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of the Supreme Court relating to it may be counted on one's fingers. It is otherwise in England and America: and as this is a branch of general mercantile law, or at least is governed in this country by an imperial Statute (25 & 26 Vict. c. 88), the numerous decisions of the tribunals of these countries lay down principles which will generally receive effect with us.
We can, therefore, cordially recommend Messrs. Ludlow and Jenkyns' manual to the Scotch practitioner. He may have a slight difficulty sometimes in separating what depends upon rules of procedure from the substantive law, as indeed he has whenever he consults English authorities, and as our authors appear to have had in referring to our scanty Scotch decisions. But this book will materially help him to do so; for it is far from being a mere recitation of rubrics. On the contrary it is to be praised for the clearness with which it brings out, so far as that is as yet possible, the principles on which the law of trade-marks is based. These principles, it must be admitted, have been of a rather shifting nature; for it is only within the last few years that it has been distinctly settled that a trade-mark is of the nature of property, and that the action for infringement is not founded merely upon fraud (Leather Cloth Company, Lim., v. American Leather Cloth Company, Lim., 33 L. J. Ch. 199; 35 L. J. Ch. 53; 11 H. L. 523. Hall v. Barrows. 33 L. J. Ch. 204). One result of this principle is that the Courts will protect the right to use a trade-mark, whether the infringement is intentional, or not; and that in some cases the defendant innocently infringing a trade-mark is not only bound to submit to a perpetual interdict, but may even in England be held liable to pay the costs of obtaining the injunction (p. 47). Where however the innocent defendant does all that can be required of him, we notice that the Court of Chancery is ready to find reasons relaxing what seems to be a hard rule (Upmann v. Elkan, 40 L. J. Ch. 475; 41 L. J. Ch. 246).
The principle to which we refer was first clearly laid down by Lord Westbury in Hall v. Barrows, cit., where he said:
"It has been pressed upon me, on the part of the defendant, that there is no property in a trade-mark, and that the right to relief is merely personal, founded on the fraud that is committed when one man sells his own goods as the goods of another. It is true that the cases contain expressions by eminent judges that there is no property in a trade-mark, which must be understood to mean that there can be no right to the exclusive ownership of any symbol or mark universally, in the abstract. Thus, an ironfounder who uses a particular mark for his manufactures in iron could not restrain the use of the same mark when impressed upon cotton or woollen goods; for the property in a trade-mark consists in the exclusive right to the use of that mark as applied to some particular manufacture. Nor is it correct to say that the right to relief is founded on the fraud of the defendant, as appears from the case of Millington v. Fox, already referred to. Imposition on the public is indeed necessary for the plaintiff's title, but in this way only, that it is the test of the invasion by the defendant of the plaintiff's right of property; for there is no injury done to the plaintiff if the mark used by the defendant be not such as may be mistaken, or is likely to be mistaken, by the public for the mark of the plaintiff. But the true ground of the Court's jurisdiction is property."
The same doctrine had been laid down by Lord Cottenham, in the earlier case of Millington v. Fox, 3 My. & Cr. 338. In the common law courts, and in an action of damages in Scotland, it is of course necessary to prove a fraudulent intention; but the foundation of the action upon the title of the plaintiff to a particular mark or name appears here also in the rule that it is not necessary to prove specific damages, the plaintiff being entitled to some damages in respect that the defendant's use of his mark is to a certain extent an injury to his right (Blofield v. Payne, 4 B. and Ad. 401). Thus our authors say
"Injury to the plaintiff is essential to enable him to recover. This injury is twofold, (1) to his reputation by reason of the defendant having sold inferior goods; and (2) to his trade by drawing away his custom.
"A possibility of injury is, however, sufficient, and it is not necessary to show special damage. For where it was proved that the defendant's manufactures were not inferior to the plaintiff's, and no proof was given of the plaintiff having lost any custom, the plaintiff was held entitled to nominal damages, because, as Littledale, J., said 'the act of the defendant's was a fraud against the plaintiff, and if it occasioned him no specific damage it was still to a certain extent an injury to his right,' and he might have been prevented from selling as much of his own manufactures. Of course on the theory that the action rests on jus in rem, this is readily intelligible and in analogy with actions for infringing a patent or copyright.
Where, however, there is no possibility of any injury to the plaintiff, as if he has never put out his trade-mark to the world or has not carried on business, he cannot recover."
The information given in the last chapter and in the appendix with regard to the protection afforded to British trade-marks in foreign countries will be found very useful. The indexes of cases and matters are both carefully prepared. In all respects the book is creditable to its authors and publishers, and ought to be in the counting-house of every large manufacturer and merchant as well as on the shelves of every mercantile lawyer.
Thoughts on the Fusion of Law and Equity, suggested by the Lord Chancellor's Bill. Reprinted (by permission) from the Saturday Review. By G. W. HEMMING, Barrister-at-Law, late Fellow of St. John's College, Cambridge. London: Macmillan & Co. THIS is a powerful attack on the Lord Chancellor's Bill for the reform of the English judicature, mainly on the ground that it purposes to effect the fusion of law and equity at the expense of equity, instead of adapting the law to the standard of equity, in accordance with the advice of Lord Chief-Justice Cockburn in his famous letter to Lord Chancellor Hatherly about the Bill of 1870. That eminent judge placed on record his reasons for thinking that "the fusion of law and equity was a consummation devoutly to be wished, and further that it must take place at the expense of the law;" and in this pamphlet Mr. Hemming takes up the parable, and censures Lord Selborne's measure for failing to secure the predominance of equity in the new tribuual, in its practice and adminis
tration. The key-note of Mr. Hemming's pamphlet is contained in the following extracts:
"The spirit and tradition of the Court of Chancery are therefore, according to the highest Common Law authority, the spirit and traditions which have to be infused into all our Courts. There is one way, and one way only, in which this can be done. The spirit of a law and the tradition of a court live in the minds of living men, and are guarded by the associations connected with old institutions. You cannot transplant them, if you would, by Act of Parliament. The Common Law Courts cherish alike the noble traditions of order and liberty which are their just pride, and the narrow traditions of hard technical law which made the Court of Chancery a necessity, and which can only be tempered by infusing into them the higher traditions of Equity jurisprudence. While the names, the constitution, the special jurisdiction, and the personnel of the old Courts remain unchanged, the old traditions, good and bad alike, will, as Lord Cairns has justly said, still linger about them. Equity jurisdiction may be given by statute in larger measure than heretofore, but it will be used as it has been used heretofore. The spirit of Equity will be wanting in the future as it has been wanting in the past, and the old repugnance of Coke and his successors, the old traditions which prevented the Courts of Law from developing Equity for themselves, will sway the judges in their own despite. The remedy is easy if once personal considerations are postponed and personal compromises rejected. Let the judges who are the living depositaries of the principles of Equity be associated in due proportion with their brethren of the Common Law in all the Courts (as indeed is proposed to some extent in the Court of Appeal); let each division of the united Court learn to look upon itself as the heir of the Chancellors no less than of the Chief Justices, and there will be, some prospect of a real assimilation of Law and Equity. But this is the very reverse of what the Chancellor's Bill proposes. Old prejudices against Equity are to be preserved by 'concessions to sentiment,' and the only Court which is to be shorn of its powers and forbidden any longer to grow is that to which we owe all the doctrines which it has become an imperative necessity to ingraft upon the law. "Such a Bill may be an easy Bill to pass, but it will become an impossible Act to work. The principles of Equity will perish in an uncongenial atmosphere, and the very source from which alone they can be renovated is to be choked with restrictions on its flow."
"The arrangement proposed by the Bill, that the High Court shall be composed of seventeen Common Law and four Equity Judges, must therefore be regarded as permanent at least for one or two generations. Surely we are right in saying that this is not a defect for which Lord Selborne's plea of transitional difficulties can possibly be accepted. Under such conditions it is as idle to hope to infuse Equity principles into all our tribunals, as it would be to intrust Liberal measures to a Coalition Cabinet in which Tories should preponderate in the proportion of four to one. While the materials to work with are so adjusted, no manipulation, however ingenious, can possibly supply the requisite power of the requisite kind for the determination of all the cases that will come before the Courts. Putting aside writs issued merely as means of compelling payment by debtors in arrear, the number of actions in which any questions of Law are involved will, we believe, be found to be less than the number of suits and matters in Equity; but, whether this be so or not, the aggregate amount of property dealt with, and the magnitude and intricacy of the rights involved, in the Equity suits of any given period, must largely surpass what would be met with during the like period in all our Courts of Common Law. If the High Court were constituted as proposed, more than half of its genuine judicial business must be expected to turn upon equitable doctrines. If this is even a remote approximation to the truth, how is the work to be done under the Chancellor's Bill, except by the means which we have--not untruly,
we think-described as a transfer of the administration of Equity from those who have studied it to those who have not? This is the fatal blot on the measure which no amendments in Committee can obliterate."
The Institutes of Justinian. Edited as a Recension of the Institutes of Gaius. By THOMAS ERSKINE HOLLAND, B.C.L., of Lincoln's Inn, Barrister-at-Law; formerly Fellow of Exeter College, Oxford. Oxford: at the Clarendon Press, 1873. Macmillan & Co.
THE fertility of the English press in works on the Civil Law is somewhat surprising, when we consider how few important works on that subject have ever hitherto been published in the kingdom. It is a good sign of the new zeal for legal education which has been awakened, just at a time, alas! when the profession is threatened with degradation and penury by an ungrateful country. Mr. Holland, who is a legal examiner in the University of London, has contributed an elegant and scholarly little work, which will be however rather one of curious than practical interest to the student. Every one knows that to a considerable extent Justinian's Institutes are a mere "recension" of Gaius, bearing to the earlier work, as Mr. Holland says, very much the same relation that Mr. Serjeant Stephen's Commentaries bear to Blackstone. Mr. Holland's purpose is to make this relation more obvious by showing the exact differences in every particular passage.
The plan of the work is as follows: the portions of Gaius which were left standing in the revision of Tribonian are printed in a darker type. The sections of Gaius are indicated by marginal references; the sections of which no use was made being also indicated in the margin, but within brackets. Passages borrowed from other writings of Gaius, or from other jurists, are also indicated by references. There are also references to the numerous constitutions referred to in the text of the Institutes. The text is that of Huschke. The editor has abstained from commentary, but has given a sufficient index. Altogether this is a very elegant pocket edition.
To the Editor of the Journal of Jurisprudence.
SIR, I write from the country. But the country, be it remembered, comprehends the cities of Glasgow and Aberdeen, the towns. of Dundee and Paisley, and other centres of population, as the phrase is, far outnumbering in the aggregate the denizenship of the Scottish metropolis, in its widest sense. The superior law courts. are in Edinburgh, and I for one have no wish to see them removed
from it; but the larger portion of those who send grist to their mill have little connection otherwise with Mid Lothian or its county town. Those, however, who practise before the Court of Session reside therein, and the luckless rustic wight whom the contingencies of fortune or misfortune lead thither, can only, as a rule, enter its portals by proxy. One proxy, it might be thought, should be enough, but dis aliter visum est,-he must generally have three. There is, first, the country agent, the only one with whom, in ninety-nine cases out of a hundred, the suitor ever comes actually into contact. He prepares the rough material, be it of wheat or other grain, and forwards it sorted, well or ill, as chance or skill may have guided him, to the town agent, who is either a Writer to the Signet, or one who appends to his name the cabalistic letters S.S.C. The country agent is supposed to be so inhumanly perfect and forecasting, as to be able in every case, however intricate and perplexing, to send on at once full and complete information for enabling those who come after him to master every detail of fact, and every principle of law, that may be involved, to shape their course evenly and uninterruptedly, and meet all the wiles, justified by honour or not, with which their opponents may meet them, in the course of, it may be, a long and fluctuating litigation. If he fails in this,—if they find it necessary to ask for explanations or papers which he has not sent at first, the auditor's knife will afterwards work sharply among those items of the country agent's account, often by far the larger part of his charges, which relate thereto, and the successful client will sometimes find that in gaining his cause he has gained a loss,-will never find that his gain is pure and unalloyed. The more rascally his opponent's devices may be, the more likely, when the end comes, that he in whose favour the judgment has been pronounced, finds himself burdened with a handsome proportion of his own expenses.
I do not so well know what the town agent does, or is expected to do. I remember, when a young practitioner, of having several processes under the charge of a highly respectable and extensively employed Edinburgh firm now no more. One of these was an action of count and reckoning, a species of action in which, perhaps more than in any other, a knowledge of details is essential on the part of somebody engaged in the management thereof. My client, a rough but shrewd man, thought the Edinburgh agents might be the better of some personal explanations from himself, and having got their address, he proceeded to the city to impart these. He saw more than one of the partners, very gentlemanly persons, but none of them knew anything of his case, even by name, though their bookkeeper did. The Parliament House clerk was called in, and he could tell in what stage the process was, but knew nothing of its merits, and consequently could not appreciate the value of the particulars with which the client was freighted, and did not seem disposed to trouble himself about them. The man came