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to be a first lien upon all the property described tion, settled the law that in this State an attorin the said several mortgaged deeds and the ney-at-law in a suit brought to enforce the proceeds arising from the sale thereof.
rights of his client can, acting for himself and “And that the proceeds arising from such for his client at the same time, agree for himsale be applied first to the payment of the self on the one side of the controversy and for attorney's fees decreed in this suit, the referee's his client upon the other side of the controversy, fees and the stenographer's fees."
without notice to his client that the claims of Claiming to be parties to the decree and en- the attorney against himself are to be litigated titled to sell the property for their fees, the or determined in the suit, and in such a suit attorneys secured an order of sale upon this take a decree in favor of himself and against decree and, against the objections of the his client, and such a decree is a consent deplaintiff, proceeded to sell the property. It cree, which is not appealable and which cannot sold for $9,000.
be corrected upon appeal. The sheriff returned that of the purchase Persons loaning money in Oregon and taking price he had paid the attorney's fees $5,500, notes providing for attorneys' fees in case of costs and disbursements $512,64, clerk's costs suit should understand that under the law as on execution $18.85, costs and disbursements laid down by this decision, when they employ of the sale $.107.65, and had paid to tlie clerk attorneys to collect their notes they place it $2,560.86, so that the attorneys received $5,500 within their power to have the amount of their and there was paid to the clerk for the plaintiff compensation fixed and made a first lien on the $2,560.86, to defray the other costs of fore- amount recovered, without any agreement as to closure and the execution of the trust and for what their compensation shall be, without notice the bondholders.
that the claim of their attorneys is to be adjudiThe attorneys by this process secured $5,500 cated, without knowledge that it is being done, for collecting $2.560.86.
and without any opportunity to be heard. The plaintiff succeeded in having the sale In other words, that their attorneys may set aside, and then appealed from the portion make a contract for themselves and for them of the decree which decreed the relief the and have it adjudicated and the judgment exeplaintiff was entitled to to his attorneys instead cuted not only in their absence and without of himself.
their knowledge, but in spite of any legal remeThe court dismissed the appeal upon the dies they may invoke. ground that the decree was a consent decree,
The following is quoted from appellant's and therefore not appealable.
brief on the petition for rehearing : The opinion of the court is published in the
"Such a judicial proceeding is a scandal number of the Pacific Reporter for Junc 22, upon the administration of justice, and if al1895, commencing at page 406.
lowed to stand must weaken the respect for the Attorneys for appellant filed a motion for a
courts and the confidence of citizens in the serehearing, with an elaborate brief, and the curity for their rights of property, and prevent court, after prolonged consideration, yesterday the investment in Oregon of capital from other refused a rehearing and adhered to the pre- States and from foreign countries. There vious decision.
could be but one greater reproach upon our Notwithstanding that dealings between at judicial system and the legal profession, and torneys and clients concerning the subject mat- that would be to have the law deliberately ter of litigation are carefully scrutinized by settled by the highest court in the State that courts, and many courts hold that contracts the party injured in such a case was precluded between them concerning the subject matter of by the act of his attorney from having the error litigation are absolutely void, and notwithstand corrected and the wrong righted on appeal." ing the power of an attorney to bind his client concerning the subject matter of litigation is Much has been written of late on the so confined to the ordinary powers of an attorney called “government by injunction," which has in the management of the suit, the Supreme been started by the action of Judge Buchanan Court of this State has, after prolonged delibera- l in South Carolina in the enforcement of the
State Dispensary law. An exchange, in speak-injunctions, Mr. Stimson continues, in brief, as ing on the subject, says:
follows: “A case has arisen in South Carolina which " I believe it is never wise to ignore a genehas aroused some very strong criticism against ral sentiment of this magnitude. And I believe the growth of 'government by injunction.' that in the particular case in hand this disquiet
"Judge Buchanan, of the State Circuit Court, is reasonable. We have seen in private lawsuits sitting in chambers at Charleston, issued injunc- between individuals and corporations courts of tions restraining several alleged liquor dealers equity involved to restrain, not alone parties to from further violation of the State Dispensary the suits, but anybody, the whole world, with law. Two of these dealers, on affidavits of a
or without actual notice of a court order or inpoliceman that they had continued to sell junction, not merely from interfering with propliquor, were summoned before the court to erty which is the subject of the suits, but also show cause why they should not be punished from committing or advising others to commit for contempt. One of them appeared by at
acts which are criminal; and sometimes on the
We have torney and submitted affidavits from patrons of ground that they are criminal acts. his restaurants to the effect that he had stead seen more; we have seen persons committing, fastly refused to sell liquor. The other ignored
or about to commit, or said to be about to comthe summons, and was promptly sentenced to mit, such acts, arrested by these civil courts, pay the sum of $200 and be imprisoned in the deprived of their liberty, and punished by imState penitentiary at Columbia for the term of prisonment. And we have seen persons SO four months.'
punished without the usual safeguards of liberty “The contempt of court for which this sen
afforded by the criminal law - without indicttence was imposed was in part the ignoring of ment, without right to counsel, without being the summons to appear before him, and in part confronted with witnesses, without trial by jury the selling of liquor in violation of the injunc- - and sentenced without uniform statute, at tion order. The sentence was imposed, of the discretion of the judge. course, without a preliminary arrest to bring “We have seen more; we have seen courts, the accused into the presence of the court. not content with ordering all the world what
“In commenting upon this proceeding an not to do, order at a word the ten or twenty exchange says:
thousand employes of a railroad system to carry “We cannot help feeling that there is in this out each and every the definite and indefinite new use of injunctions a violation of the spirit duties of their employment as directed by any of our fundamental law more important than of their superior officers, or by receivers of the the occasional violation of any statute. When
courts themselves, so that for any failure or the Federal Constitution (sixth amendment) omission or merely negative act on the part of prescribed that in all criminal prosecutions the one of these employes, he may be summarily accused shall enjoy the right to a speedy and brought into court and punished, either at that public trial by an impartial jury;
time or later, as the court may find leisure to be confronted by the witnesses in his favor, and sentence, or its attorney to file complaints.' to have the assistance of counsel for his de “This course of things,' continued Mr. fense,' it is safe to say that the punishment of Stimson, 'does away with the criminal law, with crime as the violation of a civil writ was not its safeguards of indictment, proof by witnesses, contemplated.'
jury trial, and a fixed and uniform punishment. “The question raised by this South Carolina
It makes the courts no longer judidecision the estion how far the modern use cial, but a part (and it bids fair to be the most of injunctions is in conflict with the funda- important part) of the executive branch of the mental principles of our political life- is dis government.
It tends to make our cussed with rare power and insight by F. J. judiciary either tyrannical or contemptible.' Stimson in the last number of the Political This new use of injunctions is a revival of that Science Quarterly. After speaking of the strong introduced in England five centuries ago, popular sentiment against the growing use of l against the same popular opposition, and upon
the same plea that ‘the common law is no longer fusing two things which are perfectly distinctadequate to protect the public against disorder viz., copyright and trade-mark. or oppression. In Queen Elizabeth's time the Copyright -i. c., in published works - is Court of Chancery recognized that its injunc- now entirely regulated by statute, an author's tions were no longer necessary for the repres- rights over his unpublished MS. depending sion of crimes, and from about 1590 to 1894, upon the common law (Prince Albert v. Strange, three hundred years, this extraordinary jurisdic-18 Law J. Rep. Chanc. 120; Gilbert v. The tion in the equity courts has been given up or Star Newspaper Company, 11 Times Rep. 4). has lain dormant.' 'Liberty and property are Copyright in books is defined by section 2 of not to-day,'concludes Mr. Stimson,‘so insecure the Copyright Amendment Act, 1842, 5 and 6 as to justify resort to this long since repudiated Vict., ch. 45, as 'the sole and exclusive liberty procedure. The courts of equity must go back of printing or otherwise multiplying copies; to their proper jurisdiction as civil courts, or and 'book' means and includes every vol'there is danger that all equity jurisdiction, so ume, part or division of a volume, pamphlet, valuable and so effective, which was established sheet of letterpress, map, chart, or plan sepain so many States only after a fifty years' strug- rately published. There is nothing referring gle with the suspicion of the people and the to such a thing as the title of a book, the only jealousy of the common law courts, may be re-words at all capable of including it being 'sheet pealed at a blow.'”
of letterpress' or 'part of a volume.' In Max
well v. Hogg, 36 Law J. Rep. Chanc. 433; L. There appears to be a great deal of contro. R., 2 Chanc. 387, Lord Cairns said: “There versy in regard to infringements of copyright, cannot be what is termed copyright in a single and we have already alluded to many important word, although the word should be used as a
fitting title for a book. The copyright condecisions in this country and in England on this subject. The Law Journal sums up the templated by the act must be not in a single English decisions on “ Copyright in Titles” word, but in some words in the shape of a vol
ume or part of a volume.' In Dicks v. Yates, in a very interesting article, which is as
50 Law J. Rep. Chanc. 809; L. R., 18 Chanc. follows:
Div. 76, the Master of the Rolls (Sir George “ The question whether there can be copy Jessel) said: 'I do not say there could not be right in the title of a book derives a present copyright in a title, as, for instance, in a interest from some observations in a contempo- whole page of title or something of that rary a propos of Mr. W. S. Gilbert's new opera, kind requiring invention. There must, at any the title of which is stated to have been antici- rate, be originality ; and certainly the mere pated some years ago by the late Charles
adoption as a title of words in common Mathews. The same authority gives a more does not give it protection under the Copyfamous illustration of this kind of literary coin
right Act. But the better opinion seems to be cidence in ‘Paul Pry,' which was really writ- that not even an original title can, per se, be ten by John Poole, though afterwards brought
copyright. 'It is only as part of the book out, with some trifling alterations, under the and as the title to that particular literary comsame title by Douglas Jerrold. The import-position that the title is embraced within the ance of protecting the titles of works is so ob- provisions of the act.
The right vious that it is strange to find so much misap- secured by the act is
the product prehension apparently existing on this subject. of the mind and genius of the author and not To say that, generally speaking, there can be no in the name or title given to it. The title copyright in a title is to state what is known to does not necessarily involve any literary comthe few lawyers who have studied this subject, position.
It is not necessary that it what the majority of the profession would be should be novel or original. It is a mere surprised to hear, and what the world of au- appendage which only identifies thors and publishers would probably scout as the literary composition.
When the absurd. Yet it is undoubtedly correct, and the title itself is original, impression to the contrary has arisen from con-propriated by the infringemert as well as the
and is ap
whole or a part of the literary composition itself, determined is, injury, actual or probable, or in protecting the other portions of the literary fraud, proof of which may often present concomposition, courts would probably also pro- siderable difficulty.” tect the title. But no can be found, either in England or this country (America), At a recent meeting of the Ohio State Bar in which, under the law of copyright, courts Association Judge Charles Pratt delivered one have protected the title alone separate from of the principal addresses which was devoted the book which it is used to designate.' (Per largely to the discussion of reform in procedure Shipley, J., in Osgood v. Allen, i Holmes which has been one of the "fads" of this [Amer.] 185.) This, it is submitted, is a per- Journal. The suggestions on this subject are fectly accurate statement of the law of copy- summed up most clearly by the judge under right on this point. It therefore follows that nine heads, which are as follows: no protection can be obtained by registering a First — Abolish all pleadings upon money title in advance of publication or a dummy contracts, upon
founded upon book. But it does not follow that a title can account, and provide for the enforcement of not be protected from piracy. Such protec- such demands by summary process, making tion is, however, really analagous to that of a service upon the debtors of copies of the contrade-mark. The title is the trade-mark under tracts or accounts, verified by affidavit, and which the property to which it is applied-2.8., stating the amount claimed. a book—is sold, and the sale of a book under a Second Provide for service of these by the title already adopted for an existing publica- creditor, or by his agent ; and upon failure to tion would be restrained, if at all, on the ground pay or give notice of defense within some short of actual or probable injury to property or as a time, say five or ten days, file the papers with common law fraud. In Dicks v. Yates (sup.), the clerk of the court, who should be empowthe Master of the Rolls (Sir George Jessel) ered to at once enter judgment and issue execusaid: “The adoption of the words as the title tion. of a novel might make a trade-mark, and en Third — In case the debtor disputes the title the owner of the novel to say to anyone claim made, in whole or in part, require him to else, “You cannot sell another novel under
serve notice of his defense, supported by affithe same title, so as to lead the public to be- davit, on the creditor, and then file these lieve that they are buying my novel when they papers in court, and proceed at once to trial, are actually buying yours,' and Lord Justice before court, jury or referee. James said: “Where a man sells a work under Fourth — In actions other than on money the name or title of another man or another
contracts or account, let the claimant prepare man's work, that is not an invasion of copy- and serve on defendant a copy of his petition. right, it is common law fraud, and can be re
If no answer is served within the time named dressed by ordinary common law remedies, in the notice, let the petition be filed in the wholly irrespective of any of the conditions or
court, and trial had before the court or jury, as restrictions imposed by the Copyright Acts.
might be proper. Herein really lies the gist of the distinction
Fifth — If answer is served upon the plainbetween copyright and trade-mark. In the case of the former the subject of the copyright in court, and let the case proceed to trial.
tiff or his attorney, file the answer with petition
So must be publicly registered before proceedings far as the pleadings to be filed for infringement can be taken, and these must
the old be brought within twelve months of the date tions 84 and 101 of the Code of 1853, limiting of the offense, and the fact of infringement of
the number unless extended by order of court. a registered copyright entails the statutory
Sixth - Where personal service of notice penalties and gives the statutory right to dam
cannot be obtained, let the papers be filed in In an action for infringing a court with proof of service by publication, and title regarded as a trade-mark, these conditions the case submitted to court or jury for judgdo not exist; but the material question to be ment or assessment of damages.
ages as well.
Seventh - In case of appeal or removal in any Monday, stated that he regarded the position way from a justice of the peace or other inferior he had occupied as one one of 'greater obligacourt to the court of common pleas, file the tion and higher responsibility than any office papers in the original case, certified by the in- under the Crown.' Sir William Harcourt's alferior court and let the trial be had in the com- lusion was evidently to his position as leader of mon pleas without other pleadings, unless leave the House of Commons. In 1854 Mr. Cayley is granted by the court.
moved for a select com.nittee to consider the Eighth — I would abolish appeals from the duties of the member leading the government common pleas to the circuit court and for re business in the House of Commons.
The moview of any case, would provide that the clerk | tion was withdrawn after being opposed by Sir certify the record direct to the circuit court, to Charles Wood (Viscount Halifax), Mr. Walpole be heard upon notice to the opposing party or and Lord John (Earl) Russell. Sir Charles his attorney, without other pleadings, or pro- Wood described the post of leader of the House
as 'an office that does not exist and the duties Ninth — I would embody in the statutes, in of which cannot be defined;' while Mr. Walso far as practicable, the forms to be used for pole spoke of it as a 'position totally unknown all notices, affidavits and pleadings, carefully to the Constitution of the country. Yet every following the rule that two words should not be
one knows that Sir William Harcourt was leader used where one is sufficient. This last propo- of the House, although no one could give a legal sition I consider of the utmost importance. definition of his position. The commission that framed the code of 1853 "Again, according to the strict letter of the attached to their report certain forms of law, the sovereign chooses all his ministers. A pleadings. These were brief and simple, fol-century ago the Crown had a real choice of lowing the idea on which the code was based;
ministers. They were not only in name, as and if they had been followed as it was at first now, but, in fact, the sovereign's servants. supposed they would be, we should have had a Remnants of this great prerogative remain. On much less complex and elaborate system of the resignation or dismissal of a previous govpleading than that now in existence. But these ernment it is customary for the sovereign to simple forms found little favor with the older 'send for 'some eminent statesman and to inlawyers. This would be one way to relieve the trust him with the task of forming a new ad
ministration, The sovereign may, at times, supreme court and it may possibly be the only way to do it practically. If it should be said
have the opportunity of finally choosing between that the records of this association will show two, if not three, statesmen. But, as a rule, the that I have theretofore taken a different view prime minister is virtually selected by the legisas to this, I can only reply that although no
lature through indications of opinion which the longer a young man, I am not too old to learn.
sovereign recognizes. With the designation, however, of this one person, the initiative of
the sovereign is at an end. According to modNo English election of late years has aroused
ern usage the premier alone is the direct choice so much interest and feeling as the which has just ended, and it is noteworthy to of the Crown, and he possesses the privilege of read the comments of the English press on the choosing his own colleagues, subject, of course, changes of the ministry. The Law Times pub- to the approbation of the sovereign. (See Bagelishes a very interesting article on the Constitu- hot's English Constitution, p. II, and Traill's tional Aspects of the Ministerial Crisis which is Central Government, pp. 12, 13.) Formerly, as follows:
however, each minister was a servant of the "The Ministerial crisis through which the Crown, responsible for his own department, and country is passing has been marked by some
with little or no dependence on his colleagues. incidents which illustrate the development of Mr. Gladstone remarks that we have not even constitutional practice as distinguished from the now learned to designate the chiefship in the strict letter of the law. Sir William Harcourt, in ministry by a true English word,' but by the announcing the resignation of the cabinet on Timported phrase 'premier.'' Lord North, the