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ficient to effect the object has to be determined in each case by its circumstances. We may say, generally, that a similarity which would be likely to deceive or mislead an ordinary unsuspecting customer, is obnoxious to the law." In this case the trial court determined that there was a sufficient similarity in the names to deceive the public; that the defendant adopted the name for the purpose of deceiving the public and securing plaintiff's business; and that such results had followed. These things being true, the decree must go against him.

The remaining branch of the case presents a novel and original proposition of law. In its facts we apprehend no case like it can be found, either in this country or England. The decree orders the defendant to place, both upon the outside and inside of his store, a sign, plainly legible to customers and passersby, indicating his proprietorship; and, while the power of the court to issue mandatory injunction in many cases must be conceded, yet cases where such power has been exercised have generally involved matters of nuisance, or at least cases where courts have ordered the subject-matter of the litigation to be placed in its original condition; as, for instance, the removing of obstructions to ancient lights. But let us for a moment turn our attention to the facts of this case. The store of plaintiff was known as the "Mechanic's Store." By various kinds of advertising, and attention, honesty, and skill in the conduct of the business, it increased the volume thereof and en. hanced its good will, and throughout the Pacific coast established for it a wide and honorable reputation as a fair and reliable house with which to deal. Plaintiff erected a store building of peculiar architecture, there being none like it in the city of Sacramento; and defendant thereupon erected a store building, immediately adjoining that of plaintiff's in every respect of similar architecture. It further appears that defendant erected this particular kind of building for the purpose of deceiving the public, and securing the patronage of plaintiff's customers; and for the same purpose he refrained from placing any sign in or upon the building indicating the proprietorship of the business, or designating it in any way so that it might be distinguished from the store of plaintiff. And, by reason of these acts of defendant, many of plaintiff's customers were deceived into purchasing goods in defendant's store, believing that they were trading in plaintiff's store; and defendant thus diverted from the plaintiff a large part of its trade and custom, and thereby injured its business and curtailed the value of its good will. Upon this bald statement of facts, it cannot be gainsaid that defendant has done the plaintiff wrong; and it is said that for every wrong there is a remedy. These facts certainly indicate a case of unlawful business competition, and courts of equity have ever been ready to declare such things odious. It is strange if plaintiff may be deprived of the fruits of a long course of honest and fair dealing in business by such wicked contrivances, and, upon appeal to the courts for relief, should be told there was no relief. This cannot be so, for the whole law of trade-marks, trade-names, etc., is recognized, approved, and enforced for the very purpose of protecting the honest tradesman from a like loss and damage to that which threatens this plaintiff; and the fact that the question comes to us in an entirely new guise, and that the schemer has concocted a kind of deception heretofore unheard of in legal jurisprudence, is no reason why equity is either unable or unwilling to deal with him. It has been said by some judge or law writer that "no fixed rules can be established upon which to deal with

fraud, for, were courts of equity to once declare rules prescribing the limitations of their power in dealing with it, the jurisdiction would be perpetually cramped and eluded by new schemes which the fertility of man's invention would contrive." By device, defendant is defrauding plaintiff of its business. He is stealing its good will, a most valuable property,-only secured after years of honest dealing and large expenditures of money; and equity would be impotent, indeed, if it could contrive no remedy for such a wrong.

The fundamental principle underlying this entire branch of the law is that no man has the right to sell his goods as the goods of a rival trader. Mr. Browne, in his work upon Trade-Marks, declares the wrong to be, "not in imitating a symbol, device, or fancy name, for any such act may not involve the slightest turpitude; the wrong consists in unfair means to obtain from a person the fruits of his own ingenuity or industry, an injustice that is in direct transgression of the decalogue, 'Thou shalt not covet any. thing that is thy neighbor's'. The most detestable kind of fraud underlies the filching of anothor's good name, in connection with trafficking." We think the principle may be broadly stated that when one tradesman resorts to the use of any artifice or contrivance for the purpose of representing his goods or his business as the goods or business of a rival tradesman, thereby deceiving the people by causing them to trade with him when they intended to and would have otherwise traded with his rival, a fraud is committed, -a fraud which a court of equity will not allow to thrive. In Howard v. Henriques, 3 Sanf. 725, the court, in speaking of the competitor in business, said: "He must not by any deceitful or other practice im. pose on the public, and he must not by dressing himself in another man's garments, and by assuming another man's name, endeavor to deprive that man of his own individuality and of the gains to which by his industry and skill he is fairly entitled." It may well be said that the defendant, by duplicating plaintiff's building, with its peculiar architecture and immediately adjoining, enter into the same line of business, with no mark of identification upon his store, has dressed himself in plaintiff's garments; and, having so dressed himself with a fraudulent intent, equity will exert itself to reach the fraud in some way. In the leading case of Lee v. Haley, supra, the whole question is condensed by the final conclusion of the court into the principle of law "that it is a fraud on the part of a defendant to set up a business under such a designation as is calculated to lead and does lead other people to suppose that his business is the business of another person." If the same evil results are accomplished by the acts practiced by this defendant which would be accomplished by an adoption of plaintiff's name, why should equity smile upon the one practice and frown upon the other? Upon what principle of law can a court of equity say, "If you cheat and defraud your competitor in business by taking his name, the court will give relief against you, but, if you cheat and defraud him by assuming a disguise of a different character, your acts are beyond the law?" Equity will not concern itself about the means by which fraud is done. It is the results arising from the means-it is fraud itself-with which it deals.

The foregoing principles of law do not apply alone to the protection of parties having trade-marks and trade-names. They reach away beyond that, and apply to all cases where fraud is practiced by one in securing the trade of a rival dealer; and these ways

are as many and as various as the ingenuity of the dishonest schemer can invent. In Glenny v. Smith, reported in the Jurist of 1865 (page 965), the court held: "Where a tradesman, in addition to his own name upon his shop front, placed upon his sunblind and upon his brass plate the words 'From Thresher & Glenny' (in whose employment he had been) the court, being of opinion that this was done in such a way as to be likely to mislead, and there being evidence that persons had been actually misled, granted an injunction to restrain such a use of the name of the firm Thresher & Glenny." In Knott v. Morgan, 2 Keen, 213, the "London Conveyance Company" had its omnibuses painted green, and its servants clothed in the same colors. Another adopted the same name, and likewise its vehicles were so painted and its servants so clothed. It was conceded that plaintiff could have no exclusive property right in any of these things, but the court issued its injunction, declaring that plaintiff had "a right to call upon this court to restrain the defendant from fraudulently 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 business by attracting custom on the false representation that carriages really the defendant's beJong to and are under the management of the plaintiff." The author, by a note, approves the doctrine here declared, saying: "There was an obvious attempt to trade upon the plaintiff's reputation,-a constructive fraud, -coupled with pecuniary loss, which was made the ground for the issuance of a broad injunction." The same principle is reiterated by the same learned judge in Croft v. Day, 7 Beav. 84, in the following words: "It has been very correctly said that the principle of these cases is this: That no man has a right to sell his own goods as the goods of another. You may express the same principle in a different form, and say that no man has a right to dress himself in colors, or adopt and bear symbols to which he has no peculiar or exclusive right, and thereby personate another person, for the purpose of inducing the public to suppose either that he is that other person or that he is connected with and selling the manufacture of such other person while he is really selling his own. It is perfectly manifest that to do these things is to commit a fraud, and a very gross fraud." In the very recent case of Coats v. Thread Co., 149 U. S. 566, 13 Sup. Ct. Rep. 966, the court said: "There can be no question of the soundness of the plaintiff's proposition that, 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 beheve he is buying those of the plaintiffs. They have no right by imitative devices to beguile the pubhe into buying their wares under the impression they are buying those of their rivals." To the same point, see System Co. v. Le Boutillier (Super. Ct.) 24 N. Y. Supp. 890; Appolinaris Co. v. Scherer, 27 Fed. Rep. 18; Burgess v. Burgess, 3 De Gex, M. & G. 896; Von Mumm v. Frash, 56 Fed. Rep. 830.

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and signing of the bill take the contract out of the statute of frauds. The court says:

The "offer to perform," referred to in the original opinion as satisfying the statute, is, of course, not a verbal offer, but the offer made in the bill signed in writing by the complainant. The case of Metcalf v. Brandon, 58 Miss. 843, announcing that "if he (complainant) admits it in writing, over his signature, the terms of the statute are met," was not referred to by us, because we did not think it could be seriously questioned, and hence we addressed ourselves to the task of satisfying counsel of the inapplicability of his authorities, in other views. But as the case does not pass unchallenged, as it would seem, we say only that it is certainly undoubted law, and thoroughly settled elsewhere. In Sams v. Fripp, 10 Rich. Eq. 459, the court says, "It has always been held that the requirements of the statute of frauds concerning agreements to convey lands were fulfilled by the signature to the contract of the party to be bound, where the adverse party, by bringing his bill, or any writing, affirms the contract." In Ives v. Hazard, 4 R. I. 27, 28, the court say: "The respondent objects that there was no consideration expressed in the instrument, moving from the complainant to the defendant. A promise without consideration, or a nude pact, is void. We do not understand this promise to be of that character. The defendant agrees with the plaintiff to sell the land in question for the sum of $1,500; the said sum to be paid on the 25th of March, when possession is to be given. True, no consideration had passed from the plaintiff to the defendant; neither had the land, which was the subject of the agreement, passed. The consideration of the agreement to sell the land for $1,500 was the agreement of the other party to buy it for $1,500, and the agreement was thus mutual. It is no objection that the defendant had no power to enforce the contract at the time it was made. If he had chosen to have that power, he might have obtained it, or refused to give such power to the plaintiff. If the defendant had chosen to have his remedy, or his right, to enforce the contract by action, he should have obtained this requisite wherewith to charge the complainant, as he gave it to the plaintiff, whereby he made himself chargeable. It is now well settled by authority that, where there is a bill for specific performance in a court of equity, the bringing of the bill makes the complainant chargeable as on a memorandum of the contract signed by him." In Evans v. Williamson, 79 N. C. 90, 91, the same doctrine is strikingly enforced. In Vassault v. Edwards, 43 Cal. 466, the same rule is declared, - "that the statute is fully complied with if the agreement signed by the party to be charged, or the party to whom the sale is to be made," and the court adds: "It was accordingly held, from an early day, that, where the action for a specific performance was instituted by the party who had not signed the agreement, the act of filing the bill made the remedy mutual." And many other cases to the same effect could be cited. We specially refer counsel to two: Ivory v. Murphy, 36 Mo. 534, and Roberts v. Gris. wold, 35 Vt. 500, cited in 1 Reed, St. Frauds, § 363. The very argument made by counsel here was made in both those cases. See brief of G. P. Strong, 36 Mo. 536. "Now, a consideration," says Mr. Strong, "is of the very essence of the contract; and, with or without the statute of frauds, no contract wanting this element can be enforced." Says counsel, in his suggestion of error: "If Mrs. Sartor had sued Haughton on his promise to deliver this cotton, she could not

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have recovered, because the promise was not in writing, and was consequently void" (unenforceable, rather), "under the statute of frauds. Then, this promise being the sole consideration for her promise to convey the land, the latter is void for want of consideration." But the Supreme Court of Missouri said: Ivory v. Murphy, 36 Mo. 542. "Where the party files a bill, he does an act that will blind him, and from that time there is mutuality; and the other pirty cannot plead the statute of frauds, because the words of that statute only prevent an action from being brought when the agreement is not signed by the party to be charged. When the bill is filed, it is an attempt to charge the defendant; and, if he has signed the agreement, it is signed by the party to be charged, and it follows that he cannot take advantage of the statute." Mr. Reed says of the latter case, 1 Reed, St. Frauds, pp. 588, 589, § 363. "In a Vermont case, Roberts v. Griswold, 35 Vt. 496, the non-mutuality was made a ground of defense, but counsel, with an obscured perception of the real difficulty, urged the defect as being a want of consideration. The defendant had promised plaintiff, by letter, that, if he would continue as counsel for defendant's brother, the defendant would guaranty the fee. The court, going directly to the point, said: 'But it is claimed, again, that the consideration should appear in writing, in order to give validity to the guaranty. This must either mean that the acceptance of the defendant's proposition must be in writing, or a correlative undertaking on the part of the plaintiff to render future services must be in writing. We can readily understand that this might be required in some cases, as when the guaranty itself did not embody substantially the material and effective terms of the contract, and where resort to parol evidence should be necessary to show what the contract was, in its terms and effect. But we do not understand that this has ever been required when all that is to be done by the other party is merely to accept the proposition in the terms in which it is made, and to perform the consideration either by paying or doing the thing proposed. In the present case the services thereafter to be rendered constitute the consideration, and this is clearly indicated on the face of the defendant's proposition.'" It is not necessary to go so far here, where the consideration may be shown by parol.

COMMON LAW PLEADING.

Common law pleading is a development from, and a result of trial by jury. When it is established that the jury are the tryers 1 The fact that common law pleading is a development from the system of trial by jury, is not noticed by any writer on this subject. Stephen approaches nearer to it than any of them, but it is evident from what he says on pages 123-133, that the whole truth never entered his mind. This truth is further demonstrated by the form of the common law declaration, containing as it does no address to any judge, except in proceedings by bill in the King's Bench. The pleadings were originally oral, and taken down by the clerk in the form of a record as they were recited by the countor in open court, and from this record the common law declaration is derived. Hence, its want of address to any judge, and its brief character. Chitty on Pld., Vol. 1, page 290.

of disputed questions of fact, and the judge the expounder of the law, at once it becomes necessary to devise some method by which the facts may be presented to the jury, and the law to the court. In accomplishing this object, we find that it is first necessary to separate questions of fact from questions of law. In making this division, and in preparing the facts and law for presentation to these respective tribunals, who are to adjudicate them, it is necessary to have in mind the different characters of these different forums, as well as the nature of the questions themselves; so taking the last first, we notice that questions of law differ in their essential character from questions of fact, and the method of their determination and decision is likewise different. Questions of law do not require for their determination that conflicting evidence should be weighed and judged of as do questions of fact. Questions of law also require for their determination a previous knowledge of and learning in regard to the general subject to which the question for decision relates. And, lastly, the examination of questions of law may be at large. These considerations indicate that questions of law should be presented to the judge for his decision by some instrument, which would only point the mind of the judge to the question for his decision in a general way. This instrument we find in the common law demurrer by which questions of law arising on the pleadings are presented to the judge for his decision. In the case of questions of fact, we are at once confronted by the difficulty that juries, especially at the early common law, are generally composed of persons of but little education, and are but poorly capacitated to dissect a lengthy declaration and separate the questions of fact from the questions of law therein contained, neither have they or the court time for them to enter on such labors. These considerations suggest that the questions of fact which are to be presented to the jury for their determination should be so presented in the most exact, shortest and clearest manner possible. The instrument by which this object is accomplished is called and denominated the "isWhat is termed the "formation of the issue," properly so called, includes the 2 Gould on Pld., ch. II, Secs. 22-43; Stephen on Pid., p. 138; Chitty on Pld., 465-469; Ib. 638. 3 Stephen on Pld., pages 139-143.

sue.

whole of common law pleading, the balance, though treated of in some works on pleading, belongs to the domain of practice; so, to follow up this subject of the formation of the issue, would extend this article into a treatise on pleading.

The science of pleading has developed a system of exact logic, which is not surpassed by the logic of the schools. And to master it thoroughly, so as to become a skillful common law pleader, requires patient, earnest study, but when once mastered, the mastery of it makes the accomplished lawyer. And the fact that no man can become even a passably good pleader without patient study, has been, however painful may be the confession, the true cause of the late opposition to plead ing. The decided tendency at the present day is toward the civil law system of procedure, by which the plaintiff's case is loosely stated in a so-called complaint, and the defendant's replies to this, with his answer, which included, when necessary, both an answer and a demurrer. It is at once seen that this method greatly embarrasses the trial by jury. The jury being left to gather for themselves from the mass of allegations of law and fact, for this system allows of the allegation of conclusions of law, the precise point in issue. But, as a general thing, the jury repudiates the whole thing and gather for themselves from the evidence and the speeches of counsel the matters in issue. This system is only suited to a trial by a judge, as in chancery, because a jury will not, if, indeed, they are competent, gather from the pleadings the points in issue. Common law pleading is a development of the bold, hardy, exact and positive Anglo-Saxon character. No one can study pleading without being impressed with these characteristics of this, the noblest of races. Observe the pleadings in the cases of the infringement of the right of personal security. The rules of pleading require that whoever imprisons another must justify by pleading, and show specially to the court that the imprisonment was lawful.5 In replevin,

4 Burns v. Cushing, 96 Cal. 669; Boston & L. R. Corp. v. Nashua & L. R. Corp., 31 N. E. Rep. 1067; Curtis v. Watson, 64 Vt. 536; Am. & Eng. Encyclopæ dia of Law, Vol. 18, pages 491-505. "An inquiry into the proper mode of trial:" Philadelphia, 1885, page 12; Taylor's Evidence, 8th Eng. Ed., Sec. 302; Harris v. Gamble, L. R., 7th Ch. D. 877; Earp v. Henderson, L. R., 2 Ch. D. 254.

5 Chitty Pld., Vol. 1, page 363; Gould on Pleading,

noncepit modo et forma, by which the landlord puts in issue not only the taking, but the taking in the place mentioned in the declaration, place being the material issue in the case. The object of this method of pleading was to protect the tenant against the oppression of his landlord, making it unlawful for the landlord to distrain the tenant's property off of the demised premises. And, generally, in cases of the infringement of personal rights, the defendant, when he admitted and justified the charge, was required to state all the facts in his plea, however multifarious they might be. Because each fact essential to the defense was matter of law, and they should all be stated, to the end that the plaintiff might be fully protected by having the judge pass on the sufficiency and legality of the defense. In this way, the injured plaintiff was protected in all his rights-the judge by the requirement mentioned above, protecting him against a sham defense, and a jury of his neighbors passing on and trying the truth of this defense. By the rules forbidding departures and duplicity in pleading the cause was hastened to an issue, and thus litigants were saved the expense resulting from prolixity, redundancy and obscurity. But, by the statutes of most of the States, abolishing special demurrers, a plaintiff, when it accords with his interest, can, by a departure in his pleading, take new ground and bring a new case forward for consideration, or by a multiplicity of issues embarrass the case and increase the cost. In fact, in consequence of the statute above referred to, there is no telling from the declaration as to what grounds the case may be finally settled on. A want of knowledge or a disregard of the rules of pleading has worked great practical injury in not a few instances. Take the case of the force and effect of a judgment of one State, when set up or declared on in another State. The Supreme Court of the United States, in the case of Mills v. Duryee,7

page 278; Marchell v. Garrett, 3 Salke. 64; Glanville (lib.6 ch. 43); De exceptionibus, Bract. 400a; Sir Mathew Hale Hist. Com. Law, 173; 3 Keeves, 578; 12 Mod. 276.

6 Chitty on Pleading, Vol. 1, page 360; Stephen on Pleading, pages 125-130; Kennedy v. Strong, 10 Johns. Rep. 259-291; Gregory et ux. v. Hill, 8 T. R. 299; Ratcliffe v. Burton, 3 Bos. & Pul. 223; Taylor v Needham, 2 Taunton, 278.

7 In Mills v. Duryee, 7 Cranch, 481, the plea of nil debet was interposed to the declaration, but the court

in which case was involved the question of the force and effect of a judgment of a State court, when set up and relied on, or declared on in another State, the court, in their judgment in this case, said, in substance: that the office of a plea of nul tiel record was to put the record declared on in issue, the object of the plea was to put the fact of the existence of the record in issue. This decision was strictly in accordance with the laws of pleading, this was strictly a correct statement of the effect of the plea.8 The consequence was, that the question of jurisdiction of the court rendering the judgment over either the person or property of the judgment defendant was not in issue, and could not be litigated under the issue made by the plea of nul tiel record.

But some State courts, overlooking or being ignorant of the distinction between the existence of a record and the effect and operation of a record, were disposed to preclude and forbid all inquiry into the effect and operation of the record. But Judge Savage of New York, in an able opinion, called attention to the well established rule of pleading, that the existence of a record was one thing, that the effect and operation of a record was quite another and different thing, and that the first was put in issue by the plea of nul tiel record; that the second was tested, and could be tested by any special plea appropriate to the facts; hence, if the court rendering the judgment failed to acquire jurisdiction over the person or property of the defendant by the proper service of process, or, if the judgment was vitiated by fraud, that these facts should form the subject-matter of special pleas. Judge Parsons of Massachusetts about the same time delivered a judgment to the same effect.10

In

the south, Judge Collier of Alabama reviewed all these decisions and recognized them as correct annunciations of the law and the rules of pleading involved. But it was only till of late years that this question of the effect of a judgment of one State, when offered in evidence in a sister State, has been finally, everywhere, in all the States accepted and received in accordance with the law, as laid down by the Supreme Court of the United States in the case of Mills v. Duryee. The rules of pleading not only shape and mould the allegations and counter allegations of the case in which the particular pleadings are filed, but they also have reference to future disputes concerning the same subjectmatter, and herein do we find one of the great excellencies of common law pleading. This at once appears from an examination of well drawn pleadings in any case. In the first place, by the rule requiring the allegation of only issuable matter, the pleader is prohibited the statement of conclusions of law, and is required to allege only the facts; thus, the defendant plead that, "A lawfully enjoyed the goods of felons," this plea was held bad, because the plea improperly complicates matter of fact with matter of law, for the jury cannot determine whether he lawfully enjoyed, nor the court whether he in fact enjoyed. The plea should have stated the particular facts by which A did enjoy. The matter alleged by the plea was not issuable. Again, the matter of the pleading should not be stated argumentatively. Thus, if scire facia be brought against a parson for the arrears of an annuity recovered against him, and he plead that before writ brought he had resigned into the hands of the ordinary, who accepted thereof, the plea is bad, for he should have plead directly that he was not parson on the day of the writ brought, instead of pleading facts from which that conclusion was to be drawn. 13 Lastly, not to take too much time with this subject, the matter

makes the argument above given, to show that this plea in that case was bad, and that nul tiel record should have been pleaded. Weaver v. Barden, 49 N. Y. 286; Allis v. Leonard, 46 N. Y. 688; Miller v. Ins. Co., 1 Abb. N. C. (N. Y.) 470; Goodwin v. Kirsch, 37 N. Y. Sup. Ct. 503.

19 John. 162; 2 Stewart (Ala.), 315; Chitty Pld. Vol. 1, page 481; McFarland v. Trevin, 8 Johns. R. 77; Bently v. Downelly, 8 T. R. 127.

9 19 John. 162; St. Abans v. Bush, 4 Vt. 58; Newcomb v. Peck, 17 Vt. 302; Clarke v. Day, 2 Leigh (Va.), 172; Spencer v. Brockway, 1 Ohio, 260; Goodrich v. Jenkins, Ohio, 43; Gulick v. Loder, 13 N. J. L. 68; Larming v. Shute, 2 South. Rep. 778; Chipps v. Gancey, 1 Ill. 19.

10 9 Mass. 467.

112 Stewart, Ala. 315.

12 The case of Abbot of Strata Marcella, 9 Co. 24; Chitty on Pld., Vol. 1, page 520. We note the follow ing cases as being opposed to the doctrine above laid down in reference to the force and effect of a judg ment of one State, when set up or declared on in another sister State. Clark v. Mann, 33 Me. 268; Thurber v. Blackburn, 1 N. H. 242; Judkins v. Union Mut. Fire Ins. Co., 37 N. H. 470: Wright v. Boynton, 87 N. H. 9.

13 2 Anders, 179; Bac. Ab. Peas. 1-5.

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