitating or causing to be imitated in any manner, either the bottle or label of the plaintiff herein marked re- spectively, 'A. and B.' " This case does not appear to be in any respect incon- sistent with the view indicated. Here was a trade-mark pro- per in connection with the bottle, and, as the court restrained defendants from selling the compound in connection with MOORMAN v. HOGE. 157 the trade-mark, "printed, stamped or engraved upon the bottle," doubtless, the complainants' bottles referred to as exhibits in that case, had the trade-mark impressed upon, or blown into bottles, and this being so, it would be impos- sible to use those bottles without having the trade-mark on them, and, therefore, also using the trade-mark itself. The trade-mark, in such cases, constitutes a part of that particu- lar bottle. If this is not the true state of facts, then the copy of the decree- furnished me does not show what the exact case is. At all events, it does not appear to be an exception to the general rule before stated. There are numerous cases where the use of a particular bottle or package has been re- strained, when the bottle or package had the trade-mark impressed upon or blown into its structure, making it a part of the package itself, and it was necessary to include the particular description of bottle in order to restrain the use of the trade-mark indelibly impressed upon it. But, as before stated, I find no instance where the use of a bottle, vessel or package of a peculiar form and size has been in- joined with the trade-mark of the complainant, or colora- ble imitation thereof, used upon; or connected with it, omitted Doubtless a bottle, vessel, or package of a peculiar form may be used as auxiliary to the trade-mark proper, and may be of use in solving a question of intent of a party, in imi- tating, or using an evasive simultation of another's trade- mark. As, for instance, a party may adopt a trade-mark, and imprint it upon, or connect it with, the package of pe- culiar shape containing the article of his manufacture. Another party might make a colorable simulation of the trade-mark so used, but so different as to render it doubt- ful upon a mere inspection of the simulation of such mark alone, whether it was intended to be an imitation or not, or whether it would be likely to mislead the public. But if the imitator should, in addition to this, use the peculiar shaped package adopted by the party entitled to the trade- mark, and impress upon, or connect with it, the simulation 158 INFRINGEMENT OF BUSINESS REPUTATION. of the trade-mark, all doubt as to the intention and the effect would at once vanish. In this view, a peculiar package might be a valuable auxiliary to the trade-mark, although it could not, of itself alone, constitute a lawful trade-mark, or a substantive part of a lawful trade-mark. But its use would be in aiding to determine the character and effect of a colorable imitation of the trade-mark proper, and the use of the imitation, or the simulated trade-mark, or the use of the package with such simulation connected with it, would be the thing restrained. In this case, there is no pretence that there is any imitation, or colorable simulation, of the marks and brands upon the package, or barrel. The use of the barrel with a simulation of the complainants' trade- mark impressed upon it, would doubtless be restrained. But to extend the privilege of trade-mark to the barrel in ques- tion alone, without having impressed upon, or in any way connected with it, any of the other words, symbols or de- vices claimed and used by the complainants as a part of their trade-mark, or any colorable imitation of it would, in my judgment, be to go further than any case heretofore decided, and extend the privileges of trade-marks to objects not recognized by any established legal principles applicable to the subject. After a careful examination of the question, my conclusion is, that the barrel in question, without any other marks, or symbols, is not, and that it cannot become, a lawful trade-mark, or a substantive or integral part of a lawful trade-mark, and that complainants have no exclusive right to its use as such. The result is, that complainants' bill must be dismissed with costs, and it is so ordered. 3 "Accord: Stirling v. Silk Mfg. Co., 46 At, 199, N. J. Ch., 1900 (The plaintiffs wove their name into the margin of their silk. Held that they coud not restrain the defendants from weaving their own name in the same way into the margin of their silk) ; Globe-Wernicke Co. v. Fred. Macey Co., 119 Fed. 696, C. C. A., 1902 (The plaintiffs had an estab- lished reputation in the manufacture of sectional bookcases. Held that they could not restrain the defendants from imitating not only their system, but the general features of their book cases, as size, shape, finish, wood, etc.). In Wernicke Co. v. Fred Macey Co., Severns, J., said : "It is impos- sible to admit the claim of the appellant to the extent of its pretensions, LINOLEUM MANUFACTURING CO. v. NAIRN. 159 LINOLEUM MANUFACTURING COMPANY v. NAIRN. In the High Court of Justice, Chancery Division, 1878. 7 Chancery Division 834 This was an action to restrain the use of the word "Linoleum" as applied to floor-cloth. A Mr. Walton obtained several patents, the last and principal being in 1863, for preparing floor-cloth by means of a certain solidified or oxidized oil, to which he gave the name "Linoleum," and the floor-cloth made by him there- which would amount to a monopoly of such proportions as would practically engross the business. Without doubt, a party may adopt distinguishing marks to denote the origin of production as being his own, or he may adopt some other peculiar method of distinguishing his own goods, and thus retain the benefit of the good reputation which he has acquired for them. But the very idea of distinguishing them implies that it cannot be done by such universal characteristics as belong to other goods of the kind, and which the general public have the undoubted right to use. Thus, the public have the right to make bookcases of any size. From the nature of the requirements they must have resemblance in form, dimensions and appearance. So no one can have the exclusive privilege of locating them in sections, one above an- other or end to end, nor in making them of any kind of wood or metal as he chooses, nor in the style or in the finish of his work, unless it is peculiar and out of the ordinary. Upon the claim made for the appellant, it would be impossible, without invading the complain- ant's right, to construct and sell a bookcase having the most desirable characteristics. Nor is it competent for one person to appropriate to his own purposes any common, and general characteristics of the goods he manufactures to such an extent that another shall be impeded or embarrassed in his free right to use such characteristics in his own business. In the present case, the complainant does not rest upon the adoption of special characteristics of any kind, but upon the use of the common features which pertain to the article made and sold." Com- pare Dennison Mfg. Co. v. Thomas Mfg. Co., reported infra and notes. Compare with our principal case : Putnam Nail Co. v. Bennett, 43 Fed. 800, 1890 (The plaintiff in his bill alleged that the defendant had bronzed its horseshoe nails, the plaintiff having the sole right to bronze horseshoe nails as a trade-mark. Bradley, /., thought that the allega- tions in the bill required an answer) ; Bucks Stove and Range Co. v. Kiechle, 76 Fed. 758, 1896 (The plaintiffs asked that the defendant be restrained from putting a white enamel lining on the inside of the door of his ranges for the purpose of selling his ranges as the ranges of the plaintiffs. Demurrer to the bill overruled). 1G0 INFRINGEMENT OF BUSINESS REPUTATION. with had been called and known as "Linoleum Floor Cloth" and apparently also as "Linoleum." The word "Linoleum''" had not been previously used, and was a fancy name in- vented by Mr. Walton, and the substance itself appeared to have been new. In 1864 the Linoleum Manufacturing' Company, the Plaintiffs in this action, was formed, and took assignments of Mr. Walton's patents and rights. The floor-cloth made by the company had been extensively used, and no one else had hitherto made or sold Linoleum, or Linoleum Floor-Gloth. The patent of 1863 had now expired, and the Defendants R. Nairn and M. B. Nairn, who were floor-cloth manufacturers, proposed to make and sell Linoleum Floor-Cloth, calling it by that name. This action was brought to restrain them. The details of the case are sufficiently stated in the judgment of his Lord- ship. 1 Fry, /. [His Lordship stated the facts as to the patents, and observed that down to the present time nobody else had made and sold either "Linoleum" or floor-cloth made of "Linoleum." But it appeared that the sole manu- facture by Mr. Walton and those claiming under him was due entirely, or to a large extent, to the existence of the numerous patents, the effect of which was to give Mr. Walton and those who claimed under him a monopoly in the manufacture and sale of this Linloeum Floor-Cloth. It was therefore not surprising that the name by which Mr. Walton designated the compound had been applied exclusively to the manufacture of Mr. Walton and those who claimed under him. The case of the Plaintiffs was that they had a trade-mark, and that the essential, or one of the essential and material terms of that trade-mark was the word "Linoleum," and that this had been taken by the Defendants. His Lordship then described the trade-marks, and expressed his opinion that "F. Walton's Patent" was- 1 The argument of council for the plaintiff company is omitted. LINOLEUM MANUFACTURING CO. v. NAIRN. 161 the most conspicuous part of the trade-mark used by the Plaintiffs, and that the word "Linoleum" appeared to be used only as descriptive, and was not an essential part of the trade-mark; and that the Defendants' trade-mark con- tained their own name much more conspicuously than the word "Linoleum," and was quite dissimilar from the Plain- tiffs' trade-mark. His Lordship then continued:] But it has been argued that this case comes within the second class of cases to which the Master of the Rolls referred in Singer Manufacturing Company v. Wilson [2 Ch. D. 443 J, and that the word "Linoleum" from the user which had been made of it must mean the goods manu- factured by the Plaintiffs, and that therefore to take the word "Linoleum" and use it, was to assert that the goods so sold and made were made by the Plaintiffs, and that any user of the word "Linoleum" was a fraud not in a moral point of view, but in the point of contemplation of this Court. The argument is that there was a misrepresen- tation, the misrepresentation consisting in alleging by the use of the word "Linoleum" that the goods were made by the Plaintiffs, when in fact they were made by the De- fendants. It will be observed that the inquiry with regard to the use of the word "Linoleum" as a constituent element in the trade-mark, and the inquiry as to the use of the word "Linoleum" as a misrepresentation are one and the same inquiry, and I must consider what the word "Linoleum" meant as used at the time when the Defendants intended to -attribute it to their manufacture. In the first place, the Plaintiffs have alleged, and Mr. Walton has sworn, that having invented a new substance, namely, the solidified or oxidized oil, he gave to it the name of Linoleum," and it does not appear that any other name has ever been given to this substance. It appears that the Defendants are now minded to make, as it is admitted they may make, that substance. I want to know what they are to call it. That is a question I have asked, but I have re- 162 INFRINGEMENT OF BUSINESS REPUTATION. ceived no answer; and for this simple reason, that no an- swer could be given, except that they must invent a new name. I do not take that to be the law. I think that if "Linoleum" means a substance which may be made by the Defendants, the Defendants may sell it by the name which that substance bears. But then it is said that although the substance bears this name, the name has always meant the manufacture of the Plaintiffs. In a certain sense that is true. Anybody who knew the substance, and knew that the Plaintiffs were the only makers of this substance, would, in using the word, know he was speaking of a substance made by the Plain- tiffs. But, nevertheless, the word directly or primarily means solidified oil. It only secondarily means the manu- facture of the Plaintiffs, and has that meaning only so long as the Plaintiffs are the sole manufacturers. In my opinion, it would be extremely difficult for a person who has been by right of some monopoly the sole manufacturer of a new article, and has given a new name to the new article, meaning that new article and nothing more, to claim that the name is to be attributed to his manufacture alone after his competitors are at liberty to make the same article. It is admitted that no such case has occurred, and I believe it could not occur; because until some other per- son is making the same article, and is at liberty to call it by the same name, there can be no right acquired by the exclusive use of a name as shewing that the manufacture of one person is indicated by it and not the manufacture of another. Those are the observations which have occurred to me upon a mere statement of the Plaintiff's case, and how are they confirmed or shaken by the evidence in the case? [His Lordship then referred to the articles of association, the advertisements, and the patents taken out by the company, as shewing that they used the word "Linoleum" merely as descriptive of the substance, and looked on the words "F. Walton's Patent" as the essential part of their trade- LINOLEUM MANUFACTURING CO. v. NAIRN. 163 mark. His Lordship then continued:] I come, therefore, to the conclusion upon the facts as they are presented to me, and notwithstanding the evidence to which my atten- tion has been drawn on the part of the Plaintiffs, that the word "Linoleum" did bear that meaning which JN/lr. Wal- ton put upon it, namely, solidified or oxidized oil; that solidified or oxidized oil may be made by the Defendants if they are minded to make it; and if they are minded to call it by the only name which it bears, I think they are at liberty so to do. If I found they were attempting to use that name in connection with other parts of a trade-mark, so as to make it appear that the oxidized oil made by the Defendants was made by the Plaintiffs, of course the case would be entirely different. Then what are the authorities to which my attention has been called upon this part of the case? That which is most near to the present case in Braham v. Bustard [i H. & M. 447 J. In that case the Plaintiffs had invented a white soft soap, which the Court found to be a new article of commerce. Having so invented it they were minded to describe it in a manner which should distinguish their manu- facture, and they gave to it an additional name, calling it "Excelsior White Soft Soap." There the word "Excel- sior," having no relation to the subject-matter, and being a purely fancy name, was held by the Vice-Chancellor to be intended to discriminate one particular species of soft soap, and accordingly the word "Excelsior" was protected. Now here, as I pointed out, the Plaintiffs having invented, or their predecessors in title having invented, a new sub- ject-matter, use merely the name distinguishing that sub- ject-matter, but do not use a name distinguishing that subject-matter as made by them from the same subject- matter as made by other persons. The two cases are essen- tially different. It appears to me, therefore, that there has been neither infringement of any essential part of the Plain- tiff's trade-mark nor any attempt on the part of the Defend- 164 INFRINGEMENT OF BUSINESS REPUTATION. ants to represent the goods which they intended to sell as goods made by the Plaintiffs. The Plaintiffs' case has therefore, in my judgment, failed, and dismiss the action with costs. 2 DR. JAEGER'S SANITARY WOOLEN SYSTEM CO. v. LE BOUTILLIER. In the Superior Court of New York City, 1893. 24 New York Supplement 890 Action by the Dr. Jaeger's Sanitary Woolen System Company against George Le Boutillier, trading under the 'Accord: The Singer Mfg. Co. v. Loog, 8 App. Cas. 15, 1882 (A. sold sewing machines on which he owned patents, as "Singer Sewing Ma- chines." The patents expired. A. assigned his rights to the A. Co. Held, that the A. Co. could not restrain B. from selling his machines as "made on the Singer system." In exact accord see, Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 1895, cited on another point infra, Den- nison Mfg. Co. v. Thomas Mfg. Co., note 3) ; In re Ralph's Trade- Mark, 25 Ch. D. 194, 1883, semble; Coats v. Merrick Thread Co., 36 Fed. 324, 1888 (The plaintiff had a patent for embossed letters which he used as part of his trade-mark. The patent expired. The defendant began to use embossed letters as part of his trade-mark. The resem- blance between the two trade-marks was due solely to the use of embossed letters. Held, that as the public were only deceived by the fact that they associated embossed letters with the plaintiff, and that this association was due to a monopoly which had now expired, the plain- tiff could not perpetuate the monopoly as a trade-mark) ; Centaur Co. v. Hensfurter, 84 Fed. OSS, C. C. A., 1898. Where the plaintiff s trade-mark antedated a patent for an im- provement on the goods sold under the trade-mark, the expiration of the patent did not cause him to loose the exclusive right in the trade-mark. Batcheller v. Thomson, 93 Fed. 660, C. C. A., 1899. Compare with the foregoing cases : Chadwick v. Covell, 151 Mass. 190, 1890 (C. sold a medicine, made from a secret formula, which he called, "C's Queen of Pain." On C's death his executor gave the secret to A. and then sold it to B. Held, that A. could not restrain B. from selling the medicine as "C's Queen of Pain"). In McLean v. Fleming, 96 U. S. 245, 1877, the court held, that where the maker of a medicine does not have a patent, though he can- not prevent one who secures the formula by fair means from making the medicine, he can protect as a trade-mark the name under which he sells it. Compare Comstock v. Moore, 18 How. Pr. 421, N. Y., i860. DR. JAEGER'S CO. v. LE BOUTILLIER. 165 name of Le Boutillier Bros., for an accounting and injunc- tion. Decree for plaintiff. 1 Gildersleeve, /. The plaintiff is a domestic corpora- tion, doing business in the city of New York, and has a trade in the sale of underwear that extends over the whole country. The defendant is a merchant doing business in said city under the name of "Le Boutillier Bros., of Four- teenth Street," and deals extensively in underwear. The grievance which the plaintiff seeks to remedy is the de- fendant's alleged unfair competition in business. The al- leged wrongful acts of defendant consist chiefly in the use by him of the name "Jaeger" or "Dr. Jaeger," as ap- plied to underwear. 2 Prior to the attempt of the plaintiff or its assignors to acquire an exclusive proprietary right in the name "Jaeger" as a trade-maik for underwear, the name "Jae- ger," by the tacit consent of Dr. Jaeger, if not otherwise, had come to signify in the trade, not a particular manu- facture of the plaintiff, William Benger's Sons, and Dr. Jaeger, or any of them, but a distinctive kind of underweai, with special characteristics, originated by Dr. Jaeger. There is nothing in the name "Jaeger," as applied to under- wear manufactured or sold by the plaintiff, to distinguish it from the same kind of underwear made by others. The signification acquired by the name "Jaeger" is such that the name is as true in its application to the all-wool goods made upon the Jaeger system, sold by defendant, as to the goods sold by plaintiff. The appelation "Jaeger" has no relation to the origin or ownership of the goods, but only indicates their name, style, or quality. The name "Jaeger," as applied to underwear, implies an "idea." The plaintiff can have no exclusive right to represent by the name "Jaeger" the ideas which Dr. Jaeger originated and promul- "The statement of facts as given in the report is abbreviated. 1 That part of the opinion dealing with the question of trade-mark in the name Jaeger is omitted. 166 INFRINGEMENT OF BUSINESS REPUTATION. gated in respect of a system of clothing. The name had acquired a technical meaning, as descriptive of a class of goods well known in the trade, and, within the limits of such signification, could not be exclusively appropriated for the purpose of advancing the business interests of any particular individual, firm, or company. After giving due weight to all the evidence, and applying thereto the law as above laid down, it must be held that the name "Jaeger" is descriptive of a class of goods well known in the dry-goods trade in this country and in Europe; that the plaintiff and its assignors were not the first to use the name "Jaeger," as applied to underwear, either in the United States or in Germany; and that the plaintiff has not the exclusive right to use the name "Jaeger" to desig- nate underwear made according to the Jaeger system. The following charges in the complaint remain to be considered, and they may be stated, in substance, as fol- lows, to wit: That defendant palms off his own goods as the goods of the plaintiff : that among the goods so sold by defendant were goods with an admixture of cotton, pro- ducing an inferior article, intending to throw discredit upon the reputation of plaintiff and on the goods dealt in by it; that, in selling his goods over the counter, defendant rep- resents them as the same goods sold by Dr. Jaeger's Com- pany ; and that the effect of such alleged imitation sale, and advertising is calculated to and does deceive the purchasers and users of plaintiff's goods to buy the goods sold by de- fendant, in the belief that they are the said articles dealt in by the plaintiff. 3 The proofs show that the defendant is now selling, for "Genuine Jaeger Underwear," goods that are part cot- ton. It is his contention that, in doing so, he does not violate the Jaeger system. I cannot agree with this view. The defendant testified that he did not understand the use of an admixture of cotton fiber with the wool fiber, in ' Part of the discussion of the facts bearing on this is omitted. DR. JAEGER'S CO, v. LE BOUTILLIER. 167 the manufacture of the underwear, to be a deviation from the Jaeger system. It was further testified in behalf of defendant that the cotton was used for the purpose of pre- venting shrinkage, and because its use was believed to cure a defect in the Jaeger rystem, and to be an improvement upon the all-wool garment. I need not undertake to decide whether it is or is not an improvement, or whether the advantage in practical use is with the all-wool garment or with the garment containing an admixture of cotton. The testimony clearly shows, and it must be held, that the use of any but animal fiber, and hence the use of cotton fiber, in the manufacture of underwear, is a deviation from the Jaeger system, and cannot be employed, except in viola- tion of that system and the rules prescribed by Dr. Jaeger for the system of clothing originated by him. The exclu- sive use of pure wool in the manufacture of underwear upon the Jaeger system is its most essential feature. The testimony shows that the plaintiff has dealt only in underwear made of pure fine wool upon the Jaeger system; that it has uniformly and always designated its underwear, in some form of expression, as "Jaeger Under- wear," and that it has established a large trade for that article, which is valuable to it. It has a qualified right to the name "Jaeger," as applied to all-wool underwear made upon the Jaeger system. The plaintiff's right to use the name "Jaeger," as designating underwear made in accord- ance with the Jaeger system, is so qualifiedly exclusive that its right to protection of its use against infringement by others rests upon the ground that such use by them is an untrue or deceptive representation. Koehler v. Sanders, supra. The application of the name "Jaeger," or "Jaeger System" to underwear containing an admixture of cotton is an untrue and deceptive representation, and, as against such a use, the plaintiff is entitled to relief. It is a false representation of fact, which tends to confuse the identity of the defendant's goods, not made after the Jaeger system, with the goods of the plaintiff, made in accordance with 168 INFRINGEMENT OF BUSINESS REPUTATION. that system, and creates a dishonest competition, detri- mental to the plaintiff. One of the uses by the defendant of the name "Jaeger" to designate underwear containing an admixture of cotton must be held to be for the purpose of taking advantage of the reputation the all-wool Jaeger goods have acquired, and of the Jaeger name, as applied thereto. The application of the name "Jaeger" by the de- fendant to goods part cotton tends to deceive the purchasers and users of plaintiff's goods, and actually mislead them into buying the goods containing cotton sold by defendant, in the belief that they are the goods dealt in by the plain- tiff. Moreover, since the goods containing an admixture of cotton can be profitably sold at a less price than the all-wool goods, the tendency must be to unfairly divert custom from the plaintiff to the defendant. Upon the grounds above set forth, I hold that the plain- tiff has shown the defendant guilty of unfair competition in advertising and selling as "Genuine Jaeger Underwear" underwear containing a substantial admixture of cotton, and that the plaintiff is entitled to an accounting, accom- panied by an injunction. As to the extent of the injunc- tion to be awarded, I am of the opinion that the defendant should be prohibited from advertising in the newspapers, or otherwise, or in any way representing, that the under- wear sold by him, containing an admixture of cotton, is "Jaeger Underwear," or "Dr. Jaeger's Underwear," and from so using the words "Jaeger" or "Dr. Jaeger" in connection with the word "Genuine" or any other word or words, and from advertising or representing his said un- derwear by any designation containing the words "Jaeger" or "Dr. Jaeger," alone, or in combination with other words. Let the proposed findings be amended to conform to this opinion, and a decree may be entered in favor of the plain- tiff to the extent indicated. 4 ' Accord: Singer Mfg. Co. v. Hippie, 109 Fed. 152, 1901 (At the in- stance of a maker of sewing machines on the "Singer System," Dallas, /., restrained the defendant from placing the name Singer on sewing DR. JAEGER'S CO. v. LE BOUTILLIER. 169 machines not made on the "Singer System,'' though the word "Singer' 7 could be used by anyone making sewing machines on that system, the patents on the system having expired. Compare, Coffeen v. Brunton, 4 McLean, 516, 1849 (A. made a liniment which he called "Chinese Liniment." B. made a liniment which he called "Ohio Liniment." The Court restrained B. from using any form of advertisement which tended to convey the impression that the liniment sold by B. contained the same ingredients as that sold by A., this not being the fact). Contra : Washboard Co. v. Saginaw Mfg. Co., 103 Fed. 281, 1900 (A. manufactured washboards made of aluminum. He called them "Alumi- nium." B. made washboards not using aluminium. He called them, however, "Aluminum," though he did nothing to lead the public to believe, and the public did not believe, that his, B's, washboards were the washboards of A. A. brought a bill against B. to restrain B. from calling his washboards "Aluminium." Bill dismissed) ; Leibig"s Ex- tract of Beef Co. v. Walker, 115 Fed. 822, 1902. In Washboard Co. v. Saginaw Mfg. Co., supra, Day, Cir. J., said : "It [the bill] undertakes to make a case, not because the defendant is selling its goods as and for the goods of complainant, but because it is the manufacturer of a genuine aluminum board, and the defendant is deceiving the public by selling to it a board not made of aluminum, although falsely branded as such, being in fact a board made of zinc material ; that is to say, the theory of the case seems to be that com- plainant, manufacturing a genuine aluminum board, has a right to enjoin others from branding any board "Aluminum" not so in fact, al- though there is no attempt on the part of such wrongdoer to impose upon the public the belief that the goods thus manufactured are the goods of complainant. We are not referred to any case going to the length required to support such a bill. It loses sight of the thoroughly established principle that the private right of action in such cases is not based upon fraud or imposition upon the public, but is maintained solely for the protection of the property rights of complainant. It is true that in these cases it is an important factor that the public are deceived, but it is only where this deception induces the public to buy the goods as those of the complainant that a private right of action arises. In the case of Leather Cloth Co. v. American Leather Cloth Co., 4 De Gex, J. & S. 137, n H. L. Cas. 523, Lord Chancellor West- bury said : "Imposition on the public, occasioned by one man selling his goods as the goods of another, cannot be ground of private action or suit." To the same effect is the case of Weener v. Brayton, 152 Mass. 101, 25 N. E. 46, 8 L. R. A. 640, where the court said: "The jurisdiction of a court of equity to restrain wrongful use of such trade-marks by per- sons not entitled thereto is founded, not upon the imposition upon the public, but on the wrongful invasion of the right of property therein which has been acquired by others. A remedy is offered only to the owner of the right of property in such trade-marks on account of the injury which is thus done to him. The wrong done to him consists in mis- representing the vendable articles sold as being those of the true owner of the trade-mark, and thus to a greater or less extent depriving him of the benefit of the reputation he has given to the articles made or dealt in by him." It is doubtless morally wrong and improper to impose upon the pub- lic by the sale of spurious goods, but this does not give rise to a private right of action unless the property rights of the plaintiff are thereby invaded. There are many wrongs which can only be righted through public prosecution, and for which the legislature, and not the courts, must provide a remedy. Courts of equity, in granting relief by injunction, are concerned with the property rights of complainant. The true rule 170 INFRINGEMENT OF BUSINESS REPUTATION. was stated by the Lord Chancellor Westbury in Leather Cloth Co. v. American Leather Cloth. Co. .above quoted, in which the Lord Chancellor says : "It is, indeed, true that, unless the mark used by the defendant be applied by him to the same kind of goods as the goods of the plain- tiff, and be in itself such that it might be and is mistaken in the market for the trade-mark of the plaintiff, the court will not interfere, because there is no invasion of the plaintiff's right; and thus the mistake of buyers in the market under which they in fact take defendant's goods as the goods of the plaintiff — that is to say, imposition on the public — • becomes the test of the property in the trade-mark having been in- vaded and injured, and not the ground on which the court rests its jurisdiction. * * * The true principle, therefore, would seem to be that the jurisdiction of the court in the protection given trade-marks rests upon property, and that the court interferes by injunction, because that is the only mode by which property of this description can be effectually protected. The same things are necessary to constitute a title to relief in equity in the case of the infringement of a right to a trade- mark as in the case of the violation of any other right of property." If the doctrine contended for by complainant in this case was to be carried to its legitimate results, we should, as suggested by Mr. Justice Bradley in the case of New York & R. Cement Co. v. Coplay Cement Co. (C. C.) 44 Fed. 277, open a Pandora's box of litigation. A person who undertook to manufacture a genuine article could suppress the business of all untruthful dealers, although they were in no wise undertaking to pirate his trade. Says Mr. Justice Bradley : "The principle for which counsel for complainant contends would enable any crockery merchant of Dresden or elsewhere interested in the par- ticular trade to sue a dealer of New York or Philadelphia who should sell an article as Dresden china, when it was not Dresden china. * * * A dry-goods merchant selling an article of linen as Irish linen could be sued by all the haberdashers in Ireland and all the linen dealers of the United States." Take the metal which is the subject-matter of the controversy in this case. Many articles are now being put upon the market under the name of aluminum, because of the attractive qualities of that metal, which are not made of pure aluminum, yet they answer the purpose for which they are made and are useful. Can it be that the courts have the power to suppress such trade at the instance of others starting in the same business who use only pure aluminum? There is a wide-spread suspicion that many articles sold as being manufactured of wool are not entirely made of that material. Can it be that a dealer who should make such articles only of pure wool could invoke the equitable jurisdiction of the courts to suppress the trade and business of all persons whose goods may deceive the public? We find no such authority in the books, and are clear in the opinion that, if the doctrine is to be thus extended, and all persons compelled to deal solely in goods which are exactly what they are represented to be, the remedy must come from the legislature, and not from the courts." DENNISON MAN'F CO. v. THOMAS MAN'F CO. 171 DENNISON MANUFACTURING COMPANY v. THOMAS MANUFACTURING COMPANY. I In the Circuit Court for the District of Delaware, 1899. 94 Federal 651 Bradford, District Judge. The bill in this case charges infringement of certain alleged common law trade-marks and also unfair competition in trade, and prays for an in- junction and an account. The defendant has demurred to the bill, alleging that it is multifarious, defective and in- sufficient. 1 The second of the two principal questions in the case is whether the bill and exhibits show unfair competition in trade by the defendant so far as the complainant is con- cerned. The gradual but progressive judicial development of the doctrine of unfair competition in trade has shed lustre on that branch of our jurisprudence as an embodi- ment, to a marked degree, of the principles of high busi- ness morality, involving the nicest discrimination between those things which may, and those which may not, be done in the course of honorable rivalry in business. This doctrine rests on the broad proposition that equity will not permit any one to palm off his goods on the public as those of another. The law of trade-marks is only one branch of the doctrine. But while the law of trade-marks is but part of the law of unfair competition in trade, yet when the two are viewed in contradistinction to each other an essential difference is to be observed. The infringement of trade-marks is the violation by one person of an exclusive right of another person to the use of a word, mark or 1 Only so much of the opinion of the Court as relates to the ques- tion of unfair trade competition is given. The court decided that the bill, except in a single particular, could not be sustained as a trade-mark. 172 INFRINGEMENT OF BUSINESS REPUTATION. symbol. Unfair competition in trade, as distinguished from infringement of trade-marks, does not involve the violation of any exclusive right to the use of a word, mark or symbol. The word may be purely generic or descriptive, and the mark or symbol indicative only of style, size, shape, or quality, and as such open to public use "like the adjec- tives of the language," yet there may be unfair competition in trade by an improper use of such word, mark or symbol. Two rivals in business competing with each other in the same line of goods may have an equal right to use the same words, marks or symbols on similar articles produced or sold by them respectively, yet if such words, marks or symbols were used by one of them before the other and by association have come to indicate to the public that the goods to which they are applied are of the production of the former, the latter will not be permitted, with intent to mislead the public, to use such words, marks or symbols in such a manner, by trade dress or otherwise, as to deceive or be capable of deceiving the public as to the origin, manu- facture or ownership of the articles to which they are ap- plied ; and the latter may ■ be required, when using such words, marks, or symbols, to place on articles of his own production or the packages in which they are usually sold something clearly denoting the origin, manufacture or ownership of such articles, or negativing any idea that they were produced or sold by the former. In Coats v. Thread Co., 149 U. S. 562, 566, 13 Sup. Ct. 967, the court said : "Irrespective of the technical question of trade-mark, the defendants have no right to dress their goods up in such manner as to deceive an intending purchaser, and induce him to believe he is buying those of the plaintiff. Rival manufacturers may lawfully compete for the patronage of the public in the quality and price of their goods, in the beauty and tastefulness of their enclosing packages, in the extent of their advertising, and in the employment of agents, but they have no right, by imitative devices, to be- guile the public into buying their wares under the impres- DENNISON MAN'F CO. v. THOMAS MAN'F CO. 173 sion they are buying those of their rivals." This subject was exhaustively examined and admirably explained in the following two recent cases ; one decided by the House of Lords in March, 1896, and the other by the Supreme Court in May of the same year. In Reddaway v. Banham [1896] App. Cas. 199, it was held that one person was not entitled to pass off his goods as those of another by selling them under a name which was likely to deceive purchasers, whether immediate or utlimate, into the belief that they were buying the goods of the former, although the name used was in its primary meaning merely a true description of the goods. The plaintiffs had during several years made belting largely composed of camel hair, and sold it as "Camel Hair Belting," which name had come to mean in the trade the plaintiff's belting and nothing else. After- wards the defendants sold belting made of the yarn of camel's hair, stamping it "Camel Hair Belting," so that it was likely to mislead purchasers into the belief that it was the plaintiff's belting, thus endeavoring to pass off their goods as those of the plaintiffs. It was held that the plain- tiffs were entitled to an injunction restraining the defendants from using the words "Camel Hair" as descriptive of or in connection with belting manufactured by the defendants or belting other than of the plaintiffs' manufacture, sold or offered for sale by the defendants, without clearly distin- guishing such belting from that of the plaintiffs. Lord Halsbury, L. C, in his address moving for judgment for the plaintiffs, said: "For myself, I believe the principle of law may be very plainly stated, and that is, that nobody has any right to represent his goods as the goods of somebody else. How far the use of particular words, signs, or pic- tures does or does not come up to the proposition which I have enunciated in each particular case must always be a question of evidence, and the more simple the phraseology, the more like it is to a mere description of the article sold, the greater becomes the difficulty of proof ; but if the proof establishes the fact the legal consequence appears to follow. 174 INFRINGEMENT OF BUSINESS REPUTATION. * * * It would be impossible, for instance, to say that a trader could not describe his goods truly by enumerating the particulars of what they consisted, unless such descrip- tion was calculated to deceive and make his goods pass as the goods of another. What in each case or in each trade will produce the effect intended to be prohibited is a matter which must depend upon the circumstances of each trade, and the peculiarities of each trade. It would be very rash a priori to say how far a thing might or might not be de- scribed, without being familiar with the technology of the trade." Lord Herschell said : "For many years belting made of camel hair yarn had been known in the markets of the world. It had been sold under a variety of names. But there was ample evidence to justify the finding, that amongst those who were the purchasers of such goods, the words 'camel hair' were not applied to belting made of that material in general; that, in short, it did not mean in the market belting made of a particular material, but belting made by a particular manufacturer. * * * I cannot help saying that, if the defendants are entitled to lead pur- chasers to believe that they are getting the plaintiffs' manu- facture when they are not, and thus to cheat the plaintiffs of some of their legitimate trade, I should regret to find that the law was powerless to enforce the most elementary principles of commercial morality. * * * The name of a person, or words forming part of the common stock of language, may become so far associated with the goods of a particular maker that it is capable of proof that the use of them by themselves without explanation or qualification by another manufacturer would deceive a purchaser into the belief that he was getting the goods of A when he was really getting the goods of B. In a case of this description the mere proof by the plaintiff that the defendant was using a name, word, or device which he had adopted to distin- guish his goods would not entitle him to any relief. He could only obtain it by proving further that the defendant DENNISON MAN'F CO. v. THOMAS MAN'F CO. 175 was using it under such circumstances or in such manner as to put off his goods as the goods of the plaintiff. If he could succeed in proving this I think he would, on well- established principles, be entitled to an injunction. In my opinion, the doctrine on which the judgment of the Court of Appeal was based, that where a manufacturer has used as his trade-mark a descriptive word he is never entitled to relief against a person who so uses it as to induce in pur- chasers the belief that they are getting the goods of the manufacturer who has theretofore employed it as his trade- mark, is not supported by authority and cannot be defended on principle. I am unable to see why a man should be al- lowed in this way more than in any other to deceive pur- chasers into the belief that they are getting what they are not, and thus to filch the business of a rival. * * * I rather demur, however, to the statement of James L. J., that the defendant in Wotherspoon v. Currie [L. R. 5 H. L. 508] was not telling a lie in calling his starch 'Glenfield starch,' as I do to the view that the defendants in this case were telling the simple truth when they sold their belting as camel hair belting. I think the fallacy lies in overlooking the fact that a word may acquire in a trade a secondary signification differing from its primary one, and that if it is used to persons in the trade who will understand it, and be known and intended to understand it in its secondary sense, it will none the less be a falsehood that in its primary sense it may be true. A man who uses language which will convey to persons reading or hearing it a particular idea which is false, and who knows and intends this to be the case, is surely not to be absolved from a charge of. false- hood because in another sense which will not be conveyed and is not intended to be conveyed it is true." Lord Macnaghten said: "The substance of Reddaway's complaint, as I understand it, is that Mr. Banham is putting his goods on the market under a designation which enables purchasers from him to make a false representation to their customers. It is immaterial that the designation in question, taken by itself, would convey to a person not con- 176 INFRINGEMENT OF BUSINESS REPUTATION. versant with the trade information which cannot be called untrue if by means of that designation Air. Banham does make, not perhaps directly, but certainly through the me- dium of other persons, a false representation that his goods are the goods of Reddaway. * * * The appellants concede — they cannot indeed any longer dispute — that everybody who makes belting of camel hair is entitled to describe his belting as camel hair belting provided he does so fairly. But they contend, and I think with reason, that neither Banham nor anybody else is entitled to steal Red- daway's trade under color of imparting accurate and pos- sibly interesting information. * * * The learned counsel for the respondents maintained that the expression 'camel hair belting' used by Banham was the 'simple truth.' Their proposition was that 'where a man is simply telling the truth as to the way in which his goods are made, or as to the materials of which they are composed, he cannot be held liable, for mistakes which the public may make.' That seems to me to be rather begging the question. Can it be said that the description 'camel hair belting' as used by Banham is the simple truth? I will not call it an abuse of language to say so, but certainly it is not altogether a happy expression. The whole merit of that description, its one virtue for Banham' s purposes, lies in its duplicity. It means two things. At Banham's works, where it cannot mean Reddaway's belting, it may be construed to mean belt- ing made of camel's hair; abroad, to the German manu- facturer, to the Bombay mill-owner, to the up-countrv na- tive, it must mean Reddaway's belting; it can mean nothing else. I venture to think that a statement which is literally true, but which is intended to convey a false impression, has something of a faulty ring about it ; it is not sterling coin ; it has no right to the genuine stamp and impress of truth." In Singer Mfg. Co. r. June Mfg. Co.. 163 U. S. 169. 16 Sup. Ct. 1002, the court, after holding that on the ex- piration of a patent the right to make the thing theretofore covered by it as well as the generic designation which the DEXXISOX MAXF CO. v. THOMAS MAXF CO. 177 thing acquired during- the existence of the monopoly passed by dedication to the public. said : "But it does not follow, as a consequence of a dedication, that the general power. vested in the public, to make the machine and use the name imports that there is no duty imposed, on the one using it, to adopt such precautions as will protect the property of others and prevent injur} - to the public interest, if by doing so no substantial restriction is imposed on the right of freedom of use. This principle is elementary and applies to every form of right, and is generally expressed by the aphorism sic utere ruo ut alienum non h?das. This quali- fication results from the same principle upon which the dedi- cation rests, that is. a regard for the interest of the public and the rights of individuals. It is ob- vious that if the name dedicated to the public, either as a consequence of the monopoly or by the voluntary act of the party, has a twofold significance, one generic and the other pointing to the origin or manufacture and the name is availed of by another without clearly indicating that the machine, upon which the name is marked, is made by him. then the right to use the name because of its generic sig- nification, would imply a power to destroy any good will which belonged to the original maker. It would import not only this, but also the unrestrained right to deceive and defraud the public by so using the name as to delude them into believing that the machine made by one person was made by another. To say that a person who has manu- factured machines under a patented monopoly can acquire no good will, by the excellence of his work, or the development of his business during the patent, would be to seriously ig- nore rights of private property, and would be against public policy, since it would deprive the one enjoying the patent of all incentive to make a machine of a good quality, be- cause at its termination all the reputation or good will re- sulting from meritorious work would be subject to appro- priation by every one. On the other hand, to compel the one who uses the name after the expiration of the patent, 178 INFRINGEMENT OF BUSINESS REPUTATION. to indicate that the articles are made by himself, in no way impairs the right of use, but simply regulates and prevents wrong to individuals and injury to the public. This fact is fully recognized by the well settled doctrine which holds that although 'every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the busi- ness of another having the same name. In such case the inconvenience or loss to which those having a common right are subjected is damnum absque injuria. But although he may thus use his name, he cannot resort to any artifice or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name. * * * Where the name is one which has previously thereto come to indicate the source of manufacture of par- ticular devices, the use of such name by another, unaccom- panied with any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the foregoing adjudications. * * * The result, then, of American, the English and the French doctrine universally upheld is this, that where, during the life of a monopoly created by a patent, a name, whether it be arbitrary or be that of the inventor, has become, by his consent, either ex- press or tacit, the identifying and generic name of the thing patented, this name passes to the public with the cessation of the monopoly which the patent created. Where another avails himself of this public dedication to make the machine and use the generic designation, he can do so in all forms with the fullest liberty by affixing such name to the ma- chines, by referring to it in advertisements and by other means, subject, however, to the condition that the name must be so used as not to deprive others of their rights or to deceive the public, and, therefore, that the name must be accompanied with such indications that the thing manu- DENNISON MAN'F CO. v. THOMAS MAN'F CO. 179 factured is the work of the one making it, as will unmis- takably inform the public of that fact." Certain exhibits, made a part of the bill, relate to gummed labels, including "Complainant's Gummed Labels" A, B, C, and D, and "Defendant's Gummed Labels" A, B, C, and D. The defendant's gummed labels contained in exhibit "Defendant's Gummed Labels A" are of the same size, shape and color as those contained in exhibit "Com- plainant's Gummed Labels A." There is no word, letter or figure to distinguish the labels from each other. A dozen small boxes are packed by the parties respectively in each of the larger boxes. All of the small boxes are of substantially the same size, shape and color, and contain the same number of labels. On the lid of each of the small boxes of the complainant is a label in all respects similar to those within it, save that it has printed on it "Dennison's 223." On the lid of each of the small boxes of the defendant is a similar label containing only the number "223." The large box of each of the parties is of substantially the same size and shape; that of the complainant being gray, and that of the defendant salmon colored. On one end of the complainant's box on a label similar to those in the small boxes are the word and number "Dennison's 223," and on one end of the lid are ihe words in block capitals "Extra Gummed." On one end of the defendant's box on a label similar to the complainant's is the number "223," and on one end of the lid are the words in block capitals, similar to those used by the complainant, "Extra Gummed." In the case of both parties the words "Extra Gummed" are on a label unlike those contained in the small boxes, but precisely similar to each other. On the top of the lid of the complainant's large box the following appears: "1 Dozen. Dennison's Gummed Labels are warranted perfect in sticking qualities, full count, and well printed and cut." There are no words or figures on the top of the lid of the defendant's large box. A comparison of the exhibit "Defendant's Gummed Labels B" with the exhibit "Com- plainant's Gummed Labels B" shows a similar condition of 180 INFRINGEMENT OF BUSINESS REPUTATION. things, save in the following particulars. The boxes and labels are larger, each large box containing ten small boxes. The small boxes of the complainant and defendant are num- bered "2004" ; those of the complainant having also the number and word "100 Dennison's" above the numeral "2004." The label on the end of the complainant's large box bears the following: "1000 Dennison's 2004," while that on the end of the defendant's large box contains merely the number "2004"; and on the lid the number "1000" is substituted for "1 Dozen." A comparison of the exhibit "Defendant's Gummed Labels C" with the exhibit "Com- plainant's Gummed Labels C," shows a condition of things similar in all respects to that disclosed in the com- plainant's and defendant's exhibits A, except as to size, and that both the large and small boxes of the defend- ant and complainant are numbered "209." And pre- cisely the same statement which has been made as to exhibits C is applicable to the exhibit "Defendant's Gum- med Labels D" when compared with "Complainant's Gummed Labels D," except that both the large and small boxes of the parties are numbered "201." It should be added that on the large boxes shown in the de- fendant's exhibits C and D there is a paper band ap- parently for the purpose of holding the lid to the box, containing a black star with a white circle in its center. Within the circle are the letters "T M Co" and the words, "One Dozen Boxes Gum Labels Double Gummed," are on the band beneath the star. This band, however, is not fastened in any manner to the boxes and readily slides off of them, and on sale of the labels may or may not be re- moved or replaced. It is in the highest degree unreasonable to assume that, after the complainant had adopted the num- bers "223," "2004," "209" and "201" in connection with cer- tain trade dress for certain sizes and styles of labels to which they were applied, the defendant's use of the same numbers and substantially the same trade dress, with the omission of its name, in connection with the same sizes and styles of labels, was an accidental coincidence. It is true that SCHMALTZ v. WOOLEY. 181 the complainant's boxes bore its name, but it is a fact of much significance that the boxes of the defendant did not bear its name, or any word, mark or figure to distinguish them from the complainant's, or to indicate that the labels therein contained were put on the market by the defendant or by any person other than the complainant. The bill charges that the trade dress and numbers, as used by the defendant in connection with the gummed labels, were a fraudulent imitation by it of the trade dress and numbers as applied by the complainant to similar labels, and that the purpose of the defendant in resorting to such a fraudu- lent imitation was to deceive the trade and the public. The defendant . had an equal right with the complainant to manufacture and sell the same sizes and styles of labels, but not intentionally and fraudulently to dress them by such a mode of packing or numbering as to cause or be likely to cause purchasers to mistake them for those produced by the complainant. 2 The demurrer must be overuled and the defendant be required to make answer to the bill by the first Monday In June next. 3 ' His further elaboration of the facts is omitted. s In accord with our principal case, the fact that a person uses a word denoting quality as the name or trade-mark of the article he sells, does not enable a person using the same word in his trade-mark, to copy the rest of the rival's label so as to lead the public to believe that his goods are goods of his rival. Bininger. v. Wattles, 28 How. Pr. 206, N. Y., 1865; Draper v. Skerrett, 116 Fed. 206, 1902, semble. In the following cases the court took the position that similarity of packages alone was not ground for an injunction, but that such similar- ity, coupled with some similarity in trademark or name, would be sufficient to enable the plaintiff to obtain an injunction on the ground of unfair trade competition: Brown v. Seidel, 153 Pa. 60, 1893, dicta; Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19, 1900; Keuffel & Esser Co. v. H. S. Crocker Co., 118 Fed. 187, 1902; Bauer v. La Societe Anonyme de la Distillerie de Liqueur Benedictine de L'Abbaye de Fecamp,, 120 Fed. 74, C. C. A., 1903 ; Bauer v. Order of Carthusian Monks, "120 Fed. 78, C. C. A., 1903. In accord with Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 1896, given in the opinion of the court; see, Singer Mfg. Co. v. Charlebois, 16 Rap. Jud. Que. C. S. 167, i8t)9- The case of Ainsworth v. Walmsley, 1 Eq. Cas. 518, 1866, suggests, but does riot decide the question, whether a trader can be restrained from selling his goods with the verbal statement that they are the goods of the plaintiff. Such an injunction could now be issued in England under the Judicature Act. See Chapter 5. 182 INFRINGEMENT OF BUSINESS REPUTATION. SCHMALTZ v. WOOLEY. In the Court of Errors and Appeals of New Jersey, 1898. 57 New Jersey Equity 303 Dixon, J. The bill in this case was filed in February, 1897, by the president of the Union Hat Makers' Associ- ation of Newark, for the use and benefit of all the mem- bers thereof, to enjoin the defendants from using a counter- feit trade-mark and label made in imitation of a trade-mark and label which had been adopted and filed by the said association in accordance with the provisions of the several acts of the legislature passed in the years 1889, 1892 and 1895. Gen. Stat. p. 3678 et seq. The defendants demurred" to the bill, and, the demurrer having been sustained, the complainant appeals. * * * * We also think that upon general principles the sub- stance of the bill is sufficient. It alleges that a company of journeymen hatters, calling themselves the Union Hat Makers' Association of Newark, New Jersey, have, in common with similar associations formed elsewhere, adopted a certain label or trade-mark. That for ten years last past they have used said label or mark to designate and distinguish the hats made by mem- bers of the association by affixing it upon each of those hats, and that for about three years last past the defendants have used a fraudulent imitation of that mark upon the hats made and sold by them, thereby deceiving the public, violating the rights of the members of the association and depriving them of large profits which they would otherwise have gained. 1 The discussion of the Act is omitted. The 5th section provided, that a union "may proceed by suit in the courts of this state to en- join the manufacture, use, display, or sale of any counterfeit of their label." The court held the Act valid, so far as necessary to sustain the plaintiff's bill. SCHMALTZ v. WOOLEY. 183 These allegations seem to present a case of inequitable infringement of the association's right of property in its trade-mark or label. In McAndrew v. Bassett, 4 De G., J. & S. 380, Lord Westbury said : "The essential ingredients for constituting an infringement of that right probably would be found to be v.c other than these, first, that the mark has been applied by the plaintiff's properly — that is to say, that they have not copied any other person's mark and that the mark does not involve any false representation; secondly, that the article so marked is actually a vendible article in the market, and thirdly, that the defendants, know- ing that to be so, have imitated the mark for the purpose of passing in the market other articles of a similar descrip- tion." These views received the approval of Lord Cairns, sitting in the court of appeal, in Maxwell v. Hogg, L. R. 2 Ch. App. 307, 314, and accord with the great weight of authority on this much-litigated subject. The present bill clearly sets out the adoption and proper application of the mark by the association and its fraudulent imitation for the interdicted purpose by the defendants. It is not so explicit as to the second ingredient mentioned by the learned chancellor, but the court does not need to be told that hats made by a company of journeymen hatters during ten years were actually vendible articles in the market; so much will be inferred. But the objection urged by the defendants against the bill is that it does not allege, and the court cannot infer, that the journeymen owned the hats made by them, and it is insisted that ownership of the article to which the trade- mark is affixed is necessary to the acquisition of a right in the mark. To support this claim Schneider v. Williams, 17 Stew. Eq. 391, is cited. Some expressions in the opinion of the able judge who decided that case certainly give countenance to the present objection, but on consideration I think those expressions will appear to be unwarranted. Thus in defining the means by which a person will acquire an exclusive right to a trade-mark, he says: "First, he 184 INFRINGEMENT OF BUSINESS REPUTATION. must select or adopt some mark or sign not in use to dis- tinguish goods of the same class or kind already on the market, belonging to another trader ; second, he must apply his mark to some article of traffic, and third, he must put his article, marked with his mark, on the market." Now it is undisputed that this association has complied with the first two of these requirements ; only in respect to the third has it failed. It did not itself put upon the market its own articles marked with the label. But it is doubtful whether the learned judge intended this third requisite to be so strictly read, for he immediately added : "Mere adoption of a mark or sign and a public declaration by advertisement or otherwise that a person will at a subsequent time put a particular thing on the market, marked or distinguished in a certain way, create no right. Until the thing is actually on the market, marked by the particular mark of the person intending to acquire a title, no property right in the mark arises." This seems to indicate that it was the actual market- ing of the marked article, and not the person by whom it was marketed or owned, on which stress was laid. And why should this specific personal element be deemed im- portant? The public object sought in the protection of trade-marks is to bring upon the market a better class of commodities, and the means for attaining that object is by securing to those who are instrumental in supplying the market whatever reputation they gain by their efforts to- ward that end. The workmen by whose handicraft the commodity is made is one of these instruments, just as is his employer who furnishes the raw material and owns and sells the finished product; and if the former is per- mitted by the owner to place upon the commodity a mark to indicate whose workmanship it is and thereby commend his workmanship to other employers, this license from the owner should be deemed a right against everybody else. His aptitude in his trade is his property, and if by a mark he can have it identified as his in the market, he may en- hance its salable value and thus secure the same sort of SCHMALTZ v. WOOLEY. 185 advantage as his employer by similar means. No reason exists why this advantage should not be protected by the courts in the same manner and to the same extent as is the like advantage of the employer. The mere fact that one rather than the other of these persons has placed the product upon the market has no rational bearing upon the matter, for both alike have had the market in view in the efforts they have made and through those efforts the market is supplied. A different objection to a suit of this nature was sustained in Weener v. Brayton, 152 Mass. 101, namely, that the label did not indicate by what persons the articles labeled were made, but only indicated that they were made by one of many persons who were not connected with each other in any business. The first clause of this ob- jection would unduly restrict the law of trade-marks as everywhere recognized, for it is established that, whatever be the quality indicated, by a trade-mark, the mark need not point out the particular person from whom that quality is derived. The law has placed no limit upon the number of persons who may unite for business purposes and jointly acquire property in a trade-mark, and yet it is evident that, if there be many, some of them may have no personal share in producing the article identified by the mark. The second clause in the objection assumes what does not appear to be true in the case before us. We understand from the bill that the members of the association represented by the complainant are connected together as journeymen hatters ; that their skill in this trade and their mutual assistance in profiting by its practice form the motive and chief aim of their association. This connection is as clearly one for business purposes as is that of members in a partner- ship or of stockholders in a corporation. Although it is a comparatively novel species of relationship, it has become an established one, and therefore calls for the application of those general principles of law and equity which are ap- plied to other species of business associations. According 186 INFRINGEMENT OF BUSINESS REPUTATION. to these principles, we think a workman or a number of workmen engaged in the same branch of industry and banded together for their mutual profit in the pursuit of their common vocation, may acquire a right of property in a trade-mark designed to distinguish their workman- ship from that of other persons, and that a trade-mark so owned is entitled to the same protection as other trade- marks. The decree below should be reversed, and the demurrer overruled. 2 HALSTEAD v. HOUSTON. In the Circuit Court for the Eastern District of Pennsylvania, 1901. in Federal 376 Dallas, Circuit Judge. If the proofs upon the present motion for a preliminary injunction disclosed nothing which was not before the court when a similar application was recently denied by Judge McPherson in Halstead v. John C. Winston Co., 111 Fed. 35, I would simply follow the ruling which was then made ; but, as facts have been shown in this case which did not appear in that one, I have felt it incumbent upon me to independently consider the question as now presented, and, so considering it, have been con- strained to reach a different result. The alleged wrongful use of an extract from Mr. Halstead's announcement to the public, which was complained of in the case of Halstead v. John C. Winston Co., is also complained of now; but the present defendant has indorsed upon that extract a 2 As indicated in the opinion the case of Meener v. Brayton, 152 Mass. 101, 1890, is contra. Legislation protecting "Union Labels'' as trade-marks has been adopted in many States. For a collection of these State statutes, see Paul on Trade Marks, 649 et sec, Ed. 1903. HALSTEAD v. HOUSTON. 187 printed statement, and this the defendants in the former case had not done. The extract and indorsement referred to are as follows : (Extract.) "Auditorium Hotel. Annex. "Chicago, Sept. 21, 1901. "To the Public: * * * I prepared a campaign publi- cation six years ago regarding the Republican candidates then for president and vice-president. I understand it is undergoing further change, and purported to be my 'Life of McKinley.' I have had nothing to do with it since 1896, and I want this clearly understood. It is a back number and I trust will be looked upon as such. "Murat Halstead." Extract from letter in which Mr. Halstead wishes to warn the public against buying his old "Campaign Book" now being sold as a new "Life of McKinley." (Indorsement.) "A Big Fraud Exposed. A Scheme to Swindle the Amer- ican Public Uncovered. "The unprecedented demand for an authentic life of President McKinley has induced certain unscrupulous pub- lishers to bring forth a number of inferior books on the life of the late president. These books are mostly made up of newspaper clippings, or are old campaign books rehashed, with an extra chapter added, and are being palmed off on the public as 'authentic,' when exactly the opposite is true. The publishers of some of these so-called 'Lives of McKin- ley' are claiming that their book is written by Murat Hal- stead. On the front of this circular is an extract from a recent letter which Mr. Halstead has addressed to the pub- lic on this subject, which speaks for itself. When you come in contact with persons who have already subscribed for one of these fake Halstead books, or for some other unre- liable Life of McKinley, show them this circular, and the result will be that they will promptly cancel the orders that 188 INFRINGEMENT OF BUSINESS REPUTATION. they have already given, and at once subscribe for a copy of your book. Everybody wants the 'Authentic Life of President McKinley,' with introduction and biography by Col. A. K. McClure, life and public services by Charles Mor- ris, and memorial tributes by members of Mr. McKinley's cabinet and other distinguished persons from different parts of the world. This is the book with which you are prepared to supply them, and with such ammunition as this to help fight your battles you should simply sweep the country. Take special notice notice that Mr. Halstead's letter is under date of September 21st, 1901, at Chicago. It sounds the 'death knell' to a further sale of the so-called 'Life of McKinley' which it is intended to suppress, and effectu- ally 'heads off all competition from agents engaged in hand- ling such fraudulent books. The Publishers." It appears that Mr. Halstead issued two announce- ments, each of which included the identical text of the above extract, but which slightly differed from each other in the omitted preceding matter. This preceding matter is, in each instance respectively, as follows : (1) "I am writing 'The Illustrious Life of William McKinley, our Martyred President,' and hope to make it worthy. There is advertised another life 'Life of McKinley,' entitled 'Life and Distinguished Services of William Mc- Kinley,' retailing for $1.00, alleged to be by me." (2) "I am writing 'The Illustrious Life of William McKinley,' which is being published by the World Pub- lishing Co., of Buffalo, New York, and hope to make it worthy. There is advertised another 'Life of McKinley,' entitled 'The Life and Distinguished Services of William McKinley,' alleged to be by me." It will be observed that in both forms it was plainly stated that Mr. Halstead was then writing a life of William McKinley, and that in both of them attention was pointedly directed to the fact that his new book was not to be con- founded with another "Life of McKinley," alleged to be by him. Hence, from either announcement, when read in HALSTEAD v. HOUSTON. 189 its integrity, it clearly appeared that the object in view was to prevent the other "Life of McKinley," alleged to have been written by Mr. Halstead, from being confounded with the "Life" which he was then writing; whereas the extract, when separated from its context, and read in connection with the indorsement placed thereon by the defendant, palpably tends to create the very confusion which the plaintiffs, for the protection of their property in the new work, had right- fully sought to avoid. Moreover, the confusion, which in the former case appeared to be a "possibility," has in the present one been shown to be an actually existent fact, and the consequence is, whether fraudulently intended or not, that an injury is done to the plaintiffs, the infliction of which the defendant might readily forbear without foregoing the exercise of any right of his own. It is of no avail to say that the injurious result occasioned is not designed. It should be avoided. The defendant's circular is misleading ; and persistence in its promulgation, even if not an actually purposed fraud, certainly amounts to such a constructive legal fraud as a court of equity is in duty bound to repress. Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118; Manufacturing Co. v. Hippie (C. C.) 109 Fed. 152. Accordingly, it is ordered that a provisional injunc- tion issue, restraining the defendant, his servants, agents, and employes, in the terms of the first prayer of the bill; said injunction to continue in force until the final hearing of the cause, or the further order of the court, 190 INFRINGEMENT .OF BUSINESS REPUTATION. PONTEFACT v. ISENBERGER. In the Circuit Court for the Southern District of New York, 1900. 106 Federal 499 Wheeler, District Judge. This cause has been sub- mitted upon an agreed statement of facts. It shows that the plaintiffs have the sole right to the use of the trade mark "Golden Wedding," as applied to the whiskey of their pro- duction, and that the defendant has refilled the plaintiffs' barrels carrying the trade-mark, to palm off his pro- duct as that of the plaintiffs. The plaintiffs are, there- fore entitled to a decree according to the terms of the stipu- lation. Decree for plaintiffs for $350, according to stipu- lation. 1 GENERAL ELECTRIC CO. v. RE-NEW LAMP CO. In the Circuit Court for the District of Massachusetts, 1903. 121 Federal 165 Brown, District Judge. The General Electric Com- pany has acquired a title to the trade-mark "G. E." which is applied to electric goods of various kinds. * * ** 1 Accord: Russia Cement Co. v. Katzenstein, 109 Fed. 314, 1901 ; Ricker v. Leigh, 74 N. Y. App. Div. 138, 1902. Compare the early case of Welch v. Knott, 4 K. & J. 747, 1857 (The injunction was refused, the proof failing to show that the public were deceived). Compare also, Apollinaris Co. v. Scherer, 27 Fed. 18, 1886 (C, in Germany, con- tracted with A., in the United States, to give A. the exclusive right to sell water from C's spring known as "Hunyadi Janos." C. sold to B. in Germany bottles of "Hunyadi Janos,'' marked, "not for export." B. brought these bottles to the United States and sold them. A. sought an injunction to restrain B. from selling the bottles purchased by him, B., in Germany. Injunction refused. This case assumes that a covenant running with personal property is unknown to the law; but see, New York Bank Note Co. v. The Hamilton Bank Note Co., 83 Hun. 593, N.Y.,1895). 1 The statement of facts is abbreviated. GENERAL ELECTRIC CO. v. RE-NEW LAMP CO. 191 The Re-New Lamp Company is a corporation organ- ized in 1898, and since then engaged in the business of re- ceiving and buying from the public burned-out electric lamps, including lamps of the complainant, and remaking or reconstructing them. * * * In the earlier stages of the manufacture of the Edison lamp, and prior to the expiration of the Edison patent, the burned-out lamps were generally thrown away. From about 1895 experiments were made with a view to utilizing and renewing the burned-out lamps. After the expiration of the patent, the business of renewing lamps was begun, and in 1898 the Re-New Lamp Company was organized for the purpose of remaking or reconstructing burned-out lamps. In view of the very large number of electric lamps put upon the market by the complainant and others, and of the fact that the defendants are able to sell their renewed lamps at from 10 to 13 cents each, while the complainant's price is 18 cents, it must be admitted that this business of saving a waste product is a legitimate business, which af- fords the public the opportunity of a reduction of price. While the renewed lamp comes upon the market in competi- tion with the new lamp, this is a legitimate competition. There is no evidence that in conducting their business up to October, 1900, the defendants in any way infringed upon the legal rights of the complainant. On the contrary, the evidence shows that the defendants carefully removed the label affixed by the General Electric Company to the out- side of the lamp, and in their advertisements and wrappers stated the exact character of their lamps and of their busi- ness. Their corporate name itself affords an indication that the defendants had every desire to conduct their busi- ness fairly and honorably. It is in evidence that they have employed 100 hands, more or less, and at certain times have turned out 5,000 renewed lamps a day. To these lamps they have affixed their own labels, containing the words "Maiden" and "Perfection." There is no charge of any intended or actual deception of the public by these defend- 192 INFRINGEMENT OF BUSINESS REPUTATION. ants. The complainant stands strictly on its technical rights as the owner of a technical trade-mark. In October, 1900, the complainant for the first time began to affix to each individual lamp the mark "G. E." The peculiar manner of the attachment of this mark raises new and interesting questions. The Edison label was affixed to the outside of the bulb. It was readily removable, and the defendants did remove it. When the mark "G. E." was affixed, it was not affixed in the same manner as the Edison label, but it was placed within the glass leading in tube, and pasted to the interior of that tube during the process of manufacture. The defendants term it a "nonremovable label." The complainant says that it can be removed, al- though it is conceded that this would increase the cost of remaking the lamp. The defendants contend that this act of the complainant is not affixing of a trade-mark for the legitimate purpose of a trade-mark — -to indicate the origin of the goods — but that it is a device resorted to with an ul- terior purpose, namely, to destroy the utility of the burned- out lamp, and to place the defendants in this dilemma : either to discontinue the business of remaking burned-out lamps which have been manufactured by the Edison Company, or unwillingly to put their lamps forth bearing the trade-mark of the complainant. In support of this contention they say that an inspection of the lamps shows that the label "G. E." it not intended as a guide to the buyer; and it must be ad- mitted that this label being partially curved, and placed within the leading-in tube, and also within the bulb, is by no means as conspicuous as an external label, though it is visible upon ordinary inspection. The complainant ex- plains this location, saying that labels on the outside of the bulb are easily washed off or removed, but that the label in the stem is safe from accidental removel, and serves as a more permanent means of identifying the lamps. It has not been made to appear, however, that there was any difficulty in this respect with the large number of lamps supplied with GENERAL ELECTRIC CO. v. RE-NEW LAMP CO. 193 external Edison labels ; and it does not appear what induce- ment there would be to ordinary users or sellers of the lamps to remove a "G. E." label if it were affixed to the outside There certainly is ground for thinking that the complainant in locating its label in this novel position, had in mind re- movals in the course of the remaking of lamps, rather than in the ordinary course of trade. Upon the present affidavits I should hesitate very much before arriving at a conclusion that the motive of the complainant was merely the ordinary motive of giving notice to a purchaser that the article is the original product of the maker. The complainant's affidavits point out the fact that other manufacturers of lamps besides the General Electric Company have adopted the practice of placing a label in the stem of the lamp. Of course, if manufacturers generally adopt this expedient, the business of remaking and refilling lamps may be much impaired, if not destroyed. If we ap- ply to the present case the doctrine of the bottle cases, which hold that a bottle into which is blown the trade-mark of the original bottler cannot be used by another bottler of the same class of goods, even though he affixes labels indicating that he is the manufacturer, there seems reason to believe that the defendants' business will be impaired. In ordinary cases of refilling bottles or packages there is a presumption that such a use has a deceptive tendency, and the courts therefore do not require actual evidence of deception. It is this doctrine which the complainant invokes in this case: that the article contains its trade-mark, and that to put it out without a complete obliteration of this mark would necessarily have a deceptive tendency. I think, however, there is a very clear distinction be- tween the present case and the ordinary bottle case, where there is usually no excuse or justification for an act which may tend to the deception of the public and to the infringe- ment of the good will of the original bottler. The market is full of bottles without the special trade-mark. Here we find that there has grown up a peculiar business, and a legitimate 194 INFRINGEMENT OF BUSINESS REPUTATION. business, which is useful to the public, as is shown by the re- duced price of an electric lamp; a business started in good faith, and an example of one of those collateral develop- ments along the line of electrical progress. The utilization of by-products and saving of waste is a legitimate business, which should be encouraged. Courts which would be quick to enjoin an unnecessary use of a box or bottle bearing another's trade-mark would be slow to destroy a legitimate and useful business by the extension of the law of trade- marks beyond its proper sphere. What the complainant seeks to protect is not a trade- mark simpliciter, but a trade-mark so disposed as to prevent or hinder the remaking of lamps, and competition based upon the use of the burned-out lamps. Courts of equity are bound to look to the substantial character of proceed- ings, and will not suffer the forms of law to be used to effect an ulterior and unavowed object. If the question whether the complainant has a right to apply a trade-mark in such manner as to destroy the usefulness of the burned-out lamp, and thereby extinguish or monopolize the business of mak- ing over lamps, is to be decided by a court of equity, it should be upon full hearing and proof and full argument. It may be that the complainant's exclusive property in the trade-mark is so extensive that the mark may be used prop- erly to identify not only its trade product in the market, but its refuse manufactures in the junk heap. It may be that, under some circumstances, a trade-mark remaining upon a worn-out manufacture is a legitimate means of recalling it to the complainant, and of inducing people to send it back to it for a small price because it is of no use elsewhere. Trade-marks blown into glass bottles, or stamped upon metal boxes, are doubtless more or less useful in this way. But there seems to be a substantial difference between a mere receptacle like a box or bottle and an electrical machine or apparatus like an electric lamp. A user of boxes or bot- tles has a large market to choose from, and can get articles free from the marks of others. A repairer or remaker of GENERAL ELECTRIC CO. v. RE-NEW LAMP CO. 195 electric lamps has no such choice. He can use only electric lamps. If the complainant, with the knowledge of the busi- ness of remaking lamps, has chosen to so apply its trade- mark as to prevent its removal in remaking lamps, we have then to consider whether it is entitled to the assistance of a court of equity to relieve it from the chance of a confusion of goods when it has voluntarily and without apparent ne- cessity exposed itself to this chance. If the situation from which the complainant seeks relief is one of its own creation, and if the aid of a court of equity is invoked merely as an instrument for the accomplishment of a piece of business strategy, whereby the complainant is to acquire for itself the profits of a business now in the hands of another, a court of equity might well refuse to become an active agent in such a transaction. The complainant says that it does not want others to use its trade-mark ; but, with full knowledge of the way the business of remaking lamps is carried on, it puts its trade- mark in such a position that every remaker of lamps must use it, or be deprived of his business, or a portion of its profits. It is well settled that a man has not an unrestricted right to the use of his own name when damage to the estab- lished business of another will result, and upon like princi- ples a court of equity might regard the use of a trade-mark in a manner unnecessarily injurious to others as a bar to equitable relief. To repeat : Upon a motion for preliminary injunction the complainant presents the ordinary case of a trade-mark applied to goods sold by the defendants which are not in substance the goods of the complainant. The defendants show facts from which, together with the facts admitted by the complainant, arises a serious doubt whether this is an _ ordinary trade-mark case, and a doubt whether the complain- ant has not voluntarily brought about a situation where the defendants are confronted on the one hand with a loss of a legitimate business or a diminution of the profits, and on the other hand with involuntarily selling goods with the 196 INFRINGEMENT OF BUSINESS REPUTATION. complainant's trade-mark visible thereon. I have no doubt that the defendants would very much prefer to leave these trade-marks off if they could do so without substantial loss. I know of no case involving similar facts. The marked distinction between this case and the ordinary trade- mark case is that ordinarily the owner of the trade-mark is first in the field, while the defendant subsequently uses the mark of the complainant in such a way as to harm its owner, or to subject its owner to peril of harm. In the present case the defendants were first in the field, and the trade- mark is so applied as to do them harm. The complainant does not claim unfair competition of the defendants, but the usual state of things is reversed, and the defendants complain of unfair competition, and of the use of a trade-mark in a manner unnecessarily injurious to them, as a part of an in- genious scheme whose elements are a trade-mark, a novel location thereof which prevents removal, and an injunction to prevent the use of the article without a removal of the non-removal trade-mark. It must be conceded, I think, that a manufacturer of goods is ordinarily under no obligation to competitors, and is entitled by contract or otherwise to prevent his worn-out articles from being made over and brought into competition with his articles. Whether he can do this by a trade-mark, and whether a court of equity upon the present bill, can aid him to do so, I am in doubt. It may be that upon a full investigation of the facts it will appear that the complainant's use of its trade-mark in its present position is a natural use growing out of ordinary business considerations. If that fact be established, the doubts as to the complainant's title to relief would probably disappear. The complainant could hardly be required to forego an appropriate and proper application of its trade-mark merely for the reason that incidental business complications might result to the defendants. On the other hand, should it appear that the defendants' con- tention is well founded ; that the peculiar use of this trade- mark was a mere device to place the defendants in a dilem- ma, and had no substantial relation to the ordinary uses GENERAL ELECTRIC CO. v. RE-NEW LAMP CO. 197 of a trade-mark — there would then remain questions of great importance and novelty, which should be decided only on final hearing. A further question suggests itself. That is, whether the bottle cases, which rigidly prohibit the use of bottles containing trade-marks, afford a proper guide in case of an electric lamp, which is not a mere receptacle for which sub- stitutes are readily available, but a highly organized appar- atus, for which there is no substitute. Certain precau- tions might well be adjudged insufficient in the case of a bottle on the ground that a defendant had no right to put himself in a situation where precautions were necessary, while the same precautions of accompanying labels might be held sufficient in the case of an electric lamp on the ground that a defendant had done all that, in the nature of the business reasonably could be done, and because he had not unneces- sarily placed himself in a position where precautions were necessary. See Coats v. Merrick Thread Co., 149 U. S. 562, 13 Sup. Ct. 966, 37 L. Ed. 847. That the defendants' trade-marks "Maiden" and "Perfection" have become so well known in the trade as to indicate clearly the origin of the defendants' lamps, and thereby practically obliterate the evidence of origin offered by the complainant's mark within the leading-in tube, is not sufficiently established. It would seem entirely feasible for the defendants to affix to the ex- terior of their lamps marks which would explicitly indicate the exact character of the goods, and which would not, as do the present marks of the defendants, depend upon trade knowledge for their signification. While I do not at pres- ent decide that the defendants are under any legal obligation to change their labels, yet, in view of the suggestion of par- ties and counsel of their readiness to make all reasonable efforts to avoid confusion of goods, it may not be inappro- priate for a court to suggest the course which will tend to do this. Under all the circumstances, I do not think that the complainant's right is so clear as to warrant the issuance 198 INFRINGEMENT OF BUSINESS REPUTATION. of a preliminary injunction. In Browne on Trade-marks, sec. 465, it is said : "If the defendant show a belief that he has a just defense, and is not a wilful pirate, then the case should be one of evident mistake of law or fact, or both, in the defense which he sets up, which will justify the festinum remedium." That the defendants are not wilful pirates, and are unwillingly putting forth lamps with the complainant's label therein, seems clear. If they are in the wrong, it is merely for their failure to surrender their profits at the demand of one who stands strictly on its rights as an owner of property. There is much more in this case than in the ordinary trade-mark case. There is a question of the scope of the users for which a trade-mark may be applied, and the ques- tion how far a court of chancery will lend its aid to relieve a complainant who has voluntarily forced the situation from which he seeks relief, or suffer itself to become an instru- ment in mere business strategy. I express no opinion upon the merits of this controversy. It is by no means clear that the complainant has done more than it is legally and equitably justified in doing. On the other hand, I am not satisfied that the defendants' case involves an evident mis- take of law or fact. The case so far seems a doubtful one, justifying the refusal of a preliminary injunction. It would have been easy for the complainant to have avoided any risk of confusion of goods by so locating its "G. E." label that, like the Edison label, it could have been removed by the defendants. In choosing, for business reasons, to lo- cate it within the inner tube, it voluntarily incurred the risk of confusion of goods, which is the basis of the present ac- tion. With full knowledge it assumed a new risk of con- fusion of goods, and the further risk of litigating novel points of law. Under such circumstances, we think that a risk voluntarily assumed before litigation may be continued until the rights of the parties are established on final hear- ing. Petition denied. EDITORIAL NOTE ON TRADE-MARK LEGISLATION. 199 EDITORIAL NOTE ON TRADE-MARK LEGISLA- TION. Prior to 1870 some of the States enacted laws for the registration and protection of trade-marks. A federal sys- tem for the regulation of trade-marks was adopted by Con- gress in 1870: 16 Stats. 210. In 1876 Congress also pass- ed an Act to punish the counterfeiting of trade-marks. These Acts were at first assumed to be constitutional. 1 They were expressly declared constitutional in Duwell v. Bohmer, 8 Fed. Cas. 4213, 1878. An opposite conclu- sion, however, was reached in Liedersdorf v. Flint, 8 Biss. 327, 1878. The constitutional question was finally deter- mined in the Trade-mark Cases, 100 U. S. 82, 1879. The Acts of 1870 and 1876 were declared unconstitutional. The Court held that a trade-mark was neither an invention, discovery, or a writing within the meaning of the eighth section of the first article of the Constitution, and that if any federal legislation on the subject would be valid it would be an act confirmed to trade-marks used in "com- merce with foreign nations, and among the Indian tribes." 2 In 1 88 1 Congress passed an Act, 21 Stats. 502, 3 pro- viding for the registration in the patent office of trade-marks used in foreign commerce and among the Indian tribes. The Act was extended to commerce between the states by the Act of April 1, 1905. The Acts do not recognize any prop- erty in trade-marks not recognized at common law. 4 They direct the Commissioner of Patents to issue on application a certificate of registry when he is satisfied of the lawfulness 1 Moorman v. Hoge, 2 Sawy. 78, 1871 ; Smith v. Reynolds, 10 Blatch 85,1872; Osgood v. Rockwood, 11 Blatch. 310,1873; Smith v. Jacobs, 13 Blatch. 458, 1876. 2 The Acts relating to copyright in designs, engraving and prints, do not enable one to copyright a design used as a trade-mark: Higgins v Keuflfel, 140 U. S. 428, 1891. a See also an unimportant amendment, Aug. 5, 1882, 22 Stats. 298. 4 Sarrazin v. W. R. Irby Cigar and Tobacco Co., 93 Fed. 634, 1899. 200 INFRINGEMENT OF BUSINESS REPUTATION. of the claim of the alleged trade-mark. From the point of view of jurisdiction the effect of the Acts 5 is to confer on the Courts of the United States jurisdiction in actions at law and in equity, where the owner of a trade-mark has been in- jured in respect thereto, in foreign, Indian or interstate com- merce, by a citizen of his own state. In all other cases where the United States Courts have jurisdiction, they obtain juris- diction because of the diverse citizenship of the parties. Though the constitutionality of the Act of 1881 may be said to be assumed by the Supreme Court, in Corbin •v. Gould, 133 U. S. 308, 1889, and in South Carolina v. Sey- mour, 153 U. S. 353, 1894, in the latest reported case touch- ing on the subject, that of Elgin National Watch Co. v. Illinois Watch Co., 179 U. S. 665, 1901, the Court expressly refuses to decide the constitutionality of the Act. The Act of 1905 has not been passed on by the Courts. New Mexico and South Carolina seem to be the only States or territorities without some trade-mark legislation. 5 These State statutes do not take from or, as a rule, add to the common law remedies. 6 It was pointed out by San- derson, J., in Falkenburg v. Lucy, 35 Cal. 52, 1868, 70, 71, that a state statute which attempted to give a right in the nature of a trade-mark to that which could not be a trade- mark at common law, as words describing the ingredients of the goods sold, would be unconstitutional, in that it would trespass on the exclusive power of Congress over copy- right.' 5 A collection of the present state statutes, except Act of 1905, will be found in Paul on Trade-Marks, Appendix III, Ed. 1903. A copy of the various treaties, conventions, and declarations in relation to trade- marks between the United States and other Powers will be found in the same work, Appendix IV. " Derringer v. Plate, 29 Cal. 292, 1865 ; Filley v. Fassett, 8 Am. L. Reg., n. s., 402, 1869. * As to whether a state statute limiting a person's right to a trade- mark, would be regarded as depriving him of his property without due process of law, quore. LUMLEY v. WAGNER. 201 CHAPTER IV. INFRINGEMENT OF PROPERTY IN CONTRACTS, AND THE RIGHT TO CONTRACT. Unfair Trade Competition continued — Strikes — Boycotts, LUMLEY. v. WAGNER. In Chancery before Lord St. Leonards, 1852. 1 De Gex Macnaghton and Gordon 604 The bill in this suit was filed on the 22d April, 1852, by Benjamin Lumley, the lessee of her Majesty's Theatre, against Johanna Wagner, Albert Wagner, her father, and Frederick Gye, the lessee of Covent Garden Theatre: it stated that in November, 1851, Joseph Bacher, as the agent of the defendants Albert Wagner and Johanna Wagner, came to and concluded at Berlin an agreement by which Johanna Wagner with the consent of her father, agreed to sing three months at the theatre of Mr. Lumley, in Lon- don, and Mr. Lumley agreed to pay Johanna Wagner a salary of 400/. per month. Miss Wagner agreed not to use her talents at any other theatre without the consent of Mr. Lumley. The bill then stated that the defendants J. and A. Wagner subsequently made another engagement with the defendant F. Gye, by which it was agreed that the defend- ant J. Wagner should, for a larger sum than that stipulated by the agreement with the plaintiff, sing at the Royal Italian Opera, Covent Garden, and abandon the agreement with the plaintiff. The bill then stated that the defendant F. Gye had full knowledge of the previous agreement with the plaintiff, and that the plaintiff had received a protest from 202 INFRINGEMENT OF PROPERTY IN CONTRACTS. the defendants J. and A. Wagner, repudiating the agree- ment on the allegation that the plaintiff had failed to fulfill the pecuniary portion of the agreement. The bill prayed that the defendants Johanna Wagner and Albert Wagner might be restrained from violating or committing any breach of the last article of the agreement ; that the defendant Johanna Wagner might be restrained from singing and performing, or singing at the Royal Italian Opera, Covent Garden, or at any other theatre or place without the sanction or permission in writing of the plaintiff during the existence of the agreement with the plaintiff; and that the defendant Albert Wagner might be restrained from permitting or sanctioning the defendant Johanna Wagner singing and performing, or singing as aforesaid; that the defendant Frederick Gye might be re- strained from, accepting the professional services of the defendant Johanna Wagner as a singer and performer, or singer at the said Royal Italian Opera, Covent Garden, or at any other theatre or place, and from permitting her to sing and perform or to sing at the Royal Italian Opera, Covent Garden, during the existence of the agreement with the plaintiff, without the permission or sanction of the plaintiff. The plaintiff having obtained an injunction from the Vice-Chancellor Sir James Parker on the 9th May, 1852, the defendants now moved, by way of appeal before the Lord Chancellor, to discharge his Honor's order. Motion refused with costs. 1 'The statement of facts is abbreviated and the arguments of coun- sel and the opinion of Lord St. Leonards are omitted. The arguments and the opinion deal solely with the right of the plaintiff to obtain an injunction against the defendant, Johanna Wagner. The right to restrain the defendant Gye from employing Miss Wagner seems to have been assumed as a necessary result of the right to restrain Miss Wagner. The following cases support this assumption: American Base Ball Association v. Pickett, 8 Pa. C. C. 232, 1890; Nashville, Cent, and St. L. Ry. Co. v. McConnell, 82 Fed. 65, 1897 (The A. Co. sold non-transferrable round trip tickets. B. bought such tickets and LUMLEY v. WAGNER. 203 resold them, guaranteeing that they would be accepted by Co. At the instance of the A. Co., B. was restrained from reselling the tickets. See in accord: Railroad v. Kurner, 47 Ohio Law Bal. 294; Pa. R. R. Co. v. Beekman, 30 Wash. Law Rep. 715; Louisville & N. R. Co. v. Bitterman, 128 Fed. 176, 1004; Illinois Cen. R. Co. v. Caffrey, 128 Fed. 770. 1894; Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60, J898, aif. 30 N. Y. App. 564, 1898; American Law Book Co. v. Edward Thompson Co., 84 N. Y. Supl. 225, 1903 (The A. Co. had a contract with each subscriber to its encyclopaedia. The B. Co. offered to indem- nify these subscribers if they would repudiate their contracts with the A. Co. and subscribe to the encyclopaedia of the B. Co. The A. Co. secured an injunction restraining the B. Co. from making this offer). An injunction will issue to restrain a defendant from threatening economic harm to a third person unless the third person breaks his contract with the plaintiff; Beattie v. Gallanan, 81 N. Y. _ Sup. 413, 1903 (B. et al. by threatening to strike induced C. to break his contract with A. At the instance of A.., the Court restrained B. et al. from con- tinuing to interfere with A.'s business by threats of similar action). In The Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 1902, the defendants were restrained "from in any manner knowingly and intentionally causing or attempting to cause by threats, offers of money, payment of money, offering to pay or the payment of transpor- tation expenses, inducements or persuasions to any employe of the complainant under contract to render service to it to break such con- tract by quitting such service." In accord with the assumption that per- suasion by argument to break a contract may be restrained, see action of Holmes, J., in Vegelahn v. Gunter, 167 Mass. 92, 1896, 96, and dicta in Southern R. Co. v. Machinists' Local Union, in Fed. 49, 1901, 56. As to whether the motive of the defendant would affect the court's willingness to issue an injunction in such a case, see note 1 to Reynolds v. Everett, reported infra; Compare, Walker v. Cronin, 107 Mass. 555, 1871, 563- Our principal case is based on the assumption that if B. offers money or other ecqnomic advantage to C. if C. will break his contract with A. and deal with B., and as a consequence C. breaks his contract with A. to A.'s damage, A. has an action against B. In accord with this assumption see the following cases at law : Lumley v. Gye, 2 E. & B. 216, 1853, s. c, Lewis' Cases on Civ. Lib., Pt. I, p. 1 ; Haskins v. Roy- ster, 70 N. C. 601, 1874 1 Bixby v. Dunlap, 56 N. H. 456, 1876 ; Bowen v. Hall, L. R. 6 Q. B. D. 333, 1881, s. c, Lewis' Cases on Civ. Lib., Pt. I, p. 12; Temperton v. Russell [1893], 1 Q. B. 715, s. c, Lewis' Cases on Civ. Lib., £t. I, p. 33; Doremus v. Hennessey, 176 111. 608, 1808, 318. Compare, Gatzow v. Buening, 49 L. R. A. 47s, Wis., 1900. For a discussion of the English cases cited see an article by the editor in 51 Am. L. Reg., O. S., p. 125, on "Some Leading English Cases on Trade and Labor Disputes." 204 INFRINGEMENT OF PROPERTY IN CONTRACTS. SPRINGHEAD CO. v. RILEY. In Chancery, before Vice-Chancellor Malins, 1868. Law Reports 6 Equity Cases, 551. This was a demurrer to a bill filed by the Springhead Spinning Company, Limited, carrying on business as cotton spinners at Springhead, Lees, near Oldham, in the county of Lancaster, where they employed a large number of hands, against J. Riley and J. Butterworth, the president and secretary of an incorporated society, calling itself the Operative Cotton Spinners, Self-acting Minders, and Turn- ers' Provincial Association, which was a voluntary associa- tion of persons supported by moneys contributed by the members, and against a printer named Carrodus. The book of rules of the association contained a preface urging on the members the necessity of combination, and concluded with rules for the settlement, by the committee of the asso- ciation, of all disputes between workmen and their employ- ers, and for the payment of allowances to the men and their families while on strike. The bill contained the following statements: — The managers of the plaintiffs, owing to changes in the quantity of the cotton used in the winding and spinnings of the plain- tiffs, found it necessary, about the month of February, 1868, to readjust the amounts of wages then paid to the hands employed in their mill. Accordingly, on the 27th of February, a deputation of the hands, known as "minders," was invited to the offices of the plaintiffs, and the proposed alterations stated to them, with a request that they would hold a meeting of the hands and consider the matter. On the 4th of March following, the defendants, Riley and But- terworth, together with two persons representing them- selves as two of the managing committee of the associa- tion, called on the plaintiffs' managers, and stated they came SPRINGHEAD CO. v. RILEY. 205 as representatives of the association. The plaintiffs' man- agers furnished the last-named defendants and their com- panions with the proposed list of prices. The defendants expressed themselves content with the proposed readjust- ment of wages, and left the plaintiffs' premises at about the dinner hour of the hands. Upon the return of the hands certain of the "minders," with the concurrence, and, in fact, at the instigation of the defendants, Riley and Butterworth, and other members of the association not known to the plaintiffs, gave notice of their intention to leave at the expiration of a week, and on the nth of March the hands, consisting of minders and piecers, quitted the plaintiffs' employ. There were, in fact, many persons competent and wil 1 ling to take the situations vacated by the hands who had so left the plaintiffs' employ. But in order to prevent such per- sons from entering into engagements with the plaintiffs for carrying on their business, and to prevent the hands who had so quitted the plaintiffs' employ from re-engaging them- selves, the defendants, Riley and Butterworth, had recently, with the assent and concurrence of the members for the time being of the association, and out of moneys contributed by the association for that purpose, published, and caused to be posted on the walls and other public places in the neigh- borhood of Springhead, Lees and Oldham, divers placards in the following words: "Wanted all well-wishers to the Operative Cotton Spinners, &c, Association not to trouble or cause any annoyance to the Springhead Spinning Com- pany, Lees, by knocking at the door of their office until the dispute between them and the self-actor minders is finally terminated. By special order." — "Carrodus, 32, Greaves Street, Oldham." The defendants, Riley and Butterworth, with the like assent and out of the like moneys also, in order to prevent persons from entering into engagements with the plaintiffs for carrying on the business, caused to be inserted in the 206 INFRINGEMENT OF PROPERTY IN CONTRACTS. Manchester Guardian and other newspapers having a large circulation in Springhead, Lees and Oldham, and elsewhere, where the persons reside who would be willing to work for the plaintiffs, an advertisement similar to the placard before set forth. (Par. 17). The said placards and advertisements were part of a scheme of the defendants, Riley and Butterworth, and the said association, whereby they, by threats and in- timidation, prevented persons from hiring themselves to, or accepting work from, the plaintiff's, and there were divers persons in, and in the neighborhood of Springhead, and elsewhere, who, by reason of such notices and the liabilities under which they would place them in regard to the associa- tion, were intimidated and prevented from hiring them- selves to the plaintiffs. Letters of remonstrance were sent by the plaintiffs' so- licitor to the defendants, Riley and Butterworth, and Carro- dus and other persons, against the continuance of the adver- tisements and placards, and a public notice was issued to all persons in the neighborhood, warning them against the con- tinuance of the printing and publishing of these placards. Notwithstanding such public notice and letters, the de- fendants threatened and intended to publish other placards and advertisements of a similar nature. The defendants, Riley and Butterworth, and the association, had, by means of such notices and advertisements, in fact, intimidated and prevented divers persons from hiring themselves to, and accepting work or employment from, the plaintiffs although such persons were willing to work for, and to hire them- selves to, and accept work from, the plaintiffs, and in par- ticular, the defendants had prevented P; Killeen and B. Chadderton from so hiring themselves, and had, in fact, by the means aforesaid, forced the said Killeen and Chadder- ton, to depart from the hiring which had already subsided between them and the plaintiffs. The defendant Carrodus had, since he was communi- SPRINGHEAD CO. v. RILEY. 207 cated with on behalf of the plaintiffs, reprinted and re- published such placards as aforesaid. (Par. 30). The business carried on by the plaintiffs was one of considerable magnitude, and the good-will there- of was worth many thousand pounds. It was essential to the maintenance of such good-will that the plaintiff's business should be continued as a going concern, and any stoppage of the plaintiffs' mill, in addition to the large loss arising from the cessation of work, greatly depreciated the value of the good-will of the plaintiffs' business, and was, in fact, an ir- reparable damage to the corpus of their property. (Par. 31). By the acts of the defendants the plaintiffs were intended by the defendants to be, and were, in fact, prevented from obtaining any persons willing to work at their mill or factory, and thereby the plaintiffs were sus- taining an actual damage or loss amounting to £178, or thereabouts, per week, and were in addition prevented from carrying on the business as a continuous and going con- cern, whereby the value of the corpus of the plaintiffs' property was seriously diminished, and was put in jeopardy of being lost entirely. The bill prayed that the defendants, Riley and Butter- worth, as well on their own behalf as on behalf of all other the members of the association, their servants and agents, might be restrained from printing or publishing any pla- cards or advertisements similar to those already set forth, or to the like effect, whereby the property of the plaintiffs, or their business, might be damnified or injured, or where- by any persons might be unlawfully hindered from work- ing in the plaintiff's mill or factory, or from hiring them- selves to, or accepting work from, the plaintiffs, and that damages might be awarded to the plaintiffs for the loss and damage already sustained, or which might be sustained, by them in respect of the acts of the defendants therein com- plained of, and that the defendants might pay the costs of this suit. The defendants demurred. 208 INFRINGEMENT OF PROPERTY IN CONTRACTS. The Vice-Chancellor having granted an interim in- junction, the case now came on for argument upon the de- murrers. Sir R. Malins, V. C, after stating the facts, and refer- ring to the Act 6 Geo. 4, c. 129, the Masters and Workmen's Act and the Act of 1859 (20 & 21 Vict. c. 43), contin- ued: — These Acts have received an authoritative construction in the direction of Mr. Baron Bramwell to the jury in the case of Reg. v. Druitt, 16 L. T. N. S. 855. The substance of that judgment, in which I entirely concur, is this: That every man is at liberty to induce others, in the words of the Act of Parliament, "by persuasion or otherwise," to enter into a combination to keep up the price of wages, or the like; but directly he enters into a combination which has as its object intimidation or violence, or interfering with the perfect freedom of action of another man, it then be- comes an offence not only at common law, but also an offence punishable by the express enactment of the Act 6 Geo. 4, c. 129. It is clear, therefore, that the printing and publishing of these placards and advertisements by the defendants, admittedly for the purpose of intimidating workmen from entering into the service of the plaintiffs are unlawful acts, punishable by imprisonment under the 6 Geo. 4, c. 129, and a crime at common law. But if these acts amount to the commission of a crime only, it is clear that this Court has no jurisdiction to re- strain them. In the celebrated case of Gee v. Pritchard, 2 Sw. 402, 413, the object of which was to restrain the pub- lication of letters written by the plaintiff to the defendant, Lord Eldon says : "The publication of a libel is a crime, and I have no jurisdiction to prevent the commission of crimes, excepting, of course, such cases as belong to the protection of infants where a dealing zvith an infant may amount to a crime — an exception arising from that peculiar jurisdiction of this Court." Further on Lord Eldon says : "The ques- SPRINGHEAD CO. r. RILEY 209 tion will be, whether the bill has stated facts of which the Court can take notice, as a case of civil property, which it is bound to protect." Lord Campbell, in the case of Emperor of Austria v. Day, 3 D. F. & J. 239, quotes that passage with appro- bation. The jurisdiction of this Court is to protect property, and it will interfere by injunction to stay any proceedings, whether connected with crime or not, which go to the im- mediate, or tend to the ultimate, destruction of property, or to make it less valuable or comfortable for use or occu- pation. The familiar cases of light and air, nuisance, and trade marks, will illustrate what I have said, namely, that the Court will interfere where the acts complained of go to the destruction or material diminution of the value of property. It is distinctly charged by this bill, and it is consequently admitted by the demurrers, that the acts of the defendants which are complained of do tend to the immediate destruc- tion of the value of the plaintiff's property. The 30th and 31st paragraphs of the bill go distinctly to this point, and in the 17th paragraph it is stated that these placards and advertisements are, in fact, part of a scheme of the de- fendants whereby they, by threats and intimidation, prevent persons from hiring themselves to or accepting work from the plaintiffs. If the defendants, Riley and Butterworth, had carried on a manufactory in the neighborhood of the plaintiffs' works, and had by any process poured noxious vapors into the plaintiffs' mill to such an extent as to ren- der it impossible for them to procure workmen to carry on their operations, that would have been a nuisance tend- ing to the destruction of the plaintiffs' property which this Court would have restrained by injunction ; and so it would if the defendants had, by darkening their ancient lights, rendered it impossible or even difficult to carry on their trade; and so if the defendants had, by constructing a ma- 210 INFRINGEMENT OF PROPERTY IN CONTRACTS. terial obstruction, such as building a wall, rendered the access by the work people of the plaintiffs to their mill impossible. Why should the defendants be less amen- able to the jurisdiction of this Court because they proceed to destroy the value of the plaintiffs' property in another but not less efficacious mode, namely, by their threats and intimidation rendering it impossible for the plaintiffs to obtain workmen, without whose assistance the property be- comes utterly valueless for the purposes of their trade? The truth, I apprehend is, that the Court will inter- fere to prevent acts amounting to crime, if they do not stop at crime, but also go to the destruction or deteriora- tion of value of property. In the present case, the acts complained of are illegal and criminal by the Act of Geo. 4, and it is admitted by the demurrers that they were designedly done as part of a scheme, by threats and intimidation, to prevent persons from accepting work from the plaintiffs, and, as a conse- quence, to destroy the value of the plaintiffs' property. It is, in my opinion, within the jurisdiction of this Court to prevent such or any other mode of destroying prop- erty, and the demurrers must, therefore, be overruled. The defendant, Carrodus, as stated in the bill, per- sisted in reprinting and republishing the placards and ad- vertisements after a warning from the plaintiffs and his demurrer must consequently be overruled. In coming to this conclusion I desire to be under- stood as deciding simply on what appears upon this bill and these demurrers. For the reasons I have stated I overrule these demurrers, because the bill states, and the demurrers admit, acts amounting to the destruction of property. Upon the general question whether this Court can interfere to prevent these unlawful proceedings by workmen issuing placards amounting to intimidation, and whether acts of intimidation generally would go to the destruction of property, that will probably have untimately SPRINGHEAD CO, v. RILEY. 211 to be decided at the hearing of this cause. In the mean- time I would only make this observation, that by the Act of Parliament it is recited that all such proceedings are injurious to trade and commerce, and dangerous to the security and personal freedom of individual workmen, as well as the security of the property and persons of the public at large; and if it should turn out that this Court has jurisdiction to prevent these misguided and misled workmen from committing these acts of intimidation, which go to the destruction of that property which is the source of their own support and comfort in life, I can only say that it will be one of the most beneficial jurisdictions that this Court ever exercised. ''Accord: Sherry v. Perkins, 147 Mass. 218, 1888 (The defendants caused a banner to be carried before the plaintiff's factory with the fol- lowing inscription: "Lasters are on strike and lasters are requested to keep away from P. P. Sherry's until the present trouble is settled. Per order L. P. U." In restraining such banners the court said: "The wrong is not, as argued by the defendant's counsel, a libel upon the plaintiff's business. It is not found that the inscriptions upon the banners were false, nor do they appear to have been in disparagement of the plaintiff's business. The scheme in pursuance of which the banners were displayed and maintained was to injure the plaintiff's business, not by defaming it to the public, but by intimidating work- men, so as to deter them from keeping or making engagements with the plaintiffs. The banner was a standing menace to all who were "or wished to be in the employment of the plaintiffs, to deter them from entering the plaintiff's premises. Maintaining it was a continu ous unlawful act, injurious to the plaintiff's business and property, it was a nuisance such as a court of equity will grant relief against") ; "Cceur d'Alene Consolidated Mining Co. v. Miners' Union, 51 Fed. 260, 1892, Beatty, J., said : "A clear distinction will be observed between the two classes of cases above noted. In the one, when the acts complained of consist of such misrepresentations of a business that they tend to its injury, and damage to its proprietor, the offense is simply a libel; and in this country the courts have with great unanimity held that they will net interfere by injunction, but that the injured party must rely upon his remedy at law. On the contrary, when the attempt to injure consists of acts or words which will operate to intimidate and prevent the customers of a party from dealing with or laborers from working for him, the courts have with nearly equal unanimity inter- posed by injunction. In the one case it is an injury to a man's business by libeling it; in the other, by force, threats, and other like means, he is prevented from pursuing it ; and, while the damage might be as great in the one case as in the other, — but most likely with different consequences to the good order and peace of the communfty,^the courts have determined upon different remedies. What constitute such actionable threats 'or intimidations must be determined in each case 212 INFRINGEMENT OF PROPERTY IN CONTRACTS. UNITED STATES v. KANE. In the Circuit Court for the District of Colorado, 1885. 23 Federal 748. Brewer, J. : l Now, coming to these contempt cases, the stenographer very kindly copied out all his notes last night and furnished the transcript to me ; so I have had an opportunity to read over the testimony, and I have done it very carefully. I think a few preliminary considerations, in reference to the common rights which we all have as free men in this country, may not be amiss. Every man has a right to work for whom he pleases, and to go where he pleases, and to do what he pleases, providing, in so doing, he does not trespass on the rights of others. And every man who seeks another to work for him has a right to contract with that man, to make such an agreement with him as will be mutually satisfactory; and unless he has made a contract binding him to a stipulated time, he may right- fully say to such employe at any time, "I have no further need of your services." * * * Supposing Mr. Wheeler had two men employed, * * * one is discharged and the_ other wants to stay, is satisfied with the employment; and the one that leaves goes around to a number of friends from all the circumstances attending it. If the things done or the words spoken are such that they will excite fear or a reasonable appre- hension of damages, and so influence those for whom designed as to prevent them from freely doing what they desire, and the law permits, they may be restrained, and the courts will look beyond the mere letter of the act or word into its spirit and intent"). Compare Gilbert v. Mickle, 4 Sand. Ch.' 357, N. Y., 1846, reported infra, chapter v., Emack v. Kane, 34 Fed. 45, 1888; Casey v. Typographical Tjnion, re- ported infra; and Beck v. Railway Teamsters' Union, 42 L. R. A. 407, Mich., 1898, 418. 'Part of his discussion of the facts of the case and of the rights of employers and of employes is omitted. UNITED STATES v. KANE. 213 and gathers them, and they come around, a large party of them, — as I suggested yesterday, a party with revolvers and muskets, — and the one that leaves comes to the one that wants to stay and says to him : "Now, my friends are here; you had better leave; I request you to leave;" the man looks at the party that is standing there ; there is noth- ing but a simple request, — that is, so far as the language which is used ; there is no threat ; but it is a request backed by a demonstration of force, a demonstration intended to intimidate, calculated to intimidate, and the man says: "Well, I would like to stay, I am willing to work here, yet there are too many men here, there is too much of a dem- onstration ; I am afraid to stay." Now, the common sense of every man tells him that that is not a mere request, — tells him that while the language used may be very polite and be merely in the form of a request, yet it is accom- panied with that backing of force intended as a demonstra- tion and calculated to make an impression; and that the man leaves, really because he is intimidated. * * * If that is shown, if the testimony makes it clear that these parties went in such numbers, and conducted themselves in such a way, that while they simply said, "Please get off this engine," or "We want you to get off this engine," they intended to overawe, — intended, by the demonstrations which they made, to impress upon the minds of the engi- neers and train-men that personal prudence compelled them to leave, — why, then the government has made out its case. It is not necessary that there should be actual violence. * * Now, with these preliminary observations, let us come down to the testimony itself. All parties, the defendants and the witnesses for the government, agree that there was a large gathering there, — quite a crowd; and, as Mr. Orr says, there was a "fever of excitement." He used the expression once, "It was the rage" ; interpreting that afterwards with the idea that there was an excitement per- vading the crowd, which surged backwards and forwards, 214 INFRINGEMENT OF PROPERTY IN CONTRACTS. now to this engine and now to that, and that there was an excited,, eager crowd of people there, bent on accomplishing a certain result. They wanted to stop the movement of trains; they did not seek to destroy an engine; they did not seek to destroy property; they had obviously that respect for the rights of property, which made them unwilling to touch an engine,- a" car, or any of the property of the com- pany for the. sake Of destroying it ; and in that they are to be commended ; in that their conduct differs from that which oftentimes is found" in movements of this kind ; for it is part of the public history of the country, as we all • know, that, in what are called strikes, excited men, wicked men, have wrought oftentimes fearful destruction of prop- erty. You will all remember the Pittsburgh riots, years ago, •when millions of dollars of property were destroyed. These men, and I say it to their commendation, I do not see from the testimony that they put a finger on a dollar's worth of company's property to destroy it; but they did go there with the intent to prevent this company, whose property is in the' hands of the court, from moving its trains,; — from attending to its regular business. Of that there can be no question. What the grievances were, what the reasons for the strike were, are obscure. I do not fully understand them. The parties defendant in this case, when they were on the stand themselves, did not seem to have a definite idea of the wrongs that they complained of, or of what their grievances were. If they had any grievances, if there was anything of which they had a right to complain, it is one of the peculiar features of property situated as this is that the court is always open to hear and adjust them; and in one respect this company, whose property is in the hands of the court, has not the freedom which ordinary property owners have. Although owning this railroad, it. is not for it to say who shall be employed and who not. The court has taken possession of that property, and any man connected with UNITED STATES v. KANE. 215 the administration or management of that road, I do not care who he is, whether he is doing the most humble, com- mon work on the line of that road, has the same right that the receiver himself has, that any creditor of the road has, to come into this court' and insist that any grievance which he has against the management of that road shall be con- sidered and passed upon. Ordinarily, you know, when a company has property, it has absolute liberty. It may dis- miss whom it pleases, and employ whom it pleases; but when the courts take possession of property in this way, that liberty is abridged, and the company cannot say, — Mr. Jackson, the receiver, cannot say, — "I will discharge all of these men; I will pay them only so much a day; I will require so many hours' work; I will require this and that of them ;" for there is no one in the employ of the company but who has the right to come and say to this court, "Mr. Jackson is making an unreasonable requirement; it is more than he has fairly and reasonably a right to require of us;'' and the court is bound to listen to that complaint, and to see that justice is done between the receiver and any employe. But this party of strikers, not coming into this court, .as- sumed at that time to try to stop the operation of the road ; tried to prevent the engineers from running out the trains ; tried to prevent the train-men from working; and while, as I say, they touched no property to injure it, yet I think there was no one that heard the testimony but felt that that demonstration was made with the intent to overawe these engineers; to make them feel that it was not personally prudent to run those trains ; that there was a risk to them- selves in attempting to continue the operations of the road there; and that these engineers acted under a reasonable sense of personal danger accruing from the demonstration that was made in their presence. I have no doubt that some men, who are excessively bold, might have laughed at it, and waited, believing that no personal violence would be used; but men are not all 216 INFRINGEMENT OF PROPERTY IN CONTRACTS. equally bold and courageous ; the average man has a feeling that it is his duty to regard his personal safety ; we all know that, and we act upon that presumption; and when these men met there in that fever of excitement, when the crowd surged backwards and forwards, from one end of that yard to the other, approaching now this engine and now that, they knew, and every man knows, that that kind of a dem- onstration was calculated to intimidate; and they knew, and every man knows, that ordinarily prudent men are not going to risk their personal safety when there is nothing to be gained by it. They are going to say, "Well, here is a crowd; they are in excitement here; they pass back- wards and forwards through this yard; and though they say we cannot do any violence, we cannot order you to leave, but you had better leave ; we request you to leave ; you are not going back on us, and we had better quit." Every one understands that these men felt overawed, intimidated, and quit work, not because they wanted to, — some of them, at least, — but because they felt that their personal safety, personal prudence, required them to do it. It would be, as it seems to me, blinding my eyes to obvious facts to say that there was not intimidation. I think these men that were there would themselves feel that I did not respect their good sense, that I did not give them credit for ordi- nary intelligence, if I should say that that was a mere peaceable gathering of a few men to present a request ; and I have come reluctantly to the conclusion that there was an effort, a preconcerted effort, at that time, by a demon- stration of force, to overawe . these engineers and train- men, and to prevent the receiver from operating the road there. Coming to that conclusion, there is but one duty that a court may discharge. Courts are organized for the pro- tection of persons and property, and while in the discharge of their duties oftentimes there are unpleasant burdens cast upon them; yet no man is fit to occupy a position as a judge, UNITED STATES v. KANE. 217 especially in a court which, like this, has such vast powers and such solemn responsibilities, who can hesitate, when- ever a wrong is brought to his attention, to treat it as a wrong and punish accordingly. * * * [One of the de- fendants was discharged; the others were committed to prison for periods varying from ten days to four months.] No man is bound to stay a single day in the employ- ment of the receiver appointed by this court, and no man must interfere with the property or with the management of that property so long as it is in the hands of the court ; and if there is any subsequent demonstration of a similar nature, I want now to say most kindly, but most emphati- cally, so that nobody may misunderstand, that any parties who are engaged in it and who are brought before me for contempt, must expect the severest penalty which the law permits. If there is any man, as I said awhile ago, who feels that he is wronged in any way by the receivers ap- pointed by this court, all he has to do is to come and make his grievances known, and they will be heard, and the court will try to do justice by him as well as by the receivers ; but no violence, in any way, shape, or manner, will be tolerated in the slightest degree. 2 'Accord: In re Doolittle, 23 Fed. 544, 1885 (The defendants de- layed by threats of violence the movement of trains. The road was in the hands of a receiver. No previous injunction had been issued. The defendants were committed to jail for sixty days) ; In re Wabash R. Co., 24 Fed. 217, 1885. (The defendants wrote to the employe's of the receiver requesting them to stay away from the railroad shops. The court regarded the letter as part of a plan to intimidate the employes, and committed the defendants to jail. There was no previous injunc- tion) ; Thomas v. Cincinnati, N. O. &'T. P. Ry. Co., 62 Fed. 803, 1894. 822, 823 (In this case, though an injunction was issued at the instance of the receiver, the defendants were committed for contempt, for having interfered with the management of the receiver before the restraining order was issued. Judge Taft, page 816, regards anyone in contempt of court who acts towards the receiver in such a way that if the com- pany was not in the hands of a receiver, the company would have an action at law against the defendant for damages). 218 INFRINGEMENT OF PROPERTY IN CONTRACTS. NEW YORK, LAKE ERIE AND WESTERN R. R. CO. v. WENGER, et. al. In the Court of Common Pleas, Cuyahoga County, Ohio, 1887. 9 Ohio Decisions Reprint 815 Stone, J. : x This case is now before the court on a motion to dissolve the injunction granted herein on the fifth day of the present month. The action was brought by the plaintiff as the lessee and operator of the New York, Pennsylvania & Ohio Rail- road, against the several defendants named, who had before that time been employes of said company, to enjoin and restrain them from interfering with said plaintiff in the operation of its railroad, located in this city and county. * * * It is claimed [in the petition] that the defend- ants do not content themselves from abstaining and refus- ing to themselves perform the labors of said employment, but that they gather in numbers and come singly and in couples and in squads upon the premises, and into the yards and buildings, the freight houses, engine-houses, depots and offices of the plaintiff, and there threaten, notify to stop work and impede the peaceably disposed and faithful em- ployes of plaintiff, and by so doing prevent, frighten, alarm, dissuade and hinder such employes from discharging their lawful and proper duties. That the state of things as existing is grave and of an essentially remediless and ir- reparable character by means of any possible action at law, and threatens to continue to grow unless immediately re- strained by the order of the court. The prayer is, "that the defendants and each of them "His statement of facts is abbreviated, and his discussion of the facts omitted. N. Y., L. E. & WEST'N R. R. CO. v. WENGER, et al. 219 may be commanded to keep off from the premises, lands, yards, and right-of-way of the plaintiff, except as each may have lawful right to enter upon any of said premises to transact any lawful business with plaintiff thereon, or lawfully to cross the same at any public highway there- over ; to forbid and restrain each from in any manner what- ever molesting or interfering with any engine, tender, car, switch, coupling, engine-house, depot, water-tank or prop- erty, appurtenance or freight upon said premises or any of them; to forbid and restrain each from molesting, threat ening or in any manner hindering any employes or officer of plaintiff from discharging his duties and employment under plaintiff in said yard and on the premises of plain- tiff, or at any other place whatever ; to forbid and restrain said defendants and each of them from inciting, inducing and persuading others to do any of the acts and things aforesaid of which they are themselves restrained." The defendants contend by their motion to dissolve and vacate the injunction, and their affidavits in support of the motion, that the statements contained in the petition are not true; that the same does not contain facts sufficient upon which to grant an injunction; that as citizens of the State of Ohio, they did not more than they, under the law, had a right to do. So far as I am advised, this is the first instance in Ohio in which relief has been sought in controversies of this char- acter by an appeal to the equitable power of the court through and by its writ of injunction. It is cause for regret to me that I have not had more time to devote to a matter of such grave public concern— than which I know of none more important and far-reaching in its consequences. I must, however, content myself with such views as I am able to submit after a very brief examination of the sub- ject. First — Counsel for defendants claim that the acts com- plained of, if true, constitute nothing more than a mere 220 INFRINGEMENT OF PROPERTY IN CONTRACTS. trespass upon the premises of the plaintiff, and that as mat- ter of law, an injunction will not lie to prevent a trespass, and that plaintiff has an adequate remedy at law. It is not doubted but that at an early day courts of chancery refused to interfere and restrain trespasses; but such is by no means the rule now. If a trespass to prop- erty is a single act, and is temporary in its nature and effects, so that the legal remedy of an action at law for damage is adequate, equity will not interfere. The prin- ciple determining the jurisdiction embraces two classes of cases, and may be correctly formulated as follows : (i.) If the trespass, although a single act, is or would be destructive; if the injury is or would be irreparable; that is, if the injury done or threatened is of such a nature that, when accomplished, the property cannot be restored to its original condition, or cannot be replaced, by means of compensation in money, then the wrong will be pre- vented or stopped by injunction. (2.) If the trespass is continuous in its nature, if re- peated acts of wrong are done or threatened, although each of these acts, taken by itself, may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction on the ground of avoiding a repetition of similar actions. (Pomeroy's Eq., sec - I 3S7-) The old notion of not interfering with persons until they shall have actually committed a wrong is fundament- ally erroneous. The remedy which prevents a threatened wrong is, in its essential nature, better than a remedy which, permits the wrong and then seeks compensation for it by the pecuniary damages which a jury may assess. Says the authority above referred to: "The ideal remedy in any perfect system of administering justice would be that which absolutely precludes the commission of a wrong, not that N. Y., L. E. & WEST'N R. R. CO. v. WENGER, et al. 221 which awards punishment or satisfaction for a wrong after it is committed." The petition alleges that defendants have conspired and combined for the unlawful purpose of preventing plain- tiff from moving its freight cars; that by threats and in- timidation the defendants have already stopped the move- ment of freight cars in plaintiff's yard; that with such employes as remain and are willing to work, together with such others as stand ready to be employed, plaintiff could and can do and perform all its necessary business as com- mon carrier, but for the threats, intimidations and others engaged in unlawful conspiracy with them; that this rail- road company is unable to move freight or deliver the same to consignees thereof; that some of such freight is of a perishable character. These, and various other things, are alleged, not only as to injury threatened, but injury and damage already done and sustained. Applying these allegations of fact to the principles of law suggested, we think the petition makes a case for an injunction. How adequate would the company's remedy at law be against these defendants and several hundred more, should they by force or intimidation prevent, for any considerable time, the transaction of business and the delivery of goods and merchandise shipped or in process of shipment to all parts of the country along and over a through trunk line? The mere statement of the proposition is sufficient to ex- hibit the absurdity of being left or driven to such a remedy, and to such a multiplicity of suits, even in the event that each and all of the parties against whom an action would lie, were, in point of fact, responsible. To my mind it is difficult to see or suggest any class of cases, or any set of circumstances, wherein the equitable power of the courts of this country can be more properly invoked and exercised than in such as this is alleged to be. We hold, then, that the injunction was properly issued, and is the proper remedy upon such a statement of facts 222 INFRINGEMENT OF PROPERTY IN CONTRACTS. as is set out in the petition in this case. * * * With the views I entertain in this case, I think this injunction ought to be sustained, and the motion is overruled. 2 BRACE BROTHERS v. EVANS. In the Court of Common Pleas of Allegheny County, Pennsylvania, 1888. 18 Pittsburgh haw Journal 399. Opinion of Slagle, J. Filed April 21, 1888. This application for injunction was submitted upon the pleadings and numerous affidavits filed by the parties, and elaborate arguments of counsel. The importance of the questions involved seems to require that the facts and rea- sons upon which the conclusion of the court is founded should be stated at some length. The facts alleged in the bill and fully sustained by the affidavits are as follows : The plaintiffs have been engaged in the laundry busi- ness for about seventeen years. Prior to 1881, they did business in Titusville, Pennsylvania. In 1881 they removed to Allegheny county, procured a location near Wilkinsburg, fitted up the buildings with necessary machinery, and have since conducted their business there, operating their works with steam power. They succeeded in securing a large and lucrative business, in which they employed 135 persons, about 90 of whom were girls. Their custom was drawn from the cities of Pittsburgh and Allegheny and neighbor- ing towns. To accommodate this business they had thir- teen agents who received clothing from plaintiff's patrons 2 In the following cases, in which an injunction was issued, the ele- ment of trespass was present: Cceur d'Alene Consolidated Mining Co. v. Miners' Union, 51 Fed.; 260, 1892; Mackall v. Ratchford, 82 Fed. 41, 1897, 42; Ex parte Richards. 117 Fed. 658, 1902 ; Union Pac. Ry. Co. v. Ruef, 120 Fed. 119, 1902, 129. •BRACE BROTHERS v. EVANS. 223 and delivered it to them at their respective places of busi- ness. They also had twelve wagons, which were driven by persons employed by them, who received clothing from and delivered it to the patrons and agents. In August, 1887, a difference arose between plain- tiffs and some of their employees, when they discharged eleven of the girls, who afterwards persuaded some others to leave their employment. About this time, they were vis- ited by persons representing themselves to be connected with the Knights of Labor and the Trades' Assembly, who de^ manded that all the girls who had left plaintiffs' employ- ment should be reinstated, saying that if they were not, it would be to the injury and might result in the ruin of the plaintiffs' business. Shortly afterwards, circulars were is- sued, giving what purported to be a history of the difficulty, alleging abusive treatment of their employes by plaintiffs, and asking all persons to cease patronizing them. This was followed by several other circulars of similar import, some of which had printed in large letters, "Boycott Brace Bros." Men were engaged in following plaintiffs' wagons who took down the names of their customers, and afterwards visited them, endeavoring to persuade them from further patron- age of plaintiffs. A sign was placed upon a building, on Fifth avenue, Pittsburgh, having on it in large letters, "Headquarters Brace Bros. Boycott Committee." Men followed the wagons of plaintiffs in buggies with banners attached to the harness on each side of the horse, having printed on them in large letters, "Boycott Brace Bros." Often crowds of men and boys followed shouting after the drivers and, in some instances, throwing mud and stones at the wagons. Persons visited the agents of plaintiffs, at their places of business, and requested them to cease act- ing as such, and upon their refusal so to do, circulars were procured, denouncing them, and asking the public to boy- cott them. Men were posted in front of their places of bus- iness, who distributed circulars in large numbers, whereby 224 INFRINGEMENT OF PROPERTY IN CONTRACTS. they collected large and noisy crowds, in some cases seri- ously interfering with the conduct of their business and requiring interference of the police. All of the agents of plaintiffs, except one, declined to further represent them. Many of their customers have withdrawn their patronage, giving as a reason the demonstrations against plaintiffs. The loss of business since these proceedings commenced amounts to about six hundred dollars a week. A civil action was brought by plaintiffs against some of the defendants, who were arrested and gave bail. Since that time, the actions against plaintiffs have been continued as before. The answer of the defendants is threefold : First, that they did not do any of the things complained of, nor pro- cure them to be done; second, that the acts complained of are not illegal; third, that they are not the subject of equitable jurisdiction. They have united in a formal answer to the bill, which is now filed as an affidavit in response to the application for injunction, in which they answer the several paragraphs of plaintiffs' bill, and conclude as follows: "That they have not individually or collectively made any of the threats, or done any of the acts alleged in plaintiffs' bill, or in any manner unlawfully interfered with plaintiffs' bus- iness." George Dovey files a special affidavit, in which he says that he is not now Master Workman of D. A. No. 3, K. of L., and has not been since November, 1887, and "is in nowise connected with any committee, or any person, with regard to said strike." In view of these denials, it is necessary to look at the affidavits as to the participation by the defendants or by any of them. * * ** All the chancery powers of our courts are statutory. By the Act of June 16, 1836, ex- tended to all Courts of Common Pleas by Act of February "The court came to the conclusion that the evidence supported the facts set forth in the plaintiff's bill. BRACE BROTHERS v. EVANS. 225 14, 1857, the powers and jurisdiction of courts of chancery- were, inter alia, granted "so far as relates to the prevention or restraint of the commission or continuance of acts con- trary to law and prejudicial to the interests of the com- munity or the rights of individuals. This language is very broad and comprehensive, and we must look for its proper interpretation and limitations to the general rules and principles of courts of chancery in the exercise of this branch of their jurisdiction. These principles are well established and clearly defined, the only difficulty being in their application to particular cases. 1. The plaintiffs' right must be clearly established. 2. The acts complained of must be unlawful. 3. They must be prejudicial to the rights of plaintiffs. 4. The injury must be irreparable and for which there is no adequate remedy at law. 5. In case of a preliminary injunction, the danger must be imminent, and the necessity for relief urgent. These are the essential requisites for the exercise of the restraining power of the court. There are other qualifications which will be considered, so far as they apply to this case, in discussing the objections to the exercise of this power in favor of the plaintiffs. * * * 2 Are the plaintiffs entitled to equitable relief by injunction? It is contended that if the acts complained of are not justified by the Act of 1876, they constitute a criminal conspiracy, and are therefore not within the juris- diction of equity. This proposition is not sustained by reason or authority. High on Injunctions, sec. 28, says : "Courts of equity will not interfere for the punishment or prevention of merely criminal or immoral acts, uncon- nected with violations of private right." The rule is well stated in the case referred to in support of this doctrine 2 The court came to the conclusion that the plaintiffs' right was es- tablished; that the defendants' acts were unlawful and prejudicial to the plaintiffs' right. 226 INFRINGEMENT OF PROPERTY IN CONTRACTS. (Sparhawk v. Union Passenger Railway Co., 54 Pa. St., 401). Judge Strong, who delivered the opinion at nisi prius, says : "Why then should I not interpose an injunc- tion? Because, first, say the defendants, the act is a crime, and equity never enjoins against the commission of a crime. The objection is plausible rather than substantial. It is true that equity does not generally enjoin against a crime as a crime, and the books are full of cases in which an injunction has been decreed against acts injurious to individuals, though they have also amounted to a crime against the public" (page 413). And Judge Thompson, in delivering the opinion of the Supreme Court, says : "I do not mean to deny, how- ever, that where a private injury results from a breach of public law, the public wrong may not be redressed by a private remedy. This often occurs, but not because there is a public wrong, but because the private remedy has the effect of stopping the wrongdoer" (p. 422). And in Dixon Cruicible Co. v. Guggenheim, 2 Brew- ster, 321, Judge Paxson granted an injunction to restrain the violation of a trade-mark, notwithstanding the objection that it was an offense under the Penal Code of i860. This case was tried in Common Pleas of Philadelphia county, but has since been recognized by the Supreme Court. There seems to be some confusion, of ideas in our text books, and in some of the reported cases, as to irreparable injury and inadequacy of remedy at law. This arises per- haps from the fact that, as a rule, they must both exist in order to invoke the equity powers of our courts, and, espe- cially, in granting injunctions. Literally, anything is ir- reparably injured which cannot be restored in specie. In law nothing is irreparable which can be fully compensated in damages. In order to entitle the party to an injunction, he must show that the injury complained of is irreparable, because there is no adequate remedy at law. BRACE BROTHERS v. EVANS. 227 It is apparent that the injury which plaintiffs have sustained, and which they anticipate from a continuance of the acts complained of are literally irreparable. The busi- ness lost, and which will be destroyed by defendants' acts, cannot be restored. If permitted, they may build up a new business, but the old cannot be replaced. It is gone irreparably. But it is irreparable upon the other ground as welL In Dudley v. Hurst, 8 Atlantic Rep., 409, which was an ap- plication for an injunction to restrain the removal of ma- chinery from a fruit .canning establishment, Justice Stone, of the Court of Appeals of Maryland, says: "An injury may be said to be irreparable when it cannot be measured by any known pecuniary standard. By what standard could a jury assess and determine the damages done to the true owner of the factory by the breaking up of his business at that critical period." In McClurg's Appeal, 58 Pa. St., 54, in which the court enjoined the violation of a contract in restraint of trade, Justice Sharswood cites the opinion of Chief Justice Williams, in. Boulerson v. Butler, 16 Vt, 176, a similar case, as follows: "In this case there is an express contract. The mischief arising from the breach of it cannot be repaired, nor can it well be estimated. A suit at law would afford no adequate remedy, and the dam- ages will be continuing and, accruing from day to day." In Stewart's Appeal, 56 Pa. St., 422,. Chief Justice Thomp- son says : "A single trespass, or several not coupled with circumstances indicating that they were to be • repeated, are generally redressed by the common law of damages, but where they are constantly recurring and threaten toj con- tinue, it is well settled that they may be. redressed inequity by injunction." This was a case of trespass and invokes a well established principle of equity jurisprudence, that is, the prevention of a multiplicity of suits. It is evident in this case that the acts complained of are in "the nature of trespass and' if continued each one will be a distinct. offense, 228 INFRINGEMENT OF PROPERTY IN CONTRACTS. for which an action may be maintained. The plaintiffs should not be subjected to the trouble and expense of nu- merous suits to protect their legal rights, and the defend- ants, whether right or wrong, should not be subjected to the trouble and expense of defending the many suits which might be brought before the questions involved are fully determined. But there are several classes of cases in which the courts have exercised without question the power to enjoin an interference with another's business. In Dixon Crucible Co. v. Guggenheim, supra, Judge Paxson, in granting an injunction to restrain the violation of a trade-mark, de- livered an opinion, in which he reviews the history of equity jurisprudence in such cases and says that a long period elapsed after the right of property in a trade-mark was established before such right was protected in equity. He further states the principles governing such cases as fol- lows : "The jurisdiction of chancery in trade-mark cases attaches because of the injury to the one whose goods are simulated by interference with his profits, not because of the deception upon the public. The fraud upon the public will not induce a chancellor to interfere unless the plaintiff has sustained, or there is good reason to believe he will sustain pecuniary damage." In speaking of the right to assign or transmit by descent, which is recognized in many cases, Judge Paxson, in the above opinion, says : "As a mere abstract right, having no reference to any particular person or property, it is conceded that it cannot exist, and so cannot pass by an assignment or descend to a man's legal representatives." This case was recognized in Pratt's Appeal, 20 W. N. C, 452 [ante, p. 393], in which the Supreme Court sustained an injunction to restrain the use or imitation of a trade-mark used by the manufacturers of butter. In all the cases cited, it is apparent that there is no abstract right in a name. As said by Judge Ludlow, in BRACE BROTHERS v. EVANS. 229 Rowley v. Houghton, 2 Brewster, 304, "no right can be absolute in a name, as a name merely. It is only when that name is printed or stamped on a particular label or jar and thus identified with a particular style and quality of goods that it becomes a trade-mark." It is evident that there can be no value in a mere name or device; it is only as it represents merchandise and business. It is therefore not the mere name or device which is to be protected; it is that which it represents, the' business of the owner of it. If it consisted in a name upon a label, any one might print and use it for any other purpose than the designation of the goods which the owner sold. The interference of equity must therefore be to protect the business of the complainant, and has been exercised for one hundred years without question. Another branch of equity jurisdiction illustrates forci- bly the want of adequate remedy at law in the case of inter- ruption or interference with a man's business, and that is, the protection of its good-will because the jurisdiction is granted only "when a recovery in damages would be an inadequate remedy." In McClurg's Appeal, 58 Pa. St., 51, before cited, Judge Sharswood says that "when Mr. Eden wrote his valuable treatise on the law of injunction, he stated that he had not been able to find any reported cases in which the court had interfered by that process to re- strain the breach of such a covenant (a covenant in restraint of trade), but proceeds to show that it has since been freely exercised, and says as to the ground of jurisdiction : "The appellant removed and the appellee on the faith of it gave up his practice at the place where he was before established, and settled in the new neighborhood. He cannot be put in statu quo, we cannot by our decree restore him to the prac- tice he has given up, nor could any damages a jury would give be an adequate compensation. Even if it should be a sum which would purchase a life annuity equal to his for- mer income, that would not provide for that increase from 230 INFRINGEMENT OF PROPERTY IN CONTRACTS. year to year which enlarged experience and widening repu- tation would in all probability have ensured him, had he remained where he was." See, also, Hall's Appeal, 60 Pa. St., 458. The case of Gompers v. Rochester, supra, shows the covenant in such cases is not personal, but is an incident to the property and business to which it relates, and there- fore the protection is afforded because of the inadequacy of remedy for injury to the business by its violation. It is not necessary to sustain the jurisdiction of a court of equity that there should be absolutely no legal remedy. All that is required is that the remedy at law is not ade- quate. In Kirkpatrick v. McDonald, 11 Pa. St., 392, Jus- tice Bell says : "Whether in this State the legal tribunals ought, in the exercise of chancery powers recently confer- red, to assume cognizance of those cases where the action for money had and received affords a full remedy, it is not necessary now to consider, though certainly there can be no objection where the remedy is more convenient, as, for instance, where an account is incidentally requisite," and on page 393, "admitting that a personal action would lie against Aiken (who may be insolvent) it is by no means so adequate a remedy as that which enables the party to reach the land itself." In Bierbouer's Appeal, 107 Pa. St., 17, Justice Gordon says: "Granted that an action of as- sumpsit would lie against Laird, it does not therefore fol- low that the chancery side of the court has no jurisdiction. Jurisdiction in equity depends not so much on the want of a common law remedy as upon its inadequacy." In Appeal of Brush Electric Co., 114 Pa. St., 585, Justice Gordon again says: "Equity jurisdiction does not depend on the want of a common law remedy, for whilst there may be such a remedy, it may be inadequate to meet all require- ments of a given case or to affect complete justice. Hence the exercise of chancery powers must often depend on the sound discretion of the court." "So a bill may be sus- BRACE BROTHERS v. EVANS. 231 tained solely on the ground that it is the more convenient remedy." In Gillis v. Hall, 2 Brewster, 342, Judge Pax- son granted an injunction to restrain the violation of a con- tract in restraint of trade, notwithstanding a clause pro- viding for stipulated damages. In the Supreme Court of Cook county, 111., in the case of Bruschke v. The Furniture Makers' Union, a case somewhat similar to this case in its facts, Judge Collins issued an injunction and refused a motion to dissolve it. As to the urgency of this case there can be no ques- tion. The business of the plaintiffs has been already seri- ously injured, and it is in imminent danger of destruction. Notwithstanding an action at law was brought by plain- tiffs in assertion of their rights in which the defendants gave bail, they continued their efforts with increased vigor and activity. Before this case can be tried, plaintiffs' busi- ness may be wholly ruined. The indifference of the de- fendants may possibly arise from the fact that they can successfully resist an execution upon any judgment which may be recovered against them. Otherwise they would not risk the vindictive damages which might be allowed upon an action for subsequent transgressions. It is alleged in the bill that the defendants are ir- responsible and it is not denied. Though insolvency alone is not sufficient ground for granting an injunction, when an equitable remedy exists, it is a moving consideration: Heilman v. The Union Canal Company, 37 Pa. St., 100; Kirkpatrick v. McDonald, supra; Gillis v. Hall, supra. If there were any doubt of the propriety of issuing an injunction, it would be resolved by a consideration of the circumstances of the parties. Where a clear case of irrep- arable injury is shown as likely to result to complainant, unless the injunction is granted and it does not appear that the issuing of the writ will work any such injury to the defendants, relief will be granted : High on Injunctions, 232 INFRINGEMENT OF PROPERTY IN CONTRACTS. sec. 21. This seems to be the situation of the parties to this cause. Eut there is no doubt in this case as to the defend- ants, Joseph L. Evans, W. D. McAuliffe and Felix Maire. It is plain that they are, by the use of unlawful means, doing irreparable injury to the plaintiffs and that plaintiffs have made out a case which contains all the elements neces- sary to the exercise of the chancery powers of the court, and of such urgency as to demand relief by preliminary injunction. A preliminary injunction will therefore be issued as against Joseph L. Evans, W. D. McAuliffe and Felix Maire, on the plaintiffs giving bond with approved surety in the sum of one thousand dollars. MAYER v. JOURNEYMEN STONE CUTTERS' UNION. In the Court of Chancery of New Jersey, 1890. 47 New Jersey Equity 519. Green, V. C. The complainants comprise two classes : First, 17 individuals and copartnerships, embracing all of the members of the Master Stone Cutters' Association of the city of Newark, a voluntary association, not incorpor- ated, composed of master stone-cutters, engaged in the busi- ness of cutting, dressing, and selling stone for building and other purposes, in the counties of Essex and Hudson ; and, second, two individuals, Jacob Hahn and Henry Zimmer- man, who are alleged to be skilled journeymen stone-cutters residing in Essex county. The defendants are "The Jour- neymen Stone-Cutters' Association of Newark, Orange, Bloomfield, Avondale, and their Vicinities," a voluntary association, not incorporated, and certain individuals, the officers of said defendant association. Under the act of MAYER v. JOURNEYMEN STONE CUTTERS' UNION. 233 1885, (Supp. Revision, p. 812, 21,) the defendant associa- tion can be sued, by its recognized name, in an action af- fecting the common property or the joint rights or liabilities thereof, but, no provision having been enacted, to authorize voluntary associations to prosecute actions by their adopted names, it was necessary that the members of the complain- ant association should prosecute in their individual names for any infringement of any alleged right of the society. The bill states that the defendant association was formed with the object, as expressed in the preamble to its consti- tution, of guarding and cherishing the trade which gives its members an honorable livelihood; but it does not state the purposes for which the complainant association was organ- ized, or why it is maintained, and, so far as the bill is con- cerned, we are left to surmise and conjecture as to those purposes and objects, and as to whether they are such as will subserve public interests, and command, the interfer- ence of the court to sustain and protect. The relief prayed for in the bill is that this court shall require the defendant association to admit Hahn and Zimmerman, and all other journeymen-stonecutters residing in Newark and vicinity, to be members of the association, on paying the customary dues, and fulfilling the rules imposed upon other members, and to give to each the customary card, or other usual evi- dence of such membership; and (2) that the association, its officers and agents and stewards, be enjoined from denounc- ing Hahn and Zimmerman as "scabs," or in any manner persecuting or injuring them on account of their exercising their lawful trade without being admitted to such member- ship, and from attempting to coerce or intimidate the com- plainants, who are master stone-cutters, or any other master stone-cutters, from employing Hahn and Zimmerman, or other skillful journeymen, whether members of said asso- ciation or not, by means of strikes, boycotts, or other meth- ods of violence or intimidation; and that an account may 234 INFRINGEMENT OF PROPERTY IN CONTRACTS. be taken of the damages and losses suffered by the com- plainants respectfully by reason of the action of the as- sociation defendant, its officers and agents, and that they may be decreed to pay the same; with a prayer for further relief. This prayer for relief is based on the allegations that the master stonecutters, complainants, are, in the prose- cution of their business, constantly in need of a body of skilled journeymen stone-cutters, in order to enable them to fulfill their contracts; that Hahn and Zimmerman are such skilled journeymen stone-cutters, desirous of obtaining employment at their trade, but prevented from doing so by the acts of the defendants complained of. These are recited substantially as follows, viz. : That it is the avowed purpose of the association defendant to embrace within its membership all the journeymen stone-cutters, who shall be permitted to pursue their trade in Newark and its vicin- ity, to prevent any journeymen stone-cutter not a member of the association from working at his trade in Newark and vicinity, and to coerce any master stone-cutter to refuse to employ any such journeymen not a member of the asso- ciation; that the means adopted by the association to ac- complish those objects are denunciations and persecution ap- plied to the offending workmen, and boycotting and strikes applied to the offending employer ; that the by-laws adopted by the said association provide that any member who works in any place styled in the association as a "scab-shop," or who violates the constitution of the association is to be denounced as a scab and forfeits his claim as a member. That similar methods of coercion are employed by the association to prevent journeymen not members from working, and to deter employers from giving them work, by declaring the shops of such em- ployers, "scab-shops," and publicly declaring such work- men as "scabs," and also as to both such workmen and em- ployers, by resorting to strikes and boycotts. That the by- laws of the association also provide for a "shop-steward" MAYER v. JOURNEYMEN STONE CUTTERS' UNION. 235 to be placed in every master stone-cutter's shop or yard to see that the rules of the association are carried out; that, under the practice and regulations of the association, such "shop-steward" is required immediately to order a strike of all the workmen in any shop, if the employer allows any journeyman to work, unless he produces a card of the asso- ciation showing that he is a member thereof in good stand- ing, and, if such strike should prove inefficient, it is the poli- cy and practice of the association to coerce the employer further, by boycotting and other alleged unlawful deeds. That in the month of May 1889, or about that time, the as- sociation by resolution determined to admit no more mem- bers for the space of the year, thus excluding from employ- ment all stone-cutters seeking work not already admitted to membership; that in the summer of 1889, the complain- ants Hahn and Zimmerman, who reside in Essex county, with families dependent on their labor, applied for admis- sion to said association, and offered to pay all dues and contributions, and to fulfill its obligations, in order that they might obtain work at their trade, but their applica- tion was refused on no other ground except the said resol- ution to exclude all new members; that afterwards, Hahn and Zimmerman applied to two of the complainant master stone-cutters for work as journeymen, but they were refused such employment on no other grounds than that they were not members of the association, and that their employment would result, under the rules of the association, in a general strike of the other workmen, and in disaster to their busi- ness. It is further alleged that, in consequence of their ex- clusion by said association, Hahn and Zimmerman have been deprived of the power of exercising their trade, in which they could have made a living and supported their families, and have been compelled to abandon their trade, and work at inferior labor with lower wages ; that two mas- ter stone-cutters, complainants, were, at the time of the ap- 236 INFRINGEMENT OF PROPERTY IN CONTRACTS. plication by Hahn and Zimmerman to the defendant asso- ciation for membership, in need of larger numbers of skilled journeymen stone-cutters than they could obtain from among the members of the association, and would have given them employment but from the danger to their busi- ness which they knew would ensue, and that for these rea- sons they were obliged to refuse, and did refuse, to em- ploy the two men; that Hahn and Zimmerman are able and anxious to exercise their trade for the support of their families, and that all of the master stone-cutters, com- plainants, are in need of their services as stone-cutters, and willing to give them employment; that the two are only prevented from working, and said employers from giving them work, by the exclusion of them from the association, and the coercion of the employers to refuse them work be- cause they are not members. The bill asserts that the right of the two to exercise their trade is a right of property, and the right of the master stone-cutters to employ laborers to work and needed in their business is also a right of proper- ty, and that the action and proceedings of the association deprive complainants of their said rights of property, and are subversive of the interest of society. That the master stone-cutters have, in consequence, been prevented from ful- filling certain contracts, which has been of considerable damage, and that the laborers have lost their wages, and that these injuries extend to all master stone-cutters in Newark and its vicinity, as well as to all skilled laborers not members of said association. It alleges that the complain- ants have no adequate remedy at law ; that the injury is one continuing from day to day; that any attempt to seek re- dress by action at law would require a multiplicity of suits in which their actual damages could not be repaired. The defendants have answered the various allegations of fact set up in the bill, and also insist that the matters complained of are not such as entitle the complainants to any relief in this court, and that the relief prayed for is not cognizable MAYER v. JOURNEYMEN STONE CUTTERS' UNION. 237 by this court, and pray the same benefit of such defense as if they had demurred to the bill. It appears that the complainants Hahn and Zimmer- man did make some effort to obtain admission into the de- fendant association, but it is quite clear that they did not make application for membership regularly, as required by the by-laws, and that the question was never considered or passed upon by that body. But, if it were otherwise, has this court power to require the admission of a person to membership in a voluntary association, when it has been de- nied by the society ? These organizations are formed for pur- poses mutually agreed upon; their right to make by-laws and rules for the admission of members and the transaction of business is unquestionable. They may require such qualifications for membership, and such formalities of elec- tion, as they choose. They may restrict membership to the original promoters, or limit the number to be thereafter admitted. The very idea of such organizations is associa- tion mutually acceptable, or in accordance with regulations agreed upon. A power to require the admission of a per- son in any way objectionable to the society is repugnant to the scheme of its organization. While courts have in- terfered to inquire into and restrain the action of such so- cieties in the attempted exclusion of persons who have been regularly admitted to membership, no case can, I think, be found where the power of any court has been exercised, as sought in this case, to require the admission of any person to original membership in any such voluntary association. ' Courts exist to protect rights, and where the right has once attached they will interfere to prevent its violation ; but no person has any abstract right to be admitted to such mem- bership. That depends solely upon the action of the society, exercised in accordance with its regulations, and, until so admitted, no right exists which the courts can be called upon to protect or enforce. 238 INFRINGEMENT OF PROPERTY IN CONTRACTS. Neither is it clear upon what ground of jurisdiction the court can inquire into the action of the defendant associa- tion in the passage of the resolution complained of. It is alleged in the bill that this was to shut the door to admis- sion to membership for one year, and to confine employ- ment to the present membership. It -appears from the tes- timony, however, that it was passed to prevent the admis- sion of the persons known as "harvesters." This is a term used in the trade to designate foreigners, skilled workmen, who come to this country when work is plenty and wages high, get employment, and in the winter return with their earnings to their homes in foreign countries ; and that such was its scope is shown by the fact that persons not coming within that class were admitted to membership after the passage of the resolution. In the light of national legisla- tion, with reference to the importance of contract labor, it can scarcely be said that such action is against the policy of the law. But the body has clear right to prescribe qualifi- cations for its membership. It may make it as exclusive as it sees fit. It may make the restriction on the line of citi- zenship, nationality, age, creed, or profession, as well as numbers. This power is incident to its character as a vol- untary association, and cannot be inquired into except on behalf of some person who has acquired some right in the organization, and to protect such right. 1 The restraining power of the court is invoked to enjoin the defendant association, its officers and members, from denouncing the complainants Hahn and Zimmerman, by the use of an offensive appellation,' from persecuting or pre- venting them from getting work, and from coercing and in- timidating the other complainants from employing them, by the use of strikes, boycotts, or other methods of violence. If its just apprehension was important, it must be said that l The discussion of the rights of the Association of Master Stone Cutters is omitted. The Vice-Chancellor came to the conclusion that there were no allegations of damage to the Association in the plain- tiffs' bill. MAYER v. JOURNEYMEN STONE CUTTERS' UNION. 239 there is nothing in the evidence to show that the defendants threaten to use any violence, or commit any trespass, or do any overt positive act of injury. It does appear that the defendant association, by the scheme of the organization, agree to work only with those who are members of their union, and not to work in any shop or yard where such others are employed, and that they have adopted measures to elicit the facts, and carry out their purpose, by the use of cards of membership, the appointments of shop-stewards, and the withdrawal from work on refusal of the employer to enter their plans. * * 2 Whatever may have been the rule of the common law with reference to such acts as are under consideration, and however criminal many of them have heretofore been considered, the legislature of this state has greatly changed the law which declared combinations to effect such pur- poses unlawful. By the act of 1883 (Supp. Revision, p. 774, Par. 30) it is provided that "it shall not be unlawful for any two or three persons to unite, combine, or bind themselves by oath, covenant, agreement, alliance, or other- wise to persuade, advise, or encourage, by peaceable means, any person or persons to enter into any combination for or against leaving or entering into the employment of any per- son or persons or corporations;" in fact the policy of the law, with reference to such combinations, was revolution- ized, and what, before that time, would have been held to be an unlawful combination and conspiracy, became in this state a lawful association, and acts which had been the sub- ject of indictment became inoffensive to any provision of our law. Nothing has been proved in this case to warrant a finding that the defendants have done or threatened aught that is not legalized by this act of the legislators. It is true that much of intent is charged in the bill which might "The discussion of ' cases elsewhere given in this collection is omitted. 240 INFRINGEMENT OF PROPERTY IN CONTRACTS. overstep the boundary line denned by the law, but there is no evidence to sustain the assumption that any unlawful act to the injury of the complainants' rights of property is threatened by the defendants. They have agreed not to work with any members of their association, and not to work for any employer who insists on their doing so, by withdrawing from his employment; so long as they con- fine themselves to peaceful means to effect these ends, they are within the letter and spirit of the law, and not subject to the interference of the courts. These considerations re- sult in the conclusion that this court has no jurisdiction to grant the relief prayed for, and that the bill must be dis- missed. 3 3 See Davis v. United Engineers, 28 App. Div. 396, N. Y. Sup. 1898, 398. 399. Patten J. said : "There can be no doubt that members of trade unions, as well as other individuals, have a right to say that they will not work with persons who do not belong to their organizations ; and whether they say it themselves, or through their organized' societies, can make no difference. They have a right by that method to secure employment for their own members." The expression is dicta, because the plaintiff failed to prove that his discharge from his employment was due to the action of the defendants. The principle stated was followed in Tallman v. Gaillard, 57 N. Y. Supl. 419, 1899, where an injunction was denied to prevent the defendants interfering with the plaintiffs' business by threatening employers to strike if they employed the plaintiff. Compare Plant v. Woods, 57 N. E. ion, Mass., 1000 (A. et al. were members of a union; B. et al. members of a rival union of the same craft. B. et al. sent agents to employers, intimating, though not in so many words, that unless the employes who were members of A. et al. joined the union of B. et al., or were discharged, the employes who were members of B. et al. would strike. The threat was effective, to the injury of A. et al. A. et al. secured an injunction to restrain B. et al. from interfering with the members of the union of A. et al. in their employment. Holmes J., dist, see note on "Motive as Affecting Civil Liability" to Reynolds v. Everett, reported infra). Compare also with this case, and our principal case, the cases in note on "Civil Liability for Boycotting" to Casey v. Cincinnati Typographical Union, reported infra; especially the cases of Luke v. Clothing Cutters and Trimmers' Assembly, yy Md. 396, 1893 ; Curran v. Galen, 152 N. Y. 33, 1897; National Protective Ass. v. Cumming, T70 N. Y. y^, 1902. The question involved is discussed further in Erdman v. Mitchell, reported infra, and Gray v. Building Trades Council, reported infra. CASEY v. CINCINNATI TYPOGRAPHICAL UNION. 241 CASEY v. CINCINNATI TYPOGRAPHICAL UNION. In the Circuit Court for the Southern District of Ohio, 1891. 45 Federal 135. The complainant, proprietor and publisher of the Com- monwealth, a daily and weekly newspaper published at Cov- ington, Ky., sues to restrain the defendant, the Cincinnati Typographical Union No. 3, which, the bill avers, is a cor- poration organized under the laws of Ohio as a trades union or labor organization, composed of type-setters and printers, and the individual defendants, who, it is averred, are its officers and managing agents, from "boycotting" the complainant and his newspaper. A restraining order to remain in force until the hear- ing and disposition of complainant's motion for a tempor- ary injunction having been granted when the bill was filed, the cause is now before the court upon that motion. It appears from the bill that in September, 1890, and at various other times, the defendant, the typographical union, demanded that complainant should unionize his office, that is to say, publish and conduct his paper according to the customs, rules, and regulations laid down and prescribed by said typographical union, and that he should pay his employes wages at such rates as should be fixed from time to time by said union, and discharge from his employment all persons not members thereof. The bill further avers that upon complainant's refusal to comply with said demands, defendants illegally and un- lawfully and with intent to injure complainant, and to destroy the circulation of his newspaper, and its value as an advertising medium, conspired and combined to boycott him and his newspaper, and to that end caused to be printed' 242 INFRINGEMENT OF PROPERTY IN CONTRACTS. and posted, in conspicuous places, large hand-bills, calling upon all persons to withdraw their patronage from com- plainant's newspaper, and issued circulars, signed by said typographical union and addressed to advertising patrons of the complainant, requesting them to withdraw their ad- vertisements from his said newspaper, threatening that upon failure to do so they would be visited with the ill will and incur the enmity of all organized labor, and that they would induce all members of labor associations to withdraw all patronage from them. It is also averred that said typo- graphical union sent circulars to the news agents handling and selling complainant's newspaper, threatening that un- less they ceased selling said paper they would in like manner lose the patronage of and be antagonized by the members of all labor organizations. 1 Sage, J. : 2 The question with which we have to deal is whether this case falls within the rule [That a libel will not be restrained in equity] . That the defendant, the typograph- ical union, set on foot a boycott against the complainant, as stated in the bill, and in the affidavits on file, is not denied. That this boycott was to be enforced by threaten- ing loss of business to those who, having no connection with the union, should continue to advertise with, or in any way patronize, the complainant, is clearly shown. True, it is claimed that no threats were used; but the language of the circulars has no doubtful meaning. The affidavits on file show that it was perfectly understood by those who received them; and the circumstances indicate that it was intended that it should be so understood. In Brace v. Evans, 3 Ry. & Corp. L. J. 561, it was held that the word "boycott" is in itself a threat. In popular acceptation it is an organized effort to exclude a person from business re- *The statement of facts is abbreviated. 2 His discussions of the rule that a libel cannot be restrained in equity and of the facts of the case are omitted. CASEY v. CINCINNATI TYPOGRAPHICAL UNION. 243 lations with others, by persuasion, intimidation, and other acts which tend to violence, and thereby coerce him, through fear of resulting injury, to submit to dictation in the man- agement of his affairs." But it is insisted for the defend- ants that every representation of fact contained in their hand-bills and circulars is true; that is to say that the com- plainant had, in 1888, broken with the typographical union, discharged all union employes, and had since that date employed only those who were not members of the union; and that after repeatedly promising to unionize his office he had finally, in September, 1890, refused to do so, and de- clared that he would not employ any person who was con- nected with the union. All these are conceded facts. There- fore, argue counsel for the defendants, this is only a case of lawful competition. The complainant having declared that he would not employ any member of the union, the union had a right to say that its members would not patron- ize the complainant. Nobody disputes that proposition. If that were all that is involved in this case, there would be nothing for the court to act upon. But it is not all by any means. Instead of "fair, although sharp and bitter, competition," as is contended by counsel, it was an attempt, by coercion, to destroy all competition affecting the union. It was an organized conspiracy to force the complainant to yield his right to select his own workmen, and submit him- self to the control of the union, and allow it to regulate prices for him, and to determine whom he should employ and whom discharge. In other words, it was and is an organized effort to force printers to come into the union, or be driven from their calling for want of employment, and to make the destruction of the complainant's business the penalty for his refusing to surrender to the union. Whatever moral obligation may have been incurred by complainant by reason of his promises to unionize his office, they were wholly without consideration, and they amount to nothing whatever in law or in equity. 244 INFRINGEMENT OF PROPERTY IN CONTRACTS. No case has been cited where, upon a proper showing of facts, an unsuccessful appeal has been made to a court of chancery to restrain a boycott. The authorities are all the other way. At common law an agreement to control the will of employers by improper molestation was an il- legal conspiracy. In New York it has been held that the "boycott" is a conspiracy in restraint of trade. People v. Wilzig, 4 N. Y. Crim. R. 403 ; People v. Kostka, Id. 429. So, also, in Virginia : Com. v. Shelton, 1 1 Va. Law J. 324. And in Connecticut: State v. Glidden, 3 Atl. Rep. 890. And in England: Reg. v. Barrett, 18 Law J. 430. In Emack v. Kane, 34 Fed. Rep. 47, the United States Circuit Court for the northern district of Illinois held that equity had jurisdiction to restrain an attempted intimida- tion by one issuing circulars threatening to bring suits for infringement against persons dealing in a competitor's pat- ented article, the bill charging, and the proof showing, that the charges of infringement were not made in good faith, but with malicious intent to injure complainant's business. Judge Blodgett recognized, in his decision, the authority of Kidd v. Horry and Wheel Co. v. Bemis, cited for the de- fendants in this case, but said that the case before him was fairly different and distinguishable from those cases in a material and vital feature. In those cases the interference of the court was sought to restrain the publication of libel- ous attacks upon the property of the complainant. In Emack v. Kane the gist of the complaint was that the pub- lications were only means employed to carry into effect a malicious intent to injure and destroy the complainant's business. Judge Blodgett said : "I cannot believe that a man is remediless against per- sistent and continued attacks upon his business, such as have been perpetrated by these defendants against the com- plainants, as shown by the proofs in this case. It shocks my sense of justice to say that a court of equity cannot restrain systematic and methodical outrages like this by one man upon another's property rights. If a court of equity CASEY v. CINCINNATI TYPOGRAPHICAL UNION. 245 cannot restrain an attack like this upon a man's business, then the party is certainly remediless, because an action at law, in most cases, would do no good, and ruin would be accomplished before an adjudication would be reached. True, it may be said that the injured party has a remedy at law; but that might imply a multiplicity of suits, which equity often interposes to relieve from. But the still more cogent reason seems to be that a court of equity can, by its writ of injunction, restrain a wrong-doer, and thus pre- vent injuries which could not be fully redressed by a verdict and judgment for damages at law. Redress for a mere personal slander or libel may perhaps properly be left to the courts of law, because no falsehood, however gross and malicious, can wholly destroy a man's reputation with those who know him; but statements and charges intended to frighten away a man's customers, and intimidate them from dealing with him, may wholly break up and ruin him financially with no adequate remedy if a court of equity cannot afford protection by its restraining writ." This is a clear and forcible statement of the law, and is in accord with the general current of authority. * * * The motion for a temporary injunction, to continue in force until the final decree in this cause, will be granted. 3 3 In accord : Barr v. Essex Trades Council, 58 N. J. Eq., 101, 1894 (A. used plate matter in his paper. His employes struck. The Essex Trade Council, a body representing a large number of laborers, insti- tuted what they called a boycott against A. and his paper. The labor unions composing the council sent out notices to their members not to deal with A. ; they also warned the advertisers in A.'s paper that if they did not cease advertising, no union man would deal with them. Several advertisers in consequence ceased to deal with A. The de- fendants were restrained from issuing circulars containing threats against the advertisers in A.'s paper with the intent to interfere in A.'s business) ; Hopkins v. Oxley Stave Co., 83 Fed. 912, C. C. A. 1897 (A., a manufacturer of barrels, used a machine for hooping the same. B. et al., the members of two labor unions having a large membership, were taking steps to notify all persons who bought barrels from A. that the members of the unions would not buy goods packed in A.'s barrels, the action being taken to induce A. against his will to cease using the machine. At the instance of A., B. et al. were restrained from putting the so-fcalled "boycott" into effect. Caldwell, J., dist.) ; Matthews v. Shankland, 56 N. Y. Supl. 123, 1898 (The defendants, presidents of labor unions, were sending out notices to the business 246 INFRINGEMENT OF PROPERTY IN CONTRACTS. men of Buffalo, that, if they advertised in plaintiff's paper the members of the union would refuse to deal with them. A preliminary injunc- tion against this "boycott" was granted, which the court refused to take off on motion) ; Beck v. Railway Teamsters' Protective Union, 42 L. R. A. 407, Mich., 1898 (The injunction as issued in the court below al- lowed boycotting by peaceful means, i. e. the threat of withdrawal of patronage from those who dealt with plaintiff. On appeal, the court ordered the decree modified so as to restrain "boycotting"). Compare John D. Park & Sons Co. v. National Wholesale Drug- gists' Ass'n, 175 N. Y. 1, 1903 (The A. Co., plaintiffs, were wholesale druggists not members of the defendant association ; the association, which comprised 90 per cent, of the wholesale druggists, asked all pro- prietors of proprietary medicines to enter into an agreement with them by which agreement the wholesalers agreed not to sell except at fixed prices to retailers, and to take from all proprietors the same rebate. The proprietors agreed to give only to those wholesalers who would live up to this plan a discount on the retail selling price. The A. Co. refused to abide by the plan, and many proprietors refused to give them a discount on retail price. A. asked that the defendant be re- strained from continuing to make efforts to induce any proprietor from entering into the above recited agreement. Defendant's demurrer sus- tained) . CIVIL LIABILITY FOR BOYCOTTING. The injunction in our principal case is based on the assumption that the "boycott" as carried on by the defendants was a civil wrong to the plaintiff. On the question of civil liability compare the follow- ing case? at law: Bowen v. Matheson, g6 Mass. 499, 1867 (A. kept a seamen's boarding house. B. et al. were members of an association of seamen's boarding house keepers. B. et al. refused to ship any sea- men on boats taking men from A.'s house. A. sued B. et al., alleging damage to his business. B.'s demurrer was sustained) ; Heyward v. Tillson, 75 Me. 225, 1883 (A. told C. that if he, C, continued to occupy B.'s house, he, A., would not continue to employ him, C. C. ceased to rent B.'s house, the lease being terminable at will. B. sued A. Judg- ment for defendant) ; Payne v. The Western Atl. Ry. Co., 13 Lea. 507, Tenn., 1884 (A. kept a store. The B. Co. notified its employes that if they dealt with A. they would be discharged. A.'s trade was injured. A. sued B. Judgment for the defendant. See International and Great Northern Ry. Co. v. Greenwood, 2 Tex. App. 76, 1893, contra on iden- tical facts) ; Moores v. The Bricklayers' Union, 23 Ohio Weekly Bui. 48, 1890 (A. was a seller of lime. B. et al., members of a bricklayers' union, sent out a circular to those using A.'s lime, that the members of the union would not work for anyone who used A.'s lime. A. sued B. et al. and recovered) ; Temperton v. Russell [1893], I Q- B. 715, s. c. Lewis, Cases on Civ. Lib., Pt. I, p. 33 (B. et al. threatened A.'s customers that if they continued to buy building material from A., B. et al. would refuse to handle the material. The threat was effec- tive. A. sued B. et al. and recovered) ; Luke v. The Clothing Cutters' and Trimmers' Assembly, 77 Md. 396, 1893 (C. employed A. B. et al. wrote to C. that unless C. discharged A., notification would be sent to all labor organizations that C.'s house was non-union. The threat was effective. A. sued B. et al. and recovered) ; Curran v. Galen, 152 N. Y. 33, 1897 (C. employed A. B. et al. made a contract with C. by which C. agreed to employ only union men. A. would not join union. C. notified B. et al. to discharge A. The notice was effe8tive. A. sued B. et al., and recovered) ; Cote v. Murphy, 159 Pa. 420, 1694 (A. was a dealer in building supplies, buying lumber from C. B. et al.. MURDOCK v. WALKER. 247 MURDOCK v. WALKER. In the Supreme Court of Pennsylvania, 1893. 152 Pennsylvania 595. Bill in equity for an injunction. 1 The court below said : "Under the affidavits submitted there can be no doubt that a number of the defendants, with others, have been in the habit of collecting in crowds about the establishment of the plaintiffs, having followed their workmen to and from their boarding-houses, and purposely interfered with members of an association of planing mill owners and builder's ex- change, sent word to C. that it would be for his, C.'s, interest not to deal with A. C. in consequence ceased dealing with A. A. sued B. et al. Verdict for A. set aside on appeal) ; Scottish Co-operative Wholesale Society v. Glasgow Flesher's Trade Defense Association, 35 Scottish L. R. 645, 1898 (The defendants informed the cattle sales- men that if they permitted persons representing the plaintiffs to bid at their sales, the defendants would not bid at such sales. The threat was effective. Held, that the plaintiffs had no cause of action) ; Quinn v. Leathern [1901], I A. C. 49s, s. c, Lewis' Cases on Civ. Lib., Pt. I, p. 82 (B. et al. threatened to cause a strike among C.'s workmen if he did not cease to deal with A. The threat was effective. A. sued B. et al. and recovered. Lindley, J., does not regard this case as over- ruling Scottish Co-operative Association v. Glasgow Fleshers, supra. See, Lewis' Cases on Civ. Lib., Pt. I, p. 99) ; National Protective Association v. Cumming, 170 N. Y. 315, 1902 (A. et al. were members of one union. B. et al. were members of rival union. C. employed members of both unions. B. et al. threatened C. that unless he dis- charged A. et al, B. et al. would strike. The threat was effective. A. et al. sued B. et al. Defendant's demurrer sustained. Three judges dissented). In Lyons v. Wilkins, 78 L. T. 618, 1898, the court in view of the then recent decision of the House of Lords in Allen v. Flood [1898], A. C. 1, refused to continue an injunction previously granted (see [1896], I Ch. 811) "from preventing Schoenthal or other person from working for the plaintiffs by withdrawing his or their workmen from their employment respectively." The theory of the court was that Allen v. Flood had decided that a combination to injure one man by refusing to work for anyone who dealt with him was lawful. That this was not the meaning of the decision in Allen v. Flood is clear from the later case of Quinn v. Leathern, supra. For a similar mis- understanding of Allen v. Flood, see Huttley v. Simmons [1898], 1 Q|B. 181. 'The statement of facts as reported is abbreviated, and the per curiaim opinion, which merely re-states the injunction issued, is omitted. 248 INFRINGEMENT OF PROPERTY IN CONTRACTS. them in passing along- the public streets, in some instances even resorting to actual force. The purpose of those en- gaged in these proceedings was evidently correctly stated by one of the defendants when, in reply to the words of one of the plaintiffs, 'Our men are getting sick and tired of this,' he said, 'That is what we are here for, to make them sick and tired.' The whole course of those actively engaged in these movements was a menace to the workmen of the plaintiffs, as well as to the public peace. "It is ordered that a preliminary injunction issue against the defendants, restraining them and each of them from gathering at and about plaintiff's place of business, and from following the workmen employed by plaintiffs, or who may hereafter be so employed, to and from their work, and gathering at and about the boarding places of said workmen, and from any and all manner of threats, menaces, intimidation,- opprobrious epithets, ridicule and annoyance to and against said workmen or any of them, for or on account of their working for the plaintiffs, upon the execution by plaintiffs of a bond in proper form, with sureties to be approved by the court, in the sum of $2000." Error assigned was above decree, quoting it. Per curiam : The decree is affirmed and the appeal dismissed at the cost of appellants. 2 ! See for injunctions of a similar character: Wick China Co. v. Brown, 164 Pa. 449, 1894 (Identical with our principal case) ; Davis v. Zimmerman, 91 Hun. 489, N. Y. Supl., 1895 (The defendants were re- strained from inducing the plaintiff's employe's to leave his service or preventing persons from entering the plaintiff's service by force, threats, or intimidation) ; Vegelahn v. Gunter, 167 Mass. 92, 1896 (The defendants were restrained from interfering with the plaintiff's business by patroling the sidewalk in front of his premises for the purpose of preventing any person from entering or continuing in the employ of the plaintiff. Holmes, J., dissented from this wording of the decree on the ground that it restrained organized persuasion by argument without threat of violence, Page 104. But it can hardly be inferred that the majority intended to go that far) ; Macksall v. Ratchford, 82 Fed. 41, 1887 (The injunction restrained the defendants from the use of intimidation to prevent the employes of the plaintiff going to or returning from his mines. The defendants were adjudged in contempt because they marched in large numbers to the plaintiff's mines and took up positions on the highway where the plaintiff's em- MURDOCK v. WALKER. 249 ployes had to pass on their way to work) ; Cook v. Dolan, 6 Dist. R. 524, Pa. C. P. 1897 (Injunction issued similar to that in our principal case. Marching in large bodies, and the singing of songs abusive of the employes of the plaintiff was regarded as a disobedience of the injunction) ; American Steel and Wire Co. v. Wire Drawers' and Die Workers' Unions, 90 Fed. 608, 1898, 617, 618 (Injunction similar to that issued in our principal case, except that abusive language is not specifically restrained) ; Beck v. Railway Teamsters' Union, 42 L. R. A. 407, Mich., 1898, 419 (In this case "picketing" was enjoined, but the picketing practised by the defendants seems to have been part of a scheme by threats of violence to prevent persons from dealing with plaintiff) ; Cumberland Glass Mfg. Co. v. Glass Bottle Blowers' Asso- ciation, 59 N. J. Eq. 49, 1899 (Violence to would-be employes of plaintiff restrained. Form of degree not given) ; Otis Steel Co. v. Local Union, no Fed. 698, 1901 (Picketing, at least for the purpose of intimidating employes of plaintiff, restrained) ; Southern Ry. Co. v. Machinists' Local Union, in Fed. 49, 1901, 58 (Injunction issued sim- ilar to that in our principal case, except that the acts which would be regarded as threats of violence are specified in greater detail) ; Reinecke Coal Min. Co. v. Wood, 112 Fed. 477, 1901 (Maintaining armed camps near the plaintiff's mine regarded as an intimidation of plaintiff's employes. An injunction issued. Terms not given) ; Herzog v. Fitzgerald, 74 N. Y. App. no, 1902 (Injunction restrained the threatening or committing acts of violence against plaintiff's employes, or those who would work for plaintiff) ; United States' ex rel. Guar- antee Trust Co. v. Haggerty, 116 Fed. 510, 1902 (The defendants were restrained from intimidating the employes of a mining company to induce them to strike by assembling near the company's mines. "Mother" Jones and others held a meeting within 1,000 feet of the mines. The court thought the object of the meeting and speeches was to induce the employes of the company to leave through fear of vio- lence, Page 519. The defendants were committed for contempt. Sub- sequently habeas corpus proceedings were taken. The court decided that it was no objection to the bill that it had been brought by the mortgagee of the company's property, and that the company had not been made a party : Ex parte Haggerty, 124 Fed. 441, 1902) ; Ex parte Richards, 117 Fed. 658, 1902 (Case similar to United States ex rel. Guarantee Trust Co. v. Haggerty, supra) ; Union Pac. Ry. Co. v. Ruef, 120 Fed. 119, 1902, 129 (The order restraining violence to the plaintiff's employes was extended to "intimidating or threatening in any manner the wives and families of said employes") ; Frank v. Herold, 63 N. J. Eq. 443, 1902, 445 (Injunction similar to that in our principal case, except that defend- ants were restrained from "annoying by acts or words such employe of complainant against his will." This language was intended to stop the defendants compelling employes to listen to arguments. Page 449) ; Jersey City Printing Co. v. Cassidy, 53 Atl. 230, N. J., 1902 (Speaking to employes of plaintiff against their will restrained) ; W. P. Davis Mach. Co. v. Robinson, 84 N. Y. Supl. 837, 1903 (Similar to our prin- cipal case, except that inducing the employes of the plaintiff by fraud not to work for him was restrained). See also Bindell v. Hagan, 54 Fed. 40, 1893, affirmed by C. C. A., sub nam. Hagan v. Blindell, 56 Fed. 696, 1893 (badly reported). Compare with the wording of these injunctions the English "Con- spiracy and Protection to Property Act of 1875." Section 3. An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable 250 INFRINGEMENT OF PROPERTY IN CONTRACTS. WORTHINGTON v. WARING. In the Supreme Judicial Court of Massachusetts, 1892. 157 Massachusetts 421. Field, C. J. : We take the substance of the petition to be that the petitioners were weavers by trade, and had been employed by the Narragansett Mills, a corporation in Fall River, and that they- demanded higher wages, which the corporation refused to give ; that -they then left work, and that the defendants, who were the treasurer and superin- tendent of the corporation, sent their names to the officers of other mills in Fall River on a list which is called a black list, which informed these officers that the petitioners had as a conspiracy if such act committed by one person would not be punishable as a crime. Section 7. Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legel right to do or abstain from doing, wrongfully and without legal authority, — - 1. Uses violence to or intimidates such other person or his wife or children, or injures his property; or, 2. Persistently follows such other person about from place to place ; or, 3. Hides any. tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or, 4. Watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place; or, 5. Following such other person with two or more other persons in a disorderly manner in or through any street or road, shall on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not ex- ceeding three months, with or without hard labor. Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section. See for an injunction following the words of this Act, Lyons v. Wilkins, 78 L. T. 618, 1898. WORTHINGTON v. WARING. 251 left the Narragansett Mills on what is called a strike; and that thereupon the defendants conspired together and with the officers of other mills, and agreed not to employ the petitioners, with intent to compel them either to go with- out work in Fall River, or to go back to work for the Narragansett Mills at such wages as that corporation should see fit to pay them. It does not appear by the petition that any of the petitioners had existing contracts for labor with which the defendants interfered. The prayer was that the respondents be restrained from annoying the petitioners, and interfering with their rights to earn their livelihood at their trade in Fall River, and that they be enjoined to withdraw and destroy all black lists or other devices issued by them or their orders mentioning the names of the peti- tioners. If the petition sets forth such a conspiracy as consti- tutes a misdemeanor at common law, on which we express no opinion, the remedy is by indictment. If the injury which had been received by the petitioners at the time the petition was filed constitutes a cause of action, on which we express no opinion, the remedy is by an action of tort, to be brought by each petitioner separately. The only grievance alleged which is continuing in its nature is the conspiracy not to employ the petitioners, and there are no approved precedents in equity for enjoining the defendants from continuing such a conspiracy, or for compelling the defendants either to employ the petitioners or to procure employment for them with other persons. See Boston Diatite Co. v. Florence Manuf. Co. 1 14 Mass. 69 ; Raymond v. Russel, 143 Mass. 295 ; Smith v. Smith, 148 Mass. 1 ; Carelton v. Rugg, 149 Mass. 550; Workman v. Smith, 155 Mass. 92. It is plain, however, that the petition was drawn with a view to obtain some equitable relief. It is well known that equity has, in general, no jurisdiction to restrain the commission of crimes, or to assess damages for torts al- ready committed. Courts of equity often protect property from threatened injury when the rights of property are 252 INFRINGEMENT OF PROPERTY IN CONTRACTS. equitable, or when, although the rights are legal, the civil and criminal remedies at common law are not adequate, but the rights which the petitioners allege the defendants were violating, at the time the petition was filed, are per- sonal rights, as distinguished from rights of property. * * * 1 Petition dismissed. 2 'His discussion of the Act of 1887, Chapter 383, is omitted. 2 Compare with our principal case, Bohn Manufacturing Co. v. Hollis, 54 Minn. 223, 1893 (Facts given in note 3 to Arthur v. Oakes, reported infra) ; Boyer v. Western Union Tel. Co., 124 Fed. 246, 1903 (The B. Co. discharged all men who belonged to a union, keeping a so-called "black list" of their names. A. et al., having been dis- charged by the B. Co. for belonging to a union, brought a bill for themselves and the remaining members of their branch of the union, asking that the B. Co., its officers and agents be restrained from keeping a black list or persuading or coercing any of its employes or othei persons from becoming members of the union. The bill was dis- missed for want of equity). CASES AT LAW ON AGREEMENTS AMONG TWO OR MORE PERSONS NOT TO DEAL WITH ANOTHER. In the following cases the plaintiff was regarded as failing to show that he had a cause of action : Hunt v. Simonds, 19 Mo. 583, 1S54 (Several insurance companies agreed not to insure the plaintiff's boat. The plaintiff sued for a malicious conspiracy to injure him. The court held that an action does not lie for a conspiracy to do a lawful act, however malicious the motive) ; Kearney v. Lloyd L. R., 26 Ir. 268, 1890 (B. et al. were voluntary contributors to a fund for the support of A., a minister. They agreed together to stop their con- tributions. Their object was to force the minister to resign. The object was accomplished. A. sued B. et al. Judgment for the defend- autsj ; Bradley v. Pierson, 149 Pa. 502, 1892 (Identical with our prin- cipal case, except that the plaintiff sued at law for damages) ; Jenkin- son v. Nield, 8 Times L. R. 540, 1892 (Identical with Bradley v. Pierson). , Compare, however, Ertz v. Produce Exchange, 48 L. R. A. 90, Minn., 1900 (B. et al. controlled all the produce sold in Minneapolis. A. bought from B. et al. and resold. B. et al. agreed not to deal with A. and A.'s business was injured. A. sued B. et al. at law, alleging a conspiracy to injure him and setting forth above noted facts. B. et al. demurred. Demurrer overruled on the ground that the plaintiff had shown an intent to injure him, and the facts did not indicate that the defendants did what they did to protect their own legitimate interests, 1. e., it was an injury without apparent just cause and excuse). Compare further where the object of the agreement not to deal was to make the person excluded pay to the association or a member a sum of money he did not owe : Carew v. Rutherford, 106 Mass. 1, J870 (A. was a master stonecutter. B. et al. resolved not to work for A., A. having violated one of the rules of the association, unless A. paid to the treasurer of the association $500. A., to avoid a strike, paid the money to the officers of the association. Held, that A. could sue the members of the association in tort, but doubtful if he could ARTHUR v. OAKES. 253 ARTHUR v. OAKES. In the Circuit Court of Appeals for the Seventh Circuit, 1894. 63 Federal 310. 1 Harlan, Circuit Justice: 2 By a writ of injunction dated December 19, 1893, tne officers, agents and employes of the receivers, including engineers, firemen, trainmen, train dispatchers, telegraphers, conductors, switchmen, and all persons, associations, and combinations, voluntary or otherwise, whether in the service of the receivers or not, were enjoined * * * from combining and conspiring to quit with or without notice the service of said receivers with the object and intent of crippling the property in their custody or embarrassing the operation of said railroad, and from so quitting the service of the said receivers, with or sue in contract for money had and received. Compare Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 1893 (Facts given in note 3 to Arthur v. Oakes, reported infra) ; Ryan v. Burger and Hower Brewing Co., 13 N. Y. Supl. 660, 1891 (B. et al., wholesale brewers, formed an asso- ciation and agreed that if anyone sold to a retailer who occupied a place of business formerly occupied by one who owed one of the association, until the debt of the former occupant was paid the mem- ber so selling to the present occupant would himself have to pay the debt of the former occupant. A. occupied a retail liquor store, formerly occupied by C, who owed B. B. notified the members of the associa- tion that he had a lien on A.'s place. In consequence of this notifica- tion no member of the association would sell A. A. sued B. and recovered. The decision proceeds on the ground that the defendant made a maliciously false statement in regard to the existence of a lien on A.'s place of business. Question, if the other members of associa- tion were placed by B.'s statement under any misapprehension of the real facts? The case assumes, however, that if A. had owed B., A. would have had no action. In accord with this assumption, see Brewster v. Miller, 19 Kty. Law Rep. 593, 1987; Schulten v. Bavarian Brewing Co., 96 Kty. 224, 1894. 'The report of this case in the Circuit Court will be found in 60 Fed. 803, under name, Farmers' Loan and Trust Co. v. North Pac. R. R. Co. J That part of the injunction and opinion which relates to acts of violence to persons or property is omitted. 254 INFRINGEMENT OF PROPERTY IN CONTRACTS. without notice, as to cripple the property or prevent or hinder the operation of said railroad. * * * A second writ of injunction was issued December 22, 1893. It was based on a supplemental petition of the re- ceivers, and was in all respects like the former one, except that it contained, in addition, a clause by which the persons and associations to whom it was addressed were enjoined — ■ From combining or conspiring together, or with oth- ers, either jointly or severally, or as committees, or as offi- cers of any so-called labor organization, with the design or purpose of causing a strike upon the lines of railroad operated by said receivers, and from ordering, recommend- ing, approving, or advising others to quit the service of the receivers of the Northern Pacific Railroad Company on January 1, 1894, or at any other time, and from ordering, recommending, advising, or approving, by communication or instruction or otherwise, the employes of said receivers, or any of them, or of said Northern Pacific Railroad Com- pany, to join in a strike on said January 1, 1894, or at any other time, and from ordering, recommending, or advising any committee or committees, or class or classes of em- ployes of said receivers, to strike or join in a strike, on January 1, 1894, or at any other time, until the further order of this court. The appellants, as chief executive officers, respectively, of the Brotherhood of Locomotive Engineers, the Order of Railway Conductors, the Brotherhood of Locomotive Firemen, the Order of Railway Telegraphers, the Brother- hood of Railway Trainmen, and the Switchmen's Mutual Aid Association, appeared in court on behalf of themselves and their respective organizations and associations, as well as on behalf of such employes of the receivers as were members of those associations and organizations, or of some of them, and moved that the court modify the orders and injunctions of December 19, 1893, and December 22, 1893- ARTHUR v. OAKES. 255 (i) By striking from both writs of injunction these words: "And from combining and conspiring to quit, with or without notice, the service of said receivers, with the object and intent of crippling the property in their custody or embarrassing the operation of said railroad, and from so quitting the service of said receivers, with or without no- tice, as to cripple the property or prevent or hinder the operation of said railroad." (2) By striking from the writ of injunction of De- cember 22, 1893, the above clause or paragraph relating specially to "strikes," which was not in the writ issued December 19, 1893. The motion was in writing, and upon its face pur- ported to be based on the petition and supplemental peti- tion filed by the receivers, on the orders of the court made December 19 and 22, 1893, respectively, and on the above writs of injunction. Beyond the facts set out in those peti- tions, the only evidence adduced at the hearing of the motion was documentary in its nature, to wit, the consti- tutions and by-laws of the associations whose principal offi- cers had been permitted to intervene in the cause. The court, upon the hearing of the motion, modified the writ of injunction of December 22, 1893, by striking therefrom the above words in italics : "And from ordering, recommending, approving, or advising others to quit the service of the receivers of the Northern Pacific Railroad Company on January 1, 1894, or at any other time." The grounds upon which these words were stricken from the second writ of injunction are thus stated in the opinion of the court: "In fairness this clause must be read in the light of the statements of the petition. It was therein asserted to the court that the men would not strike unless ordered so to do by the executive heads of the national labor organiza- tions, and that the men would obey such orders, instead of following the direction of the court. The clause is specially 256 INFRINGEMENT OF PROPERTY IN CONTRACTS. directed to the chiefs of the several labor organizations. The use of the words 'order, recommend, approve, or ad- vise' was to meet the various forms of expression under which, by the constitution or by-laws of these organizations, the command was cloaked, as, for instance, in one organi- zation the chief head 'advises' a strike; in another, he 'ap- proves' a strike; in another, he 'recommends' the quitting of employment. Whatever terms may be employed, the effect is the same. It is a command which may not be disregarded, under penalty of expulsion from the order and of social ostracism. This language was employed to fortify the restraints of the other portions of the writ, and to meet the various disguises under which the command is cloaked. It was so inserted out of abundant caution, that the meaning of the court might be clear; that there should be no unwarrantable interference with this property, no in- timidation, no violence, no strike. It was perhaps unneces- sary, being comprehended within the clause restraining the heads of these organizations from ordering, recommending, or advising a strike, or joinder in a strike. "It is said, however, that the clause restrains an indi- vidual from friendly advice to the employes as a body, or individually, as to their or his best interest in respect of remaining in the service of the receivers. Read in the light of the petitions upon which the injunction was founded, I do not think that such construction can be indulged by any fair and impartial mind. It might be used as a text for a declamatory address to excite the passions and prejudices of men, but could not, I think, be suscep- tible of such strained construction by a judicial mind. The language of a writ of injunction should, however, be clear and explicit, and, if possible, above criticism as to its meaning. Since, therefore, the language of this particu- lar phrase may be misconceived, and the restraint intended is, in my judgment, comprehended within the other provi- sions of the writ, the motion in that respect will be granted, and the clause stricken from the writ." ARTHUR v. OAKES. 257 Except in the particulars mentioned in the opinion of the Circuit Court, the motion to modify the injunctions was denied, and the injunctions contained in force. Of this action of the court the interveners complain. * * * It was contended that the Circuit Court exceeded its powers when it enjoined the employes of the receivers "from combining and conspiring to quit, with or without notice, the service of said receivers, with the object and intent of crippling the property in their custody, or embar- rassing the operation of said railroad, and from so quit- ting the service of said receivers, with or without notice, as to cripple the property, or prevent or hinder the opera- tion of said railroad." This clause embodies two distinct propositions, — one, relating to combinations and conspiracies to quit the service of the receivers with the object and intent of crippling the property or embarrassing the operation of the railroads in their charge ; the other, having no reference to combina- tions and conspiracies to quit, or to the object and intent of any quitting, but only to employes "so quitting" as to crip- ple the property or prevent or hinder the operation of the railroad. Considering these propositions in their inverse order, we remark that the injunction against employes so quitting as to cripple the property or prevent or hinder the operation of the railroad was equivalent to a command by the court that they should remain in the active employment of the receivers, and perform the services appropriate to their re- spective positions, until they could withdraw without crip- pling the property or preventing or hindering the operation of the railroad. The time when they could quit without violating the injunction is not otherwise indicated by the order of the court. Under what circumstances may the employes of the receivers, of right, quit the service in which they are en- gaged? Much of the argument of counsel was directed 258 INFRINGEMENT OF PROPERTY IN CONTRACTS. to this question. We shall not attempt to lay down any general rule applicable to every case that may arise be- tween employer and employes. If an employe quits with- out cause, and in violation of an express contract to serve for a stated time, then his quitting would not be of right, and he would be liable for any damages resulting from a breach of his agreement, and perhaps, in some states of case, to criminal prosecution for loss of life or limb by passengers or others, directly resulting from his abandon- ing his post at a time when care and watchfulness were required upon his part in the discharge of a duty he had undertaken to perform. And it may be assumed for the purposes of this discussion that he would be liable in like manner where the contract of service, by necessary impli- cation arising out of the nature or the circumstances of the employment, required him not to quit the service of his em- ployer suddenly, and without reasonable notice of his inten- tion to do so. But the vital question remains whether a court of equity will, under any circumstances, by injunction, prevent one individual from quitting the personal service of an- other? An affirmative answer to this question is not, we think, justified by any authority to which our attention has been called or of which we are aware. It would be an invasion of one's natural liberty to compel him to work for or to remain in the personal service of another. One who is placed under such constraint is in a condition of in- voluntary servitude, — a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction. Courts of equity have sometimes sought to sustain a contract for services requiring special knowledge or peculiar skill, by enjoining acts or conduct that would constitute a breach of such contract. To this class belong the cases of singers, actors, or musicians, who, after agreeing, for a valuable consideration, to give their professional service, at a named place and during a specified time, for the benefit of certain ARTHUR v. OAKES. 259 parties, refuse to meet their engagement, and undertake to appear during the same period for the- benefit of other par- ties at another place. Lumley v. Wagner, i De Gex, M. & G. 604, 617; Id., 5 De Gex & S. 485, 16 Jur. 871 ; Mon- tagne v. Flockton, L. R. 16 Eq. 189. While in such cases the singer, actor, or musician has been enjoined from ap- pearing during the period named at a place and for parties different from those specified in his first engagement, it was never supposed that the court could by injunction com- pel the affirmative performance of the agreement to sing or act or to play. In Powell Duffryn Steam-Coal Co. v. Taff Vale Ry. Co., 9 Ch. App. 331, 335, Lord Justice James observed that when what is required is not merely to restrain a party from doing an act of wrong, but to oblige him to do some continuous act involving labor and care, the court has never found its way to do this by injunction. In the same case Lord Justice Mellish stated the principle still more broadly, perhaps too broadly, when he said that a court can only order the doing of something which has to be done once for all, so that the court can see to its being done. The rule, we think, is without exception that equity will not compel the actual, affirmative performance by an employe of merely personal services, any more, than it will compel an employer to retain in his personal service one who, no matter for what cause, is not acceptable to him for service of that character. The right of an employe engaged to perform personal service to quit that service rests upon the same basis as the right of his employer to discharge him from further personal service. If the quit- ting in the one case or the discharging in the other is in violation of the contract between the parties, the one in- jured by the breach has his action for damages ; and a court of equity will not, indirectly or negatively, by means of an injunction restraining the violation of the contract, compel the affirmative performance from day to day or the affirm- ative acceptance of merely- personal services. Relief of 260 INFRINGEMENT OF PROPERTY IN CONTRACTS. that character has always been regarded as impracticable. Toledo, A. A. & N-. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730, 740, Taft, J., and authorities cited; Fry, Spec Perf. (3d Am. Ed.) sees. 87-91, and authorities cited. It is supposed that these principles are inapplicable or should not be applied in the case of employes of a rail- road company, which, under legislative sanction, constructs and maintains a public highway primarily for the conveni- ence of the people, and in the regular operation of which the public are vitally interested. Undoubtedly the sim- ultaneous cessation of work by any considerable number of the employes of a railroad corporation, without previous notice, will have an injurious effect, and for a time incon- venience the public. But these evils, great as they are, and although arising in many cases from the inconsiderate con- duct of employes and employers, both equally indifferent to the general welfare, are to be met and remedied by legis- lation restraining alike employes and employers so far as necessary adequately to guard the rights of the public as involved in the existence, maintenance and safe manage- ment of public highways. In the absence of legislation to the contrary, the right of one in the service of a quasi public corporation to withdraw therefrom at such time as he sees fit, and the right of the managers of such a corporation to discharge an employe from service whenever they see fit, must be deemed so far absolute that no court of equity will compel him, against his will, to remain in such service, or actually to perform the personal acts required in such employments, or compel such managers, against their will, to keep a particular employe in their service. It was com- petent for the receivers in this case, subject to the approval of the court, to adopt a schedule of wages or salaries, and say to employes, "We will pay according to this schedule, and if you are not willing to accept such wages you will be discharged." It was competent for an employe to say, "I will not remain in your service under that schedule, and if it is to be enforced I will withdraw, leaving you to man- ARTHUR v. OAKES. 261 age the property as best you may without my assistance." In the one case, the exercise by the receivers of their right to adopt a new schedule of wages could not, at least in the case of a general employment without limit as to time, be made to depend upon considerations of hardship and incon- venience to employes. In the other, the exercise by em- ployes of their right to quit in consequence of a proposed reduction of wages could not be made to depend upon con- siderations of hardship or inconvenience to those inter- ested in the trust property or to the public. The fact that employes of railroads may quit under circumstances that would show bad faith upon their part, or a reckless dis- regard of their contract or of the convenience and interests of both employer and the public, does not justify a depart- ure from the general rule that equity will not compel the actual, affirmative performance of merely personal services or (which is the same thing) require employes, against their will, to remain in the personal service of their em- ployer. The result of these views is that the court below should have eliminated from the writ of injunction the words, "and from so quitting the service of the said receivers, with or without notice, as to cripple the property or prevent or hinder the operation of said railroad." But different considerations must control in respect to the words in the same paragraph of the writs of injunc- tion, "and from combining and conspiring to quit, with or without notice, the service of said receivers, with the ob- ject and intent of crippling the property in their custody, or embarrassing the operation of said railroad." We have said that, if employes were unwilling to remain in the ser- vice of the receivers for the compensation prescribed for them by the revised schedules, it was the right of each one on that account to withdraw from such service. It was equally their right, without reference to the effect upon the property or upon the operation of the road, to confer with each other upon the subject of the proposed reduction in 262 INFRINGEMENT OF PROPERTY IN CONTRACTS. wages, and to withdraw in a body from the service of the receivers because of the proposed change. Indeed, their right, as a body of employes affected by the proposed re- duction of wages, to demand given rates of compensation as a condition of their remaining in the service, was as absolute and perfect as was the right of the receivers rep- resenting the aggregation of persons, creditors, and stock- holders interested in the trust property, and the general public, to fix the rates they were willing to pay their respec- tive employes. But that is a very different matter from a combination and conspiracy among employes, with the object and intent, not simply of quitting the service of the receivers because of the reduction of wages, but of crip- pling the property in their hands, and embarrassing the operation of the railroad. When the order for the original injunction was applied for it was represented — and the interveners admit by their motion that it was correctly represented— that unless the restraining power of the court was exerted the dissatisfied employes, and others co-operat- ing with them, would physically disable and render unfit for use the cars and other property in the possession of the receivers, and by force, threats, and intimidation used against employes remaining in their service, and against those desiring to take the places of those quitting, would prevent the receivers from operating the roads in their cus- tody, and from discharging the duties which they owed on behalf of the corporation to the parties interested in the trust property, to the government, and to the public. The general inhibition against combinations and con- spiracies formed with the object and intent of crippling the property and embarrassing the operation of the railroad must be construed as referring only to acts of violence, intimidation, and wrong of the same nature or class as those specifically described in the previous clauses of the writ. We do not interpret the words last above quoted as embracing the case of employes who, being dissatisfied with the proposed reduction of their wages, merely withdraw ARTHUR v. OAKES. 263 on that account, singly or by concerted action, from the service of the receivers, using neither force, threats, perse- cution, nor intimidation towards employes who do not join them, nor any device to molest, hinder, alarm, or interfere with others who take or desire to take their places. We use the word "device" here as applicable to cases like that of Sherry v. Perkins, T47 Mass. 212, in which it appeared that parties belonging to a labor organization displayed and maintained certain banners in front of the plaintiff's place of business for the purpose of deterring workmen from remaining in or entering his services. * * * We come next to that clause in the writ of injunction of December 22, 1893, expressly relating to strikes. What is to be deemed a strike, within the meaning of the order of the Circuit Court? In the opinion of the Circuit Judge, made a part of the record, we are informed that at the argument below the definition proffered to' the court by the interveners as one recognized by the labor or- ganizations of the country was as follows : "A strike is a concerted cessation of or refusal to work until ,or unless certain conditions which obtain or are inci- dent to the terms of employment are changed. The em- ploye declines to longer work, knowing full well that the employer may immediately employ another to fill his place, also knowing that he may or may not be re-employed or returned to service. The employer has the option of acced- ing to the demand and returning the old employe to service, of employing new men, or of forcing conditions under which the old men are glad to return to service under the old conditions." The learned Circuit Judge said that a more exact defi- nition of a strike was "a combined effort among workmen to compel the master to the concession of a certain demand by preventing the conduct of his business until compliance with the demand," and he said : "It is idle to talk of a peaceful strike. None such ever 264 INFRINGEMENT OF PROPERTY IN CONTRACTS. occurred. The suggestion is an impeachment of intelli- gence. All combinations to interfere with perfect freedom in the proper management of one's lawful business, to dic- tate the terms upon which such business shall be conducted, by means of threats or by interference with property or traffic, or with the lawful employment of others, are within the condemnation of the law. It has been well said that the wit of man could not devise a legal strike, because com- pulsion is the leading idea of it. A strike is essentially a conspiracy to extort by violence; the means employed to effect the end being not only the cessation of labor by the conspirators, but by the necessary prevention of labor by those who are willing to assume their places, and as a last resort, and in many instances an essential element of suc- cess, the disabling and destruction of the property of the master; and so, by intimidation and by the compulsion of force, to accomplish the end designed." Under this view of the object and nature of strikes the injunction was directed, generally, against combina- tions and conspiracies upon the part of employes with the design or purpose of causing a strike on the lines of rail- road operated by the receivers ; against the ordering, recom- mending, advising, or approving the employes to join in a strike; and against the ordering, recommending, or advis- ing any committee or class of employes to strike, or to join in a strike. If the word "strike" means in law what the Circuit Court held it to mean, the order of injunction, so far as it relates to strikes, is not liable to objection as being in ex- cess of the power of a court of equity. Indeed, upon the facts presented by the receivers and admitted by the motion of the interveners, it was made the duty of the court to exert its' utmost authority to protect both the property in its charge and the interests of the public against all strikes of the character described in the opinion of the Circuit Judge. ARTHUR v. OAKES. 265 But in our judgment the injunction was not sufficiently specific in respect to strikes. We are not prepared, in the absence of evidence, to hold, as matter of law, that a com- bination among employes, having for its object their or- derly withdrawal in large numbers or in a body from the service of their employers, on account simply of a reduction in their wages, is not a strike within the meaning of the word as commonly used. Such a withdrawal, although amounting to a strike, is not, as we have already said, either illegal or criminal. In Farrer v. Close, L. R. 4 Q. B. 602, 612, Sir James Hannen, afterwards lord of ap- peal in ordinary, said: "I am, however, of opinion that strikes are not neces- sarily illegal. A 'strike' is properly defined as ' a simul- taneous cessation of work on the part of the workmen ;' and its legality or illegality must depend on the means by which it is enforced, and on its objects. It may be criminal, as if it be a part of a combination for the purpose of injuring or molesting either masters or men; or it may be simply illegal, as if it be the result of an agreement depriving those engaged in it of their liberty of action, similar to that which the employers bound themselves in the case of Hilton v. Eckersley, 6 El. & Bl. 47, 66; or it may be perfectly inno- cent, as if it be the result of the voluntary combination of the men for the purpose only of benefiting themselves by raising their wages, or for the purpose of compelling the fulfillment of an engagement entered to between em- ployers and employes or any other lawful purpose." In our opinion the order should describe more dis- tinctly than it does the strikes which the injunction was in- tended to restrain. That employes and associates may not unwittingly place themselves in antagonism to the court's authority, and become subject to fine and imprisonment as for contempt, the order should indicate more clearly than has been done that the strikes intended to be re- strained were those designed to physically cripple the trust 266 INFRINGEMENT OF PROPERTY IN CONTRACTS. property, or to actually obstruct the receivers in the opera- tion of the road, or to interfere with their employes who do not wish to quit, or to prevent, by intimidation or other wrongful modes, or by any device, the employment of others to take the places of those quitting, and not such as were the result of the exercise by employes, in peaceable ways, of rights clearly belonging to them, and were not designed to embarrass or injure others, or to interfere with the actual possession and management of the property by the receivers. In our consideration of this case we have not over- looked the observations of counsel in respect to the use of special injunctions to prevent wrongs which, if commit- ted, may be otherwise reached by the courts. It is quite true that this part of the jurisdiction of a court of equity should be exercised with extreme caution, and only in clear cases. Brown v. Newall, 2 Mylne & C. 558, 570. Mr. Justice Baldwin, in Bonaparte v.' Railroad Co., Baldw. 205, 217 Fed. Cas. No. 1,617, properly said: "There is no power, the exercise of which is more deli- cate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that never ought to be extended, unless in cases of great injury, where courts of law cannot afford an adequate or com- mensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction ; but that will- not be awarded in doubtful cases, or new ones not coming within well-established principles, for if it issues erroneously an irreparable injury is inflicted, for which there can be no redress, it being the act of a court, not of the party who prays for it. It will be refused till the court are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act. In such a case ARTHUR v. OAKES. 267 the court owes it to its own suitors and its own principles to administer the only remedy the law allows to prevent the commission of the act." The authorities all agree that a court of equity should not hesitate to use this power when the circumstances of the particular case in hand require it to be done in order to protect rights of property against irreparable damage by wrongdoers. It is, Justice Story said, because of the vary- ing circumstances of cases, "that courts of equity con- stantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld." "And," the author proceeds, "there is wisdom in this course, for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights or redress wrongs. The jurisdiction of these courts, thus operating by special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence." Story, Eq. Jur., sec. 959b. In using a special injunction to protect the property in the custody of the receivers against threatened acts which it is admitted would, if not restrained, have been committed, and would have inflicted irreparable loss upon that property, and seriously prejudiced the interests of the public, as involved in the regular, continuous operation of the Northern Pacific Railroad, the Circuit Court, except in the particulars indicated, did not restrain any act which, upon the facts admitted by the motion, it was not its plain duty to restrain. No other remedy was full, adequate, and complete for the protection of the trust property, and for the preservation of the rights of individual suitors and of the public in its due and orderly administration by the court's receivers. "It is not enough," the court said in Boyce's Ex'rs v. Grundy, 3 Pet. 210, "that there is a rem- edy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and 268 INFRINGEMENT OF PROPERTY IN CONTRACTS. its prompt administration, as the remedy in equity." And the application of the rule that equity will not interfere where there is an adequate remedy at law must depend upon the circumstances of each case as it arises. Watson v. Sutherland, 5 Wall. 74, 79. That some of the acts enjoined would have been criminal, subjecting the wrongdoers to actions for damages or to criminal prosecution, does not therefore in itself determine the question as to interference by injunction. If the acts stopped at crime, or involved merely crime, of if the injury threatened could, if done, be adequately compensated in damages, equity would not interfere. But as the acts threatened involved irreparable injury to and destruction of property for all the purposes for which that property was adapted, as well as continuous acts of trespass, to say nothing of the rights of the public, the remedy at law would have been inadequate. "For- merly," Mr. Justice Story says, "courts of equity were ex- tremely reluctant to interfere at all, even in regard to cases of repeated trespasses. But now there is not the slightest hesitation, if the acts done, or threatened to be done, to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in future. If, indeed, courts of equity did not interfere in cases of this sort, there would, as has been truly said, be a great failure of justice in this country." 2 Story Eq. Jur., sec. 928. So, in respect to acts which constitute a nuisance injurious to property, if "the injury is of so material a nature that it cannot be well or fully compensated by the recovery of damages, or be such as from its continuance and permanent mischief might occasion a constantly recurring grievance, a foundation is laid for the interference of the court by way of injunction." Kerr, Inj. 166, c. 6, and authorities tldere cited. This jurisdiction, the author says, was fornmrly exercised sparingly and with caution, "but it is now aally established, and will be exercised as freely as in onresr cases in which the aid of the court is sought for the ptu| pose of protecting legal rights from violation." ARTHUR v. OAKES. 269 In the course of the argument some reference was made to the Act of Congress of July 2, 1890, entitled "An Act to protect trade and commerce against unlawful re- straints and monopolies." 26 Stat. 209. It is not neces- sary in this case to decide whether, within the meaning of that statute, the acts and combinations against which the injunction was aimed, would have been in restraint of trade or commerce among the several States. This case was not based upon that act. The questions now before the court have been determined without reference to the above act, and upon the general principles that control the exer- cise of jurisdiction by courts of equity. For the reasons we have stated the order complained of is reversed in part, and the cause is remanded with directions to sustain the motion to strike out and modify the injunction to the extent indicated in this opinion. 3 'Compare with our principal case the following cases : Bohn Manufacturing Co. v. Hollis, 54 Minn. 223, 1893 (A. was a wholesale lumber dealer. B. et al. were members of an association of retail lumber dealers. A. sold directly to a consumer. A rule of the asso- ciation provided that when any wholesaler sold to a consumer he should pay tc the association ten per cent, of the price received, and if he did not do so no member of the association should deal with such wholesaler on pain of expulsion. A. refused to pay the money, and asked for an injunction to restrain the officers of the association notifying the members not to deal with him. Bill dismissed on the ground that the members of the association were acting within their legal rights) ; Longshore Printing Co. v. Howell, 26 Ore. 527, 1894, 546 (A union declared a strike at A.'s works. Members of the union, employes of A., had they refused to obey the order, would have been expelled from the union. Held, not sufficient intimidation of the individual members, employes of A., to warrant the court issuing an injunction to restrain the order to strike) ; Coons v. Chrystie, 53 N. Y. Supl. 668, 1898 (The officers of a union were restrained from declaring a strike at the plaintiff's factory, the court believing the employes would not strike unless some form of coercion accompanied the order. Whether the fact that the strike was not ordered because of a dispute over terms of employment, but because the plaintiff did not belong to a particular association influenced the decision, quaref) ; Wabash R. Co. v. Hannahan, 121 Fed. 563, 1903 (B. et al. were the officers of a union to which many of the employes of the A. Co. belonged. B. et al. made a demand as representatives of the employes for more wages. The demand was refused and B. et al. were about to order a strike, the order being authorized by the rules of the association. The court refused to restrain, at the instance of the A. Co., B. et al. from issuing this order). Compare with Bohn Mfg. Co. v. Hollis, supra., and Coons v. 270 INFRINGEMENT OF PROPERTY IN CONTRACTS. REYNOLDS v. EVERETT. In the Court of Appeals of New York, 1894. 144 New York 189. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made February 7, 1893, which affirmed a judgment in favor of the defendants entered upon an order dismissing the complaint on trial at Special Term. This action was brought to obtain equitable relief by- way of a perpetual injunction against the defendants; re- straining them from the commission of certain acts com- plained of as being illegal and injurious. The plaintiffs were engaged in the business of manu- facturing cigars in the city of Binghamton and the defend- ants were, in part, striking cigarmakers and, in part, per- sons connected with a newspaper published in the city, and charged with encouraging and abetting a "strike" among the cigarmakers. The complaint set forth that the employes of the plaintiffs and of the other manufacturers had dis- continued working in the manufactories, because of the refusal of their employers to concede a demand for in- creased prices for work, and had illegally combined and conspired together for the purpose of enforcing their de- Chrystie, supra, the case at law of Boutwell v. Marr, 42 Atl. 607, Vt. 1899, 609 (The members of an association of granite manu- facturers composing 95 per cent, of the trade passed a rule that no one should have his granite polished by a person not a member of the association, on the penalty of a fine of $50. In consequence of this resolution, members of the association refused to send their granite to A. A. sued B. et at, members of the association, for a conspiracy to injure and recovered). See, for other cases in which the rules of an association imposed fines for dealing with the plaintiff, Ryan v. Burger and Hower Brewing Co., 13 N. Y. Supl. 660, 1891 ; Brewster v. Miller, 19 Kty. Law Rep. 593, 1897. For a case in which the asso- ciation recovered such a fine in an action of law, see Master Steve* dores' Association v. Walsh, 2 Daly I, N. Y., 1867. REYNOLDS v. EVERETT. 271 mands. It was charged that, beyond appeals to those em- ployes who had remained at work and to those who either had been, or were being, engaged to work, the striking work- men actively interfered by the intimidating processes of threats and abuse and had spread malicious reports about the plaintiffs and other manufacturers, as a part of the scheme to prevent them from conducting their business and to ruin theni unless they should comply with the demand for an increase in wages to workmen. There were many other allegations in the complaint; all tending to show a combination among the striking workmen, aided by the defendant journalists through the newspaper columns, for the purpose of compelling the submission of the cigar manufacturers by unlawful and violent methods. Upon the complaint and the accompanying affidavits an injunc- tion, pending the action, was granted ; which restrained the defendants from doing, or aiding in the doing, of any of the acts complained of and from obstructing the plaintiffs in obtaining workmen for the purpose of carrying on their business and from enticing away their employes. The an- swers of the defendants denied an unlawful conspiracy, or the doing of unlawful acts ; set up a previous combination of the cigar manufacturers, having for its object to compel a reduction in the wages to be paid to workmen, and pleaded the pendency of an action at law to recover damages for the same acts which were complained of and the adequacy of the remedy at law. When the issue came on for trial, the "strike" had long ceased ; but the trial of the case was proceeded with, by virtue of the concessions made by the counsel for the parties, upon the sole issue of the right of the defendants to induce persons by entreaty and persua- sion to leave the service of their employers, or not to enter the service of the plaintiffs and other cigar manufacturers. This question was' decided in the affirmative; the trial jus- tice holding, in substance, that when the peaceful methods of entreaty or persuasion were adopted and no resort was had to intimidation, there was no unlawful obstruction of 272 INFRINGEMENT OF PROPERTY IN CONTRACTS. plaintiffs' rights. He directed a judgment for the defend- ants, dismissing the complaint. At the General Term, the judgment was affirmed, and the plaintiffs have appealed to this court. 1 Gray, J. It is our opinion that, under the state of facts as they were found to be at the time of the trial, the refusal of the prayer for the permanent injunction was a discretionary matter. The only relief demanded was that of a perpetual injunction and there was neither a finding, nor a request to find, or to award, damages. The finding of the trial justice was, and it appeared upon the trial as an uncontroverted fact, that the so-called "strike" began on a certain day and was then over and there no longer existed that condition of things, in which the complainants had sought the aid of a court of equity. The facts estab- lished at the trial did not entitle the plaintiffs as of strict right to the remedy of a final injunction; for there was no imminent peril to their rights apparent; whatever the in- jury from the acts in the past. The refusal to grant the relief prayed for could rest upon the general view taken of the merits of the case; or it could rest upon the cessa- tion of the acts complained of. The trial judge decided upon the merits and the General Term justices have de- clined to overrule the discretion used by the court at Spe- cial Term. Whether the reasons assigned by the trial justice be deemed to be correct, or not, the refusal to ad- judge the equitable relief was a matter which rested with the court of original jurisdiction, acting upon all the facts as established at the time of the hearing. The plaintiffs could not be said to have been refused any protection, re- quired by the facts of the case. The mere apprehension of some future acts of a wrongful nature, which might be injurious to the plaintiffs, was not a sufficient basis for in- sisting upon the preventive remedy of a final injunction. Such a remedy becomes a necessity only when it is per- 'Lists of cases cited by counsel are omitted. REYNOLDS v. EVERETT. ■ 273 fectly clear upon the facts that, unless granted, the com- plainant may be irreparably injured and that he can have no adequate remedy at law for the mischief occasioned. How can it be asserted, in the present case, that there was any such necessity? There were absent the elements- of intimidation; or, as the trial judge observed, of such: circumstances surrounding the acts of persuasion and en- treaty as would characterize them as intimidation. The discretionary exercise of the court's authority, in dismiss- ing the complaint, could very well rest upon the failure to make out a case sufficiently strong to move the court to exercise its extraordinary equitable powers and be, in addition, justified by the discontinuance of the acts com- plained of. With this proper exercise of the discretion, with which the court below was invested, this court will not interfere. The judgment should be affirmed, with costs. 2 2 The case affirms 67 Hun. 294. For 3 report of the case in the special term, see Rogers v. Evarts, 17 N. Y. Supl. 265, 1891. It has been held that no injunction will issue to restrain a person or persons persuading by argument a third person not to deal with the plaintiff. Thus in the following cases an injunction to restrain "picket- ing" where such "picketing" was not accompanied by violence or threats of violence was denied : Standard Tube and Forkside Co. v. International Union of Bicycle Workers, 9 Ohio Dec. 692, 1899; Kerbs v. Rosenstein, 67 N. Y. Supl. 385, 1900; Foster v. Retail Clerks' Inter- national Union Protective Assoc, 78 N. Y. Supl. 860, 1902; W. & A. Fletcher Co. v. International Association of Machinists, 55 A. 1077, N. J., 1903. In Sinsheimer v. United Garment Workers, Tj Hun. 215, | N. Y. Supl., 1894, an injunction to restrain the defendants the striking I ex-employes of the plaintiff, from sending out circulars asking ' persons not to deal with the plaintiff, was refused. See also where the publication was libelous, Richter v. Journeyman Tailors' Union, .11 Ohio Dec. Reprint 45, 1890. Compare dicta in accord: United States v. Kane, 23 Fed. 748, 1885, 750: Consolidated Steel and Wire Co. v. Murray. 80 Fed. 811. 1807. 828; Plant v. Woods, 57 N. E. 1011, Mass., 1900; Erdman v. Mitchell, 207 Pa. 79, 1903, '92, '3, reported infra. See, however, Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. 803, 1894 (There was a strike of Pullman's emploves. Pullman had a contract with the A. Co. to carry his cars. The A. Co. was in the hands of a receiver. B., a labor leader, in order to compel the A. Co. to break their contract with Pullman, was persuading the employes of the A. Co. to strike. Taft, J., enjoined B. from "inciting, encouraging, ordering, or in any manner causing the employes of the receiver to leave his employ with intent to obstruct the operation of his road and thereby compel him not to fulfil his contract and carry 274 INFRINGEMENT OF PROPERTY IN CONTRACTS. Pullman cars") ; Knudsen v. Benn, 123 Fed. 636, 1903 (The court issued an injunction restraining the defendants not only from offering violence to the plaintiff's employes, but from persuading them to leave the employ of the plaintiff or not to perform their duties as employes). Whether a court will restrain a person offering money or other economic advantage to an employe of the plaintiff to persuade him not to enter or to leave the plaintiff's employ was discussed in the follow- ing cases : Johnston Harvester Co. v. Meinhardt, 60 How. Pr. 168, N. Y. Supl. 1880 (The Court refused the injunction on the ground that such persuasion was lawful) ; Rogers v. Evarts, 17 N. Y. Supl. 264, 1891 (This is our principal case in one of its ear- lier stages. The defendants, who were in the plaintiff's employ, struck, and to prevent others taking their places they offered to com- pensate those who were employed by the plaintiff and to pay their way home if they would not work for him. The court, regarding the defendants' action as lawful, refused to restrain such offers) ; Cum- berland Glass Bottle Blowers' Association, 59 N. J. Eq. 49, 1899, 58 (The right of the president of a union to direct that its funds be paid to former workmen of the plaintiff out on strike in order to induce them not to return to work is recognized by the court and an injunc- tion to restrain such payments refused) ; Frank v. Herold, 63 N. J. Eq. 443, 1902, 44s (Same facts as Rogers v. Evarts, supra. The defendants were restrained "from using money of the said associa- tion or other money in furtherance of the purpose of preventing further employes of the complainants from returning to their work [ and paying money to such employes to induce them to leave). A combination to persuade those who deal with the plaintiff not to deal with him by issuing a non-libelous but false statement of fact has been restrained : Continental Insurance Co. ■ v. Board of Fire Underwriters, 67 Fed. 310, 1895, 322 (The defendant's agents stated to holders of the plaintiffs' policies, that they had authority to cancel said policies. The making of this statement, which was false and calculated to injure the plaintiffs, was restrained). MOTIVE AS AFFECTING CIVIL LIABILITY. The apparent conflict of authority between such cases as Standard Tube and Forside Co. v. International Union, supra, and Thomas v. Cincinnati, etc., Ry. Co., supra, is due in part to a real conflict in our law over the question whether a bad motive can or cannot make an act otherwise legal illegal. As affecting the cases in this note, the question is whether the motive of the defendant in persuading a third person not to deal with the plaintiff can affect the legal liability of the defendant for the injury to the plaintiff. The leading English case of Allen v. Flood [1898], 1 A. C. 1, s. c, Lewis' Cases- on Civ. Lib., Pt. I, p. 42, decided that, as the act which the third person was per- suaded to do by the defendant, — in this case the discharge of the plaintiffs, — was an act which the third person had a legal right to do, the motive of the defendant was immaterial, and the person dis- charged had no cause of action. Compare in accord the language of Mitchell, J., in Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 1893, 233; of Ingraham, J., in Davis v. Zimmerman, 28 App. Div. 396, N. Y. Supl. 402 ; of Parker, C. J., in National Protective Association v. Cumming, 170 N. Y. 315, 1902, 326. At the same time there have been several judges in this country who have declared that the House of Lords in Allen v. Flood was wrong, and that the motive of the actor may affect the legal character of his act. See, for example, opinion of Taft. J., in Moores v. Bricklayers' Union, 23 Ohio Weekly Bui. 48, 1889, of Holmes, J., in May v. Wood, 172 Mass. 11, 1898, 14, of Hammond, J., REYNOLDS v. EVERETT. 275 in Plant v. Woods, 51 N. E. ion, Mass 1900, 1014, and of Nash, J., in W. P. Davis Match Co. v. Robinson, 84 N. Y. Supl. 837, 1903. The idea of those who differ from Allen v. Flood is that any act, the natural result of which is an injury to a particular person, knowingly done by one person and resulting in injury to the other, renders the actor liable to the injured person unless the actor had a just cause and excuse. See, Wells, J., in Walker v. Cronin, 107 Mass. 555, 1871, p. 562 et sec. This just cause and excuse is sometimes, according to this view, found in the motive of the actor. Thus a count in an action of tort for maliciously conspiring to induce and inducing third persons not to deal with the plaintiff states a sufficient cause of action, though the method of inducement is not set forth. See, Delz v. Winfree, 80 Tex. 400, 1891 ; Olive v. Van Patten, 25 S. W. 428, Tex. Civ. App., 1894. Compare, Dickson v. Dickson, 33 La. Ann. 1262, 1881, and Ertz v. Produce Exchange, 48 L. R. A. 90, Minn., 1900. In this last case it was held that an allegation that the defendants maliciously conspired to ruin the plaintiff by agreeing together not to deal with him states a good cause of action. Among those who take the view that motive may form an excuse for an act which would be illegal if done without motive or from a bad motive, there exists some uncertainty as to the character of the motive which may excuse a particular class of acts resulting in injury. Thus in Old Dominion S. S. Co. v. McKenna, 30 Fed. 48, 1887, the act of per- suading the laborers of the plaintiff to strike to the injury of the plaintiff was not regarded as excused by the fact that the defendants had done what they did desiring to assist other employes of the plaintiff to win a dispute over wages. In Thomas v. Cincinnati, etc., Ry. Co., supra., Judge Taft thought that the desire to assist the striking employes of Pullman to win their dispute with him did not excuse the persuasion of the plaintiff's employes to leave his employ unless he broke his contract with Pullman. In Plant v. Woods, 57 N. E. ion, Mass., 1900, the majority of the court did not think that the desire on the part of the defendants to crush out a rival union, and thereby bring all the workers in one trade under one union, an excuse for threatening an employer with a strike, if he continued to employ the plaintiffs; but Holmes, J., dissented on the ground that the defendants' motive was n sufficient excuse for their actions. THE COMMON LAW LIABILITY FOR ENTICING SERVANTS AS IT AFFECTS CASES UNDER DISCUSSION. The apparent conflict between such cases as Rogers v. Evarts, supra, and Frank v. Herold, supra, is due to the conflict of opinion as to whether the common law liability for enticing servants away from their masters still exists in our law. It has always been admitted that if A. injures B. by offering C. money or other economic advantage if C. ceases to deal with B. and deals with A., no contract existing between B. and C, B. has not any action against A. See, for example, The Mogul S. S. Co. v. McGregor [1802], 1 A. C. 25, Aff. 23 Q. B. D. 598, s. c, Lewis' Cases on Civ. Lib., Pt. I, p. 13; Walsh v. Dwight, 40 N. Y. App. Div. 513, 1899. There was one exception to this rule. If A. enticed C, the servant of B., away from B., an action lay by B. against A. for the injury, though there was no contract between B. and his servant. Whether an injunction will issue to restrain the defendants offering money or other economic advantage to B. if he refuses or ceases to work for the plaintiff, not only depends on whether the motive with which the money is paid will be taken into considera- tion by the court, but on whether the old law against enticing servants is regarded as in existence. In Rogers v. Evarts, supra, the court 276 INFRINGEMENT OF PROPERTY IN CONTRACTS. HAMILTON-BROWN SHOE CO. v. SAXEY. In the Supreme Court of Missouri, 1895. 131 Missouri 212. Per Curiam. 1 The case was tried before the Hon. L. B. Valliant, one of the judges of that court, who on [over- ruling] the demurrer delivered the following opinion: "The amended petition states in substance that the plaintiff conducts a large shoe manufactory in this city and has in its employ some eight or nine hundred persons, all of whom are earning their living in plaintiff's employ- ment, and are desirous of so continuing; that the defend- ants, except two of them, were lately in plaintiff's employ but have gone out of the same on a strike and are now, with the other two defendants, engaged in an attempt to force the other employes of plaintiff to quit their work and join in the strike, and that to accomplish this purpose they are intimidating them with threats of personal vio- lence; that among the plaintiff's employes who are thus threatened are about three hundred women and girls and two or three hundred other young persons ; that the effect of all this on the plaintiff's business if the defendants are allowed to proceed would be to inflict incalculable damage. "Upon filing this amended petition and the plain- tiff's giving bond, as required by law, a temporary injunc- tion issued restraining the defendants from attempting to force the plaintiff's employes to leave their work by in- timidation and threats of violence, or from assembling for that purpose in the vicinity of plaintiff's factory. held that in New York the old common law liability for enticing servants did not exist, and therefore refused the injunction. In Frank v. Herold, supra, the court in New Jersey took the opposite view in regard to that State and therefore granted the injunction. 1 The statement of the case in the report and part of the statement of the case in the opinion is omitted. HAMILTON-BROWN SHOE CO. v. SAXEY. 277 "The defendants have appeared by their counsel and, by their demurrer filed, admit that all the statements of the amended petition are true; but they take the position that even if they are doing the unlawful acts that they are charged with doing, still this court has no right to interfere with them, because they say that what they are doing is a crime by the state law of this state, and that for the commission of a crime they can only be tried by a jury in a court having criminal jurisdiction. "It will be observed that the defendants do not claim to have the right to do what the injunction forbids them doing; their learned counsel even quotes the statute to show that it is a crime to do so ; but he contends that the consti- tution of the United States and the constitution of the state of Missouri guarantee them the right to commit crime with only this limitation, to wit: that they shall answer for the crime, when committed, in a criminal court, before a jury; and that to restrain them from committing crime is to rob them of their constitutional right of trial by jury. "If that position be correct, then there can be no valid statute to prevent crime. But that position is contrary to all reason. The right of trial by jury does not arise until the party is accused of having already committed the crime. If you see a man advancing upon another with murderous demeanor and a deadly weapon, and you arrest him, dis- arm him, you have, perhaps, prevented an act which would have brought about a trial by jury, but can you be said to have deprived him of his constitutional right of trial by jury? The train of thought put in motion by the argu- ment of the learned counsel for defendants on this point leads only to this end, to wit, that the constitution guar- antees to every man the right to commit crime so that he may enjoy the inestimable right of trial by jury. "Passing now to the question relating to the particu- lar jurisdiction of a court of equity, we are brought to face the proposition that a court of equity has no criminal juris- 278 INFRINGEMENT OF PROPERTY IN CONTRACTS. diction, and will not interfere by injunction to prevent the commission of a crime. These two propositions are firmly established ; and as to the first, that a court of equity has no criminal jurisdiction, there is no exception. As to the second, that a court of equity will not interfere by injunc- tion to prevent the commission of a crime, that, too, is perhaps without exception when properly interpreted; but it is sometimes misinterpreted. When we say that a court of equity will never interfere by injunction to prevent the commission of a crime, we mean that it will not do so simply for the purpose of preventing a violation of a criminal llaw. But when the act complained of threatens an irreparable injury to the property of an individual, a court of equity will interfere to prevent that injury, not- withstanding the act may also be a violation of a criminal law. In such case the court does not interfere to prevent the commission of a crime, although that may incidentally result, but it exerts its force to protect the individual's property from destruction, and ignores entirely the crim- inal portion of the act. There can be no doubt of the jurisdiction of a court of equity in such a case. "On this question counsel have cited cases in which courts of equity have been denied jurisdiction to enjoin the publication of a libel, and in those opinions are to be found the general statement of the proposition above men- • tioned. But the law of libel is peculiar, and those cases turn upon that peculiarity. The freedom of the press has been so jealously guarded, both in England and in this country, that our law of libel is like no other law on the books. Our constitution provides that a man may say, write, and publish 'whatever he will,' being answerable only for the 'abuse of liberty.' Libel is the only act injuri- ous to the rights of another which a man can not, under proper conditions, be restrained from committing ; and that is so because the constitution says he shall be allowed to do it and answer for it afterward. HAMILTON-BROWN SHOE CO. v. SAXEY. 279 "Equity will not interfere when there is an adequate remedy at law. But what remedy does the law afford that would be adequate to the plaintiff's injury? How would their damages be estimated? How compensated? The defendants' learned counsel cites us to the criminal statute, but how will that remedy the plaintiff's injury? A crim- inal prosecution does not propose to remedy a private wrong. And even if there was a statute giving a legal rem- edy to plaintiff, it would not oust the equity jurisdiction. The legal remedy that closes the door of a court of equity is a common law remedy. Where equity had jurisdiction because the common law affords no adequate remedy, that jurisdiction is not affected by a statute providing a legal remedy. What a humiliating thought it would be if these defendants were really attempting to do what the amended petition charges, and what their demurrer confesses, that is, to destroy the business of these plaintiffs, and to force the eight or nine hundred men, women, boys and girls who are earning their livings in the plaintiff's employ to quit their work against their will, and yet there is no law in the land to protect them! "The injunction in this case does not hinder the de- fendants doing anything that they claim they have a right to do. They are free men, and have a right to quit the employ of plaintiffs whenever thev see fit to do so, and no one can prevent them ; and whether their act of quitting is wise or unwise, just or unjust, it is nobody's business but their own. And they have a right to use fair persua- sion to induce others to join them in their quitting. But when fair persuasion is exhausted they have no right to resort to force or threats of violence. The law will pro- tect their freedom and their rights, but it will not permit them to destroy the freedom and rights of others. The same law which guarantees the defendants in their right to quit the employment of the plaintiffs at their own will and pleasure also guarantees the other employees the right to remain at their will and pleasure. 280 INFRINGEMENT OF PROPERTY IN CONTRACTS. "These defendants are their own masters, but they are not the masters of the other employes, and not only are they not the masters of the other employes, but they are not even their guardians. "There is a maxim of our law to the effect that one may exercise his own right as he pleases, provided that he does not thereby prevent another exercising his right as he pleases. This maxim, or rule of law, comes nearer than any other rule in our law to the golden rule of divine authority: 'That which you would have another do unto you, do you even so unto them.' Whilst the strict enforce- ment of the golden rule is beyond the mandate of a human tribunal, yet courts of equity, by injunction, do restrain men who are so disposed from so exercising their own rights as to destroy the rights of others. "The demurrer to the amended petition is overruled." The law applicable to the case is so clearly stated in this opinion of the learned judge, that to add anything to it would be a work of supererogation. We adopt it as the opinion of this court and affirm the judgment. All concur. 2 2 Compare in reference to the objection that the act restrained was a crime the argument in Brace Brothers v. Evans, reported supra. Compare further the language of Beatty, J., in Cceur d'Alene Consoli- dated and Mining Co. v. Miners' Union, 51 Fed. 260, 1892, 204-5, of Wood, J., in United States v. Debs, 64 Fed. 724, 1894; of Brewer, J., In re Debs, 158 U. S. 564, 1895, 593-4, and the treatment of the criminal character of the act restrained as evidence to determine its character as a civil wrong, per Taft, J., in Toledo, A. A., and N. M. ■ Ry. Co. v. Pennsylvania Co., 54 Fed. 730, 1893, 739, and with this last case the language of Baker, j., in Lake Erie and Western Ry. Co. v. Bailey, 61 ed. 494, 1893. See also, Consolidated Steel and Wire Co. v. Murray, 80 Fed. 81 1, 1897, 827. Compare with our principal case Beck v. Railway Teamsters' Protective Union, 42 L. R. A. 407 Mich., 1898. ATKINS v. W. & A. FLETCHER CO. 281 ATKINS v. W. & A. FLETCHER CO. In the Court of Chancery of New Jersey, 1903. 55 Atlantic Reporter 1074. Stevenson, V. C. The complainants, 46 in number, are machinists recently employed by the defendant cor- poration W. & A. Fletcher Company, but now on a strike. The complainants, "with certain other machinists, have formed a voluntary association for the purpose of better- ing the condition of machinists in general and the mem- bers of such association in particular," which voluntary association is known as the International Association of Machinists. The bill sets forth that the defendant, the W. & A. Fletcher Company, and some 30 or 40 individuals, partners and corporations, who are named, "have formed a voluntary association known as the New York Metal Trades Association," which is organized for the purpose of dealing with labor difficulties affecting the metal trades in New York Harbor. It further appears from the bill and accompanying affidavits that, "in order to carry out the design" of the International Association of Machinists, the complainants "have endeavored to obtain as many ma- chinists as possible to join them," and have maintained a system of quiet, peaceable picketing in the streets near the machine shops of the W. & A. Fletcher Company. All unlawful practices in connection with this picketing are denied, and the bill sets forth in detail various reasons why, for the accomplishment of the objects of the complainants in their voluntary association, the maintenance of pickets is lawful and proper, if not necessary. The grievance of which the complainants complain is that the defendants, acting in combination, are interfering by intimidation, threats, violence, arrests, and other unlawful practices with the pickets of the complainants. 282 INFRINGEMENT OF PROPERTY IN CONTRACTS. The complainants do not stand before the court as employes or persons seeking employment, whose natural expectation of obtaining work in machine shops is defeated because the defendants, by intimidation and molestation practiced upon the proprietors of the machine shops, con- stantly thwart them in their effort to get employment. In brief, the complainants stand before the court as employers, and not as employes. It is true that the bill alleges that the "members of the New York Metal Trades Association have entered into a conspiracy to force and compel the complainants to work for the W. & A. Fletcher Company upon such terms as the W. & A. Fletcher Company may demand, and have con- spired together for the purpose of preventing the com- plainants from earning a living at their trade as machinists, and that they are carrying out and effectuating the said con- spiracy, and that they have discharged such of the com- plainants as have received employment from any of the members of such association as soon as they ascertained that the complainants were former employes of the Fletcher shops, and the only reason assigned was that the complain- ants are former employes at Fletchers', on strike." This allegation of the bill seems to be based upon the erroneous idea that employers have not the right to combine freely to refuse employment to any kind or class of workmen precisely as employes have a right to combine freely to re- fuse to be employed by any employer "who sees fit to em- ploy workmen of whom they disapprove, or sees fit in any respect to conduct his business contrary to their views. But, apart from this consideration, the bill is not filed by the particular machinists who thus have been discharged to restrain defendants, acting in combination from unlaw- ful conduct which has secured their discharge, and now stands in the way of their being employed by persons who, if left free, would be willing to give them work. The discharge of some of the complainants, whether pro- cured lawfully or unlawfully, is not to be regarded, under ATKINS v. W. & A. FLETCHER CO. 283 the allegations of this bill, as a grievance of. the particular workmen who have been so discharged. It must be re- garded solely as a grievance on the part of the 46 com- plainants, as constituting the International Association of Machinists, and in their capacity as employers of labor, if such discharge can constitute a grievance of said asso- ciation. It also appears from the bill and affidavits that the International Association of Machinists have employed some of the complainants at a daily wage to do certain services which evidently may be all deemed embraced in the work "picketing," and that "many of the complainants have been so employed during said strike, and that they or most of them have been compelled to give up such employment by reason of the annoyance, insults, violence, force, intimidation, threats, unlawful arrests, and mali- cious prosecutions to which they were subjected by the Fletcher Company and the New York Metal Trades Asso- ciation and their employes," etc. Here again we have a charge of unlawful conduct on the part of the defendants which has caused some of the complainants to be deprived of what is claimed to be a lawful employment, by which they may be said to be earning their living at a daily wage. But this bill is not filed by the complainants as pickets, as persons employed in a certain business whose opportunities for employment are cut off by the alleged unlawful conspiracy of the defendants. The interference with the work of the pickets must be regarded in this case as an alleged grievance of the International Association of Machinists. This bill presents the complaint of this voluntary as- sociation, as a partnership, engaged in the accomplishment of certain objects, many of which are benevolent. Any intimidation or other interference with the pickets em- ployed by the association may be regarded as a possible grievance of the association, but cannot be regarded in this suit as a grievance of the pickets themselves. It will 284 INFRINGEMENT OF PROPERTY IN CONTRACTS. be time enough to consider any such grievance of the pickets when the pickets file their bill or bills for relief. No question has been raised as to the capacity of the 46 machinists to file this bill on behalf of the entire volun- tary association known as the International Association of Machinists, although the argument on both sides assumed that this international association embraces large numbers of machinists throughout various states of the Union. Con- fusion no doubt has resulted in the argument of this motion from the fact that 46 of a large number of partners or vol- untary associates file a bill apparently for the protection of the right of the entire partnership or association to employ labor and to enjoy a free labor market, while the same bill sets up what might be deemed as separate causes of action in equity on the part of different sets of those 46 complainants seeking employment in their trade as ma- chinists, or seeking employment in the business of picketing for a daily wage. All the allegations of this bill, although they may contain a large number of separate causes of action in equity on behalf of employes of one kind or an- other, whose right to make a living has been interfered with, must be considered solely with reference to the ca- pacity in which the 46 complainants stand before the court, ■ and the complaint which they make in such capacity. As I have said, the complainants stand before the court as em- ployers of labor, and their grievance is that the defendants, acting in combination, are unlawfully interfering with the right of the complainants as such employers of labor to have labor flow freely to them. Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230. The mere statement of the nature of the complainants' case the only case, as this bill is framed, which I think the court can now take cognizance of — indicates the fatal ob- jection to granting in such case the remedy of injunction. The mere fact that defendants, in combination, by molestation and intimidation, or by criminal violence, in- ATKINS v. W. & A. FLETCHER CO. 285 terfere with the free flow of labor to an employer, does not necessarily give such employer the right to come into a court of equity and procure an injunction for his protection. The employer, complainant, must show not only that the conduct of the defendants in combination unlawfully ob- structs him, the complainant, in enjoying his natural ex- pectancy in respect of the labor market, but that the natural and proximate result of the unlawful conduct complained of will be to inflict upon him, the employer, substantial money damages, for which the remedy at law is inadequate. The injunction, at the instance of an employer, in these strike cases was forced out of courts of equity because the situa- tion persented was one where, without injunctive relief, ruinous losses to the complainant would be inevitable. Rail- roads and large plants of machinery were paralyzed, ag- gregations of capital lay idle, while the persons acting in combination, who by their interference with the free labor market had caused and were continuing this great pecuniary- loss, were themselves irresponsibly pecuniary. It is to this ciass of cases, in my judgment, that the strike injunction should under present social and business conditions, as far as possible, be confined. Courts of equity should be cau- tious in undertaking to regulate by injunction the annoying conduct of a combination of individuals at the instance of complainants, whose only complaint is that their political, social, or religious activities are interfered with, or their amusements curtailed. The elemental right of the em- ployer of labor which the courts recognize to-day no doubt is the right to employ, while the corresponding right of the workman is the right to be employed. In other words, the right to buy labor and the right to sell labor are recog- nized by the law, and their enjoyment is greatly impaired or destroyed unless freedom in the labor market — freedom on both sides of the labor market — is maintained. Each party to a contract for the sale of labor has an interest in the freedom of the other party with respect to making the contract. But I know of no case where a court of equity 286 INFRINGEMENT OF PROPERTY IN CONTRACTS. has recognized this right and protected it by means of an injunction where the violation, or the continued violation, of the right would not result in irreparable damage of a sub- stantial character for which the remedy at law by an action for damages would be inadequate. It is not every person who wishes to hire a servant or engage an agent for any one of the innumerable purposes for which servants and agents are employed who can come into a court of equity and obtain an injunction for the pro- tection of his right to employ, and for the removal of ob- stacles in the way of its exercise. At the present stage of the development of strike and boycott law there are in- numerable situations in which one desiring to enjoy the right to employ or the right to be employed would not be allowed an injunction for his protection, because, while his social, moral, or even legal right may have been violated, the damage is not of a kind or nature to justify interfer- ence on his behalf by a court of equity. I do not know that courts of equity have as yet undertaken to grant injunc- tions in strike or boycott cases unless the complainant has shown substantial pecuniary loss in respect of his property, including his business, for which an action at law was an inadequate remedy, or where he has shown that the con- duct complained of deprived him of his right to make a living — deprived him of the means of a livelihood. In the present case the complainants composing, or at least representing, the International Association of Ma- chinists, do not claim that they are suffering any substan- tial money loss from the alleged unlawful interference of the defendants with the complainants' pickets. This association apparently has little, if any, capital invested in any way, and it does not appear to be conducting any trade or business of any kind. Its objects are not to make gain for its members as partners in business, using and seeking to acquire property. Its objects are largely benevolent. It is true that among its objects as set forth in the bill of com- plaint, and therein declared to be the business of the asso- ATKINS v. W. & A. FLETCHER CO. 287 ciation, is to "provide financial assistance to members at- taining the age of sixty-five years and upwards, and to provide death benefits to all members in good standing for more than six months" ; but it does not appear that the as- sociation has actually established such a pension and death benefit system, nor does it appear that any conduct of the defendants complained of has interfered with the operation and maintenance of such a system. The business of the as- sociation which is alleged to have been interfered with is rendering assistance to workmen in the successful main- tenance of a strike. If benevolent operations are entitled to the same pro- tection by injunctions against combinations with a view to the preservation of a free labor market for their bene- fit, it might be argued with some force that before an in- junction should issue in this case the proofs ought to show that the cause of the employes is just — the merits of the strike ought to be passed upon and determined. This would be strange work, indeed, for the court of chancery to undertake to do. The right of partners or voluntary associates who are engaged in supporting a strike to freedom in the labor mar- ket, so that they can readily employ pickets and other agents in carrying on their side of the industrial war, has cer- tainly never been recognized by a court of equity as a pro- per subject of protection by means of an injunction. No such right on the other hand has been recognized and protected for the benefit of persons engaged in resisting a strike. If the New York Metal Trades Associa- tion, with its large and powerful combination of employing partners, corporations, and individuals, should file a bill against the complainants to secure an injunction, protecting them, the Metal Trades Association, in employing detec- tives, agents, and pickets to assist the W. & A. Fletcher Company in this contest with its employes on strike, it seems to me the case would present the same fatal defect which is exhibited in this present case. What a court of 288 INFRINGEMENT OF PROPERTY IN CONTRACTS. equity will protect by an injunction in a proper case are the rights of the two parties directly interested in this conflict, W. & A. Fletcher Company and their employes — the right of the one to employ and the right of the other to be em- ployed ; the right of both to have a free labor market upon which the opportunity to make money and make a living depends. If the New York Metal Trades Association — this powerful combination of employers — should undertake to deprive the complainants, as machinists, as workmen seeking to sell their labor, of all opportunities for employ- ment other than by the Fletcher Company, and in carrying out this purpose should molest and intimidate, or in vari- ous ways annoy or injure, the proprietors of machine shops who otherwise would be willing to employ the complain- ants then it seems to me that the complainants would be en- titled to an injunction from a court of equity under prin- ciples which are how well settled, unless the more or less definite amount of the damages suffered by the complain- ants and the pecuniary responsibility of the defendants would relegate the complainants to a court of law for their remedy. On this point, however, it is not necessary to ex- press any opinion in this case. In connection with the consideration of the principle that an injunction is issued in strike cases only where the remedy at law is inadequate, it is important to note that the complainants present no proof whatever that the de- fendants, or at least the principal defendants, are insol- vent. On the contrary, the affidavits on behalf of the W. & A. Fletcher Company stand uncontradicted to the effect that that company is entirely solvent, and able to dis- charge all pecuniary obligations which may be placed upon it. I do not want either party to this case to understand that I have undertaken to lay down with accuracy the en- tire strike law applicable to this present case or suggested by it. The primary rights which are violated by strikes and ATKINS v. W. & A. FLETCHER CO. 289 boycotts, and the remedial rights which thereby arise, are far from a condition of complete development or accurate definition. The law of this whole subject is to a large ex- tent unsettled, and involved in dispute and difference of opinion among judges and text-writers. In this condition of the law it is certainly safe to hold that in a novel case like this a preliminary injunction, at least, ought not to be issued, where the complainants do not show any substantial pecuniary damage, and it appears that the defendants, or some of them, are amply responsible for any money dam- ages which may be recovered against them in an action at law. It must be borne in mind that the damages to the pick- ets which have been caused by their wrongful exclusion from employment are to be sharply distinguished from any damages which the complainants may have suffered on that account. It does not satisfactorily appear in this case that any department of benevolent effort, or any lawful business of the complainants in which these pickets were employed, has been impaired in efficiency or suffered actual precuniary loss by reason of the alleged outrages to which the pickets have been subjected, or by reason of the driving of the pick- ets from their posts. If an injunction should issue in this case, it seems to me it would have to be based upon a principle far broader than any which has yet been laid down in any reported case — a principle as broad as this: that a court of equity will protect by an injunction the right of every man to enjoy a free labor market, the right of every employer to have labor flow freely to him, and the right of every employe to have employers left free to give him work — without reference to whether the invasion of the right complained of causes great damages or trifling damages ; damages readilv meas- ured in money, or damages difficult to exact ascertainment : damages for which a judgment could be collected, or dam- ages for which a judgment would be wholly uncollectible. 290 INFRINGEMENT OF PROPERTY IN CONTRACTS. I shall advise that the motion for a preliminary in- junction be denied, with costs. 1 ERDMAN v. MITCHELL. In the Supreme Court of Pennsylvania, 1903. 207 Pennsylvania 79. Appeal from the Court of Common Pleas of Phila- delphia County. The court below issued the following de- cree i 1 And now, November 26, 1901, this cause came on to be heard at this term and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed as follows, viz. : that the defendants and each and every of them, their committees, agents and servants be restrained and strictly enjoined from interfering and from combining, conspiring or attempting to interfere with the employment of the plaintiff's, or any one or more of them, by represent- ing or causing to be represented, in express or implied terms, to any employer of said plaintiffs or any one or more of them, or to any person or persons or corporation who might become employers of any of the plaintiffs, that such 'Compare Horseshoers' Protective Association v. Quinlivan, 83 N. Y. App. 459, 1903 (A. et al., individual master horseshoers, formed an incorporated association for their protection, adopting a common trade-mark. B. et al., members of a union of horseshoers, wanted A. et al. to place the union trade-mark on their goods. A. et al. refused and a strike was declared at all the shops of the members of A. et al. B. et al. committed acts of violence against A. et al. An injunction was secured by the incorporated association to restrain B. et al. from violence to any member of the plaintiff association or their workmen, or from "interfering by violence with any property of the plaintiff or its members." _Ingraham, J., dissented on the ground that, while the defendants had interfered with the individual property of the members of the association, the facts failed to show that they had interfered with the rights or property of the association). "The facts being stated in the opinion, the facts as stated in the report are omitted, as is also part of the court's discussion of the substantive law involved. ERDMAN v. MITCHELL. 291 employers will suffer or are likely to suffer loss or trouble in their business for employing or continuing to employ said plaintiffs or plaintiff ; or by intimidating or attempting to intimidate by threats, direct or indirect, express or im- plied, of loss or trouble in business or otherwise, any per- son or persons or corporation who now are employing or may hereafter employ or desire to employ the plaintiffs, or any one or more of them ; or by attempting by any scheme, combination or conspiracy among themselves or with oth- ers, to annoy, hinder or interfere with or prevent any per- son, or persons or corporation from employing or continu- ing to employ said plaintiffs, or any one or more of them, and from any and all acts and from the use of any and all ways, means and methods, which (acts, ways, means and methods), by putting or attempting to put any person or persons or corporation in fear of loss or trouble, will tend to hinder, impede or obstruct the plaintiffs, or any one or more of them, from securing employment, or from continu- ing in employment; and that defendants pay the cost of this suit. Dean, J. Trades unions may cease to work for rea- sons satisfactory to their members, but if they combine to prevent others from obtaining work by threats of a strike or combine to prevent an employer from employing others by threats of a strike, they combine to accomplish an un- lawful purpose, a purpose as unlawful now as it ever was, though not punishable by indictment. Such combination is a despotic and tyrannical violation of the indefeasible right of labor to acquire property which courts are bound to restrain. It is utterly subversive of the letter and spirit of the Declaration of Rights. If such combination be in accord with the law of the trades union, then that law and the organic law of the people of a free commonwealth can- not stand together ; one or the other must go down. It is argued, defendants, either individually or by or- ganization, have the right, now, to peaceably persuade plaintiffs and others not to work and their employer not 292 INFRINGEMENT OF PROPERTY IN CONTRACTS. to hire them; so they have. It is further argued that they can quit work when they choose ; so they can. But neither of these suggested cases is the one before us. Here a strike on a large building was declared because plaintiffs would not join a particular society; the declared purpose of the strike was to cause loss of employment to plaintiffs because they would not join the Allied Building Trades, chose to remain faithful to their own union, the Plumbers' League; the Allied Trades would not declare the strike off, and permit work on the buildings to proceed until the employers entered into contract, practically stip- ulating that they would discharge plaintiffs and not re- employ them. It is not important that apt language pre- cisely expressing the threat should have been used; the meaning of their declarations and acts was well under- stood by all parties. The men lost their work ; the employ-, ers after a damaging stoppage were permitted to proceed because they yielded to the threat, that is, they were intimi- dated because they feared further loss. How absurd it is to call this peaceable persuasion, and how absurd to argue that if the law attempts to prevent it the right of the work- men to organize for their common benefit is frustrated. And then, what about the right of the Plumbers' League to organize for the common benefit of its members of whom the plaintiffs are a part ? The declared purpose of the Allied Trades is by these acts to absorb this union and thereby destroy it. Under no possible view of the conduct of defendants was it lawful. The opinion of the Superior Court of Massachusetts, Plant v. Woods, 176 Mass. 492, on a case much like this, expresses the manifest deduction from these facts : "The manifest object of the defendants was to have all the members of the craft subjected to the rules and dis- cipline of their particular union in order that they might have better control over the whole business, and to that end they combined and conspired to get the plaintiffs and each of them to join the defendant association, peaceably if pos- ERDMAN v. MITCHELL. 293 sible, but by threat and intimidation if necessary. . . . The right involved is the right to dispose of one's labor with full freedom. This is a legal right and is entitled to legal protection. . . . The purpose of these defendants was to force the plaintiffs to join the defendant association, and to that end they injured the plaintiffs in their business and molested and disturbed them in their efforts to work at their trade. It is true they committed no acts of personal violence or physical injury to property, although they threatened to do something which might reasonably be expected to lead to such results. In their threat, however, there was plainly that which was coercive in its effort upon the will. It is not necessary that the liberty of the body should be restrained. Restraint of the mind, provided it would be such as would force a man against his will to grant the thing demanded, and actually has that effect, is sufficient in cases like these." In that case the injunction was awarded as it was here: i Eddy on Combinations, 416, says: "The courts recognize the right of workingmen to combine together for the purpose of bettering their condi- tion, and in endeavoring to attain their object they, may inflict more or less inconvenience and damages upon the employer; but a threat to strike unless their wages are ad- vanced is something very different from a threat to strike unless workmen who are not members of the combination are discharged. In either case the inconvenience and dam- age inflicted upon the employer is the same ; but in the one case the means used are to obtain a legitimate purpose, namely, the advancement of their own wages, and the injury inflicted is no more than is lawfully incidental to the enjoyment of their own legal rights. In the other case the object sought is the injury of a third party; and while it may be argued that indirectly the discharge of the non- union employe will strengthen and benefit the union and thereby indirectly benefit the union workmen, the benefit -to the members of the combination is so remote, as com- 294 INFRINGEMENT OF PROPERTY IN CONTRACTS. pared to the direct and immediate injury inflicted upon? the non-union workmen, that the law does not look beyond the immediate loss and damage to the innocent parties to the remote benefits that might result to the union." And so, as already intimated, it comes simply to the question, shall the law of an irresponsible trades union, or shall the organic law of a free commonwealth prevail ? We answer every court of the commonwealth is bound to main- tain the latter in letter and spirit. The learned judge of the court below has so framed his decree that it is directed only against the unlawful acts. If there be disobedience or evasion of it, he thor- oughly understands how to enforce it. All the assignments of error are overruled and the decree is affirmed at costs of appellants. GRAY v. BUILDING TRADES COUNCIL. In the Supreme Court of Minnesota, 1903. 97 Northwestern Reporter 663. Brown, J.' Action to restrain and enjoin defendants from boycotting plaintiffs in their business. * * * The facts are as follows : Plaintiffs are electrical con- tractors and engineers, and their business consists in instal- ling wires and other electrical apparatus in buildings and structures, and such business and affairs as are incidental thereto. It is alleged in the complaint * * * that de- fendants have entered into a conspiracy and combination for the purpose of injuring the business of plaintiffs, and in pursuance of which defendants have appeared before prospective customers , and threatened such customers that, if they attempted to do business with plaintiffs, defendants would make it impossible to transact business with them ; 'Only so much of the opinion is given as is necessary to understand the discussion in relation to the wording of the injunction. GRAY v. BUILDING TRADES COUNCIL. 296 that on May 15, 1903, defendants, in pursuance of such conspiracy and combination, appeared before a committee in charge of the affairs of the Minneapolis Industrial & Amusement Association, and declared that if it should give contracts for certain electrical wiring, which the associa- tion desired to have done, to plaintiffs, or either of them,, the Trades Council would see that the association would be unable to obtain men for the construction of the booths and other buildings contemplated and necessary for the carnival and fair to be given by the association. The com- plaint further alleges that at the time said threats were made by the Trades Council the association was intending to make contracts for the electrical work to plaintiffs. * * * It follows from what has been said that the learned trial court was justified in holding that defendants were guilty of a boycott, and ordering the issuance of a tem- porary injunction restraining them therefrom. We come, then, to the question whether the conten- tion of defendants, to the effect that the order of the trial court is too broad and restrains acts other than of boy- cotting, is well taken. The order of the court is as fol- lows: "Said injunction shall specifically enjoin said defend- ants and each of them, their members, agents and employes, from in any manner interfering with the business of plain- tiffs by means of threats or intimidation, of any kind or nature, directed against the customers or prospective cus- tomers of said plaintiffs. "Said injunction shall specifically enjoin the said de- fendant council and brotherhood, their members, agents, and employes, and each and every one of them, from inter- fering with the customers or prospective customers of plain- tiffs by threats of any kind or nature, and particularly from notifying such customers or prospective customers and patrons of plaintiffs that plaintiffs are unfair. "Said injunction shall specifically enjoin said defend- ant council and brotherhood, their members, agents, repre- 296 INFRINGEMENT OF PROPERTY IN CONTRACTS. sentatives, and employes, and each and every one of them, from going upon the premises where plaintiffs are engaged or employed, for the purpose of interfering with the busi- ness of plaintiffs, and pursuant to said purpose, from or- dering and directing or notifying men belonging to the various allied unions to desist from work upon said prem- ises by reason of the fact that plaintiffs are employed thereon." As already stated, it was proper for the trial court to enjoin defendants_ from all acts amounting to a boycott, and the question presented is whether the order of the trial court goes beyond this in scope and effect. The first sub- division of the order restrains and enjoins defendants, their members and agents, from in any manner interfering with the business of plaintiffs by means of threats or- intimida- tion of any kind, directed against their customers or pro- spective customers. The second subdivision enjoins them from interfering with the customers, or prospective custom- ers, or plaintiffs, by threats of any kind or nature, "and par- ticularly from notifying such customers or prospective cus- tomers that plaintiffs are unfair." We are of opinion that neither of these restraining clauses, except the part we have italicized, goes beyond or restrains defendants from acts other than boycotting, and were therefore proper. It is immaterial whether contract relations actually existed be- tween plaintiffs and their customers at the time, for it would be just as injurious and destructive to plaintiffs' business to prevent them by such means from obtaining customers with whom they could enter into contracts as to interfere by unlawful threats or intimidation and cause existing contract relations to be broken. It is plaintiff's business as a whole that the law protects, and not some particular transaction involved therein. If a notification to such customers, actual or prospective, that plaintiffs are "unfair," portends injury to them or plaintiffs, and such as to bring the case within the rule against boycotting, it was properly made a part of the temporary injunction. Beck v. GRAY v. BUILDING TRADES COUNCIL. 297 Ry. Teamsters, etc. (Mich.), n N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421. Whether such a notification would in any case amount to a threat or intimidation must be determined from all the facts and circumstances of each particular case. Such notice might have special signifi- cance in a particular case, and have no meaning in another. But the complaints before us, by which we are controlled in determining the case, there being no finding other than in effect that their allegations are true, contain no allega- tions that the mere notification of customers that plaintiffs are "unfair" has any special significance, that it portended injury, or was intended as a threat or intimidation, and for this reason we hold that the court below was not justified in making this an element of the injunctional order. In other respects the provisions of the order must be taken to cover and include acts constituting an unlawful conspiracy or boycott — nothing further — and are not open to the ob- jections urged against them by defendants. As to the third subdivision, we are of opinion that the acts there attempted to be restrained are such as might lawfully be committed, and are not subject to equitable control. It is fair to the trial judge to say, however, in this connection, that the order was drawn by plaintiffs' attorney, as is usual in such cases, and was undoubtedly adopted by him as covering only the case made by the complaints. But it goes beyond this, and restrains acts other than acts constituting boy- cotting. This particular provision specifically enjoins de- fendants, their members, agents, and representatives, from going upon the premises where plaintiffs are employed, for the purpose of ordering, directing or notifying men be- longing to the various allied unions to desist from work upon the premises by reason of the fact that plaintiffs are employed thereon. The authorities, as already noted, very generally hold that a strike is not unlawful, that members of labor unions may singly or in a body quit the service of their employer, 298 INFRINGEMENT OF PROPERTY IN CONTRACTS. and for the purpose of strengthening their association may persuade and induce others in the same occupation to join their union, and, as a means to that end, refuse to allow their members to work in places where non-union labor is employed. 18 Am. & Eng. Ency. Law (2d Ed.), 84. They may refuse to have any sort of dealings with an employer of non-union labor, singly or collectively; they may per- suade and induce their members to join them, and there would seem to be no reason why they should be limited as to the place where they may do such acts. There would be nothing wrongful or unlawful in their going upon the premises of the owner, with his permission, where their associates were engaged at work, for the purpose of notify- ing or ordering them to desist from work thereon, unless, perhaps, their conduct in that respect be so persistent and annoying to the owner of the premises or contractor as to constitute a nuisance. It is^-clear, upon authority, that this particular part of the injunctional order goes beyond the limits of the law, and cannot be sustained. It is therefore ordered that the order appealed from be modified to conform to the views herein expressed, and, as so modified, it is affirmed. 2 2 As a review of the questions involved in this case and the cases of Mayer v. Journeymen Stone-Cutters' Association, Casey v. Cin- cinnati Typographical Union, Worthington v. Waring, Arthur v. Oakes, and Erdman v. Mitchell, it is suggested that the student discuss the case of Macauley v. Tierney, 19 R. I. 25s; 1895 (B. et al. were members of a master plumbers' association. A. was a master plumber not a member of the association. B. ct al. resolved not to deal with any manufacturer of plumbing supplies who sold to any master plumber not a member of the association. In consequence of this resolution manufacturers notified A. that they could not sell to him. A., alleging that by the action of B. et al. he was being ruined, brought a bill against B. et al. to compel them to rescind the order given to the manufacturers not to deal with non-members of the association. Bill dismissed on the ground, that it did not charge a conspiracy to do an unlawful act, or a lawful act by unlawful means. The court, p. 261, regards the case as analogous to Bohn Mfg. Co. v. Hollis, 54 Minn. 223,' 1893, see note 3 to Arthur v. Oakes, reported supra. Sed quare?) Sec. A.] BURNETT v. CHETWOOD. 299 CHAPTER V. INFRINGEMENT OF PERSONAL RIGHTS. SECTION A. LIBEL. BURNETT v. CHETWOOD. In Chancery, before Lord Chancellor Macclesfield, 1720. 2 Mervale 441, note. A bill brought by the plaintiff as executor of Burnett, the author of Archasologica Sacra, against the defendant for an injunction to stay the printing and publishing a translation of the said book, suggesting it to be an injury to the executor, in whom the property of the book was vested by 8 An. c. 19. * * ** Lord Chancellor said, that though a translation might not be the same with the reprinting the original, on ac- count that the translator has bestowed his care and pains upon it, and so not within the prohibition of the Act, yet this being a book which to his knowledge (having read it in his study) contained strange notions intended by the author to be concealed from the vulgar in the Latin lan- guage, in which language it could not do much hurt, the learned being better able to judge of it, he thought it proper to grant an injunction to the printing and publishing it in English ; that he looked upon it, that this court had a superintendency over all books, and might in a sum- mary way restrain the printing or publishing any that con- tained reflections on religion or morality. An injunction was ■ granted. 8 1 The discussion of the then Copyright Act is omitted. * In the time of Charles II, Scroggs, C. J., in the Court of King's Bench, issued an order to a publisher restraining him from publishing a paper entitled "The Weekly Packet of Advice from Rome." Scroggs' action afterwards formed the basis of one of the articles of impeach- ment against him. See 8 How. St. Tr. 198. 300 INFRINGEMENT OF PERSONAL RIGHTS. In re READ AND HUGGONSON. In Chancery before Lprd Hardwicke, 1742. 2 Atkyns 469. A motion against the printer of the Champion, and the printer of the St. James's Evening Post; that the for- mer, who is already in the Fleet, may be committed close prisoner; and that the other, who is at large, may be com- mitted to the Fleet, for publishing a libel against Mr. Hall and Mr. Garden (executors of John Roach, Esq.; late major of the garrison of Fort St. George, in the East In- dies) ; and for reflecting likewise upon Governor Mackray, Governor Pitt, and others, taxing them with turning affi- davit men, etc., in the cause now depending in this court, between Mrs. Roach and the executors : And insisting that the publishing such a paper is a high contempt of this court, for which they ought to be committed. Lord Chancellor : Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented; nor is there anything of more per- nicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard. It has always been my opinion, as well as the opinion of those who have sat here before me, that such a proceeding ought to be discountenanced. But to be sure, Mr. Solicitor General has put it upon the right footing, that notwithstanding this should be a libel, yet, unless it is a contempt of the court, I have no cognizance of it : For whether it is a libel against the public or private persons, the only method is to proceed at law. The de- fendant's counsel have endeavored two things : 1st, To show this paper does not contain defamatory matter; 2dly, If it does, yet there is no abuse upon the proceedings of this court, and therefore there is no room for me to interpose. Now, take the whole together, though the letter is artfully Sec. a.J IN RE READ AND HUGGONSON. 301 penned, there can remain no doubt, in every common reader at a coffee-house, but this is a defamatory libel. * * * 1 There are three different sorts of contempt. One kind of contempt is, scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court, in prejudicing mankind against persons, be- fore the cause is heard. There cannot be anything of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their char- acters. The case of Raikes, the printer of the Gloucester Jour- nal, who' published a libel, in one of the Journals, against the commissioners of charitable uses at Burford, calling his advertisement A Hue and Cry after a Commission of Charitable Uses, was of the same kind as this, and the court in that case committed him. There are several other cases of this kind; one strong instance, where there was nothing reflecting upon the court, in the case of Captain Perry, who printed his brief before the cause came on; the offence did not consist in the printing, for any man may give a printed brief, as well as a written one to counsel; but the contempt of this court, was prejudicing the world with regard to the merits of the cause, before it was heard. Upon the whole, there is no doubt, but this is a con- tempt of the court. * * * If these printers had disclosed the name of the person who brought this paper to them, there might have been something said in mitigation of their offence; but as they think proper to conceal it, I must order Mrs. Read to be committed to the Fleet, and Huggonson to be taken into close custodyof the warden of the Fleet. 2 1 His discussion of the facts of the case is omitted. 2 Compare : Coleman v. West Hartlepool Ry. Co., 8 W. R. 734, i860 (B. sued A. B. published an account of the cross-examination 302 INFRINGEMENT OF PERSONAL RIGHTS. DU BOST v. BERESFORD. At Nisi Prius, before Lord Ellen borough, 1810. 2 Campbell 511. Trespass for cutting and destroying a picture of great value, which the plaintiff had publicly exhibited; per quod he had not only lost the picture, but the profits he would have derived from the exhibition. Plea not guilty. It appeared that the plaintiff is an artist of considerable eminence; but that the picture in question, intituled La Belle et la Bete, or "Beauty and the Beast," was a scandal- ous libel upon a gentleman of fashion and his lady, who was the sister of the defendant. It was exhibited in a house in Pall-Mail for money; and great crowds went daily to see it, till the defendant one morning cut it in pieces. Some of the witnesses estimated it at several hundred pounds. The plaintiff's counsel insisted on the one hand, that he was entitled to the full value of the picture, together with compensation for the loss of the exhibition ; while it of A., characterizing it as a ''self-evidently false exhibition.'' On motion of A., B. was restrained from publishing this account of the proceedings) ; Kitcat v. Sharp, 52 L. J. Ch. 134, 1882 (A. sued B. B. was about to publish A.'s statement of claim with comments of his own reflecting on the character of A. A. moved to restrain B. from making the threatened publication. Motion granted) ; Meyer v. Devries, 64 Md. 532, 1885 (The decree permitted A., who had brought a bill to restrain B. from infringing his, A.'s, patent, to notify B.'s customers of the fact that the suit had been brought, but restrained A. from sending out copies of his bill). See, however, Dailey v. Superior Court, 112 Cal. 94, 1896 (A. was on trial for his life for murder. B. was about to produce on the local stage a representation of the murder as detailed at the preliminary hearing. A. petitioned the Court to restrain the production on the ground that it would be prejudicial to him at the trial. The Court ordered B. to refrain from giving such a performance. The action of the tiial court was on writ of certiorari annulled, on the ground that it interfered with the free- dom of speech guaranteed by the State constitution, and that an order directing a person not to commit a contempt of Court was a novel proceeding. Two judges dissented, on the ground that the Court had a right to protect the administration of justice). Sec. a.] DU BOST v. BERESFORD. 303 was contended on the other, that the exhibition was a public nuisance, which every one had a right to abate by- destroying the picture. Lord Ellenborough. — The only plea upon the record being the general issue of not guilty, it is unnecessary to consider, whether the destruction of this picture might or might not have been justified. The material question is, as to the value to be set upon the article destroyed. If it was a libel upon the persons introduced into it, the law cannot consider it valuable as a picture. Upon an applica- tion to the Lord Chancellor, he would have granted an injunction against its exhibition, and the plaintiff was both civilly and criminally liable for having exhibited it. * * * Verdict for plaintiff. Damages 5/. 1 BRANDRETH v. LANCE. In the Court of Chancery of New York, before Chancellor Walworth, 1839. 8 Paige 24. This case came before the court upon the demurrers of Lance and Hodges, two of the defendants, to the com- plainant's bill. The complainant was the proprietor and vender of a nostrum known by the name of "Brandreth's Vegetable Universal Pills." And, as the bill alleged, by advertising this medicine extensively in the public papers in the State of New York and elsewhere, and thus giving publicity to it and its general efficacy in the cure of dis- eases, the complainant had derived and was still deriving therefrom a comfortable support for himself and his fam- 1 Compare, with the language of Lord Ellenborough, the assertion of Vice-Chancellor Shadwell in Martin v. Wright, 6 Sim. 297, 1833, 299, to the effect that a court of equity has no jurisdiction to restrain a libel. To the same effect, see, Seeley v. Fisher, u Sim. 184T, 583. 304 INFRINGEMENT OF PERSONAL RIGHTS. ily. The complainant also alleged that for the purpose of vending his pills he had been in the habit of keeping various offices, and of employing many agents and clerks; that among others he had employed the defendant, Lance, but had been obliged to discharge him for improper conduct; that in consequence of being thus discharged Lance became very much enraged and vowed revenge, and threatened to destroy the complainant; and that he thereupon opened a rival establishment for the purpose of vending medicine or pills in the city of New York. The complainant further charged in his bill, that a short time previous to the filing thereof he had been spoken to by the defendant Trust, and informed that Lance had applied to him to write the com- plainant's life, and that he was inclined to do so, but would relinquish the undertaking for a bonus of $50; that the complainant spurned the offer, and bade Trust not to pre- sume to repeat such a proposition, and that shortly there- after, and previous to the filing of the bill, the complainant received a printed sheet, enclosed to him in a letter, con- taining the title page and preface and two other pages of a work or pamphlet entitled, "The Life, Exploits, Comical Adventures and Amorous Intrigues of Benjamin Brand- ling, M. D. V. P. L. V. S., a distinguished pill vender, written by himself; interspersed with racy descriptions of scenes of life in London and New York" ; which work by the title page, purported to be printed at New York, by D. M. Hodges, for the proprietors, and to be 'had of all the booksellers. The residue of this first sheet of the work, which was set out at length in the bill, contained a ludi- crous preface in which the complainant was represented as avowing his object in raking up and publishing all the vices and follies of his youth, to be for the double purpose of amusing himself and as a warning to others to avoid them. And the table of contents represented him as beinsr films nullius, or rather as being alius populi, the child of many fathers, and as having passed through the various Sec a.] BRANDRETH v. LANCE. 305 and successive grades of sailor, confectioner, painter, brass founder, pedlar, jeweler, bagman, to a pill vender, money broker, author, poet, and dramatist; until he had risen to the rank of a wholesale manufacturer of that rare medicine upon which the smiles of fortune had been so freely be- stowed 1 . The complainant further charged that the before- mentioned book, or pamphlet, was then actually printing by the defendant Hodges, for Lance, and under the direc- tion and superintendence of the defendant Trust, who was the author of the work ; that the same, so far as appeared by the printed sheet set out in the bill, was a false, malicious and highly injurious libel upon the complainant, and was intended to libel him and to bring him into public disgrace and contempt; although in the title page the person whose life it purported to be was called Benjamin Brandling in- stead of Brandreth, his real name; and that the defendants were printing the work, and causing it to be printed for the purpose and with the intent of publishing the same and causing it to be widely distributed throughout the country. He therefore prayed for a perpetual injunction restraining the defendants from printing or publishing such book or pamphlet, or the contents thereof, or any part thereof ; and that they might be decreed to deliver up the manuscript of the work, and all and every copy thereof, or of any part of the same printed by them, or either of them, to be can- celled and destroyed; and for such further or other relief as he might be entitled to in the premises. To this bill the defendants, Lance and Hodges, put in separate de- murrers, both as to the discovery and relief sought. The Chancellor. It is very evident that this court cannot assume jurisdiction of the case presented by the complainant's bill, or of any other case of the like nature, without infringing upon the liberty of the press, and at- tempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to 01)6 INFRINGEMENT OF PERSONAL RIGHTS. any tribunal consistently with the principles of a free gov- ernment. (2 R. S. 737, sec. 1, and Revisers' note.) This bill presents the simple case of an application to the court of chancery to restrain the publication of a pamphlet which purports to be a literary work, undoubtedly a tale of fiction, on the ground that it is intended as a libel upon the com- plainant. The court of star chamber in England, once ex- ercised the power of cutting off the ears, branding the fore- heads, and slitting the noses of the libellers of important personages. (Hudson's Star Chamber, 2 Collect. Jurid. 224.) And, as an incident to such a jurisdiction, that court was undoubtedly in the habit of restraining the publication of such libels by injunction. Since that court was abol- ished, however, I believe there is but one case upon record in which any court, either in this country or in England, has attempted, by an injunction or order of the court, to prohibit or restrain the publication of a libel, as such, in anticipation. In the case to which I allude, the notorious Scroggs, chief justice of the court of king's bench, and his associates, decided that they might be safely entrusted with the power of prohibiting and suppressing such publications as they might deem to be libelous. They accordingly made an order of the court prohibiting any person from printing or publishing a periodical, entitled, "The Weekly Packet of Advice from Rome, or the History of Popery." The house of commons, however, considered this extraordinary exer- cise of power on the part of Scroggs as a proper subject of impeachment. (8 Howell's State Trials, 198.) And I be- lieve no judge or chancellor from that time to the present, has attempted to follow that precedent. There is, indeed, in the reported case of Du Bost v. Beresford (2 Camp. Rep. 511), which was an action of trespass against the defendant for destroying a libelous picture, a most extraordinary de- claration of Lord Ellenborough, that the Lord Chancellor, upon an application to him, would have granted an injunc- tion against the exhibition of the libelous painting. It is Sec. a,] BRANDRETH v. LANCE. 307 said, however, in a note to Home's case, in the state trials, that this .declaration of Lord Ellenborough, in relation to the power of the Lord Chancellor to restrain the publication of a libel by injunction, excited great astonishment in the minds of all the practitioners in the courts of equity. (20 Howell's St. Tr. 799.) It must unquestionably be consid- ered as a hasty declaration, made without reflection during the progress of a trial at nisi prius; and as such it is not entitled to any weight whatever. The utmost extent to which the court of chancery has ever gone in restraining any publication by injunction, has been upon the principle of protecting the rights of property. Upon this principle alone Lord Eldon placed his decision, in the case of Gee v. Pritchard (2 Swanst. Rep. 403), con- tinuing the injunction which restrained the defendant from publishing copies of certain letters written to him by the complainant. But it may, perhaps, be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jurisdiction of the case as a matter of property merely, when in fact the object of the complainant's bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence, as a matter of feeling only. His decision in that case has, however, as I see, received the unqualified approbation of the learned American commen- tator on equity jurisprudence. (See 2 Story's Eq. 222, sec. 948.) In this case the complainant does not claim the exer- cise of the extraordinary jurisdiction of this court on the ground of any violation of the rights of literary property, or because a work is improperly attributed to him which will be likely to injure his reputation as an author, or even as a manufacturer of pills. For although his counsel insist that it must necessarily have the effect to injure the sale of his pills, he has not alleged in his bill that he even believes it 308 INFRINGEMENT OF PERSONAL RIGHTS. will have any such effect. And in the absence of such an allegation, I am, as a matter of opinion, inclined to the belief that with that class of persons who would be likely to buy and take his "universal pills," as a general remedy for any and every disease to which the human body is subject,, the supposition that he was the author of the publication in question, and was also the extraordinary personage which this table of the contents of the work indicates, would be very likely to induce them to purchase and use his medicine the more readily. As the publication of the work, therefore, which is sought to be restrained, cannot be considered as an invasion of the rights either of literary or medical property, although it is unquestionably intended as a gross libel upon the com- plainant personally, this court has no jurisdiction or author- ity to interfere for his protection. And if the defendants persist in their intention of giving this libelous production to the public, he must seek his remedy by a civil suit in a court of law; or by instituting a criminal prosecution, to- the end that the libelers, upon conviction, may receive their appropriate punishment, in the penitentiary or otherwise. The demurrers must be allowed, and the complain- ant's bill dismissed, as to these defendants, with cost.-' GILBERT v. MACKLE. In the Court of Chancery of New York, before Vice- Chancellor Sandford, 1846. 4 Sandford's Chancery 357. The bill was filed and a temporary injunction issued, restraining the defendant and those under him, from parad- ing, placing' or keeping, before the door of the complain- 1 Compare Owen v. Partridge, 82 N. V. Supl. 248, 1903 (The Court refused to restrain the police authorities from retaining a picture of the plaintiff in the "Rogues Gallery,'' on the ground that if the plaintiff's right was invaded by the police, the act complained of was a libel and the Court had no jurisdiction to restrain a libel). Sec. a.] GILBERT v. MACKLE. 309 ant's auction store, No. 142 Broadway, during business hours, an offensive placard, warning strangers to beware of mock auctions. The injunction was accompanied by an order to show cause why it should not be continued; and the case came before the court, on showing cause. Affi- davits of the defendant (who acted in the matter as mayor of the city of New York), of the chief of police and of various policemen, were read in opposition to the applica- tion. The material facts are sufficiently stated in the deci- sion of the court. The Vice-Chancellor : There were several objec- tions to the jurisdiction of this court upon the case made by the bill, which the learned counsel for the city argued with much earnestness and force. I have, nevertheless, no doubt on that subject. Whether, under all the circum- stances, as now appearing, an injunction ought to be granted ; or whether upon the case as it will finally appear, the complainant should be relieved ; are very different ques- tions. It is clear to my mind, that the obstruction of the com- plainant's lawful business, as detailed in the bill, constitutes a nuisance against which equity, under ordinary circum- stances, is bound to relieve. This is upon the same principle, which holds that the obstruction of a public street or way in a city, by teams, carts, carriages, and the like, continu- ing constantly or in close succession at a man's store, ware- house, distillery, or other manufactory, although the same be for the purposes of his trade; constitutes a public nui- sance. (See The People v. Cunningham, 1 Denio, 524; The King v. Russell, 6 East, 427.) Any person whose ad- jacent tenement or trade, is injured in its enjoyment or im- paired in its advantages, by such an obstruction, may un- questionably recover damages at law, or restrain the further continuance of the nuisance, by an injunction from a court of equity. (Semple v. The London and Birmingham Rail- road Company, 9 Simons, 209; 1 Railway Cases, 480.) 310 INFRINGEMENT OF PERSONAL RIGHTS. In this instance, on the case made on the bill, although the defendant did not interfere with the complainant's trade and occupation as an auctioneer, by blocking up the street and sidewalk in front of his store, with teams or carts, so as to impede the free ingress and egress of merchants and others, who might desire to attend his sales ; he interrupted and destroyed the complainant's business more effectually, by keeping a man posted before the door of the latter, with the placard in staring capitals, "Strangers, Beware of Mock Auctions." It may be that the placard was a libel, which, unless justified, would subject the defendant to correspond- ing punishment, both by way of damages and by indict- ment; but it was none the less a private nuisance, injuri- ously and summarily affecting the property and lawful pursuits of the complainant, and as such, it falls within the clearly established, and I may justly add, beneficent jurisdiction, of the court of chancery. And, I am sure, no one will feel the slightest apprehension of an undue or dan- gerous exercise of the powers of chancery, if they are pushed no farther than to prevent one individual, whether he be high in station or a private citizen, from trampling upon his neighbor's rights, and utterly destroying his neigh- bor's trade and business, without authority of law, by means of an offensive and false placard or standing advertisement, kept before his store or office. The most zealous stickler for the bill of rights in our expiring constitution, will not distrust the preservation of liberty of speech and of the press, from the suppression and punishment of such an outrage. If there be no remedy for the offence, other than the slow and uncertain process of an indictment, or a suit for damages founded upon the idea of a libel ; it is very certain that individuals thus attacked and injured, will resort for protection and redress to summary proceedings, by taking the law into their own hands. As this case is stated in the bill, the complainant is an Sec. a.J GILBERT v. MACKLE. 311 auctioneer who has complied with the laws of the state in all respects so as to entitle him to pursue that calling; and he has, at all times, honestly and faithfully conducted his business, has never been guilty of any cheating or fraud in the same, and is not a mock auctioneer, or justly charge- able with pursuing any of the devices or practices which are imputed to mock auctioneers. This lawful business has been invaded by the placard placed before his door by the defendant, and it will be ir- reparably injured and destroyed, if the same be continued. That his damages cannot be made good by any remedy open to him in the courts of law. And he has applied to the defendant in a friendly manner, and with earnest protes- tations of his innocence and fair character, requested him to desist from his wrongful and unjust interference with his trade as an auctioneer. So much for the cause, as it appeared by the bill of complaint. It is shown on the other hand, that the defendant is the mayor of the city, and as such, the head of the police department. That complaints have been repeatedly made to him against the establishment of the complainant, as being a mock auction store, and against him as a mock auctioneer. That the mayor, from the facts and circumstances brought to his notice, believes those complaints to be well founded ; and in the discharge of his duty, as mayor and head of the police, and in compliance with the statutes as he construes their provisions, he has caused the placard in question to be posted and continued, so as "to caution strangers and others" against the complainant as a mock auctioneer. By the existing statute regulating the police of the city (Laws of 1846, chapt. 302, sec 8) it is made the duty of the sergeants and policemen, "to caution strangers and others, against pick-pockets, watch staffers, droppers, mock auctioneers, burners, and all other vicious persons." The same enactment in substance, was contained in the Police 312 INFRINGEMENT OF PERSONAL RIGHTS. Act of 1844. In the exercise of his judgment as to his duty and authority under this provision, the mayor has pursued the course which I have pointed out. * * * 1 Having in view the importance of an efficient police, for the prevention as well as the punishment of crime, the discretion necessarily confided to its head and chief officers, the delicate and responsible character of their duties, and the respect which is due to the exercise of those duties by other tribunals and authorities; to say nothing of the re- luctance with which equity always interferes for the pro- tection of rights of property, when those rights are min- gled with the administration of criminal jurisprudence; it is my conclusion that this court ought not to interpose its extraordinary power of injunction, in the case under con- sideration. The exercise of such a jurisdiction would infallibly lead to collisions between the executive and judicial depart- ments, which would bring both into disrepute, and do more injury to the cause of law and good order than could be compensated by the redress of a few individual grievances, like the one set forth in the bill of complaint. I am satis- fied that it is my duty to leave the party to his remedy by an action at law ; and if that shall prove to be entirely inade- quate, the legislature will undoubtedly repeal or modify the statute itself. The order to show cause must be discharged, and the temporary injunction is dissolved. 2 1 The Court's discussion of the Act is omitted. 2 Compare, Beck v. Railway Teamsters' Protective Union, 42 L. R. A. 407, Mich., 1898, 418 (There was a strike at plaintiff's plant, the defendants threatened among other things to withdraw their custom from those who dealt with plaintiff. This threat was conveyed by means of a circular containing defamatory statements, which under the facts stated in plaintiff's bill were untrue. The Court thought that "boycotting" should be restrained. In respect to the libelous, character of the circulars they say: "It is urged that courts of equity will not restrain the publication of a libel, and that this boycotting circular is a libel, the publication and circulation of which cannot be enjoined. The same claim was made that courts of equity have Sec. a. ] ROUTH v. WEBSTER. 313 ROUTH v. WEBSTER. Supra, page 131. CLARK v. FREEMAN. Supra, page 133. 1 no jurisdiction to restrain the commission of a crime. But the answer is, and always has been, that parties cannot interpose this defense when the acts are accompanied by threats, express or covert, or intim- idation and coercion, and the accomplishment of the purpose will result in irreparable "injury to, and the destruction of, property rights. If all there was to this transaction was the publication of a libelous article, the position would be sound. It is only libelous in so far as it is false. Its purpose was not alone to libel complainants' business, hut to use it for the purpose of intimidating and preventing the public from trading with the complainants." The publication of statements for which no action of libel could have been successfully brought has often been restrained if such statements are part of a plan to "boy- cott" or otherwise illegally intimidate the customers of the plaintiff. See, supra, Chapter IV, especially Springhead Co. v. Riley and notes, and Casey v. Cincinnati Typographical Union and notes. In Continental Insurance Co. v. Board of Fire Underwriters of the Pacific, 67 Fed. 310, 1894, McKenna, Circuit J., restrained the publication of a false but non-libelous statement to the effect that the defendants had authority to cancel the policies of the plaintiff. 'Compare, Fleming v. Newton, I H. L. Cas. 363, 1848 (B. was about to publish "The Register of Protests for Non-payment of Bills," on which A.'s name appeared. Court refused to restrain B. on .ground that the "Register" was a public document. The Court of Sessions of Scotland believed it had jurisdiction to restrain a libel. Lord Cottenham said that he hoped that the Court of Sessions would, -when a case arose, seriously consider the consequences of such a rule. Page 376). Bullock v. Chapman, 2 De G. & Sm. 211, 1848 (The Court refused an interlocutory injunction to restrain a banking com- pany from publishing A.'s name as a shareholder in the company, because there was a real doubt whether he was a shareholder or not. The Court thought that the utmost effect of the publication would be to put A. to a defense in a suit by third parties. Vice-Chancellor Knight Bruce thought that "such an act might create considerable inconvenience, and in a clear case probably ought to be prohibited." Page 214) ; Dixon v. Holden, L. R. 7 Eq. 488, 1869 (The defendant issued a notice suggesting that A. was the member of a bankrupt firm. A. brought a bill to restrain the defendants from publishing such a notice. Malins, V. C, thought the statement false and issued .a perpetual injunction. He says : "It is within the jurisdiction of this Court to stop the publication of a libel .of this description which goes to destroy his property or his reputation, which is his property, and if possible more valuable than other property." He bases this opinion on Springhead Co. v. Riley, reported Chapter IV, supra; Rollins v. Hinks ; L. R. 13 Eq. 355, 1872 (B. sent out circulars stating that A. was infringing his patent and threatening A.'s customers with suits. Malins, V. C, thought that B. had no bona Me intention to follow up his threats, and on the strength of Dixon v. Holden, supra, 314 INFRINGEMENT OF PERSONAL RIGHTS. PRUDENTIAL ASSURANCE CO. v. KNOTT. In the Court of Appeal in Chancery, 1874. Law Reports, 10 Chancery Appeal Cases 142. The plaintiffs in this case were a life assurance com- pany carrying on business in London, and having an in- come of above £450,000 a year. The defendant had lately published a pamphlet on Life Assurance Companies, in which he gave statistics and calculations as to the principal assurance offices, their incomes, rates of premium, expenses of collection, and ratio of assets to liabilities. He com- mented on the state of several of the companies, amongst which were the plaintiffs. The plaintiffs thereupon filed a bill against the defendant, charging that the effect of cer- tain specified portions of the pamphlet and of the erroneous statements in it as to the rates of premium charged by the company was to represent the company as being managed with reckless extravagance, and as being in a state of in- solvency and unable to fulfill its engagements; that that representation was utterly untrue, and that the company's affairs were managed without extravagance; and that the compny had been for many years past, and was still, in ah exceedingly prosperous and thriving condition, abundantly solvent, and earning large profits. The bill further charged that the continued publication of the pamphlet containing the passages and statements in the bill complained of would be very injurious to the company's credit and repu- tation and could not fail greatly to damage the company's business and to diminish its profits derived from it. And the bill accordingly prayed that the publication of the pam- phlet might be restrained, and for consequent relief. restrained the further publication of a circular containing the threats) ; Mulkern v. Ward, L. R. 13 Eq. 619, 1872 (B. published a book con- taining statements concerning the management and assets of the A. building society. Wickens, V. C, refused to restrain on the ground that the opinion in Dixon v. Holden did. not represent the law, and that he had no jurisdiction to restrain a libel). Sec. a.] PRUDENTIAL ASSURANCE CO. v. KNOTT. 315 The Vice-Chancellor Hall refused to grant an injunc- tion, and the plaintiffs now, by way of appeal, moved for an injunction. 1 Lord Cairns, L.C. : I am of opinion that there is no ground whatever for the interference of the court in this case. The court is asked by an insurance company to grant an injunction to restrain the continued publication of a pamphlet which comments upon the statistical returns of various insurance companies with regard to the comparative expenses of their establishments as compared with their liabilities; and it is said that this pamphlet in those com- ments draws unfavorable conclusions with regard to the company which are plaintiffs here, and that the expressions in the pamphlet will be injurious to this company in their trade and business. Now, the comments and expressions in this pamphlet either do amount to a libel, amount to a libel upon the company, or do not. If they do not amount to a libel, and are therefore innocuous and justifiable in the eye of a Court of Common Law, I am at a loss to understand upon what principle the Court of Chancery could possibly interfere as a censor morum or critic to restrain the publication of statements or expressions which would be held justifiable in a Court of Common Law. If, on the other hand, these comments do amount to a libel, then, as I have always understood, it is clearly settled that the Court of Chancery has no jurisdic- tion to restrain the publication merely because it is a libel. There are publications which the Court of Chancery will re- strain, and those publications, as to which there is a foun- dation for the jurisdiction of the Court of Chancery to re- strain them, will not be restrained the less because they hap- pen also to be libelous. But apart from the suggestion that the publication here is a libel, I do not observe in the bill any statement or foundation for the jurisdiction of the court to restrain. I 1 Argument of plaintiff's counsel omitted. 316 INFRINGEMENT OF PERSONAL RIGHTS. repeat, if the observations are not libelous, they are lawful, and ought not to be restrained; if they are libelous, it is only because they are libelous that the Court of Chancery is asked to restrain them. It is attempted to give a color to the application by saying that these are libelous publications which will injure property, and then, when that proposition is further defined, it is said that the business of the company, the goodwill of the company, is property, that the company in its trade will be injured, and that therefore, the interference of the Court is asked for the protection of property. But with regard to nine out of ten libels, the same thing might be said. The cases in which actions are brought for libel are usually cases where things are written of men or corpo, j- tions, which have an effect upon their character and upon their trade or business, or their character as connected with trade or business, but no case can be produced in which, in those circumstances, the Court of Chan- cery has interfered. Not merely is there no au- thority for this application, but the books afford re- peated instances of the refusal tcr exercise jurisdiction. There are the observations of Lord Eldon in Gee v. Pritch- ard [2 Sw. 402, 413, supra, p. 44], the observations of Lord Campbell in the case of the Emperor of Austria v. Day [3 D. F. & J. 217, infra, Appendix AJ ; there is the dictum of Lord Langdale in the case of Clark v. Freeman [11 Beav. 112, supra, p. 133], which stands irrespective of any comments which may be made upon the decision of that particular case; there is the observation of the late Vice-Chancellor of England in Martin v. Wright [6 Sim. 297] ; and there are the observations of the late Vice-Chan- cellor Wickens in Mulkern v. Ward [Law Rep. 13 Eq. 619]. Over and above those, there is the decision of the House of Lords in Fleming v. Newton [1 H. L. C. 363], and it is clear to my mind, from reading the opinion of Lord Cot- tenham, whose was the only opinion pronounced in that case, that the whole of it proceeds on one footing. He con- Sec. a.] PRUDENTIAL ASSURANCE CO. v. KNOTT. 317 sidered that the case being Scotch, some nicety of Scotch law might be made to appear in the courts of Scotland which would entitle them to interfere with the publication com- plained of in that case, but that unless some such feature of Scotch law could be shown, no such interference could, upon the general principles of English law, be permitted. Now, the only shadow of authority the other way is in the case of Dixon v. Holden [Law Rep. 7 Eq. 488], de- cided by Vice-Chancellor Malins in the year 1869. I say nothing about the decision in that particular case, and I do not mean to say that the decision is not capable of being maintained. It professes to proceed mainly upon a case of Routh v. Webster [10 Beav. 561, supra, p. 131], because I observe that the Vice-Chancellor says [Law Rep. 7 Eq. 493 J : "The case of Routh v. Webster is an authority go- ing the whole length of what is asked here. In that case a joint stock company was established, having for its only object the carrying passengers by steamboat and omnibus at a cheap rate. The defendants, the provisional directors, had published prospectuses, in which the name of the plain- tiff was used, without his authority, as a trustee of the com- pany. They also paid moneys into the bankers of the company to the plaintiff's account, as trustee." That case appears, if I may say so, to have been quite rightly decided. The difficulties in which the plaintiff might have been placed, especially at the time when that case was decided, looking at what was supposed then to be the state of the law as to such undertakings, are obvious ; and he was held entitled to restrain, not any libel, for there was no libel, but that improper and unauthorized use of his name. It was upon the authority of that case that the case of Dixon v. Holden was professed to be decided ; but the Vice-Chan- cellor went further, and said this [Ibid. 492] : "The busi- ness of a merchant is about the most valuable kind of prop- erty that he can well have. Here it is the source of his fortune, and therefore to be injured in his business is to be 313 INFRINGEMENT OF PERSONAL RIGHTS. injured in his property. But I go further, and say, if it had only injured his reputation, it is within the jurisdiction of this Court to stop the publication of a libel of this de- scription, which goes to destroy his property or his reputa- tion, which is his property, and, if possible, more valuable than other property. In this case I go on general principle, and I am fortified by authority. General principle is in favor of it, but authority is not wanting." And further on, the Vice-Chancellor says [Law Rep. 7 Eq. 494] : "In the decision I arrive at, I beg to be understood as laying down, that this Court has jurisdiction to prevent the publication of any letter, advertisement, or other document which, if permitted to go on, would have the effect of destroying the property of another person, whether that consists of tangi- ble or intangible property, whether it consists of money or reputation." Now, in those opinions the Vice-Chancellor conceived that he was fortified by authority. The authori- ties cited are, the case of Fleming v. Newton [1 H. L. C. 363], which appears to me to be an authority exactly to the contrary; the case of Routh v. Webster [10 Ibid. 561, supra, p. 131], which was an authority for preventing the improper use of a man's name against his will ; the case of Clark v. Freeman [11 Beav. 112., supra, p. 133], where the injunction was refused, and where Lord Langdale said the Court would not interfere to prevent a libel ; and the only other case mentioned, Springhead Spinning Company v. Riley [Law Rep. 6 Eq. 551, supra, chapter IV], decided by the Vice-Chancellor himself, upon which of course the learned Judge must be taken to have expressed the same opinion as he expressed in the case of Dixon v. Holden [Law Rep. 7 Eq. 488]. I am unable to accede to these general propositions. They appear to me to be at variance with the settled practice and principles of this Court, and I cannot accept them as an authority for the present application. I think that this appeal must be refused with costs. Sec. a.J PRUDENTIAL ASSURANCE CO. v. KNOTT. 319 Sir W. 'M. James, L.J. : — I am of the same opinion; and I think it is right, this appeal being brought, to express my entire concurrence in the views just stated by the Lord Chancellor. I think that the Vice-Chancellor Malins, in that case of Dixon v. Holden, was, by his desire to do what was right, led to exaggerate the jurisdiction of this Court in a manner for which there was no authority in any re- ported case, and no foundation in principle. I think it right to say that I hold without doubt that the statement of the law in that case is not correct. Sir G. Mellish, L. J. : — I also am entirely of the same opinion. 2 2 Our principal case, while often cited in the United States, no longer represents the law in England. For the modern English cases which discuss the extent to which libelous statements will be re- strained by an injunction issued under the sanction of the Judicature Act, 1873, see Appendix B., infra. In accord with our principal case, see the following American cases : Singer Mfg. Co. v. Domestic Sewing Machine Co., 49 Ga. 70, 1873 (The A. Co. won a prize at the Georgia State Fair for the best family sewing machine. The B. Co. staied in an advertisement that they, the B. Co., had won the prize. The A. Co. asked that the B. Co. be restrained from publishing any statement to the effect that the A. Co. had not won the prize. Injunction refused) ; New York Juvenile Guardian Soc. v. Roosevelt, 7 Daly 188, N. Y. C. P. 8, 1877, 191 (Theodore Roosevelt et al. made an investigation under an Act of Assembly of a charitable society. They were about to publish their report when the society asked for an injunction, alleging that the investigation was ex parte and that the report contained untrue and libelous statements in regard to the officers of the society and its conduct. Injunction vacated) ; Francis v. Flinn, 118 U. S. 385, 1886, 389 (The plaintiff appears to have asked the Court to restrain the defendants from asserting that his, the plaintiff's, employes were not pilots, for the purpose of injuring him in his business. Field, J., said that if the publication was libelous the only remedy was at law) ; Raymond v. Russell, 143 Mass. 295, 1887 (B. et al. conducted a mercantile agency and in the course of their business published the name and business standing of A. A. brought a bill against B. et al, asking that this publication of his name, etc., be restrained. Defend- ants' demurrer sustained) ; Richter Bros. v. Journeyman Tailors' Union, 11 Ohio Dec. Reprint 189, 1890 (B. et al, A.'s employes, struck. A- hired others. B. et al. published circulars stating that A. employed "scab" and inferior workmen and could not give satisfaction. A. asked the Court to restrain these circulars. Injunction denied) ; Mayer v. Journeymen Stone-Cutters' Asso., 47 N. J. Eq. 514, 1890, 516 reported supra, Chapter IV (The Court refused to restrain the de- fendants calling the plaintiffs "scabs," no element of personal violence being present) ; De Wick v. Dobson, 18 App. Div. 399, N. Y. Sup., 1897 (A. and B. were rival instructors in music. B. published what 320 INFRINGEMENT OF PERSONAL RIGHTS. BOSTON DIATITE CO. v. FLORENCE MANUFAC- TURING CO. In the Supreme Judicial Court of Massachusetts, 1874. 114 Massachusetts 69. Bill in equity against the Florence Manufacturing Com- pany. Isaac S. Parsons. George A. Burr and George A. Scott, alleging that the plaintiff corporation was and for three years had been engaged in the manufacture of sundry articles, among which were toilet mirrors, made from a composition, invented and patented by one Merrick, which was capable of being moulded by heat and pressure into va- rious shapes, and that they had applied to this material the trade-mark name "Diatite," by which it was generally known; that the defendant corporation was engaged in the manufacture of toilet mirrors from another material capa- ble of being moulded and pressed, upon which there were no letters patent ; that the defendant Parsons was the Presi- dent, the defendant Burr the treasurer, and the defendant Scott the agent of the defendant corporation ; that Parsons, Burr and Scott acting as such officers and in the name of the corporation, falsely, fraudulently and maliciously, and A. alleged were libelous statements, about A. A. sued B. and asked for an injunction to restrain B. from further publication ofthe libels during the pendency of the action. Order granting the injunction reversed) ; Balliet v. Cassidy, 104 Fed. 704, 1900 (A. alleged that B. threatened to continue to publish libelous statements about A.'s busi- ness unless A. paid the blackmail demanded by B. A. asked for a preliminary injunction restraining these publications. B.'s demurrer sustained) ; Martin Fire Arms Co. v. Shield, 171 N. Y. 384, 1902, overruling 68 App. Div. 88 (The A. Co. alleged that because they would not advertise their guns in B.'s magazine, B. from time to time published fictitious letters from imaginary correspondents complaining of the gun made by the A. Co. The injunction order issued restrain- ing such publications was overruled because the A. Co. had not alleged special damage, and because of the want of jurisdiction to restrain a libel). Sec. a.] BOSTON DIATITE CO. v. FLORENCE MFG. CO. 321 for the purpose' pf injuring the plaintiff and diverting its trade, represented to the plaintiff's customers that the ar- ticles manufactured by the plaintiff under its letters patent were manufactured in infringement of letters patent owned by the defendant corporation, and that the defendant corporation was prosecuting a suit against the plaintiff cor- poration for such infringement. The bill then set forth specific instances in which persons, in the bill named, who intended to make purchases of the plaintiff, had been de- terred therefrom by oral and written representations, of the purport above set forth, made to them by the defendants, and had been induced to purchase of the defendant corpora- tion. The bill prayed that the defendants might be enjoined from making such representations, and that the defendant corporation might be decreed to account for the profits of its sales made by reason of such false representations. The defendants demurred, because the plaintiff had not stated a case which entitled it to the relief prayed for. Gray, C. J. The jurisdiction of a Court of Chancery does not extend to cases of libel or slander, or of false repre- sentations as to the character or quality of the plaintiff's property, or as to his title hereto, which involve no breach of trust or of contract. * * ** The jurisdiction to restrain the use of a name or a trade-mark or the publication of letters, rests upon the ground of the plaintiff's property in his name, trade-mark or letters, and of the defendant's unlawful use thereof. * * * The present bill alleges no trust or contract between the parties, and no use by the defendants of the plaintiff's name ; but only that the defendants made false and fraudulent rep- resentations, oral and written, that the articles manufac- tured by the plaintiff were infringements of letters patent of the defendant corporation, and that the plaintiff had been sued by the defendant corporation therefor; and that the 'His citations of authorities, all of which have already been reported or referred to in this collection, are omitted. 322 INFRINGEMENT OF PERSONAL RIGHTS. defendants further threatened divers persons with suits for selling the plaintiff's goods, upon the false and fraudulent pretence that they infringed upon the patent of the defend- ant corporation. If the plaintiff has any remedy, it is by action at law. Barley v. Walford, 9 Q. B. 197. Wren v. Weild, L. R. 4 Q. B. 730. Demurrer sustained and bill dismissed. 2 2 Accord : Hammersmith Skating Rink Co. v. Dublin Skating Rink Co., 10 Ir. R. Eq. 235, 1876 (Identical with our principal case) ; Whitehead v. Kitson, 119 Mass. 484, 1876, ibid; Mauger v. Dick, 55 How. Pr. 132, N. Y. Supl. 1878, ibid; Kidd v. Horry, 28 Fed. 773, 1886, Bradley Justice (The Court refused to grant an injunction to restrain the defendants from publishing certain circular letters alleged to be libelous and injurious to the patent rights and business of the complainants, pending an adjudication of the principal suit which was brought to restrain the infringement of the alleged patents) ; Balti- more Car-Wheel Co. v. Bemis, 29 Fed. 95, 1886 (Identical with our principal case) ; Chase v. Tuttle, 27 Fed. no, 1886, ibid; Consumers' Gas Co. of Kansas City v. Kansas Gas Light and Coke Co., 100 Mo. 501, 1890 (The B. Co. asserted that the A. Co. had not the exclusive franchise for supplying gas to Kansas City. The A. Co. alleging that this statement was false and injurious to their business, asked for an injunction. The demurrer of the B. Co. sustained) ; Hodecker v. Strieker, 39 N. Y. Supl. 515, 1896 (A. brought a bill against B. for damages and an injunction alleging that B. was living with C, the husband of A., as his wife, and that B.'s actions tended to scandalize and defame A. by depriving her of the reputation of being the wife of C. judgment directed for defendant). In Croft v. Richardson, 59 How. Pr. 356, N. Y. Sup., 1880 Potter, J., restrained the defendants from sending out circulars alleging that the plaintiffs were infringing the defendants' patent ; that the defend- ants were irresponsible and were "trusting to make a considerable profit before legal proceedings put a stop to their nefarious efforts." The Court thought that the language used went beyond a reasonable notice of infringement, was a libel on plaintiffs' business, and that equity had jurisdiction to restrain such a libel. This last position is based on the then recent English cases under the Judicature Act, 1874. See Appendix B. The case is stated to be bad law by Bradley, J., in Kidd v. Horry, 28 Fed. 773, 1886, 776, supra. In Bell v. Singer Mfg. Co., 65 Ga. 452, 1880, 459, the Court, in a case where the plaintiff asked that the defendant be restrained from representing that he was infringing the plaintiff's patent, while it refused to reverse the action of the lower court refusing the injunction, said that they "recognized the rule that a court of equity upon a proper case has the power to enjoin the publication and circulation of a libel. Note also language of Brown, J., now Mr. Justice Brown, in Kelly v. Ypsilanti Dress- Stay Mfg. Co., 44 Fed. 19, 1890, 23, in which he regards it as an open question whether an injunction will not be granted to restrain a libel effecting property. If A in good faith notifies the customers of B that B is infringing his A's patent, A is not liable to B for the damage done B's business, though it is finally decided that B has not infringed any rights of A. See, Wren v. Weild, L. R. 4 Q. B. 730, 1869 ; Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119, 1874, 126. Sec. a.] LIFE ASSOCIATION OF AMERICA v. BOOGHER. 323 LIFE ASSOCIATION OF AMERICA v. BOOGHER. In the St. Louis Court of Appeals of Missouri, 1876. 3 Missouri Appeal 173. Gantt, P. J., delivered the opinion of the court. The Life Association of America, a corporation en- gaged in the business of life assurance at St. Louis, filed its petition charging that Boogher and one Taylor had been for a long time engaged in the composition, publication, and circulation of false, slanderous, malicious, and libelous statements (setting them forth) respecting the plaintiff, and that they threatened still further to circulate and publish orally, in writing, and in print, said false, slanderous, ma- licious, and libelous statements, for the purpose of injuring, and in order to levy black-mail on, the plaintiff; that the said Boogher and Taylor were wholly insolvent and irre- sponsible, and that plaintiff had, therefore, no available recourse to an action for damages ; and it asked for a re- straining order to prevent the further publication of the libel, and the infliction on plaintiff of irreparable injury thereby. This petition was verified by affidavit, and the court granted a preliminary injunction, which was after- wards dissolved by a demurrer and motion at the return term. The plaintiff dismissed the suit as to Taylor. The demurrer assigned for reason that the petition showed no case for equitable relief: that it prayed for what the Con- stitution of the State forbade ; that a court of equity had no jurisdiction to restrain the publication of a libel ; and that the application for a restraining order was not seasonably made. The court sustained the demurrer, dissolved the injunction, dismissed the petition, and assessed damages on the injunc- tion-bond. * * * * 1 Only so much of the opinion is given as deals with the restraint of writings and the constitutional provision in respect to the freedom of the press. 324 INFRINGEMENT OF PERSONAL RIGHTS. In the case before us no change will have been made in the opinion we express by the failure to explain the cir- cumstances of aggravation which are charged, for enough is stated to inform us that defendant has uttered a malici- ous, false, scandalous, and libelous statement respecting the plaintiff, and that with the purpose of inflicting injury on the plaintiff defendant proposes and threatens to repeat and enlarge the wrong and injury already inflicted ; that the resulting loss to the plaintiff will be great, and irreparable by civil action, because of the insolvency of the defendant ; and thereupon the aid of a court of justice is claimed, to prevent that for which, if perfected, it cannot give compen- sation. It is obvious that, if this remedy be given on the ground of the insolvency of the defendant, the freedom to speak and write, which is secured, by the Constitution of Missouri, to all its citizens, will be enjoyed by a man able to respond in damages to a civil action, and denied to one who has no property liable to an execution. We are of opinion that this discrimination was not in- tended by the framers of the organic law. It never was the purpose of them, or of those who have most strenuously advocated the freedom of the press or of speech, that any person should have unbridled license of tongue or pen. It is an offense against the peace of society that malicious libels should be uttered, even if true. The law does not justify the gratification of malevolent feelings by even true charges calculated to wound the feelings, blast the character, and exasperate beyond endurance the passions of their object. The guilt of the libeler is aggravated, almost infinitely, by the falsehood of the accusation; but it is no complete defense, in a criminal prosecution, that the defend- ant has stated no more than he stands ready to prove. In such a case as this petition states, there is a punishment pro- vided by the criminal law. It is no answer to say that this punishment is inadequate. Courts do not sit to listen to such objections. It is undeniable that, in such a case as the Sec. a.] LIFE ASSOCIATION OF AMERICA v. BOOGHER. 325 petition shows, the party slandered may have an action for damages. But in such an action, irrespective of the sug- gestion of the absolute insolvency of the defendant, there is much room for saying that the legal remedy falls short of making full compensation for injury done, or of giving full protection against injury threatened. To infer from this that recourse may be had to the preventive jurisdiction of a court of equity is clearly not allowable. No human insti- tutions are perfect. That a judgment for damages is less efficacious to compensate or to deter, when the defendant is insolvent, is largely due to the prohibition of imprisonment for debt. The exemption of a limited amount of a debtor's property from execution will in many instances dis- arm a judgment of its terrors, at least in part; yet these ex- emptions of the person and property of the defendant are part of the system under whch we live, and courts of justice sit to administer, not to criticise, this system. It re- mains true that a judgment for damages against any one, though incapable of enforcement so long as his pecuniary condition is very low, can seldom or never be a matter of indifference to the judgment-debtor; that even when capa- ble of complete enforcement its moral effect will vary with the peculiar disposition of the defendant ; and that the prac- tical result is that the difference between the influence of such a judgment upon a person in a condition of insolvency and one in prosperous circumstances is only one of de- gree.* * * If it be said that the right to speak, write, or print, thus secured to every one, cannot be construed to' mean a license to wantonly injure another, and that by the juris- diction claimed it is only suspended until it can be de- termined judicially whether the exercise of it in the partic- ular case be allowable, our answer is that we have no power to suspend that right for a moment, or for any purpose. The sovereign power has forbidden any instrumentality of the government it has instituted to limit or restrain this 326 INFRINGEMENT OF PERSONAL RIGHTS. right except by the fear of the penalty, civil or criminal, which may wait on the abuse. The General Assembly can pass no law abridging the freedom of speech orof the press ; it can only punish the licentious abuse of that freedom. Courts of justice can only administer the laws of the State, and, of course, can do nothing by way of judicial sentence which the General Assembly has no power to sanction. The matter is too plain for detailed illustration. The judgment of the Circuit Court is affirmed, all the judges concurring. * EMACK v. KANE. In the Circuit Court for the Northern District of Illinois, 1888. 34 Federal 46. Blodgett, J. This is a bill in equity in which the complainant seeks to restrain the defendant. Kane from sending circulars injurious to the complainant's trade and business. Both complainant and defendants are manufac- turers of what are known as "noiseless" or "muffled" slates for use of school children. The complainant is the owner of a patent issued to one Ebenezer Butler, February 15, 1870, in which the slate was muffled, or rendered noiseless, as it is said, by making a slot through the frame near the outer edge, into which was spirally wound a piece of listing, cloth, or other fibrous material, which would deaden or break the sound of the slate when it came in contact with the desk or any other hard substance ; the listing operating to muffle the faces and the edges of the frame. Complain- ant is also the assignee of letters patent granted April 3, 1877, to Francis W Mallett, for a noiseless or muffled slate; the muffling being obtained by encircling the outer ' In accord with our principal case see the language of Daly, C. J., in New York Juvenile Soc. v. Roosevelt, 7 Daly 188, N. Y. C. P., 1877, 191. Sec. a.] EMACK v. KANE. 827 edge of the frame of the slate with a strip of wood a little larger than the thickness of the frame, which strip of wood was covered with cloth, or other soft material, so as to muf- fle both the edges and the faces of the slate frame. The bill also alleges that the defendants are manufacturers of noiseless or muffled school slates, — haying their place of business in the city of Chicago, — under a patent, as they claim, granted March 28, 1877, to Harry C. Goodrich, which was reissued September 26, 1882, with an addi- tional claim. It also appears that this class of goods is sold extensively by both these manufacturers to jobbers, who supply the retail dealers, from whom the slates are pur- chased for school use; and that the competition between these manufacturers is active and vigorous; that both are seeking to control as much of the trade as possible, or all of it, if they can do so; and that since August 1, 1883, up to the filing of this bill, which was in March, 1884, the de- fendants have sent out to the trade, — that is, to the jobbers and persons engaged in this class of slates, — circulars ' threatening all who should buy from the complainant, or deal in his slates, with law-suits, upon the ground that the complainant's slate is an infringement of the Goodrich pa- tent as reissued. I do not intend to quote all these circu- lars, but extracts from a few will illustrate the character of the attacks which the defendants have made upon the complainant's business. In a circular issued September 26, 1882, and sent generally to the trade, occurs the following language: "What do we propose to do with infringers? Nothing for the present, so far as prosecuting Emack is concerned, and for reasons that the trade well understand. We could stop him, of course, but he would open out the next day in another loft or basement, and under another name, and put us to the expense of another suit, and so on indefinitely. When we commence suit we want to be sure of damages. The language of the original patent was somewhat ambiguous, and hence there was some excuse 328 INFRINGEMENT OF PERSONAL RIGHTS. for those who sold it, believing that it was not an infringe- ment. There can be no mistake now. The language of the claims could not be made plainer. Any dealer who now sells the Emack slate knows that he is selling an infringe- ment of our patent, and we shall protect ourselves and our friends by holding all who are responsible for royalty and damages." "To our friends we will say that very few jobbers have handled the Emack slate. Failing to sell to the jobbing trade, he went to the leading retailers, and sold them all he could. They, of course, had heard nothing of our claims as to infringement, as we sell only to jobbers. "We now know every man in the country who handles these slates, and shall notify them all promptly of the reissue of the patent. Then, if they continue to sell, we shall be forced to adopt legal measures." In another circular occurs the following language: "Slate patents. We advise any who are tempted to buy the Emack slate to 'go slow.' Don't accept the statement that, because he uses 'a bar,' and we do not, that his slate is not ' an infringement. We have a straight, square, 'no nonsense' patent on a cord muffler. He uses a cord muffler, and hence he infringes our patent. If you doubt it, ask any patent lawyer, and also ask regarding the truthfulness of his statement, in a late circular, that, if he is infringing, 'the law compels us to close his factory.' Better pay something to keep out of trouble than to pay to get out, and fail, be- sides. Of course, we know of every shipment he makes, and the quantity. Shipping to his own address shows, of course, that he and those who may buy them are afraid of the consequences, but it will do no good; we shall know who sells them, and royalty will be demanded in good time,* by the proper parties, of the proper parties, and in a legal way." In a still later circular occurs the following paragraph : "We have, jointly with the patentee, placed the matter in the hands of attorneys of this city and New York, who have Seb. a.] EMACK v. KANE. 329 for many years had an extensive and very successful prac- tice in law, and especially in prosecuting infringement cases. We instruct them to give the entire trade fair warning, and make very favorable terms with any who nave been de- ceived, and propose to stop selling the so-called 'E. I. Slate;' but parties who want a law suit can have it. And here we again announce our purpose not to sue Emack, and here again we state that every man in the trade knows why. no one of you would do it, and if in our place you would do just as we are doing. We expect to commence some suits in August and September, selecting parties whose sales we think have amounted to enough so that the royalty and damages will pay at least a part of our expenses. If others want their suits later this year, or next season, all they have to do is to sell infringing slates until their sales aggregate a sufficient sum to justify us, and we will sue those who continue to sell infringing slates." And in a still later circular, addressed to the jobbing trade, defendants wrote: "And now once more we say we shall not sue Emack. If this be libel, we take the con- sequences ; but we do expect and fully intend to bring suits against those who sell infringing slates.* * * The longer we wait, the more royalty and damages we will collect from those who continue to sell infringing slates." Many more extracts might be made from these cir- culars, which appear in the proof, but this is enough to show the spirit in which the defendant attempted to intimi- date the complainant's customers from dealing with him, or dealing in the slates manufactured by him ; and the proof shows abundantly that much business has been diverted from the complainant by these threats and circulars; that the complainant's business has been seriously injured, and •his profits very much abridged by the course pursued in sending out these circulars. The proof in this case also satisfies me that these threats made by defendants were not made in good faith. The proof shows that defendants brought three suits against Emack's customers, for alleged 330 INFRINGEMENT OF PERSONAL RIGHTS. infringement of the Goodrich patent by selling the Emack slates ; that Emack assumed the defense in these cases, and, after the proofs were taken, and the suits ripe for hearing, the defendants voluntarily dismissed them, — the dismissals being entered under such circumstances as to fully show that the defendants knew that they could not sustain the suits upon their merits; that said suits were brought in a mere spirit of bravo or intimidation, and not with a bona fide intent to submit the question of infringement to a judicial decision. The defense interposed is — First, that these circulars were merely friendly notices to the trade of the claims made by defendants as to what was covered by the Goodrich patent; second, that a court of equity has no jurisdiction to enter- tain a bill of this character, and restrain a party from is- suing circulars, even if, they are injurious to the trade, of another. In support of this latter point defendants rely upon the opinion of Mr. Justice Bradley, in Kidd v. Horry, 28 Fed. Rep. 773, and Wheel Co. v. Bemis, 29 Fed. Rep. 95, decided by Judges Colt and Carpenter in the district court of Massachusetts. Kidd v. Horry was an applica- tion for an injunction restraining the defendant from pub- lishing certain circular letters alleged to be injurious to the patent-rights and business of the complainant, and from making and uttering libelous and slanderous state- ments, written or oral, of, or concerning the business of, complainant, or concerning the validity of their letters patent, or of their title thereto, pending the trial and adju- dication of a suit which had been brought to restrain the infringement of said patents; and Mr. Justice Bradley in deciding the case said: "The application seems to be altogether a novel one. and is urged principally upon a line of recent English au- thorities, such as Dixony v. Holden, L. R. 7 Eq. 488 ; Food Co. v. Massam, 14 Ch. Div. 763; Thomas v. Williams, Id. 864 ; and Loag v. Bean, 26 Ch. Div. 306. An examina- Sec. a.J EMACK v. KANE. 331. tion of these and other cases relied on convinces us that they depend on certain acts of the parliament of Great Britain, and not on the general principles of equity juris- prudence. * * * But neither the statute law of this country, nor any well-considered judgment of a court, has intro- duced this new branch of equity into our jurisprudence. There may be a case or two looking that way, but none that we deem of sufficient authority to justify us in assum- ing the jurisdiction. * * * We do not think that the exis- tence of malice in publishing a libel, or uttering slanderous words, can make any difference in the jurisdiction of the court. Malice is charged in almost every case of libel ; and no cases or authority can be found, we think, independent of statute, in which the power to issue an injunction to restrain a libel or slanderous words has ever been main- tained, whether malice was charged or not." The principle of this case concisely stated, is that a court of equity has no jurisdiction to restrain the publication of a libel or slander. But it seems to me the case now under consideration is fairly different and distinguishable from the cases relied upon by the defendants in what seems to me a material and vital feature. In Kidd v. Horry, the owner of a patent sought the interference of a court of equity to restrain the defendants from publishing and putting in circulation statements challenging the validity of his pa- tent, and of his title thereto, on the ground that such pub- lications were libelous attacks upon his property. Here the complainant seeks to restrain the defendants from mak- ing threats intended to intimidate the complainant's custom- ers under the pretext that complainant's goods infringe a patent owned or controlled by defendants, and threats that if such customers deal in complainant's goods they will subject themselves to suit for infringement; the bill charg- ing, and the proof showing, that these charges of infringe- ment are not made in good faith, but with a malicious in- tent to injure and destroy the complainant's business. While it may be that the owner of a patent cannot invoke the aid 332 INFRINGEMENT OF PERSONAL RIGHTS. of a court of equity to prevent another person from publish- ing statements denying the validity of such patent by cir- culars to the trade, or otherwise, yet, if the owner of a patent, instead of resorting to the courts to obtain redress for alleged infringements of his patent, threatens all who deal in the goods of a competitor with suits for infringe- ment, thereby intimidating such customers from dealing with such competitor, and destroying his competitor's business it would seem to make a widely different case from Kidd v. Horry, and that such acts of intimidation should fall within the preventive reach of a court of equity. It may not be libelous for the owner of a pat- ent to charge that an article made by another manufac- turer infringes his patent; and notice of an alleged infringement may, if given in good faith, be a con- siderate and kind act on the part of the owner of the patent ; but the gravamen of this case is the attempted intimida- tion by defendants of complainant's customers by threaten- ing them with suits which defendants did not intend to prosecute; and this feature was not involved in Kidd v. Horry. I cannot believe that a man is remediless against persistent and continued attacks upon his business, and property rights in his business, such as have been perpetrat- ed by these defendants against the complainant, as shown by the proofs in this case. It shocks my sense of justice to say that a court of equity cannot restrain systematic and methodical outrages like this, by one man upon another's property rights. If a court of equity cannot restrain an attack like this upon a man's business, then the party is certainly remediless, because an action at law in most cases would do no good, and ruin would be accomplished before an ad- judication would be reached. True, it may be said that the injured party has a remedy at law, but that might im- ply a multiplicity of suits which equity often interposes to relieve from ; but the still more cogent reason seems to be that a court of equity can, by its writ of injunction, restrain a wrongdoer, and thus prevent injuries which could not be fully redressed by a verdict and judgment for damages Sec. a.] EMACK v. KANE. 333 at law. Redress for a mere personal slander or libel may perhaps properly be left to the courts of law, because no falsehood, however gross and malicious, can wholly de- stroy a man's reputation with those who know him; but statements and charges intended to frighten away a man's customers and intimidate them from dealing with him, may wholly break up and ruin him financially, with no ade- quate remedy if a court of equity cannot afford protection by its restraining writ. The effect of the circulars sent out by the defendant Kane certainly must have been to intimidate dealers from buying of the complainant, or dealing in slates of his man- ufacture, because of the alleged infringement of the Good- rich patent. No business man wants to incur the dangers of a lawsuit for the profits which he may make as a jobber in handling goods charged to be an infringement of another man's patent. The inclination of most businessmen is to avoid litigation and to forego even certain profits, if threatened with a lawsuit which would be embarrassing and vexatious, and might mulct them in damages far be- yond their profits ; and hence such persons, although hav- ing full faith in a man's integrity, and in the merit of his goods, would naturally avoid dealing with him for fear of possibly becoming involved in the threatened litigation. The complainant, as I have already stated, was engaged in the manufacture of school slates under the Butler and Mal- let patents ; the Butler patent being much older than the Goodrich, and the Mallet patent being nearly contempor- aneous in issue with the Goodrich patent under which the defendant was manufacturing. But the proof in this case shows a still older patent, granted to one Munger, in i860, for a muffled or noiseless slate, which most clearly so far anticipates the patents of both complainant and defendants, as to limit them, respectively, to their specific devices. But I do not think the fact that complainant was the owner of these patents or operating under them, material to the ques- 334 INFRINGEMENT OF PERSONAL RIGHTS. tions in this case. The defendants claim that complainant's slates infringe the Goodrich reissue patent, and threaten complainant's customers with suits if they deal in complain- ant's slates. The state of the art to which the Goodrich patent pertains may be examined for the purpose of aiding the court in passing upon the question of defendants' good faith in making such threats, and the state of the art is only material, as it seems to me, for this purpose. The court will not attempt, in a collateral proceeding like this, to pass upon the validity of the Goodrich Patent, but will consider, in the light of the proof as to the state of the art, and the proof as to defendant's conduct, whether the de- fendant made these threats against complainant's custom- ers because he in good faith believed that complainant's slates infringed his patent, and intended to prosecute for such infringement, or whether such threats were made solely to intimidate and frighten customers away from complainant, and with no intention of vindicating the val- idity of his patent by a suit or suits. Instead of going into the courts to test the validity of the Butler patent, or the right of complainant to make the kind of slates he was put- ting upon the market, the defendant, in a bullying and men- acing style, asserts to the trade by these circulars that com- plainant is infringing the Goodrich patent, and threatens all who deal in complainant's slates with lawsuits, and all the perils and vexations which attend upon a patent suit. The average business man undoubtedly dreads, and avoids if he can, a lawsuit of any kind, but a suit for infringement of a patent is so far outside of the common man's experi- ence that he is terrorized by even a threat of such a suit. There seems to me certainly good grounds for doubting the validity of the Goodrich patent in the light of the state of the art at the time he entered the field; and that any law)fer well versed in the law of patents would surely hesi- tate to advise that the complainant's slates infringed the Goodrich patent, either before or after the reissue ; and the Sec. a.] EMACK v.. KANE. 335 conduct of the defendant in dismissing his suits for such alleged infringement without trial, shows that he did not believe that such infringement could be established. I am, therefore, of opinion that the complainant has made a case entitling him to the interposition of a court of equity to prevent the issue of circulars, or other written or oral assertions, that the slates made by the complainant are an infringement upon the defendant's patent: and a decree may accordingly be entered as prayed in the bill. 1 1 Compare : Kelley i 1 . Ypsilanti Dress-Stay Mfg. Co., 44 Fed. 19, 1890, 23, (B. sued the A. Co. for infringement of patent. The A. Co. petitioned for an injunction to restrain B. from issuing circu- lars threatening his customers with suits. Brown, J., refused the in- junction on the ground that the circulars were issued in good faith, leaving it an open question whether he would or would not have is- sued the injunction had this not been the case. See page 23). Inter- national Tooth-Crown Co. v. Carmichael, 44 Fed. 350, 1890, 351, (Jenkins, J., doubts the correctness of the decision, in our principal ■case) ; Grand Rapids School Furniture Co. v. Haney School Furniture Co., 92 Mich. 558, 1892 (Bill set forth that defendant, knowing his patent to be invalid and in bad faith, sent circulars to the customers ■of plaintiff, threatening suits for infringement and had also by col- lusion and fraud obtained a decree in favor of his claim, which decree Tie used to intimidate the plaintiff's customers. The plaintiff prayed for an injunction against any use of the decree. The defendant's ■demurrer was overruled) ; Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471, 1893 (In a suit between C. and B. it was decided that B. had no interest in a certain patent. C. assigned his rights in the patent to A. B. sent out circulars to A.'s customers claiming an interest in the patent and demanding royalties. A. sued B. for an injunction to restrain B. from sending such circulars. Injunction granted) ; Computing Scale Co. v. National Computing Scale Co., 79 Fed. 962, 1897 (B. sued for infringement of patent. A. asked that pending suit B. be restrained from sending out threatening letters to A.'s customers. Injunction was denied on the ground, that before equity will act to protect a plaintiff, his right must be clearly estab- lished) ; Lewm v. Welsbach Light Co., 81 Fed. 904, 1897 (The B. Co. sued A. for infringement of patent. A. brought a bill against the B. Co. alleging that pending the final adjudication of the suit, the B. Co. was maliciously threatening the customers of A. with suits for infringement, not in good faith but for the purpose of destroying A.'s business. The B. Co. demurred. Dallas, J., overruled the de- murrer) ; Adriance v. National Harrow,Xo., 98 Fed. 118, 1899 (Iden- tical with Lewin v. Welsbach Lighj^Co.) : A. B. Farquhar Co. v. National Harrow Co., 102 Fed. 714; C. C. A„ 1900, rev., 99 Fed. 160, ibid; Davison v. National Harrow Co., 103 Fed.' 360, 1900 (A. sued B. for infringement and then asked that B. be restrained from issuing to A.'s customers threats of suits for infringement of patent. B. an- swered alleging that the circulars were issued in good faith. Court ordered A. to press suit for infringement to judgment, and if B. 336 INFRINGEMENT OF PERSONAL RIGHTS. delayed the suit and continued to issue the circular, to renew the ■.motion for an injunction); Adriance v. National Harrow Co., 121 Fed. 827, C. C. A., 1903, rev. in Fed. 638 (B. was restrained from issuing circulars threatening A.'s customers with suits, on ground that the fact that B. had delayed suing A. for infringement for a long time, and then had voluntarily withdrawn the suit for infringement when brought, showed that the circulars were not issued in good faith). EDITORIAL DIRECTION. Students who desire to study the modern English legislation on the subject discussed in this section, and the modern English cases under the legislation, should at this point read Appendix B. Sec. b.] CORLISS v. WALKER CO. 337 SECTION B. INVASION OF PRIVACY. 1 CORLISS v. WALKER CO. In the Circuit Court for the District of Massachu- setts, 1893-4. 57 Federal 434 and 64 Federal. 280. Colt, Circuit Judge, delivered the following opinion: This suit is brought by the widow and children of George H. Corliss to enjoin defendants from publishing and selling a biographical sketch of Mr. Corliss, and from printing and selling his picture in connection therewith. The bill does not allege that the publication contains any right of property, but the relief prayed for is put upon the novel ground that such publication is an injury to the feelings of the plaintiffs, and against their express prohi- bition. The counsel for plaintiffs, in argument, put the case upon the ground that Mr. Corliss was a private character, and that the publication of his life is an invasion of the right of privacy, which a court of equity should protect. In the first place, I cannot assent to the proposition that Mr. Corliss was a private character. He held himself out to the public as an inventor, and his reputation became world- wide. He was a public man, in the same sense as authors or artists are public men. It would be a remarkable ex- ception to the liberty of the press if the lives of great in- ventors could not be given to the public without their own consent while living, or the approval of their family when 1 Before reading the following cases it is suggested that the student read an article on "The Rieht to Privacy, by Messrs. Warren and Brandeis," in 4 Harvard Law Review 193, 1890. 338 INFRINGEMENT OF PERSONAL RIGHTS. dead. But whether Mr. Corliss is to be regarded as a pri- vate or public character (a distinction often difficult to define) is not important in this case. Freedom of speech and of the press is secured by the Constitution of the United States and the Constitutions of most of the states. This constitutional privilege implies a right to freely utter and publish whatever the citizen may please, and to be protected from any responsibility for so doing, except so far as such publication, by reason of its blasphemy, obscenity, or scan- dalous character, may be public offense, or, by its falsehood and malice, may injuriously affect the standing, reputation, or pecuniary interests of individuals. Cooley, Const. Lim. 6th ed. 518. In other words, under our laws, one can speak and publish what he desires, provided he commits no offense against public morals or private reputation. Schuyler v. Curtis, 40 N. Y. S. R. 289, recently decided by the New York supreme court, and upon which the plain- tiffs rely, is not in point. In that case the court enjoined the defendants from erecting a statue of Mrs. Schuyler. The right of publication was not in issue in that case. There is another objection which meets us at the threshold of this case. The subject-matter of the jurisdic- tion of a court of equity in civil property, and injury to property, whether actual or prospective, is the foundation on which its jurisdiction rests. Re Sawyer, 124 U. S. 200, 31 L. ed. 402, 405; Kerr, Inj. 2d ed. Sec. 1. It fol- lows from this principle that a court of equity has no power to restrain a libelous publication. Boston Diatite Co. v. Florence Mfg. Co. 114 Mass. 69, 19 Am. Rep. 310; Bran- dreth v. Lance, 8 Paige, 24, 34 Am. Dec. 368. The opinion of Vice Chancellor Malins in Dixon v. Holden, L. R. 7 Eq. 488, to the contrary, is disapproved by Lord Chan- cellor Cairns in Prudential Assur. Co. v. Knott, L. R. 10 Ch. 142. In Kidd v. Horry, 28 Fed. Rep. 773, Mr. Justice Bradley, in speaking of Dixon v. Holden, and several recent English cases, declares that they depend on certain acts of parliament, and not on the general principle of equity juris- Sec. b.] CORLISS v. WALKER CO. 339 prudence. But in the present bill it is not pretended that the publication is libelous, and therefore there can be no question as to the want of jurisdiction in this case. As to the picture which accompanies the published sketch, the case stands on a different footing. The defend- ants obtained from the plaintiffs a copy of a portrait and a photograph of Mr. Corliss, from which they have made two plates, one of which they propose to insert in the pub- lication. But it appears from the evidence that these pic- tures were obtained on certain conditions, which the de- fendants have not complied with. This matter directly concerns the exclusive right of property which the plaintiffs have in the painting and photograph, and it would be a violation of confidence or a breach of contract between the parties, to permit the defendants, under these circum- stances, to use either of the plates. Pollard v. Photographic Co., L. R. 40 Ch. Div. 345 ; Prince Albert v. Strange, 1 Macn. & G. 25. The injunction is denied as to the publication and granted as to the use of the plates. A motion was subsequently made for a dissolution of the injunction granted, in response to which Colt, Circuit Judge, on November 19, 1894, delivered the following opinion : The defendants move to dissolve the injunction here- tofore granted in this case. As the case was first presented, it appeared that the print of George H. Corliss to be in- serted in a biographical sketch about to be published by the defendants was taken from a photograph obtained from Mrs. Corliss by the defendants upon certain conditions, which they had failed to comply with, and the court granted an injunction upon the ground that the proposed use by the defendants would be a breach of contract and a violation of confidence 57 Fed. Rep. 434. Upon a full presentation of the facts at the present hearing, it now appears that the defendants ob- tained two photographs of Mr. Corliss, and that the one 340 INFRINGEMENT OF PERSONAL RIGHTS. received from Mrs. Corliss was returned to her, while the other, from which the print was actually taken, was pur- chased for the defendants at a store in Providence several months before any contract was entered into between the parties, or any correspondence had in relation to the subject. It must be confessed that the case now assumes a different aspect. If we eliminate the element of contract or trust, the question resolves itself into the broad proposition of how far an individual, in his lifetime, or his heirs at law after his death, have the right to control the reproduction of his picture or photograph. The photograph obtained by the defendants was a copy of an original taken by Mr. Heald, of Providence, for Mr. Corliss, in September, 1885. Mr. Corliss engaged Mr. Heald, in the ordinary way, to take his photograph, and paid for the pictures which he ordered. The contention of the plaintiffs is that Mr. Heald had no right to make prints from the original negative, other than those which Mr. Corliss ordered, and that neither Mr. Heald nor any one else had the right to re- produce copies from any of the photographs ordered by Mr. Corliss, and that to do so would be a breach of con- tract or a violation of confidence, for which relief can be had in a court of equity. In support of this position, the plaintiffs say that Mr. Corliss never authorized Mr. Heald to make any prints from the negative, except those he ordered, and that after his death, in February, 1888, Mrs. Corliss obtained the original negative, and forbade Mr. Heald from exhibiting in his studio any pictures of Mr. Corliss. When a person engages a photographer to take his picture, agreeing to pay so much for the copies which he desires, the transaction assumes the form of a contract ; and it is a breach of contract, as well as a violation of confidence, for the photographer to make additional copies from the negative. The negative may belong to the photographer, but the right to print additional copies is the right of the customer. Pollard v. Photographic Co. L. R. 40 Ch. Div. Sec. b.] CORLISS v. WALKER' CO. 341 345; Tuck v. Priester, L. R. 19 Q. B. Div. 629. Indepen- dently of the question of contract, I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well as a personal right; and that it belongs to the same class of rights which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class, or the revelation of the contents of a merchant's books by a clerk. Duke Queensberry v. Shebbeare, 2 Eden, 329 ; Gee v. Pritchard, 2 Swanst. 402 ; Folsom v. Marsh, 2 Story, C. C. 100, Fed. Cas. No. 4,901 ; Abernethy v. Hutchinson, 3 L. J. Ch. 209; Caird v. Sime, 12 App. Cas. 326; Tipping v. Clark, 2 Hare, 383, 393 ; Williams v. Assur. Co., 23 Beav. 338. In case of Prince Albert v. Strange, 1 Macn. & G. 25, 2 De G. & S. 652, this doctrine was extended so far as to prohibit the publication of a cata- logue of private etchings. But, while the right of a private individual to prohibit the reproduction of his picture or photograph should be recognized and enforced, this right may be surrendered or dedicated to the public by the act of the individual, just the same as a private manuscript, book, or painting becomes (when not protected by copy- right) public property by the act of publication. The dis- tinction in the case of a picture or photograph lies, it seems to me, between public and private characters. A private individual should be protected against the publication of any portraiture of himself, but where an individual becomes a public character the case is different. A statesman, au- thor, artist, or inventor, who asks for and desires public recognition, may be said to have surrendered this right to the public. When any one obtains a picture or photograph of such a person, and there is no breach of contract or vio- lation of confidence in the method by which it was ob- tained, he has the right to reproduce it, whether in a news- paper, magazine or book. It would be extending this right or protection too far to say that the general public can be 342 INFRINGEMEMT OF PERSONAL RIGHTS. prohibited from knowing the personal appearance of great public characters. Such characters may be said, of their own volition, to have dedicated to the public the right of any fair portraiture of themselves. In this sense, I cannot but regard Mr. Corliss as a public man. He was among the first of American inventors, and he sought public recog- nition as such. The defendants, in the present instance, obtained a photograph of Mr. Corliss at a public shop in Providence. Whatever contract may have existed between the photogra- pher and Mr. Corliss, they were not a party to it, and they had the same right to reprint copies from this photograph that they would have had from that of any other public man. Further, it does not seem that Mr. Corliss, person- ally, ever objected to the reproduction of his picture, but, on the contrary, that he permitted thousands of his pic- tures to be circulated. Ten thousand pictures of Mr. Cor- liss were sold or given away, without objection on his part, at the time of the Centennial Exhibition, in 1876. In 1886 there was published in Providence, by J. A. & R. A. Reid, about 10,000 copies of a book called "Providence Planta- tions," in which a picture of Mr. Corliss appears, which is a reprint from the Heald photograph, now in controversy. His picture also was printed in Harper's Weekly of March 3, 1888, and in the Scientific American of June 2, 1888. I am aware that Mrs. Corliss says that she wrote a letter, at the request of her husband, to the Messrs. Reid, for- bidding the insertion of the picture in the "Providence Plantations," and that she also declares that the publica- tion in Harper's Weekly and Scientific American were au- thorized by the family; but, whatever may be the position now taken by the plaintiffs, there is no substantial evidence that Mr. Corliss, in his lifetime, ever prohibited the pro- duction and circulation of his picture. Upon the facts as now presented, and for the reasons given, I am of the opinion that the defendants have a right to insert in the Sec. b.] CORLISS v. WALKER CO. 343 biographical sketch of Mr. Corliss published by them a print of his photograph, and the motion to dissolve the injunction is granted. 1 1 The distinction between public and private character, as made in the opinion, is expressly repudiated by Hooker, J., in Atkinson v. John E. Doherty, 121 Mich. 372, 1899, 379; and by Parker, Ch. J., in Robertson v. Rochester Folding Box Co., 171 N. Y. 538, 1902, 554 (In the report of this case infra, this part of the opinion is omitted). The case of Prince Albert v. Strange, 2 De Gex Sm. 652, 1848, I Macn. & G. 25, mentioned in the opinion of the Court supra is often used as showing the existence of a right of privacy. The Queen and Prince Albert made certain etchings. They did not publish them, but the etchings were taken wrongfully by B., a servant of A., to whom they had been intrusted. By B. they were sold to C, C. having knowledge of B.'s breach of trust. C. wrote a descriptive catalogue of the etchings, and had the same printed by D., D. being interested with C. in the contemplated sale of the catalogue. Vice-Chancellor Knight Bruce said : "The defendants' counsel say, that a man acquir- ing a knowledge of another's property without his consent is not by any rule or principle which a court of justice can apply (however secretly he may have kept or endeavored to keep it), forbidden with- out his consent to communicate and publish that knowledge to the world, to inform the world what the property is, or to describe it publicly, whether orally, or in print or writing. "I claim, however, leave to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner's consent, express or implied, ac- quires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the prop- erty. "It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circumstanced or relate to property such, that the matter may weightily affect the owner's interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial to him; nor would it be difficult to suggest other examples. * * * "It was suggested, that, to publish a catalogue of a collector's gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent ; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector's life as it would flatter another — may be not only an ideal calamity — but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances, are not necessarily examples merely of pain inflicted in point of sentiment or imagination; they may be that, and something else beside. * * * "Addressing the attention specifically to the particular instance before the Court, we cannot but see that the etchings executed by the plaintiff and his Consort for their private use, the produce of 344 INFRINGEMENT OF PERSONAL RIGHTS. SCHUYLER v. CURTIS. In the Supreme Court and Court of Appeals of New York, 1891-1895. 27 Abbott's New Cases 387—64 Hun. 594—147 New York 434. Motion to continue an ex parte injunction. The action was brought by Philip Schuyler against Ernest Curtis and others to enjoin steps being taken by de- fendants for the erection of a statue of Mary M. Hamilton, the stepmother and aunt of the plaintiff, to represent "woman as a philanthropist," at the prospective Columbian Exposition of 1893. 1 their labor, and belonging to themselves, they were entitled to retain in a state of privacy, to withhold from publication. That right, I think it equally clear, was not lost by the limited communications which they appear to have made, nor confined to prohibiting the taking of impressions, without or beyond their consent, from the plates their undoubted property. It extended also, I conceive, to the prevention of persons unduly obtaining a knowledge of the sub- jects of the plates, from publishing (at least by printing or writing), though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise. "But I am satisfied, I repeat, that the means of composing and forming the catalogue in question must, upon the materials now before the Court, be taken to have been obtained unduly, that is, without the consent of the plaintiff, without that of his Consort, and without any right, moral, equitable, or legal. Can I then deny it to be an interference with another's property? I think not." The defendants were restrained from printing the catalogue, and ordered to deliver up all copies in their possession. The order was affirmed on appeal : 1 Macn. & G. 25. Other cases sometimes cited to the same effect are Tuck v. Priester and Pollard v. Photographic Co. In Tuck v. Priester, L. R. 19 Q. B. D. 639, 1887, A. et al. employed B. to make a copy of a picture. B. made copies not only for A. et al., but also other copies which he offered for sale. Held, that A. et al. were entitled to restrain B. from selling the pictures on the ground of breach of contract. In Pollard v. Photographic Co., L,. R. 40 Ch. D. 345, 1888, North, J., issued an injunction to restrain a photographer from selling the picture of the plaintiff, the photographer having been hired by the plaintiff to take the picture. The Court thought that the defendant's act was a violation of contract nnd a bleach of trust. Compare, an earlier and contrary opinion in 24 Solicitors' Journal 4. 1 The full statement of the complaint as made in the report is omitted. Sec. b.] SCHUYLER v. CURTIS. 345 O'Brien, /. — This is a motion for the continuance of a preliminary injunction restraining the defendants from proceeding with a project for making and exhibiting a statue of the late Mrs. George Schuyler, who before her marriage, was a Miss Mary M. Hamilton. Mrs. Schuyler had no children; but the plaintiff, who is a nephew and stepson, brings this action on behalf of himself and all her nearest living relatives. The defendants, except Hartley, who is the sculptor engaged to execute the statue, are members of the "Wom- ' an's Memorial Fund Association," which has undertaken to raise money by public subscription for a life-sized statue of Mrs. Schuyler, to be designated as "The Typical Phil- anthropist," and has publicly announced its intention of placing this statue on public exhibition at the Columbian Exposition to be held in Chicago in 1893, as a companion piece to a bust of the well-known agitator Susan B. An- thony, which bust is to designated as the "Typical Reform- er." Neither Mrs. Schuyler in her lifetime, nor her hus- band after her death, knew or consented to the project ; and in view of the attitude assumed by plaintiff on behalf of her nearest living relatives, it must be concluded that so far as the family is concerned, the project is unauthorized. The defendants, however, contend that irrespective of the wishes of the family, they have the right to commem- orate her life and worth by a sutiable monument, and to that end, to receive subscriptions from such of the public as are disposed to give. They therefore contend that this action is not maintainable at all ; and if it were, its mainten- ance is against public policy. As to the first point, it is urged that an injunction can only be granted in a case where damages could be recov- ered in an action at law. This objection to the granting of an injunction was raised in Pollard v. Photographic Co. (40 Ch. D. 345), and thus disposed of. "But the counsel SIC INFRINGEMENT OF PERSONAL RIGHTS. for the defendant did not hesitate to contend boldly that no injunction could be granted in a case where there could be no injury to property in respect to> which damages could be recovered in an action at law." * * * "The right to grant an injunction does not depend in any way on the existence of property, as alleged; nor is it worth while to consider carefully the grounds upon which the old court of chancery used to interfere by injunction. But it is quite clear that, independently of any question as to the right at law, the Court of Chancery always had an original and in- dependent jurisdiction to prevent what that court considered and treated as a wrong, whether arising from a violation of an unquestionable right or from breach of confidence or contract, as pointed out by Lord Cottenham in Prince Al- bert v. Strange (i McN. & G. 25)." The claim that the maintenance of the action is against public policy is based upon the argument that a recognition of such a right in relatives might prevent the public from erecting statutes to Washington, to Lincoln, or to any other great or distinguished man or woman. I think, however, that the true distinction to be observed is between private and public characters. The moment one voluntarily places himself before the public, either. in accepting public office or in becoming a candidate for office, or as an artist or literary man — he surrenders his right to privacy pro tanto, and obviously cannot complain of any fair or reasonable description or portraiture of himself. It has not been shown that Mrs. Schuyler ever came within the category of what might be denominated public characters. She was undoubtedly a woman of rare gifts and of broad and philanthropic nature; but these she exercised as a privite citizen, in an unobtrusive way. There is no refutation of the status given her by the complaint, which alleges that, "she was in no sense either a public character or even a person generally known either in the community in which she lived or throughout the United States, but th"t her life was pre-eminentlv the life of a private citizen. That Sec. b.] SCHUYLER v. CURTIS. 347 she was a woman of great refinement and cultivation; that notoriety in any form was extremely distasteful to her and wholly repugnant to her character and disposition, and that throughout her life she neither sought ' nor desired it in any way." Such a person thus described does not lose her character as a private citizen, merely because she engaged in private works of philanthropy. It is sometimes difficult to determine in individual cases when one ceases to be a private and becomes a public character. This, however, does not destroy the value of the distinction, nor the grounds upon which it can be supported. It is equally dif- ficult to apply to individual cases the principle of the rea- sonableness or unreasonableness of certain acts. As stated, therefore, it not having been shown that Mrs. Schuyler was a public character, her relatives have a right to intervene. It is true that there is no reported decision which goes to this extent in maintaining the right of privacy ; and in that respect, this is a novel case. But the gradual exten- sion of the law in the direction of affording the most com- plete redress for injury to individual rights, makes this an easy step from reported decisions much similar in principle. In a recent article of the Harvard Law Review (Dec, 1800, vol. 4, No. 5), entitled "The Right to Privacy," we find an able summary of the extension and development of the law of individual rights, which well deserves and will repp.y the perusal of every lawyer. Among other things, it says : "This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sen- sations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure and profit of life lay in physical things. Thoughts, emotions and sensations demanded legal recognition, and the beauti- ful capacity for growth which characterizes the common law, enabled the judges to afford the requisite protection, without the interposition of the legislature. Recent in- ventions and business methods call attention to the next S48 INFRINGEMENT OF PERSONAL RIGHTS. Step which must be taken for the protection of the person and for securing to the individual what Judge Cooley calls the 'right to be let alone.' Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whis- pered in the closet shall be proclaimed from the house top.' For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer." — Scribner's Magazine, July, 1890. "The Rights of the Citizen to his Reputation," by E. L. Godkin, Esq., pp. 65, 67. Marion Manola v. Stevens and Myers, decided by this court in June, 1890, involved the consideration of the right to circulate portraits. The plaintiff alleged that while play- ing in the Broadway Theatre, in a role which required her appearance in tights, she was by means of a flash light, pho- tographed surreptitiously and without her consent from one of the boxes of the theatre. It is true there was no oppo- sition to the preliminary injunction being made permanent; but this court issued one to restrain any use being made of the pictures so taken. Pollard v. Photographic Co., already referred to, is another instance where an injunction was issued against the unauthorized exhibition or sale of photographs or other likenesses of private persons. These and the celebrated English case of Prince Albert v. Strange (2 DeG. & M. 652 ; s. c. on appeal, 1 McN. & G. 25) are a clear recognition (as shown by the article in the Harvard Law Review, supra) of the principle that the right to which protection is given is the right of privacy. Upon the facts presented on the motion, and the law applicable thereto, the motion to continue injunction until the trial should be granted. Sec. b.J SCHUYLER v. CURTIS. 349 At the trial the injunction was made permanent. The defendants appealed. Van Brunt, P. J. 2 While concurring with the con- clusion arrived at by the learned justice below, I cannot subscribe to the doctrine which seems to pervade the opinion rendered upon the decision of the motion, that if Mrs. Schuyler had been a public character, as defined by him, this motion should have been denied. The claim that a person who voluntarily places him- self before the public, either by accepting public office or by becoming a candidate for office, or as an artist or liter- ary man, thereby surrenders his personality while living, and his memory when dead, to the public to be used or abused, as any one of that irresponsible body may see fit, cannot for a moment be entertained. It is undoubtedly true that by occupying a public position, or by making an appeal to the public, a person surrenders such part of his per- sonality or privacy as pertains to and affects the position which he fills or seeks to occupy; but no further. And certainly his memory, when dead, does not necessarily thereby become public property. * * * Barrett, J., concurred. Order affirmed with costs. The defendants appealed to the General Term of the Supreme Court, where the order was again affirmed. 3 The defendants appealed to the Court of Appeals. Peckham, J.* In order to determine whether there has been a violation of the right, it is necessary to know some- thing about the right itself and its proper limitations. It is not necessary, however, in the view which we take of this case, to attempt to lay down precise and accurate rules which shall apply to all cases touching upon this alleged right. 2 Only so much of his opinion is given as relates to the effect on the question involved of the public character of Mrs. Schuyler. ! See 70 Hun. 508. * Only so much of his opinion is given as is necessary to show the attitude of the Court towards the questions involved. 350. INFRINGEMENT OF PERSONAL RIGHTS. If the facts in any case fail to furnish any clear or sure foundation for a reasonable man to claim that any injury to his feelings has been or would be caused by the action taken or to be taken by a defendant, then we can at least say, in such a case, that there has not been and cannot be any such real mental distress or injury as a court of equity ought to recognize as within judicial relief. For the pur- pose we have in view, it is unnecessary to wholly deny the existence of the right of privacy to^ which the plaintiff ap- peals as the foundation of his cause of action. It may be admitted that courts have power in some cases to enjoin the doing of an act where the nature or character of the act itself is well calculated to wound the sensibilities of an indi- vidual, and where the doing of an act is wholly unjustifi- able, and is, in legal contemplation, a wrong, even though the existence of no "property," as that term is usually used, is involved in the subject. The question in this case is whether there has been proved such a violation of the rights of the plaintiff, even under a most liberal construction as to the extent of those rights, which a court of equity ought to take cognizance of. We enter upon this examination with an admission, for the purposes of this case, that the plaintiff occupies such a relationship to the deceased that he might maintain an action to enjoin the painting of a picture or the making of a statue of the deceased which would be regarded as inap- propriate by reasonable people because the use for which it was destined, or the place where it was to be kept, was obviously improper, or because the thing itself — -portrait or bust or statue — was not of that degree of merit, all the cir- cumstances considered, which might reasonably and prop- erly be insisted upon by those to whom the life and mem- ory of the deceased were most dear. * * * It is stated that Mrs. Schuyler was not in any sense a public character dur- ing her life, and consequently had not surrendered, to any extent whatever, her own right of privacy. This right, it Sec. b.] SCHUYLER v. CURTIS. 351 is claimed, not 'having been surrendered by any act of the deceased in her lifetime, descends unimpaired to her im- mediate relatives, as the proper representatives of her feel- ings and her rights. Whatever the rights of a relative may be, they are not, in such case as this, rights which once belonged to the deceased, and which a relative can enforce in her behalf and in a mere representative capacity ; as, for instance, an executor or administrator, in regard to the assets of a deceased. It is not a question of what right of privacy Mrs. Schuyler had in her lifetime. The plaintiff does not represent that right. Whatever right of privacy Mrs. Schuyler had died with her. Death de- prives us all of rights, in the legal sense of that term ; and, when Mrs. Schuyler died, her own individual right of privacy, whatever it may have been, expired at the same time. The right which survived (however extensive or limited) was a right pertaining to the living only. It is the right of privacy of the living which it is sought to en- force here. That right may in some cases be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased. A woman like Mrs. Schuyler may very well, in her lifetime, have been most strongly averse to any public notice, even if it were of a most flattering nature, regarding her own works or position. She may have been (and the evidence tends most strongly to show that she was) of so modest and retiring a nature that any publicity, during her life, would have been to her most extremely disagreeable and obnoxious. All these feelings died with her. It is wholly incredible that any individual could dwell with feel- ings of distress or anguish upon the thought that, after his 352 INFRINGEMENT OF PERSONAL RIGHTS. death, those whose welfare he had toiled for in life would inaugurate a project to erect a statue in token of their appre- ciation of his efforts, and in honor of his memory. This applies as well to the most refined and retiring woman as to a public man. It is therefore impossible to credit the ex- istence of any real mental injury or distress to a surviving relative, grounded upon the idea that the action proposed in honor of his ancestor would have been disagreeable to that ancestor during his life. We cannot assent to the proposi- tion that one situated as the plaintiff in this case can prop- erly enjoin such action as the defendants propose on the ground that, as mere matter of fact, his feelings would be thereby injured. We hold that in this class of cases there must, in addition, be some reasonable and plausible ground for the existence of this mental distress and injury. It must not be the creation of mere caprice nor of pure fancy, nor the result of a supersensitive and morbid mental organiza- tion, dwelling with undue emphasis upon the exclusive and sacred character of this right of privacy. Such a class of mind might regard the right as interfered with and violated by the least reference, even of a complimentary nature, to some illustrious ancestor, without first seeking for and ob- taining the consent of his descendants. Feelings that are thus easily and unnaturally injured and distressed under such circumstances are much too sensitive to be recognized by any purely earthly tribunal. A proposed act, which a court will enjoin because it would be a violation of a legal right, must, among other conditions, be of such a nature as a reasonable man can see might and probably would cause mental distress and injury to any one possessed of ordinary feeling and intelligence, situated in like circumstances as the complainant; and this question must always, to some extent be one of law. If the circumstances be such that it is to a court inconceivable that the feelings of any sane and reasonable person could be injured by the proposed act, then it is the duty of the court to say so, and to refuse an injunc- Sec. b.] SCHUYLER v. CURTIS. 353 tion which would prevent its performance. If the defend- ants had projected such a work in the lifetime of Mrs. Schuyler, it would, perhaps, have been a violation of her individual right of privacy, because it might be contended that she had never occupied such a position towards the public as would have authorized such action by any one so long as it was in opposition to her wishes. The fact that Mrs. Schuyler is dead alters the case, and the plaintiff and other relatives must show some right of their own violated, and that proof is not made by evidence that the proposed action of the defendants would have caused Mrs. Schuyler pain if she were living. A shy, sensitive, retiring woman might naturally be extremely reluctant to have her praises sounded, or even appropriate honors accorded her, while living; and the same woman might, upon good grounds, believe, with entire complacency and satisfaction, that after her death a proposition would be made and carried out by her admirers to do honor to her memory by the erection of a statue or some other memorial. For these reasons we are of the opinion that, regarding the facts thus far discussed, it was not necessary for the defendants to procure the consent of the plaintiff, or other immediate relatives of the deceased. We think that so long as the real and honest purpose is to do honor to the memory of one who is deceased, and such purpose is to be carried out in an appropriate and orderly manner, by reputable individuals and for worthy ends, the consent of the descendants of such deceased person is not necessary, and they have no right to prevent, for their own personal gratification, any action of the nature described. * * * All concur with Peckham, J., for reversal, except Gray, J., who reads for affirmance." Judgment reversed* 5 Gray, J., thought there existed in law a right of privacy, and that this right was about to be violated by defendants. ' Accord : Atkinson v. John E. Doherty Co., 121 Mich. 372, 1899 (John Atkinson was a well-known lawyer. He died, leaving A., his 354 INFRINGEMENT OF PERSONAL RIGHTS. ROBERSON v. ROCHESTER FOLDING BOX CO. In the Court of Appeals of New York, 1902. 171 New York 538. Parker, Ch. J. : The complaint alleges that the Frank- lin Mills Co., one of the defendants, was engaged in a gen- eral milling business and in the manufacture and sale of flour; that before the commencement of the action, without the knowledge or consent of plaintiff, defendants, knowing that they had no right or authority so to do, had obtained, made, printed, sold and circulated about 25,000 lithographic prints, photographs and likenesses of plaintiff, made in a manner particularly set up in the complaint ; that upon the paper upon which the likenesses were printed and above the portrait there were printed, in large, plain letters, the words, "Flour of the Family," and below the portrait in large capital letters, "Franklin Mills Flour," and in the lower right-hand corner in smaller capital letters, "Roches- ter Folding Box Co., Rochester, N. Y."; that upon the same sheet were other advertisements of the flour of the Franklin Mills Co. ; that those 25,000 likenesses of the plaintiff thus ornamented have been conspicuously posted and displayed in stores, warehouses, saloons and other pub- lic places ; that they have been recognized by friends of the widow. The B. Co. began to advertise and sell a cigar which they called the John Atkinson Cigar. In connection with the advertise- ments of the cigar was a picture of the deceased. A. filed a bill against the B. Co. to restrain this use of her husband's name and picture. Bill dismissed on the ground that the supposed right of privacy on which it was founded did not exist). Before the final discussion in our principal case the New York Superior Court in Marks v. Jaffa, 6 Misc. 290, 1893, restrained a paper publishing the picture of the plaintiff, an actor, in connection with the picture of another actor, and an invitation to the public to vote as to which was the most popular. In Murray v. Gast Litho- graphic and E. Co., 49 Alb. - L. J. 288, 1894, the Court refused to restrain the defendants from publishing the picture of the plaintiff's infant daughter, on the ground that the law does not take cognizance of a sentimental injury. Sec. B.] ROBERSON v. ROCHESTER FOLDING BOX CO. 355 plaintiff and other people with the result that plaintiff has been greatly humiliated by the scoffs and jeers of persons who have recognized her face and picture on this adver- tisement and her good name has been attacked, causing her great distress and suffering both in body and mind: that she was made sick and suffered a severe nervous shock, was confined to her bed and compelled to employ a physician, because of these facts; that defendants had continued to print, make, use, sell and circulate the said lithographs, and that by reason of the foregoing facts plaintiff had suffered damages in the sum of $15,000. The complaint prays that defendants be enjoined from making, printing, publishing, circulating or using in any manner any likenesses of plain- tiff in any form whatever, for further relief (which it is not necessary to consider here) and for damages. It will be observed that there is no complaint made that plaintiff was libeled by this publication of her portrait. The likeness is said to be a very good one, and one that her friends and acquaintances were able to recognize; indeed, her grievance is that a good portrait of her, and, therefore, one easily recognized, has been used to attract attention toward the paper upon which defendant mill company's ad- vertisements appear. Such publicity, which some find agree- able, is to plaintiff very distasteful, and thus, because of defendants' impertinence in using her picture without her consent for their own business purposes, she has been caused to suffer mental distress where others would have appreciated the compliment to their beauty implied in the selection of the picture for such purposes ; but as it is dis- tasteful to her, she seeks the aid of the courts to enjoin a further circulation of the lithographic prints containing her portrait made as alleged in the complaint, and as an inci- dent thereto, to reimburse her for the damages to her feel- ings, which the complaint fixes at the sum of $15,000. There is no precedent for such an action to be found in the decisions of this court; indeed the learned judge who 356 INFRINGEMENT OF PERSONAL RIGHTS. wrote the very able and interesting opinion in the Appellate Division said, while upon the threshold of the .discussion of the question: "It may be said in the first place that the theory upon which this action is predicated is new, at least in instance if not in principle, and that few precedents can be found to sustain the claim made by the plaintiff, if in- deed it can be said that there are any authoritative cases establishing her right to recover in this action." Neverthe- less, that court reached the conclusion that plaintiff had a good cause of action against defendants, in that defend- ants had invaded what is called a "right of privacy" — in other words, the right to be let alone. Mention of such a right is not to be found in Blackstone, Kent or any other of the great commentators upon the law, nor so far as the learning of counsel or the courts in this case have been able to discover, does its existence seem to have been asserted prior to about the year 1890, when it was presented with attractiveness and no inconsiderable ability in the Harvard Law Review (Vol. IV, page 193) in an article entitled, "The Right of Privacy." The so-called right of privacy is, as the phrase sug- gests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspapers, and, neces- sarily, that the things which may not be written and pub- lished of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise. While most persons would much prefer to have a good likeness of themselves appear in a responsible periodical or leading newspaper rather than upon an advertising card or sheet, the doctrine which the courts are asked to create for this case would apply as well to the one publication as to the other, for the principle which a court of equity is asked to Sec. b.] ROBERSON v. ROCHESTER FOLDING BOX CO. 357 assert in support of a recovery in this action is that the right of privacy exists and is enforceable in equity, and that the publication of that which purports to be a portrait of another person, even if obtained upon the street by an impertinent individual with a camera, will be restrained in equity on the ground that an individual has the right to prevent his features from becoming known to those out- side of his circle of friends and acquaintances. If such a principle be incorporated into the body of the law through the instrumentality of a court of equity, the attempts to logically apply the principle will necessarily result, not only in a vast amount of litigation, but in litiga- tion bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the publication of a likeness but must neces- sarily embrace as well the publication of a word-picture, a comment upon one's looks, conduct, domestic relations or habits. And were the right of privacy once legally asserted it would necessarily be held to include the same things if spoken instead of printed, for one, as well as the other, invades the right to be absolutely let alone. An insult would certainly be in violation of such a right and with many persons would more seriously wound the feelings than would the publication of their picture. And so we might add to the list of things that are spoken and done day by day which seriously offend the sensibilities of good people to which the principle which the. pb.intiff seeks to have im- bedded in the doctrine of the law would seem to apply. I have gone only far enough to barely suggest the vast field of litigation which would necessarily be opened up should this court hold that privacy exists as a legal right enforce- able in equity by injunction, and by damages where they seem necessary to give complete relief. The legislative body could very well interfere and arbi- trarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another 358 INFRINGEMENT OF PERSONAL RIGHTS. for advertising purposes without his consent. In such event no embarrassment would result to the general body of the law, for the rule would be applicable only to cases provided for by the statute. The courts, however, being without authority to legislate, are required to decide cases upon principle, and so are necessarily embarrassed by prece- dents created by an extreme, and, therefore, unjustifiable application of an old principle. * * * l An examination of the authorities leads us to the con- clusion that the so-called "right of privacy" has not as yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to' settled principles of law by which the profession and the public have long been guided. * * * The judgment of the Appellate Division and of the Special Term should be reversed and questions certified answered in the negative, without costs, and with leave to the plaintiff to serve an amended complaint within twenty days, also without costs. Gray, J. (dissenting) : 2 It would be, in my opinion, an extraordinary view which, while conceding the right of a person to be protected against the unauthorized circula- tion of an unpublished lecture, letter, drawing, or other ideal property, yet, would deny the same protection to a person whose portrait was unauthorizedly obtained, and made use of, for commercial purposes. The injury to the plaintiff is irreparable; because she cannot be wholly com- pensated in damages for the various consequences entailed by defendants' acts. The only complete relief is an injunc- tion restraining their continuance. Whether, as incidental to that equitable relief, she should be able to recover only nominal damages is not material; for the issuance of the 1 His recital of facts of cases heretofore referred to, and his dis- cussion of the Penal Code of the State are omitted. * All but the final paragraph of his opinion is omitted. Sec. b.] ROBERSON v. ROCHESTER FOLDING BOX CO. 359 injunction does not, in such a case, depend upon the amount of the damages in dollars and cents. A careful consideration of the question presented upon this appeal leads me to the conclusion that the judgment appealed from should be affirmed. O'Brien, Cullen and Werner, JJ., concur with Parker, Ch. J. ; Bartlett and Haight, JJ., concur with Gray, J. Judgment reversed. 3 " Compare, Owen v. Partridge, 82 N. Y. Supl. 248, 1903 (A. sought to restrain the publication of a photograph taken by the police depart- ment against his will when he was under arrest on suspicion of having committed a crime. The case against A. ■ had been dismissed. The picture appeared in the "Rogues' Gallery." Court dismissed bill on ground that as there is no such thing as a right of privacy, the legal injury to A., if any, was in the nature of a libel, and the Court had no jurisdiction to restrain a libel). Following the suggestion in Judge Parker's opinion the legislature of New York by the Act of April 6, 1903, chapt. 132, sec. 2, provided: "Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equi- table action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use, and if the defendant shall have knowingly used such person's name, portrait, or picture in such manner as is forbidden or declared to be unlawful by this act, the jury, in its discretion, may award exemplary damages." 360 INFRINGEMENT OF PERSONAL RIGHTS. SECTION C. INVASION OF PERSONAL LIBERTY CHAPPELL v. STEWART. In the Court of Appeals of Maryland, 1896. 82 Maryland 323. Appeal from a decree of the Circuit Court of Balti- more City (Wright, J.), sustaining a demurrer to the bill of complaint in this case and dismissing the same. Bryan, J., delivered the opinion of the court. Thomas C. Chappell filed a bill in equity against David Stewart. Without entering minutely into the details of the bill of complaint, it may be stated that he charged that the defendant had employed detectives to follow him and watch him wherever he should go; and that this conduct caused him great inconvenience and annoyance, interfered with his social intercourse and his business ; and caused grave suspi- cions to be entertained about him, so as greatly to damage his financial credit. It is also alleged that the defendant intended to continue the same course of conduct towards the complainant. The bill prayed for an injunction to re- strain and prohibit the defendant from the aforesaid con- duct ; and for a decree for damages ; and for general relief. He also filed a special motion for a preliminary injunc- tion. The defendant filed a demurrer and answer combined together. It was maintained that the bill of complaint did not entitle the complainant to any relief in equity, because it did not set forth any legal or equitable right which the defendant was injuring; because it did not set forth any danger of irreparable damage, and for other reasons. And the answer denied the charges of the bill. The Court re- fused to grant the preliminary injunction. The defendant, by leave of the Court, amended his pleading by changing Sec. c] CHAPPELL v. STEWART. 361 its form so as to make it simply an answer and nothing more. Afterwards the Court passed an order sustaining the demurrer and dismissing the bill with costs. The Court acted inadvertently in passing an order on the demurrer, when, in consequence of an amendment of the defendant's pleading, there was no longer a demurrer in the case. We shall see whether this oversight inflicted any injury on the plaintiff. As the answer denied the alle- gations of the bill, and the motion for a preliminary injunc- tion was heard on bill and answer, it was of necessity that the motion should be denied. And as the bill, assuming that all its allegations were true, did not contain any matter cognizable in equity, it ought then and there to have been dismissed. Courts of equity exercise a very extensive jurisdiction in cases involving property rights. The occa- sion does not require us to state its precise limits. It is usually said in general terms that it does not exist where a plain, adequate and complete remedy can be obtained at law. In this case it is alleged that rights affecting the com- plainant's person have been violated, and that there is a pur- pose to persist in violating them. The ordinary processes of the law are fully competent to redress all injuries of this character. They have always been considered beyond the scope of the powers of a court of equity. In Gee v. Pritch- ard, 2 Swanston 440, Lord Eldon said : "The question will be whether the bill has stated facts of which the court can take notice, as a case of civil property, which it is bound to protect." In Bispham's Equity (fifth edition), 584, note 2, it is said: "But it is the rights of property, or rather rights in property, that equity interferes to protect ; a party is not entitled to a writ of injunction for a matter affecting his person." In Kerr on Injunctions, pages 1 and 2, it is said : "A court of equity is conversant only with ques- tions of property and the maintenance of civil rights. In- jury to property, whether actual or prospective, is the foun- dation on which its jurisdiction rests. A court of equity 362 INFRINGEMENT OF PERSONAL RIGHTS. has no jurisdiction in matters merely criminal or merely immoral, which do not effect any right to property. If a charge be of a criminal nature, or an offense against the public peace, and does not touch the enjoyment of prop- erty, jurisdiction cannot be entertained. The Court has no jurisdiction to restrain or prevent crime, or to enforce the performance of a moral duty, except so far as the same is concerned with rights to property; nor can it interfere on the ground of any criminal offence committed, or for the purpose of giving a better remedy in the case of a criminal offence, or for putting a stop to acts, which, if permitted, would lead to a breach of the public peace." We, of course, do not intend to express an opinion on the merits of any action at law which the complainant may see fit to bring. Decree affirmed with costs} 1 The right of a court of equity to restrain the defendants deport- ing the plaintiffs from a certain place is raised, but not decided by the bill filed in Buster v. Wright, 69 S. W. 882, Ind. Ter., 1902. EMPEROR OF AUSTRIA v. DAY. 363 APPENDIX A. EMPEROR OF AUSTRIA v. DAY. ' In the Court of Appeal in Chancery, 1861. 3 De Gex Fisher and Jones 217. This was an appeal from the whole of a decree of Vice- Chancellor Stuart, restraining the defendants from making notes purporting to be notes of the Hungarian state, and ordering them to deliver up to the plaintiff the notes al- ready made and the plates used for printing them. The case made by the bill was in substance as follows : That the plaintiff was King of Hungary, and as such had the exclusive right of authorizing the issue in Hungary of notes to be circulated in Hungary as money, and also the exclusive right of authorizing the royal arms of Hun- gary to be affixed to any document intended to be circu- lated in that country. That nearly the whole of the circulation of Hungary consisted of notes of the National Bank of Austria, issued under the authority of the plaintiff as Emperor of Austria and King of Hungary, which circulated in Hungary as money, and were for various sums from one florin upwards. That the defendants Day & Sons (the well-known lith- ographers) had by the direction of the defendant Kossuth prepared plates for printing notes purporting to be notes of the Hungarian nation or state, for various sums of money, and which were intended to be circulated as money in Hun- gary, and that they were engaged by the direction of Kos- suth in printing such notes from the plates. 1 It is suggested that the student determine whether this case falls under any of the heads of jurisdiction previously discussed, and on what ground, if any, it can be supported. 364 EMPEROR OF AUSTRIA v. DAY. That the body of each note was in the Hungarian lan- guage, and had on the border, in the German and Sclavo- nian and other languages, the amount for which it purported to be a note, and at the bottom a print of the royal arms of Hungary. The body of a one-florin note, when translated, was as follows : "One florin. "This monetary note will be received in every Hun- garian state and public pay office as "One florin in silver. "Three zwanzigers being one florin, and its whole nom- inal value is guaranteed by the state. "In the name of the nation, "Kossuth, Louis." That the total amount of these notes which was being prepared was upwards of 100,000,000 florins. That Day & Sons had in their possession a large quantity of them entirely or nearly completed, and, unless restrained by the Court, would deliver them to Kossuth. That Kossuth intended, as soon as he received them, to send them to Hun- gary and endeavor to introduce some of them into circula- tion there, and use the remainder for other purposes in Hungary, in violation of the rights and prerogative of the plaintiff as king of that country, and, amongst other pur- poses, for the promotion of revolution and disorder there. That the plaintiff had never authorized the manufacture of the notes or the use of the royal arms of Hung-ary thereon ; and that the introduction of the notes into Hungary would create a spurious circulation there, and by that and other means cause great detriment to the state and the subjects of the plaintiff. That Day & Sons had notice of the purpose for which the notes were intended, and of Kossuth's want of authority to prepare or issue them. The bill prayed that Day & Sons might be decreed to give up to the plaintiff the plates, and any documents printed or lithographed therefrom, and any other docu- EMPEROR OF AUSTRIA v. DAY. 365 merits in their possession purporting to be notes of the Hungarian state or nation, or notes with the royal arms of Hungary thereon, and for an injunction restraining Day & Sons from printing or delivering to Kossuth any such notes. Mr. Kossuth by his affidavits denied that the plaintiff was de jure King of Hungary. He further stated : I neither have attempted, nor have ever had the intention to attempt, to introduce the said notes into Hungary, so long as the present condition of forcible dominion exists there. What the plaintiff calls "revolution," but which will in fact be the restoration of the laws and rights of Hungary, must itself have happened in Hungary before the notes in the said bill named can acquire the value of which the plaintiff expresses so much fear, through their circulation in the kingdom of Hungary. It appeared that the notes in question were not sim- ilar in appearance to any notes circulating in Hungary. The Vice-Chancellor Stuart having made a decree according the prayer of the bill, the defendants Kossuth and Day & Sons severally appealed. " Lord Campbell, Chancellor : I must confess that when I first read from the shorthand writer's notes the judg- ment of the Vice-Chancellor in this case, serious doubts entered my mind whether it could be supported. The in- junction appears to be ordered with a view "to prevent an injury of a public kind to what the plaintiff asserts to be his legal rights, claimed by him as the acknowledged pos- sessor of the sovereign power in a foreign state at peace with this kingdom." The printed paper manufactured by the defendants, "purporting to represent public paper money of Hungary," is said to be intended "to be circulated at some future time as the public paper money of Hungary, 'The statement of facts is abbreviated, and the argument of counsel omitted. 366 EMPEROR OF AUSTRIA v. DAY. in exercise of some contemplated power hostile to that of the plaintiff and intended to supersede it." The question is stated to be "whether the defendants can be allowed to continue in possession of this large quantity of printed paper, manufactured and held by them for such a purpose? or whether the plaintiff has the right which he claims to be protected against the invasion of the defendants, and to have delivered up to him what has been thus prepared and made ready to be used for a purpose hostile to his existing right?" His Honor goes on to observe that "the regula- tion of the coin and currency of every state is a great pre- rogative right of the sovereign power, recognized and pro- tected by the law of nations, and to be recognized as a legal right, because the law of nations is part of the common law of England." He adds that "the manufactured paper, in the possession of the defendants ready to be used for a purpose adverse to the existing right of the plaintiff, and being made for no other purpose, and not being capable of being used for any other purpose, except one hostile to the sovereign rights of the plaintiff; and not being property of a kind which, like warlike weapons, may be lawfully used for other purposes, if the Court were to refuse its inter- ference, the refusal would amount to a decision that it has no jurisdiction to protect the legal right of the plain- tiff." The Vice-Chancellor seems to grant the injunction as a protection of the prerogatives of the plaintiff as King of Hungary, and to have chief regard to the allegation in the plaintiff's bill, that the notes were to be used in Hun- gary "in violation of the rights and prerogative of the plain- tiff as King of that country, for the promotion of revolu- tion and disorder there." The notes are supposed to differ from "warlike weapons" only in this, that warlike weapons may be lawfully used for legitimate purposes ; whereas the notes can only be used in hostility to the rights of the plain- tiff as King of Hungary, leading to the inference that if there were clear proof of "munitions of war" being manu- EMPEROR OF AUSTRIA v. DAY. 367 factured and kept in this country for the express purpose of fitting out a warlike expedition against Venice or any- other part of the Austrian dominions, the Court of Chan- cery would grant an injunction against such a use of them, and would order them to be delivered up to be destroyed. However, in arguing the appeal in this Court, the counsel for the plaintiff have entirely repudiated any claim to the injunction on the ground of a mere invasion of any prerogative of the plaintiff as a reigning sovereign, or of the notes being to be used to effect a revolution, or for any political purpose; and they have very freely admitted that this Court has no jurisdiction to interfere merely with a view to prevent revolution, and that it is only to prevent an injury to property that in a case like this its aid by in- junction can be invoked. The appellants first contend that the bill is demurrable, making no case for the relief sought, even if its allegations be admitted to be true. But on this point I can entertain no doubt; for discarding all that the bill says about "revo- lution" and "hostility to the rights of the plaintiff as sov- ereign of Hungary," it alleges (what perhaps might have been assumed) that he has the privilege of authorizing the issue' in Hungary of notes for payment of money to be circulated in that country as money; that the circulation of Hungary consists of notes of the national bank of Aus- tria, issued under his authority as Emperor of Austria and King of Hungary ; that the defendants have prepared notes exceeding in amount one hundred millions of florins, which, although not imitating or meant to resemble the notes of the bank of Austria, profess to be notes of the kingdom of Hungary and guaranteed by the state, and to be signed, in the name of the Hungarian nation, by the defendant Louis Kossuth; that he intends as soon as he receives these spurious notes to send them to Hungary and to introduce them into circulation there, and that "the introduction of the said notes into Hungary will create a spurious circula- 368 EMPEROR OF AUSTRIA v. DAY. tion there and thereby cause great detriment to the state and to the subjects of the plaintiff. Now I am clearly of opinion that the plaintiff here states unlawful acts and intentions of the defendants, by which, if not prevented, a damage will be done to the prop- erty of the plaintiff as sovereign, and to the property of his subjects whom he has a right to represent in an English court of justice. I am next to consider how far these allegations are substantiated by evidence. We have an admission that the plaintiff is de facto Emperor of Austria and King of Hun- gary; that as such he has been recognized by Queen Vic- toria, our gracious sovereign, and that as such he has now an ambassador accredited and received at her court. The objections to his title may be canvassed in the Diet at Pest, but they cannot be listened to in an English court of justice. We are not at liberty to inquire into the pre- tended superior title of his father or the late emperor, said to be still alive. If the present Emperor of the French were suing here as a plaintiff, should we permit any claim to the sovereignty of France to be made on behalf of the Comte De Chambord or of the Comte de Paris, or suffer any inquiry into the coup d'etat, by which the republic was overturned in 1851, or the fairness of the subsequent election Of his imperial majesty by universal suffrage? The right of issuing notes for payment of money, as part of the circulating medium in Hungary, seems to fol- low from the jus cudendae monetae belonging to the su- preme power in every state. This right is not confined to the issue of portions of the precious metals, of intrinsic value according to their weight and fineness, but under it portions of the coarser metals or of other substances may be made to represent varying amounts in value of gold and silver, for which they may pass current. It is in evidence that the national bank of Austria, by the authority of the Emperor, does issue notes which form the circulating me- EMPEROR OF AUSTRIA v. DAY. 369 dium of Hungary, and that from this arrangement a profit accrues to the Emperor. Objection is made that in Hun- gary it is unlawful or unconstitutional to issue such notes to pass as money and to be a legal tender, without the authority of the Diet; but they might pass as money with- out being a legal tender, and as de facto they are a legal tender according to the law administered in Hungary, we can hardly inquire in an English Court of justice as to whether this is a stretch of prerogative. I do not feel justified in following the advice of M. Kossuth's counsel, that this Court should punish the Emperor of Austria for his arbitrary rule, by refusing the protection which he solicits for the monetary property of himself and his sub- jects in Hungary. If any complaint should be made in a foreign Court of justice of an injury to our currency, con- sisting of Bank of England notes, we should hardly expect to be nonsuited on acount of an alleged overissue contrary to Sir Robert Peel's Act, or of an Order in Council having issued, by a stretch of prerogative, to suspend cash pay- ments. The manufacture of these notes by the defendants Messrs. Day for the defendant M. Kossuth, to the enormous amount of one hundred millions of florins, is not disputed. They are (as the bill describes them) in the Hungarian languages, they have on their borders in German and also in the Sclavonian and other languages the amount which they purport to represent, and bear upon them an impres- sion of the royal arms of Hungary. The note is thus declared to be of the value of one florin in silver, and there is an assurance that it will be re- ceived for this amount in every Hungarian state and public pay office, and that its whole nominal value is guaranteed by the state. Finally, it is signed by Louis Kossuth, the defendant, "in the name of the nation," — he thus declaring that he has the authority of the nation so to sign it, and to give the guarantee. 370 EMPEROR OF AUSTRIA v. DAY. A remarkable circumstance respecting the note is, that although perfected and ready for issue and circulation, it bears no date, and there is no sign or intimation of an intention to inscribe any date upon it. Let us now take M. Kossuth's own statement in his affidavit of the use he means to make of these notes. After asserting "that the plaintiff in this suit is not and never has been King of Hungary, either de jure or de facto," he de- clares "that he himself never has attempted nor had intention to attempt to introduce the said notes, falsely in the said bill called spurious notes, into Hungary so long as the present condition of forcible dominion exists there: what the plaintiff calls revolution, but which will in fact be the restoration of the laws and rights of Hungary, must itself have happened in Hungary before the notes in the said bill named can acquire the value of which the plaintiff expresses so much fear through that circulation in the kingdom of Hungary." This answer to the charge of an intention to use the notes with a view to injure and depreciate the present cur- rency of Hungary only amounts to a declaration that M. Kossuth will not attempt to introduce them into Hungary till an opportunity occurs of being able to do so with effect. The "revolution" or "restoration" must be complete "be- fore they have acquired their full value." But M. Kos- suth, whom I consider as a man of honor as well as a man of extraordinary talents and accomplishments, does not deny that as soon as the opportunity offered, he would pour these notes into any part of Hungary where they could be introduced. As soon as they were introduced the exist- ing currency would cease to circulate and would become of no value. He may well consider this attempt laudable, if he be actuated by a desire to re-establish the ancient consti- tution of Hungary, not to gratify any object of personal ambition or vengeance; but I must say that in an English court of justice, the manufacturing in England of such EMPEROR OF AUSTRIA v. DAY. 371 notes for such a purpose by him and his associates, I think cannot be defended. M. Kossuth, now an exile in this country, and having de facto no authority in Hungary, while a sovereign de facto, Francis Joseph, reigns there, the ally of Queen Victoria, a sovereign to whom, while residing in England, M. Kossuth owes temporary allegi- ance, takes upon himself to affirm that this monetary note -will be received in every Hungarian state and public pay office; that its whole nominal value is guaranteed by the state, and that he, Louis Kossuth, has authority to sign it in the name of the Hungarian nation. Can it reasonably be doubted that this was meant to be a rival to the present currency in Hungary, wherever it could be brought into competition with it, and that as the new currency gained •credit the old would cease to be of any commercial value? Thus, if the acts meditated by the defendants and forbid- den by this injunction were actually done, a pecuniary loss would be sustained by the plaintiff and by all his subjects, holders of the existing currency. It seems to me idle to say that many tons of these notes would be kept in ware- houses without bulk being broken, till the wished-for revo J lution or restoration had become an accomplished fact, and the existing currency having vanished, room would be made for the introduction of the new currency without prejudice to sovereign or subject. The depreciation or destruction of the existing currency in Hungary, I believe, upon the evidence, to have been an object aimed at by M. Kossuth and those associated with him. The defend- ants, the Messrs. Day, are allowed to be very respectable tradesmen, but they do not deny the allegation in the 8th paragraph of the bill, that, "before they prepared the plates for the said documents, they were aware of the purpose for which the said Louis Kossuth intended to use the same, and that he was not authorized by the plaintiff to prepare or issue the same, and that the said documents were in violation of the rights of the plaintiff as King of Hungary." 372 EMPEROR OF AUSTRIA v. DAY. I will now consider the objections to the decree ap- pealed against, which appear to me to be chiefly relied upon by the appellant's counsel in the very learned and very able arguments which we have had the advantage of hear- ing from them. In the first place, they deny the right of the plaintiff as a sovereign prince to maintain this suit, and if the suit were instituted merely to support his political power and prerogatives, or for any alleged wrong sanctioned by the government of England, I should acquiesce in that posi- tion. But the King of Spain v. Hullett, The King of the Two Sicilies v. Willcox, and various other authorities show that by the law of England a foreign sovereign may sue in our courts for a wrong done to him by an English subject unauthorized by the English government, in re- spect of property belonging to the foreign sovereign, either in his individual or in his corporate capacity. Then comes the great question, whether this is a subject over which the Court of Chancery has jurisdiction by injunction? Notwithstanding my sincere respect for the authority of that great American Jurist, Justice Story, I cannot con- cur with him in his recommendation of a mysterious ob- scurity to be preserved by courts of equity respecting special injunctions, and the caution which should make them "decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such injunctions should be granted or withheld." I think that all branches of the law should, if possible, be made clear and simple, and should be defined as accurately as possible. I have no hesitation in saying that Lord Mac- clesfield was wrong when he laid down in Burnett v. Chet- wood, that "the Court of Chancery has a superintendency over all books, and might in a summary way restrain the printing or publishing any that contained reflections on re- ligion or morality." So I have no hesitation in saying that empp;ror of Austria v. day. 373 Lord Ellenborough was wrong when he laid down in Du- bost v. Beresford that "the Lord Chancellor would grant an injunction against the exhibition of a libelous picture." For this language I have the high authority of Lord Eldon, who in Gee v. Pritchard [2 Swanst. 414] upon the question of granting an injunction against the publication of a libel said, "The publication of a libel is a crime, and I have no jurisdiction to prevent the commission of crimes," adding, what is most pertinent to the present case, "the question will be whether the bill has stated facts of which the court can take notice as a case of civil property which it is bound to protect." Again, the same great Judge in the same case of Gee v. Pritchard, with reference to the question, whether there can be property in a letter written to a friend, after admit- ting that, if the question had then arisen for the first time, he should have found it difficult to satisfy his mind that there was a property in the letter, goes on to say, "but it is my duty to submit my judgment to the authority of those who had gone before me. The doctrines of this Court ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the cir- cumstances of each case. I cannot agree that the doctrines of this Court are to be changed with every succeeding Judge. Nothing would inflict on me greater pain in quit- ting this place, than the recollection that I had done any- thing to justify the reproach that the equity of this Court varies like the Chancellor's foot." The recommendation of mystery and obscurity in treating of judicial jurisdiction is only fit for the Star Chamber, which was called "a Court of Criminal Equity.'" I consider that this Court has juris- diction by injunction to protect property from an act threatened, which if completed would give a right of action. I by no means say that in every such case an injunction 374 EMPEROR OF AUSTRIA v. DAY. may be demanded as of right, but if the party applying is free from blame and promptly applies for relief, and shows that by the threatened wrong his property would be so injured that an action for damages would be no ade- quate redress, the injunction will be granted. Although an action arising purely ex delicto for an in- jury to property may not have been brought by a foreign sovereign against an English subject in an English Court, on principle I cannot doubt that such action would be maintainable. If the bank of Austria were actually dam- aged by the unlawful importation from England into Hun- gary of spurious notes intended to discredit the notes of the bank of Austria, I apprehend that the bank of Austria might maintain an action in England against the wrong- doers. The case of the Bank of England v. Anderson may be considered an authority that the bank of Austria might maintain an action and be entitled to an injunction under such circumstances. If the bank of Austria might, why may not the King of Hungary, on proof that by the same wrong a pecuniary damage has been sustained by him? The case of Sir James Clark v. Freeman is cited as an authority against an injunction for a wrong which pro- duces pecuniary damage. There Lord Langdale refused an application by a very distinguished physician for an injunction against the wrongful publication of advertise- ments falsely imputing to him that he sold and recom- mended quack medicines, in a manner tending to injure his practice and profits. But the injunction was refused only on the ground that the plaintiff did not make out that any pecuniary loss would accrue to him from the publica- tion; and Lord Langdale said, "The granting the injunc- tion in this case would imply that the Court has jurisdic- tion to stay the publication of a libel." For the same rea- son, in Martin v. Wright, an injunction was refused to Mr. Martin, the celebrated artist who painted Belshazzar's Feast, against the exhibition of a copy of it on a greatly en- EMPEROR OF AUSTRIA v. DAY. 375 larged scale, with dioramic effect, and advertised as "Mr. Martin's grand picture of Belshazzar's Feast." The Vice- Chancellor. Shadwell there observed, "The copy represented as Martin's picture must be either better or worse : if it is better, Martin has the benefit of it ; if worse, then the mis- representation is only a sort of libel, and the Court will not prevent the publication of a libel :" adding, "if Martin had exhibited his picture as a diorama, then he might have been entitled to an injunction." Pecuniary damage, therefore, in such cases is always made the criterion. Great reliance was placed by the appellant's counsel on the decision of the House of Lords in Jeffery v. Boosey, reversing an unanimous decision of the Court of Exchequer Chamber, in which I had concurred. That high tribunal must of course be considered as having decided rightly, but the ratio decidendi was merely that an absolute assignment executed abroad of all an author's copyright in a musical composition gave no title to the assignee beyond the terri- tory of the state in which the assignment was executed, and this is no authority for saying that the assignee could not have maintained an action in England for an injury to the copyright within the limits of that territory. A more specious objection was rested on the class of cases in which it has been held that we take no notice of the "revenue laws" of foreign countries, so that an injunction would certainly be refused to a foreign sover- eign who should apply for one to prevent the smuggling of English manufactures into his dominions to the griev- ous loss of his fisc. But, although from the comity of nations, the rule has been to pay respect to the laws of foreign countries, yet, for the general benefit of free trade, "revenue laws" have always been made the exception; and this may be an example of an exception proving the rule. The prohibition by the government of China of the importation of opium, on the alleged ground of pub- lic morals, was likewise mentioned; but the English gov- 376 EMPEROR OF AUSTRIA v. DAY. ernment refused to interfere with this trade, considering that the Chinese prohibition was rather with a view to revenue, or for the protection of the native culture of the poppy- Last of all, we were told that his holiness the Pope, being a temporal sovereign, has an index expurgatorius, including a translation of the Holy Scriptures; if he were to make it penal to import into Civita Vecchia any of the books in this index (which would clearly be within the scope of his lawful authority), according to the doctrine contended for by the Emperor of Austria, his holiness might apply for an injunction against the exportation from this country of a cargo destined for his dominions consist- ing of volumes which we revere as most sacred. But as to foreign laws which we are to respect, there has ever been an exception of foreign laws in conflict with our own laws on subjects of religion and morality. In this last case it could hardly be alleged that any injury to property, or any pecuniary loss, could come in question. Before concluding, I ought to mention that my opin- ion in favor of the decree does not by any means depend upon the supposed analogy between this case and the prose- cution of Peltier for libeling the Emperor Napoleon, or the prosecution of Lord George Gordon for libeling Marie Antoinette. Nor do I think that Farina v. Silverlock, or any of the trade-mark cases, can be rendered available ; for here, instead of there being any attempt at simulation, the object is clearly disclosed to make a contrast between Kos- suth's notes and those of the Emperor of Austria. For the same reason, the Acts of Parliament against forging the paper securities of foreign governments do not assist us. I must likewise observe, with great deference to some remarks which were made during the argument, that I do not think that any importance is to be attached to the fact that M. Kossuth had actually been finance minister of Hungary at a prior period ; for not only is the plaintiff's bill EMPEROR OF AUSTRIA v. DAY. 377 entirely silent on this subject, whereas it ought to have charged the fact, if reliance was to be placed on his con- tinuing to act in that capacity when his authority to do so had expired, but there seems to me to be no ground what- ever for imputing fraud to him on this score ; and no one in Hungary can be supposed to give credit to the notes on the supposition that they were issued with the author- ity of the Emperor of Austria. Therefore the case of Routh v. Webster [10 Beav. 561], in which an injunction was granted against advertisements falsely representing the plaintiff to be director of a joint-stock company, does not seem to me to apply. But I repeat that I place much reliance on the fact that the defendant Kossuth by these notes asserts that they are guaranteed by the state, and that he had authority to sign them in the name of the Hungarian nation. * * * 3 Lord Justice Knight Bruce: 4 I conceive that, for every purpose at present important, his case stands on the same basis as if the notes had described their whole nom- inal value as guaranteed by the head of the Hungarian realm or Hungarian state, or by the executive government of the Hungarian realm or Hungarian state. We are bound to regard the plaintiff as being, and having been during all the time important now to be regarded, the head of that realm, the head of that state, the head o'f its execu- tive government. That in the condition of the relations between the governments of Hungary and of Great Britain, as those relations exist and during all the time material for us to regard have existed, the preparation here without and against the plaintiff's consent of such documents as these, with the intention of issuing and using them in Hungary without and against his consent, was and is by the law of England, was and is by the law of nations, 8 His concluding general remarks are omitted. * Only so much of his opinion is given as is necessary to show his attitude towards the questions involved. 378 EMPEROR OF AUSTRIA v. DAY. wrongful, is, I think, manifest, though whether by the law of England or of the law of nations criminal as well as wrongful I think a question not for any present purpose ma- terial. When I use the term "wrongful," I mean "civilly unlawful," as regards rights of property, that is to say, the public revenues, the fiscal resources, the pecuniary means of the realm of Hungary, which rights the plaintiff is entitled to represent here. He is, I apprehend, entitled therefore to the protection of this Court, according to its ordinary course in analogous cases, from the infliction of such a wrong. Lord Justice Turner : ! This case, as it seems to me, may and ought to be decided upon the third ground on which the case is rested by the bill, — the injury to the subjects of the plaintiff by the introduction of a spurious circulation. I take it to be now well settled, although upon looking into the authorities I have been surprised to find that the point was doubted even in the time of Lord Loughborough [3 Ves. 431], that a foreign sovereign may sue in the Courts of this country, and that he may sue in this Court on behalf of his sub- jects; and this bill, if it does not require, certainly admits the construction, that it is filed by the plaintiff in his repre- sentative character on behalf of the subjects of his king- dom, for it" distinctly alleges a case of injury to them. We must consider, then, what is the nature of this injury. I think it is an injury not to the political but to the private rights of the plaintiff's subjects. What is proposed to be done is to introduce into the kingdom of Hungary an enormous number of notes which, on the face of them, purport that they will be received in the public offices of the state and that they are guaranteed by the state, and which purport also to be signed in the name of the nation 5 Those parts of his opinion in which he takes the position that jurisdiction cannot be taken on the ground that the notes were in- tended to promote revolution, or because the notes interfered with the prerogatives of the plaintiff as king of Hungary, are omitted. EMPEROR OF AUSTRIA v. DAY. 379 by the defendant Louis Kossuth. That the effect of this introduction will be to disturb the circulation of trie king- dom cannot, in my opinion, be doubted; and what will be the effect of that disturbance? Surely to endanger, to prejudice, and to deteriorate the value of the existing cir- culating medium, and thus to affect directly all the holders of Austrian bank notes, and indirectly, if not directly, all the holders of property in the state. The same great authority to which I have referred has very clearly pointed out these consequences [Vattel, book i, c. 10]. But it is said that the acts proposed to be done are not the subject of equitable jurisdiction, or that, if they are, the jurisdic- tion ought not to be exercised until a trial at law "shall have been had. To neither of these propositions can I give my assent. I agree that the jurisdiction of this Court in a case of this nature rests upon injury to property actual or prospective, and that this Court has no jurisdiction to prevent the commission of acts which are merely criminal or merely illegal, and do not affect any rights of property, but I think there are here rights of property quite sufficient to found jurisdiction in this Court. I do not agree to the proposition, that there is no remedy in this Court if there be no remedy at law, and still less do I agree to the propo- sition that this Court is bound to send a matter of this de- scription to be tried at law. The highest authority upon the jurisdiction of this Court, Lord Redesdale, in his Treatise on Pleading, in enumerating the cases to which the juris- diction of the Court extends, mentions cases of this class. — "Where the principles of law by which the ordinary Courts are guided give no right, but, upon the principles of uni- versal justice, the interference of the judicial power is ne- cessary to prevent a wrong, and the positive law is silent." It is plain, therefore, that, in the opinion of Lord Redes- dale, who was pre-eminently distinguished for his knowl- edge of the principles of this Court, the jurisdiction of the Court is not limited to cases in which there is a right at 380 EMPEROR OF AUSTRIA v. DAY. law. There is, indeed, a familiar instance in which the jurisdiction is not so limited, — the cases of waste. In some cases of waste there was no right and no remedy at law, but this Court did not on that ground refuse its inter- ference. I do not refer to the case of equitable waste, which, however, is another instance, but to the cases in which there was an intervening legal estate. To say that the jurisdiction of this Court is limited only by the prin- ciples of universal justice would no doubt be going too far, and I must not be understood so to construe what Lord Redesdale has said. I take the passage to refer to cases in which there is what the law in principle acknowledges to be a wrong, but as to which it gives no remedy, as in the case of waste to which I have referred. The case be- fore us may, I think, well be tried by this rule. If the prop- erty of an individual is affected by an undue and unauthor- ized use of his name, the law would no doubt give a rem- edy. I am not satisfied that the law would not give the same remedy in the case of the undue and unauthorized use of the name of a nation or state; but whether it would do so or not, and if not, whether it would be prevented from doing so by the absence of positive law or by mere formal impediments as to the right to sue, I think the authority to which I have referred, and the instance which I have mentioned of the application of it, warrant me in saying that the case falls within the jurisdiction of this Court. It was said, on the part of the defendants, that the Court has only interfered in cases of this nature where there was a right at law, or where there was trust or con- fidence; but if the jurisdiction exists, the extent of it cannot be limited by the instances in which it has been applied. It was also attempted to be argued on the part of the de- fendants, that, assuming the existence of the jurisdiction, there was no sufficient case for the exercise of it. But upon this point I have felt no doubt. The jurisdiction of this Court is preventive as well as remedial, and the affidavit EMPEROR OF AUSTRIA v. DAY. 381 of the defendant Kossuth himself quite satisfies my mind that there is a proper case for the exercise of it. Sub- ject, therefore, to the qualification to which the Lord Chan- cellor has adverted, I. think that this decree must stand. 382 THE MODERN ENGLISH CASES. APPENDIX B. INJUNCTION TO RESTRAIN LIBEL UNDER THE SUPREME COURT OF JUDICATURE ACT. Supreme Court of Judicature Act, 1873. j6 and 37 Victoria, Chapter 66. Section 25 (8). A mandamus or an injunction may- be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made ; and any such order may be made either uncon- ditionally or upon such terms and conditions as the Court shall think just. 1 * * * 1 The rest of the paragraph deals with injunctions against waste and trespass on real property. The Common Law Procedure Act, 1854, for the "Amendment of the process, practice * * * and enlarging the jurisdiction of the Superior Courts of Common Law," section 79, provides : " In all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may, in like case and manner, ^s hereinbefore provided with respect to mandamus, claim a writ of injunc- tion against the repetition or continuance of such breach of contract, or •other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right ; and he may also in the same action include a claim for damages or other redress. ' ' Section 82 provides : " It shall be lawful for the plaintiff at any time after the commencement of the action, and whether before or after judgment, to apply ex parte to the court or a judge for a writ of injunc- tion to restrain the defendant in such action from the repetition or contin- uance of the wrongful act or breach of contract complained of, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right ; and such writ may be granted or denied by the court or judge upon such terms as APPENDIX B. LIBEL. 383 Beddow v. Beddow, 9 Ch. D. 89. 1878. Jessel, M. R.' The first question is, what is the jurisdiction of the court in gen- eral ? It is to be remembered that the jurisdiction of the Court of Chancery to grant injunctions was formerly limited ; it was limited by the practice of different chancellors. The jurisdiction was never extended in modern times beyond what was warranted by the authorities ; and in course of time various vexatious and incon- venient restrictions were adopted. The granting of an injunction was always looked upon as an extraordinary exercise of jurisdic- tion, but it is not so now. One of the most useful functions of a court of justice is to restrain wrongful acts ; and a power of this kind was given to the common law courts in the largest terms by the Common Law Procedure Act, 1854, s. 79.' * * * What is reasonable and just is the only limit. No doubt the Court of Chancery was not originally limited by any other terms ; but the instances in which an injunction might be granted were decided by that court, and there were certain well-known cases in which it was settled that the court ought not to grant an injunction. All that is covered by the Common Law Procedure Act, even in those cases. That being so, when we come to the Judicature Act, 1873, we find this : First, all jurisdiction whatever which was exercised by any of these courts is transferred to the new court. Next, all Acts of Parliament applying to any one of the old courts apply to the High Court of Justice, which consequently has jurisdiction to grant injunctions whenever it may seem just. Now I rely upon these provisions, because they seem to me to the duration of the writ, keeping an account, giving security, or other- wise, as to such court or judge shall seem reasonable and just." * * * The Supreme Court of Judicature Act, 1873, created the High Court of Justice [see section 4], and vested in it the original as distinguished from the appellate jurisdiction of the old courts, including the High Court of Chancery and the Court of Common Pleas at Westminster. [See Section 16 (1) (3).] The first application subsequent to the Judicature Act, 1873, to restrain a writing by injunction was made in Thorley's Cattle Food Com- pany v. Massam, 6 Ch. D. 582, 1877, in which the plaintiff applied for an interim injunction to restrain the defendant from publishing a statement to the effect that the defendant alone possessed the knowledge of how to compound a well-known cattle food. Malins, V. C, admits that the case of Prudential Company v. Knott, note 4, to Springhead Co. v. Riley, supra, prevented him from issuing such an injunction, unless the power could be derived from the Judicature Act. He believed that it could be so derived ; but refused to decide so important a question on interlocu- tory motion. 2 The case had nothing to do with libel. It arose on a motion for an injunction to restrain the defendant from acting as referee under the provisions of an agreement, because he had a personal interest in the controversy. The injunction was granted. 3 Jessel here recites the provisions of Sections 79 and 82. See Note 1, supra. 384 THE MODERN ENGLISH CASES. to explain the 25th section (sub-sect. 8) of the Judicature Act/ * * * If this can be done by interlocutory application a fortiori it can be done at the trial of the action, on the principle of "omne majus continet in se minus." Next, by the Common Law Procedure Act this power would have been exercised at the trial as far as it was ' ' just. ' ' The only addition is that in the Judica- ture Act you have ' ' just or convenient ' ' : not that that would be convenient which was unjust ; but that in ascertaining what is ' ' just ' ' you must have regard to what is convenient. All acts, therefore, which a common law court or a court of equity only could formerly restrain by injunction, can now be restrained by the High Court. That being so, it appears to me that the only limit to my power of granting an injunction is whether I can properly do so. For that is what it amounts to. In my opinion, having regard to these two Acts of Parliament, I have unlimited power to grant an injunction in any case where it would be right or just to do so : and what is right or just must be decided, not by the caprice of the judge, but according to sufficient legal reasons or on settled legal principles. 5 Saxby v. Easterbrook, 3 C. P. D. 339. 1878. The plaintiff and the defendants were rival point and signal apparatus makers. The defendants published a statement that the plaintiff's applica- tion for a patent had been cancelled on the ground of piracy from the defendants. The suit was for damages. The plaintiff also claimed an injunction. * His recital of the section is omitted. 6 James, L. J., said in Day v. Brownrigg, 10 Ch. Div. 294, 1878, 307, that the Judicature Act did not in the least alter the principles on which the Court should act in issuing injunctions. This expression, however, was made in a case where the plaintiff failed to show that the defendant, by publishing a particular name as the name of his country place, had in- vaded the plaintiff's right. The right to issue on interlocutory application an injunction to restrain a libel has been admitted in the following cases : Consolidated Gold Mining Company v. Beall, 20 Ch. D. 501, 1882, 507, 509 ; *Loog v. Bean, 26 Ch. D. 306, 1884, 316 (slander) ; Armstrong v. Armit, 2 Times L. R. 887, 1886 ; Coulson v. Coulson, 3 Times L. R. 846, 1887 ; Liver- pool Household Stores Asso. v. Smith, 37 Ch. D. 170, 1887, 175, 183 ; Bonnard v. Perryman [1891], 2 Ch. 269, 275, 283, 285 ; * Collard v. Marshall [1892], 1 Ch. 571, 577; * Pink v. Federation of Trades and Labour Unions, 67 L. T. n. s. 258, 1892, 259 ; Monson v. Tussauds [1894], 1 L. B. 671, 689, 692. In all except three of these cases [those starred] the injunction was refused. For a discussion of the cases from the point of view of the principles which should govern the Court in issu- ing an interlocutory injunction, see report of Consolidated Gold Mining Company v. Beall, infra, and following cases. The Judicature Act increased the power of the courts to issue inter- locutory injunctions in other cases besides those of libel ; see Shaw v. Earl of Jersey, 4 C. P. D. 120. 1879, 124. APPENDIX B. LIBEL. 385 The jury found that the publications in question were libellous, and a verdict was taken against Hannaford for 40s. , with costs, and the learned judge ordered that a perpetual injunction should issue to restrain him from publishing libels of the nature com- plained of against the plaintiff. A doubt, however, having been suggested as to the power of the judge at nisi prius to order an injunction to issue. Lord Coleridge, C. J. I am of opinion that Mr. Aston is entitled to the order which he prays. This is an action for a libel, in which the plaintiff claims damages and an injunction to restrain the defendants from publishing libels against the plaintiff and repetitions of acts of the like nature and description as those described in the statement of claim, to the injury of his business. An order to that effect was made by me at the trial. But, inas- much as it seemed to be doubtful whether, upon the cases in equity, such an injunction could be granted for the purpose of restraining the publication of a libel, it has been judged right to make the application to the Court. Such cases there are ; and they seem to me to have proceeded upon a perfectly good ground, but one which is distinguishable in principle from the case now before us. Libel or no libel, since Fox's Act, is of all questions peculiarly one for a jury ; and I can well understand a Court of Equity declining to interfere to restrain the publication of that which has not been found by a jury to be libellous. Here, how- ever, the jury have found the matter complained of to be libellous, and it is connected with the property of the plaintiff, and calcu- lated to do material injury to it. It is that which is sought to be restrained ; and upon principle it appears to me to be a proper thing to do. My Brother Lindley, who is more conversant with these matters than I am, informs me that all the cases where the Courts of Equity have refused to interfere were cases where the application was made before verdict. Here, the jury have found the publications to be libellous ; and they are eminently calculated to injure the plaintiff's property in the patent rights which are assailed. I am unable to see any reason why the injunction prayed should not be granted : certainly the cases cited do not supply that reason. If the cases do not help us, they are not in the way: all but one of them seem to have been confined to interlocutory orders, and in that one it was sought to restrain the continuance of waste or trespass. As to sub-s. 8 of s. 25 of the Judicature Act, 1873, I must confess I do not appreciate its application to the matter. Lindley J. , concurred. Order absolute. 6 'In view of the decision in Saxbyv. Easterbrook, Malins. V.C., having determined at the hearing of the case of Thorley's Cattle Food Company v. Massam, 14 Ch. D. 763, 1880 [See for the discussion of the interlocutory 386 THE MODERN ENGLISH CASES. Quartz Hill Consolidated Gold Mining Com- pany v. Beall. In the Court of Appeal, 1882. Law Reports, 20 Chancery Division, 501. A solicitor, acting for some shareholders in a com- pany, printed and circulated, but only among the share- holders, a circular containing very strong reflections on the mode in which the company had been brought out, and on the conduct of the promoters and directors, and proposing a meeting of share holders to take steps to pro- tect their interests. The company commenced an action to restrain the further publication, and applied for an in- terlocutory injunction, which was granted by Vice-Chan- cellor Bacon. 1 The defendant appealed. 2 application in a prior suit between the parties, note 1, supra] that the defendant had issued a libel on the plaintiff, for the express purpose "of bringing the case within the decisions," assessed the damages at 40s., and granted a perpetual injunction against a further publication. The Court of Appeal affirmed this action. See also, as apparently supporting the idea that, irrespective of the Judicature Act, when once the libellous nature of the publication had been determined at the trial, an injunction would issue, remarks of Fry, J. in Thomas v. Williams, 14 Ch. , 864, 1880, 874. (The injunction in this case may also be supported on the ground of the plaintiff's property in the trade name of his goods. ) Another instance of the court's issuing an injunction after final hear- ing is found in Hill v. Davies, 2iCh. D. 798, 1882, 802 where Kay, J. granted an injunction to restrain the further issuing of the circular in question "or any other circular or letter containing false or inaccurate representations as to the credit or financial condition" of the plaintiff company. The ground for the jurisdiction is not discussed. In Pink v. The Federation of Trades and Labour Unions, 67 L. T. Rep. n. s. 258, 1892, the defendants issued a statement that the plaintiff's firm had boycotted five lightermen because they were members of the union, and circulated this statement among the plaintiff's customers who were in a large part laboring men. Kekewich, J., at the trial came 10 the conclusion that the statement was libellous and issued a permanent injunction against the repetition of the statement. Quare, whether the trial was before a jury? The case being in the Chancery Division, the Judge might, but could not be compelled to, grant a jury trial ; See, Rules of the Supreme Court, 1S83, Order XXXVI. Sub. 3. 1 The statement of facts is taken from the syllabus. s The arguments of counsel are omitted. APPENDIX B. LIBEL. 387 JESSEL, M. R. 3 In the present case, I think that the objections to the exercise of the jurisdiction are, at least, three. In the first place, the alleged libel is not proved to be untrue. Now, for a plaintiff to come to a court and say, " Prevent the publication of something which I do not prove to be untrue," is a very strong thing indeed. No doubt it has been said in some cases that the greater the truth the greater the libel ; but that does not apply to interlocutory injunctions. As a general rule, the plain- tiff who applies for an interlocutory injunction must show the statement to be untrue. Now, in this instance, the only witness for the plaintiffs is their secretary, who says not that the circular is untrue, but that the statements in the circular are to the best of his knowledge, information and belief utterly untrue. He does not show that he has any knowledge at all on the subject of these statements. He probably as secretary has some knowledge about them, but he does not show it ; and where an affidavit is made upon information and belief the rules of the court require that the deponent should state what are the grounds of his information and belief, and that he does not do ; he only says that they are untrue to the best of his knowledge, information and belief, not saying what the best of his knowledge is, and it may be nothing at all. There is, therefore, no evidence as to the untruth of the allegations in the circular. And, on the other hand, the defendant has pledged his oath that he verily be- lieves they are true. In this state of the evidence I am of opinion that no injunction ought to have been granted. The next point is this. The injunction is to restrain future publication. Now the circular in question has been issued to all the shareholders ; there is no allegation either on the writ or the statement of claim, or the affi- davit of any intention on the part of the defendant to 3 The first part of his opinion, in which he affirms the power to issue an injunction on interlocutory motion to restrain a libel, is omitted. 388 THE MODERN ENGLISH CASES. issue any more circulars, nor can I infer such intention, because it is alleged that he has issued the circular to al! the shareholders. There is no ground, therefore, for in- terference. The act is past, the mischief has been done, if mischief there is, and there is no ground for the inter- vention of the court before the trial. It appears to me this also is a fatal objection to the motion. The third ground is this, and a most important ground it is. The circular appears on the face of it to be in the nature of a privileged communication. It is issued by one shareholder to his brother shareholders, asking for their co-operation either in putting an end to the company or reconstituting it. As I said before, it may be answered that it is malicious and not entitled to protection, but that is very difficult to try upon inter- locutory application. In the present case the defendant says he is acting bona fide, and there is no evidence against him. But if there were, I think a judge should hesitate long before he decides so difficult a question as that of privilege upon an interlocutory application, the circular being on the face of it privileged, and the only answer being express malice. Those are questions which really cannot be tried upon affidavit or in the mode in which an interlocutory application is disposed of. In the present instance I can see no sufficient reasons for taking the circular out of the protection of privilege, and that is the third reason why I think this motion ought not to have succeeded. The result is that, in my opinion, we ought to discharge the order of the Vice-Chancellor, and direct the motion to be refused, with costs here and Loog v. Bean, 26 Ch. D. 306, 1884. [In the Court of Ap- peal.] A was a vendor of sewing machines. B was employed *The opinions of Baggallay, L. J., and Lindley, L. ]., concurring, are omitted. See, in accord with the idea that a privileged communication can- not be restrained on interlocutory application, Armstrong v. Armit, 2 APPENDIX B. LIBEL. 389 by A. A dismissed B. After his dismissal B went about among the customers of A, making oral statements for which appar- ently there was no foundation, reflecting on the solvency of A, and he also advised some of. the customers not to pay for machines. A brought an action against B for an account of sales made while in their employ, and for an injunction to restrain the defendant making the above statements. He subse- quently moved for an interim injunction, which was granted. The defendant appealed. Cotton, L. J. Here is a man, who had been in the em- ploy of the plaintiffs, making to their customers slanderous statements with regard to the business of the company, and trying to induce the customers not to pay the sums which they owe to the plaintiffs. The Court has of late granted injunctions in cases of libel, and why should it not also do so in cases of slander? It is clear that slanderous statements such as were made to old customers in this case must have a tendency materially to injure the plaintiffs' business ; they are slanders, therefore, spoken against their trade. It is not necessary, therefore, in my opinion, to show that loss has actually been incurred in consequence of them. If they are calculated to do injury to the trade the plaintiffs may clearly come to the Court. There is, no doubt, more difficulty in granting an injunction as regards spoken words than as regards written statements, be- cause it is difficult to ascertain exactly what is said. But when the defendant is proved to have made certain definite state- ments, such as are mentioned in the order, in my opinion an injunction is properly granted to prevent his repeating them. The defendant, though no doubt the tongue is an unruly member to govern, must take care that he keeps his tongue in order, and does not allow it to repeat those statements which he is by the injunction restricted from uttering. 5 * * * Coulson v. Coulson, 3 Times L. R. 846, 1887. [In the Court of Appeal.] This was an appeal from the Divisional Court restraining the defendants from issuing certain circulars. The two firms are manufacturers of damask at Lisburn in Ireland, Times L. R. 887, 889. In this case the court thought that the plaintiff failed to show irreparable damage, and refused to issue the injunction on that ground also. The defendant stated in substance, that the plaintiff had improperly influenced the Navy Department to buy inferior guns. For a case in which the injunction was refused because irreparable damage was not shown, as there was no evidence that anyone who saw the publication would pay any attention to it, see Salomon v. Knight [1891], 2 Ch. 294. 5 Bowen, L. J. and Fry, L. J., concurred. In Liverpool Household Stores Association v. Smith, 37 Ch. D. 170, 1887, 182, 183, Cotton, L. J., supports the injunction issued in the above case on the ground of a breach of duty to his former employers on the part of the defendant. 390 THE MODERN ENGLISH CASES. with shops in London. The firm of William Coulson and Sons was established in 1879, and that business was still being carried on in 1884 under the same name. At the beginning of 1884 William Coulson and Sons became bankrupt, and in May, 1 884, the business, with the goodwill was purchased by the present plain- tiffs, James Thomas Ward and others, who were not in any way connected with the Coulson family, and who have since carried on the business under the old name at Lisburn and in London. In 1843 James Coulson established a similar business at Lisburn under the style of James Coulson and Co. , the defendant firm, and this firm now belongs to James Ward, who entered it in 1 85 1 , taking the name of Coulson, but who was no connexion of the Coulson family. There was a dispute as to whether the firm of William Coulson and Sons existed continuously since 1879, it appearing that for some years before 1843 it was carried on under the name of J. W. and W. Coulson. In August, 1884, the defendant firm issued a circular in these terms: — "James Coulson and Co. beg to state that their establishment is not in any way connected with the firm of William Coulson and Sons, now in bankruptcy. ' ' This led to correspondence, and this circular was withdrawn, and in February, 1887, a fresh circular was issued in these terms : — " Mistakes having occurred, James Coulson and Co. beg to state that their establishment, which has been in existence upwards of a century, is quite distinct from that of William Coulson and Sons, lately in bankruptcy. The busi- ness of William Coulson and Sons is now in the hands of strangers, who were never in any way connected either with William Coulson or his business, although trading under the name. ' ' The plaintiffs brought an action for libel upon this cir- cular, and applied for an interim injunction till the trial of the action restraining the publication of the circular. Mr. Baron Pollock at Chambers refused an injunction, on the defendants undertaking not to issue their circular, but instead thereof to issue the following circular, which the learned Judge drew up : — • ' ' Mistakes having occurred, James Coulson and Co. beg to state that their establishment, which has been in existence upwards of a century, is quite distinct from that of William Coulson (who traded as William Coulson and Sons), who became bankrupt in 1884. The business of William Coulson and Sons is now in the hands of strangers, who were never in any way connected with William Coulson or his business, though trading under his name." The plaintiffs, not being satisfied with this circular, appealed, and affidavits were filed setting forth the above facts, those filed by the defendants stating that in 1843, when the firm of J. W. and W. Coulson was dissolved, James Coulson, who started the defendants' firm in 1843, was a partner in J. W. and W. Coulson ; while the plaintiffs' affidavits denied that James Coulson ever was a partner in J. W. and W. Coulson. The APPENDIX B. LIBEL. 391 Divisional Court (Mr. Justice Denman and Mr. Justice Grant- ham) gave judgment in favor of the plaintiffs, but said that they would grant no injunction if the defendants undertook not to issue any notice in the terms objected to, but only a notice in these terms : — " Mistakes having occurred, owing to similarity of names, James Coulson and Co. beg to state that their establish- ment is quite distinct from that of William Coulson and Sons, ' ' otherwise an injunction would go. The defendants appealed from this order. Lord Esher, M. R., said that it could not be denied that the Court had jurisdiction to grant an interim injunction before the trial. It was, however, a most delicate jurisdiction to exer- cise, because, though Fox's Act only applied to indictments and informations for libel, the practice under that Act had been fol- lowed in civil actions for libel, that the question of libel or no libel was for the jury. It was for the jury and not for the Court to construe the document, and to say whether it was a libel or not. To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where if the jury slid not so find the Court would set aside the verdict as unreason- able. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise their jurisdiction. In the present case his Lordship could not go the length of saying that it would be unreasonable in the jury to find that this was not a libel, and therefore, in accordance with the first rule laid down, the Court ought not to grant an interim injunction. The injunction must be dissolved, the costs to abide the event of the trial. Lord Justice Lindley concurred. He would only add one word as to the gravity of granting injunctions upon affidavit evidence before the trial. Formerly in the old Court of Chan- cery such injunctions were never granted. Then the Court granted them in cases of injury to trade or property. This being a trade libel there was jurisdiction to grant an interim injunction, but the Court was asked to exercise its jurisdiction without being sure that it was in possession of all the facts. His Lordship agreed with the rules laid down by the Master of the Rolls, and he was not prepared to say that the jury might not find that this was no libel, or that the alleged libel was true. The injunction, therefore, ought not to have been granted. Both the Judge at Chambers and the Divisional Court had suggested a form of circular ; but it was no part of a Judge's duty to do so, 392 THE MODERN ENGLISH CASES. except for the purpose of putting an end to litigation, and the Court ought not to settle a draft form of what might turn out to be a libel. Lord Justice Lopes concurred. 6 Collard v. Marshall [1892], 1 Ch. 571. Shortly after the 24th of September men acting under the orders of the defendant, Marshall paraded the streets in the neighborhood of the plaintiffs' Oval Road works, and their show-rooins and offices in Grosvenor Road, and elsewhere, bearing a placard having on it the following words : ' ' To French-polishers. A strike is now on at Collard & Collard' s against cheap labor and the sweating system of con- tract work. ' ' This was a motion on behalf of the plaintiffs for an interim injunction to restrain the defendant Marshall, the Secretary of the Amalgamated French Polishers' Trade Union's Permanent Committee, from publishing this placard. Chitty, J The complaint against the placard is directed first to the statement that ' ' a strike is now on " at the plaintiffs' works ; and secondly, to the allegation that the strike is against the sweating system of contract work. Against the circular the like complaints are made, and a further complaint is made as to the allegation or suggestion that the polishing is not being properly done. [His Lordship having then carefully gone through the facts and the evidence generally, held that the statement that ' ' a strike is now on at Collard & Collard' s," the allegations as to the sweating system, and the statement in the circular as to the polishing were all untrue in substance and in fact. With regard to the ' ' sweating system ' ' His Lordship, in the course of his judgment, made the following remarks :] There may be, as the Select Committee of the House of Lords seems to have found, a difficulty in framing a precise and exhaustive definition of the term ' ' sweating system. " It is obviously a figurative expression. It involves a system oppres- sive to the workmen, whereby an unconscionable or unjust profit is wrung from the sweat of his brow by paying him insufficient wages for his work. There is generally a middleman taking advantage of the circumstances in which the workman is placed, and grinding down for his own profit the wages of those em- ployed below the fair rate. But, however the term may be defined or explained, it cannot fairly or reasonably be applied to the system adopted by the plaintiffs. The workmen receive 6 In accord with the ideas of Lord Esher, see The Li/erpool House- hold Stores Association v. Smith, 37 Ch. D. 170, 1887, 175, 181, 184 ; Bonnard v. Perryman [1891] a Ch. 298, 299, 284; Lee v. Gibbings, 67 L. T. Rep. n. s. 263, 1892. In all of these cases the injunction was refused. APPENDIX B. LIBEL. 393 wages not less than the rate fixed by the amalgamated trade unions, and this standard cannot be objected to as unfair or unjust. The circumstance that the plaintiffs employ more lads or boys than the union thinks right, does not justify the defendants calling the plaintiffs' system "the sweating system," or "the pernicious system of sweating." Where the system prevails, the epithet ' ' pernicious ' ' is not at all too strong. [His Lord- ship, after commenting on other parts of the evidence, pro- ceeded :] It is unquestionable that the statements complained of are calculated to inflict serious injury on the plaintiffs in their trade. The most serious are those relating to the sweating system. They are calculated to bring the plaintiffs and their business into hatred and contempt, and to deter respectable persons from dealing with them. Being untrue, they are cruel. The imputa- tion is odious. There is no question as to the defendants intending to con- tinue to publish the placard, or as to the defendant Marshall in- tending to continue to publish the circular. Injunction granted.' Monson v. Tussauds, Limited [1894], 12 B. 671. [In the Court of Appeal.] The plaintiff had been indicted in Scot- land for murder. The trial attracted a great deal of attention. It' resulted in the Scotch verdict of "not proven." The de- fendants were the proprietors of an exhibition consisting of wax figures representing celebrated and notorious persons. They exhibited a wax image of the plaintiff in one part of their estab- lishment, and in another part, known as the chamber of horrors, a representation of the scene of the murder, though here there was not any model of the plaintiff. The application was for an interim injunction to restrain the defendants from exhibiting a portrait model of the plaintiff. Collins, J. [In the Divisional Court.] * * * When the contents and the manner of exhibition of these shows are con- sidered, it is perfectly clear that to place an effigy of the plaintiff in them and to demand money for showing it is necessarily to convey a sinister imputation that he was connected with a crime, and not that he was a spectator of an. accident. Under these cir- cumstances it seems to me that the inference which any reason- able jury would draw is inevitable, i. e. , that an imputation is made on the plaintiff and that the exhibition of the effigy is a libel upon him. The first condition required by the Court of Appeal is therefore fulfilled. In my opinion, if the jury were to say that there was no libel because no imputation was cast on the ' Kekewich, J., had issued a similar injunction in Pink v. Federation of Trades and Labor Unions, 67 L. T. Rep. n. s. 258, 1892, 259. See Judicature Act, 1873, supra, note 6. 394 THE MODERN ENGLISH CASES. plaintiff by the inclusion of his effigy in the defendants' exhi- bitions, their verdict would be so unreasonable that it ought to be set aside and a new trial granted. But the matter does not stop there, because the Court of Appeal has laid down in the case already cited, that although the libel may be clear, yet, if it is apparent that a justification will be set up at the trial or that the injury is so slight that the plaintiff would recover nominal dam- ages only, the Court will not interfere by interim injunction. Any intention to justify any imputation on the plaintiff has been in terms disclaimed, as I have said, and the second condition of the Court of Appeal has been complied with. The only question, therefore, that is left is whether it can be contended that the libel thus unjustified is a mere matter for nominal damages. That has hardly been suggested, and if suggested could certainly not be sustained. It is obvious that, where such an imputation is con- veyed by such means and merely to gratify a morbid curiosity, the damages must be substantial. All the conditions laid down by the Court of Appeal have therefore been fulfilled, and the Court is consequently justified in interfering. I agree without hesitation that an injunction must go in both cases. Applications granted. 8 The defendant appealed. In the Court of Appeal the de- fendant filed further affidavits to the effect that the plaintiff had consented to the representation, and offered to sell the defendants the gun he carried and the clothes worn by him on the day of the murder. Counter affidavits were filed by the plaintiff. Lord Halsbury. Although I believe there is no differ- ence of opinion among us as to the result of this appeal, I am not so certain that the grounds upon which we act are the same, and the questions raised at the bar are of such serious general im- portance that I feel it necessary to explain distinctly the reasons which operate on my mind in the course to be pursued. If the case were to be argued upon the materials which alone were before the Divisional Court, I should be of opinion that the judg- ment of the Divisional Court ought to be affirmed. I entirely agree in the reasoning of my brothers Mathew and Henn Col- lins ; but, for a reason I will state presently, I desire to treat separately the question of the summary intervention of the court by way of interlocutory injunction and the question of the char- acter of the exhibition, the continuance of which until the trial it is sought to restrain. What stands at the head of the inquiry is the character of the exhibition itself. Is it libellous or no ? — and in expressing my opinion upon it I am not afraid of prejudicing any right by so doing. The jury will have upon the trial of the action to decide the question ultimately, and I have much too 8 That part of the opinion of Collins, J., which discusses the facts of the case, and the concurring opinion of Mathew, J., are omitted. APPENDIX B. LIBEL. 395 high an opinion of the intelligence of juries to suppose that they would be influenced in their judgment if they learned that a judge or a court had thought that the continuance of an exhibition charged as libellous ought to be restrained until the matter came before them for decision. Indeed, it is a little singular to sup- pose, considering the controversies which used to arise before Mr. Fox's Act, that a jury would on such a question be unduly influenced by the opinion of a judge or a court. 9 * * * But I have now to deal with the question of the summary interposition of the court restraining the continuance of this ex- hibition until the trial of the action. Two points arise upon it. In the first place, it is said that the court ought not to pronounce anything to be a libel when that very question must afterwards be submitted to the judgment of a jury ; and, secondly, that the question has already been concluded by authority in this court. Sitting here, I quite admit that I am bound by a former decision of this court. With respect to the first point, my answer is that the legislature in 1873 and 1875 gave the power by the unquali- fied language of its enactment to do the very thing in question wherever the court should deem it just and convenient. Had it thought right to limit the exercise of such power to cases where no question should be afterwards determined by a jury, it might have limited the exercise of such a power to such cases. It can- not be assumed to be ignorant of the state of the law or the prac- tice, and it has enacted in the widest terms the jurisdiction in question. It is not necessary to enumerate, but there are other examples of jurisdiction where judges must exercise, in the first instance, a judgment which must, nevertheless, afterwards be submitted to a jury. The second objection is one with which I have more delicacy in dealing. As I have already said, I am bound by a former decision of this court, but it is the decision of the court — what in fact the court did decide — that is the authority to which I must submit. I have some difficulty in following the argument that a decision of the court on one set of facts is an authority upon another and a totally different set of facts. Of course, if the two sets of facts are governed by some principle of law, the principle of law affirmed by the court is equally authoritative to whatever facts the principle may be applied ; but where the strength and cogency of the facts themselves, or the inference derived there- from, is in debate, I cannot, as a matter of reasoning, compare one set of facts with another and bring them within any govern- ing principle. Nor am I helped by a conjecture as to what a jury would do in a supposed case and what a court of review would then do if the jury did it. In the case of Bonnard v. He comes to the conclusion that the exhibition of the model is, in view of the other circumstances of the case, an imputation of guilt. 396 THE MODERN ENGLISH CASES. Perryman, [1891] 2 Ch. 269, affirming the former authority before the Master of the Rolls, it was laid down, and I cheerfully accept the proposition, that the Court ought not to interfere by interlocutory injunction unless it was ' ' a clear case. ' ' Different forms of expression are used by different judges to indicate the degree of clearness which ought to be brought home to the mind of a judge before he exercises the power now in question. But it is a canon of construction too familiar to render more than an allusion to it necessary, that expressions however general and phrases however wide are cut down and qualified by the subject-matter with respect to which they are uttered. If I were to understand the test sug- gested to be applicable to all cases, so that it practically excluded actions of libel from the operation of the Judicature Acts with respect to granting interlocutory injunctions, it would be to over- rule the legislature — a power which is not possessed either by this or any other court. But, as I have said, I do not so under- stand the decisions relied upon. The last one speaks of the procedure in question as being only just and convenient in excep- tional cases — that is, exceptionally clear cases. Something was said as to the procedure being only applicable to trade libels. I think the suggestion is quite unfounded. The Court of Chancery had no jurisdiction in libel cases, but they had jurisdiction to issue injunctions to restrain injuries to trade ; and efforts were occasionally made to treat libels as injuries to trade, so as to bring them within the jurisdiction which the Court of Chancery was empowered lawfully to exercise. But, whatever may have been the interest of such discussions, the Judicature Acts have ren- dered all of them idle. In all cases where the Court shall think it just and convenient the remedy exists. I should have thought the protection of a man' s character much more important than the protection of his trade : see Hermann Loog v. Bean, 26 Ch. D. 306. I do not deny that it is a difficult task for any Court to determine when the case is so clear that the remedy ought to be applied. In this case it is for the jury, and always would have been for the jury, to determine the question, libel or no libel ; since in the unanimous opinion of the judges given in the House of Lords in 1792 — see 22 How. State Trials, 298 — while adher- ing to Lord Mansfield's opinion as to the construction of a written document — see Woodfall's Case, 20 How. State Trials, 895, and 5 Burr. 2661 — they frankly admitted that wherever the sense of a paper was to be collected from matter dehors the paper the matter was for the jury ; and it need hardly be stated here that, ' ' libel or no libel, ' ' in this case must be absolutely for the jury. A rule, however, which should place the question of libel or no libel absolutely in the hands of the Court, so as to control the operation of ar A ct of Parliament, would go far to revive a controversy whicn has now been laid to rest for APPENDIX B. LIBEL. 397 upwards of a century : see Baron Parke's observations la Parmiter v. Coupland, 6 M. & W. 105 ; and for this, among other reasons, I cannot think that the decisions referred to are to be understood in the sense contended for. In the view, therefore, that I take of the facts, I should have thought this was a clear case of libel, and an equally clear case for the prompt interference of the Court to restrain it until the trial of the action. The question, however, remains whether the new evidence adduced, and which was not before the Divisional Court at all, alters that view ; and I am of opinion that it does. * * * Lopes, L. J. * * * I cannot help thinking that a principle was laid down in this case [Coulson v. Coulson] ap- plicable to all libels without limitation. Comment has been made on the words ' ' in the clearest cases, ' ' and it has been asked what those words mean. I think the criticism would be well founded, and they might be complained of as 'indefinite, if they had not been, in my judgment, explained in the most exhaus- tive way by what follows, viz. , ' ' where any jury would say the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreason- able." This is the rule by which we are bound, and I ask myself, if the jury found a verdict for the defendants in this case, would the Court set it aside as unreasonable ? I propose first to deal with the case as it came before the Divisional Court, and, secondly, as it has come before this court with the additional evidence. I do not think that the Divisional Court were justified in coming to the conclusion that the libel was so clear that if a verdict passed for the defendants it must be set aside as unreasonable. * * * Davey, L; J. * * * I should have much hesitation in differing from the opinion of two judges of so much experience if the case came before us only on the same affidavits as were used in the court below. But affidavits have been used before us which raise a question of acquiescence and active consent against the plaintiff, and indeed suggest that he sold the right to exhibit his effigy with his own clothes and gun, though he after- wards changed his mind. Of course, these affidavits fall far short of proving such a case against the plaintiff, but they cer- tainly suggest it in a manner and with circumstances which show that there is a case for consideration by a jury, and one on which I decline to speculate or express any opinion what their verdict ought to be when they have complete evidence by examination and cross-examination of the witnesses before them. * * * Appeals allowed. (198 the modern english cases. Trollope and Sons v. The London Building Trades Federation. In the Court of Appeal, i8pj. J2 Law Times Reports, 342. In 1882 an agreement was entered into between the master builders of London and the building trade unions of London, under which no workman was to be placed under any disability by reason of either belonging or not belonging to a trade society. On the 25th Oct., 1894, the plaintiffs in this action, Messrs. Trollope, a London firm of builders, received a letter from the secretary of the defendants, the London Building Trades Federation, complaining that the firm had refused to employ any but " free labor " men in breach of the argeement. The next day the secretary called on Mr. George Trollope and alleged that the firm, and in particular two of their foremen, were giving the preference to non-union men on certain building contracts ; he demanded the dismissal of the foremen, and threatened to call out the firm's workmen on strike if they were not dismissed. Mr. Trollope denied that any preference was being given to non-union men, and refused to dismiss the foremen. On the 1st Nov. the men employed upon Messrs. Trollope's works were called out by the federation. One hundred and seventy-five men left, but a large number remained. Whereupon the works were picketed, and police protection had to be obtained. On the 14th Jan., 1895, the pickets were with- drawn. On that day it was ascertained that the federation had published a large yellow poster with a black border headed " Trollope's Black List," containing the names and addresses of non-union workmen employed at Messrs. Trollope's works, including men who remained on when the strike took place. About 750 copies of this poster were distributed to certain "lodges" and other resorts of workmen. Messrs. Trollope and some of their workmen, APPENDIX B. LIBEL. 399 whose names appeared in the "Black List," then brought this action against the federation and certain others, and now moved for an interim injunction to restrain the defend- ants, their officers and servants, until the trial or further order, from publishing or distributing the said " Black List," or any similar document. There was an affidavit in support of the motion by Mr. George Trollope to the effect that the publication of the "Black List" would injure the firm in its trade or business, would induce workmen to leave the firm, and deter others from entering their employment, would bring the firm into contempt with their workmen and with the public, and would coerce and intimidate the workmen in their employment. There were also affidavits by the plaintiff workmen to the effect that the publication of the " Black List" would bring them into odium and contempt with their fellow-workmen, and prevent them from obtaining employment, and that its object was to ruin them in their business. 1 KEKEWICH, J. With any question affecting the law of libel, either triable before a jury or restrainable by injunction, I do not intend to deal. In my opinion it is convenient, if possible, not to deal with any question of that kind upon an interlocutory application, having regard to the authorities, and more particularly to the recent case of Monson v. Tussauds Limited (itbi sup.), in which case there are some most instructive and authoritative judgments, although they are not altogether in accord. This case can be put upon another ground. Mr. Renshaw relied upon the opinion expressed by Lord Field in the case of the Mogul Steamship Company v. Macgregor (ubi sup.), where, after referring to the decision of Holt, C.J., in Keeble v. Hickeringill (ubi sup.), and pointing out that acts done by a trader in the lawful way of his business, although by the necessary results of effective competition interfering injuriously with the trade of another, were not 1 The arguments of counsel in the Chancery D vision are omitted. 400 THE MODERN ENGLISH CASES. the subject of any action, said this: "Of course it is otherwise as pointed out by Lord Holt, if the acts complained of, although done in the way and under the guise of compe- tition or other lawful right, are in themselves violent or purely malicious, or have for their ultimate object injury to another from ill-will to him and not the pursuit of lawful rights." To my mind, on the present materials, which may, of course, be displaced at the trial, this case falls distinctly within the lines laid down by Lord Field. If it did not it would probably be my duty to hold my hand. But the mere possibility of the case being different at the trial ought not to prevent me from doing what is j ust now. Mr. Jenkins referred to a case of Jenkinson v. Nield (iibi sup.), where the court came to the conclusion that the acts complained of were not of the kind described by Lord Field, and that, therefore, what the defendant had done was not actionable. But that is not my opinion here at all. No doubt this federation, and those whom it repre- sented, intended that in some way or other those who supported it should be benefited by what they did. Their own benefit was, of course, one of the objects of their action, and it was to some extent — to use a philosophical expression — the "final cause" of their action. But it was not the only cause, and I have no doubt from the evidence before me that another motive, and the principal and primary motive, was to injure the workmen mentioned in the " Black List," and also Messrs. Trollope and Sons, and to prevent them from carrying on their lawful trade or business with that freedom which is the privilege of Englishmen. That seems to me to be the direct object of the defendant's procedure, and is therefore, according to Lord Field, actionable. The question, there- fore, which follows is, ought they to be restrained ? That the court has jurisdiction to restrain them in such a matter as this I have no doubt. It is given in direct terms by the Judicature Act, sect. 28, sub-sect. 8, if it was not inherent in the court before, and it seems to me to follow APPENDIX B. LIBEL. 401 from the judgments of Lord Halsbury and Lord Davey in Monson v. Tussauds Limited (tcbisup.), that the jurisdiction may be exercised in such a case as this. No doubt it is a discretionary jurisdiction which ought to be exercised with care, and only if the court thinks it ought to be exercised in the particular case. In my opinion this case is one in which the defendants are doing what is wrong, and it is actionable on that ground, and I think an injunction ought to go because from day to day all the plaintiffs are being seriously and maliciously interfered with in the exercise of their lawful callings, the ultimate object of the defend- ants being injury to the plaintiffs from ill-will to them. This is a matter of the gravest importance", especially in a trading community such as that in which we all live. In this case, in which the injury is going on from day to day, it would not be right to subject the plaintiffs to that injury during the interval from the day on which the motion for an injunction is made until the trial of the action. I think, therefore, the plaintiffs are entitled to an injunction on the materials now before the court, and that that in- junction ought to be granted immediately. There must, therefore, be an injunction to restrain the defendants, their officers, agents and servants, and the other defendants by name only, until the trial of the action or further order, from publishing, posting, distributing, and issuing the circulars or posters headed " Trollope's Black List," or any similar document. 2 Lord Halsbury. The court is encountered by con- siderable difficulty in being invited upon an interlocutory appeal to express an opinion on materials which are admittedly imperfect. It is a case in which very serious questions of law, intertwined with very grave questions of fact, will have to be decided at the trial. Without express- ing any opinion upon these questions, the court is en- countered by the fact that the learned judge in the court 1 The arguments of counsel in the Court of Appeal are omitted. 402 THE MODERN ENGLISH CASES. below has granted an interlocutory injunction restraining the dissemination of the placard complained of. There is great force in the respondent's argument that, even if trade unions are entitled to communicate to the officials of their branches which men are on their side and which are not, yet there is a prima facie case that the defendants had gone beyond that. And, moreover, the defendants have positively refused to give any undertaking not to continue the dissemination of this placard pending the trial of 'the action. I therefore think that this court ought not to interfere with the order of Kekewich, J., and should dismiss the appeal. But, while so doing, we are anxious to guard ourselves against expressing any opinion upon the very serious questions which will arise for decision hereafter. They are very grave and serious questions to both parties. LlNDLEY, L.J. I am of the same opinion. An attempt has been made to force the hands of the court, but we refuse to be forced. Smith, L.J. I concur. Appeal dismissed. APPENDIX B. LIBEL. 403 QUIRK v. DUDLEY. In the High Court of Justice, Ontario, 1902. 4 Ontario Law Reports, 532. The plaintiff Jennie Quirk brought this action against Walter Dudley and Gladys Dudley, endorsing her writ for $1000 damages for slander and for an injunction to restrain the defendants from in any way mentioning or alluding to the death of the plaintiff's late husband or the circumstances attending the same at the defendants' series of entertainments then being given at the city of Brant- ford, or elsewhere within the jurisdiction of this Court. James Quirk, the plaintiff's late husband, died at Brantford on March 23rd, 1902, and at the time of the bringing of this action the cause of his death was the sub- ject of a pending coroner's inquest. The defendants were travelling through Ontario giving mind-reading enter- tainments, and at time of action brought were at Brant- ford, and at a recent entertainment there the defendant Gladys Dudley, while supposed to be in a trance, assumed to give an account of the death of James Quirk, saying that he had been killed by a supposed friend, and that she could if asked give the name of the friend. On Sep- tember 19th, 1902, the local judge at Brantford granted an interim injunction till September 25th in the terms of the endorsement on the writ, upon an affidavit of the plaintiff deposing to the above facts, and stating that at the time of his death James Quirk was in partnership with one John J. Toole ; that his death had caused a great sensation at Brantford and given rise to various rumors, some of which placed the responsibility of his death on the said Toole and the plaintiff ; that since the defend- ants' entertainment such rumors had been revived, and the plaintiff subjected to great annoyance, and that the defendants had announced their intention to take up 404 THE MODERN ENGLISH CASES. again the subject of the death of James Quirk and give further particulars, which would still further injure the plaintiff's reputation at Brantford. The plaintiff moved to continue this injunction until the trial. The motion was argued on September 25th, 1902, before Boyd, C, in Weekly Court. J. H. Couch for the plaintiff. M. F. Muir, for the defendants, contended that this was not a proper case for an injunction ; that the Court never interfered by injunction unless there was some question of property involved, and that to grant an in- junction in this case would be to invade the province of the jury: Fleming v. Newton (1848), 1 H. L. C. 363; Aslatt v. Corporation of Southampton (1880), 16 Ch. D. 143 ; Kerr on Injunctions, 3rd ed., p. 502 : Amer. & Eng. Encyl. of Law, 2nd ed., Vol. 18, p. 11 20. September 26th. Boyd, C. : — The complaint of the plaintiff as it comes before me on the affidavits is uncon- tradicted by any evidence for the defendant. It stands confessed, therefore, that there has been an attack upon the character of the plaintiff ventured upon at a public entertainment by means of suggestions that she has been privy to the violent death of her husband. The female defendant, posing as mind-reader, assumes when in a state of so-called trance to have before her mind's eye visual- ized the panorama of the assumed tragedy, and tells forth the details bit by bit. Some interesting additions appear to be reserved for future exhibitions or entertain- ments and to restrain these the intervention of the Court is sought. Jurisdiction undoubtedly exists in libel or slander actions to restrain repetition of the defamatory things whether written or oral. This case appears to be out- rageous, whereby in the most sensational manner, and to gather some admission fees, the public are given to under- stand that the plaintiff is mixed up in some way with the murder of her husband. APPENDIX B. LIBEL. 405 The mischief is enhanced by the fact that the revela- tions are published in the newspapers at Brantford, and all the while proceedings are pending concerning the manner of the husband's death before a coroner's jury- impanelled in the same city, and before whom the inquest has been adjourned until December 2nd. The principles laid down in Monson v. Tussaud, (1894) 1 Q. B. 671, are ample to meet this case. It was there said that irreparable injury would be done if the defendants were, by means of an exhibition of the plaintiff's effigy in or close by their Chamber of Horrors, to remind the public that the suspicion of an atrocious crime rested on the plaintiff. Hermann Logg v. Bean (1884), 26 Ch. D. 306, shows that oral slander may be restrained and that the Court has jurisdiction in a clear case (such as this appears to be on the affidavits) to restrain even that unruly member the tongue, nor is there any exception in favor of those who claim supernatural power. I continue the injunction till the hearing or further order. 1 1 For an article by the present editor discussing the cases in this Appendix, see 50 Am. L. Reg., o. s., 322, " English Cases on the Re- straint of Libel by Injunction since the Supreme Court of Judicature Act, 1873."