Co., L. R. 2 Exch. 441. This limitation seems extremely wise, whether liability in such cases is founded on the statute of Westminster, ii. c. 50, in which case it would logically follow, or, as seems more probable, is purely judge-made. It would be impolitic, and contrary to the guiding principle of torts to hold one who, without moral wrong, broke a statute, of the existence of which he may have been ignorant, liable for damages not intended to be guarded against by the statute, and perhaps not to have been foreseen as possible.

While most of the decisions accord with the principles here laid down, yet as the courts state no clear destruction between the two classes of cases, errors are likely to result. In the principal case, for example, the court supports its decision by citing cases where damage resulted from statutory torts. It is clear, however, that the statute here involved was not intended for the plaintiff's protection, and, therefore, that the plaintiff's recovery, which seems proper, must depend on the fact that the defendant was committing a morally criminal act, and could properly be held to act at his peril.

PURCHASER FOR Value, without NOTICE, OF A Power of Attorney. -The English court has recently decided that a bona fide purchaser for value of a power of attorney to convey property must hold such property, when conveyed, subject to equities of which he obtained notice subsequent to the purchase of the power, but prior to the actual conveyance. London & County Banking Co. v. Nixon, [1901] 2 Ch. 231. A trustee gave the plaintiff bank as security equitable mortgages on certain leaseholds, which, unknown to the bank he held in trust, and in addition a power of attorney to three of the bank's clerks to convey the titles to the leaseholds as the bank should direct. On hearing of the trust, the bank had the titles conveyed to itself. The court held that although the trustee's legal titles were thereby transferred to the bank, the latter must hold them subject to the equity. While these circumstances have not before come up for decision, the principle applicable to them seems similar to that involved where shares of stock held in trust are sold to a bona fide purchaser, together with a power of attorney to transfer the legal title on the company's books, or where similarly a simple chose in action is assigned by granting a power of attorney to sue. In all three cases the question is whether or not the power of attorney has conferred such legal rights that equity will not interfere. As regards the first of these cases the English court in 1865 held that, as the grantee of the power could obtain title by his own act, he took free of equities, a decision which has since been neither expressly affirmed nor overruled. Dodds v. Hills, 2 H. & M. 424. As regards the second class of cases, where choses in action have been assigned, in England the assignee has been held to take subject to equities. Brandon v. Brandon, 7 D. M. & G. 365. In America the conflict of authority is irreconcilable. Downer v. South Royalton Bank, 39 Vt. 25; Himrod v. Gilman, 147 Ill. 293. No conclusive reasons, however, have been advanced for either view.

It has been generally admitted that, while, on the one hand, equity will not enforce, as against prior equities, any equitable rights which a bona fide purchaser for value may acquire, yet, on the other hand, it will not deprive such a purchaser of any legal rights he may obtain. The question at issue in these cases, then, seems to depend on the exact

nature of the right conferred by a power of attorney. It has been argued that the power to sue or to transfer title is a legal right, distinct from the ownership of the chose in action or the title, and that, as this right may be transferred at pleasure, its purchaser should be allowed to use it, and acquire rights under it, just as a bona fide purchaser of a legal title is absolutely entitled to the free use of his property. I HARVARD LAW REVIEW, 6, 7.

This view is clearly correct in regarding the power of attorney as conferring a legal right, for it is a right recognized at law, and protected in equity only to the same extent as other legal rights. However, the extent of the right seems to be misconceived. The legal rights to bring suit or to transfer title are not severable from the ownership of the chose in action, or the title, nor can they be created in others by the owners of such property. They appear to be merely necessary legal incidents dependent on such ownership, and the grant of a power of an attorney effects, not a grant of them, but merely the grant of a legal right to represent the owner in using them. This right originated in the old law courts, where it was found that a suitor, through absence or ignorance, often needed some one to represent him. The method was suggested by the king's manner of doing business, which he was himself unable to perform. Pollock & Maitland's History Eng. Law, 2d ed. ii. 227. But this legal power to represent another, which became greatly extended in scope, and was made irrevocable under certain circumstances, was always a mere power to take the grantor's place to a limited extent, subject of course to all incident obligations, legal and equitable. If the above be a correct analysis, the court of equity, without interfering in the least with the legal right conferred on the grantee of a power of attorney to represent his grantor, may hold such grantee subject to equities existing against his grantor. The decision in the principal case is then right, and similar results should be reached in the other cases mentioned. Business usage pleads strongly for a different result, and the consequent right to assign choses in action more freely, but the recognition of a greater power conferred by the power of attorney than the right to represent would be too serious a violation of principle for the courts to adopt without legislative authority.

THE RIGHT TO PRIVACY. - There has existed no explicit authority for the right to privacy since the final decision in Schuyler v. Curtis, 147 N. Y. 434. That decision, it is true, was rested on grounds which did not affect the main question, but other recent authorities have denied the existence of any such right. 13 HARV. LAW REV. 415. It is, therefore, interesting to find the appellate division of the New York Supreme Court unequivocally affirming its former doctrine in a case not complicated by any possible breach of contract or confidence. The plaintiff, a young woman, asked for damages and for an injunction against the unauthorized use of her portrait by the defendant in advertising its busiA demurrer to her complaint was overruled. Roberson v. Rochester Folding Box Co., 64 App. Div. 30.

ness.

The court rejects the principle that equity interferes only to protect property rights, and cites the cases of dead bodies. These cases would seem to be amply sufficient to dispose of the objection since, it is ad

mitted, practically on all hands, that there is no property in dead bodies, and yet equity has frequently enjoined interference with them. 15 HARV. LAW REV. 64; Pierce v. Swan Point Cemetery, 10 R. I. 227; Meagher v. Driscoll, 99 Mass. 281.

It therefore seems superfluous for the court to declare further that the plaintiff's right to control the publication of her likeness may, if necessary, be considered as property. Extreme as the views of the court may appear, it is supported by some dicta. Corliss v. Walker, 64 Fed. Rep. 280, 282; Gray, J., dissenting, in Schuyler v. Curtis, supra. Moreover, it is not apparently inconsistent with the numerous cases in which the necessity of property as a basis of jurisdiction has been laid down. The term, property, is nowhere clearly defined, and seems to mean no more than pecuniary interest as distinguished from private feelings. Kerr, Injunctions, p. 498; Emperor of Austria v. Day & Kossuth, 2 De G., F., & J. 217, 241. Moreover, the "property right" need not be presently profitable; it is enough if it may be so in the future. Prince Albert v. Strange, 2 De G. & S. 652, 694; Gee v. Pritchard, 2 Swanst. 402. When the word has been extended thus far it seems quite possible to claim its protection for the right to privacy. Almost any right may become pecuniarily profitable to its possessor. Again, if transferability be considered the essential of property, the right in question, granting its existence, seems in its nature quite as assignable as the right in private letters.

If, however, the dictum of the principal case were accepted, it might be argued that a man's property right in his features ought to survive him, and the case of Schuyler v. Curtis, supra, generally regarded as deciding the contrary, would be somewhat weakened. No one denies the desirability of a remedy in this class of cases. If it is to be given without legislation by the courts this should not be done by taking advantage of an elastic phrase, which already means so much that it means nothing.

STATUTORY RIGHTS OF ADVERTISERS. A recent unreported Massachusetts decision, Martin v. Owens Bros., has directed attention to a peculiar section of the trademark statute of this Commonwealth, in which provision is made for the registering of a "form of advertisement." Forms of advertisements have long been protected at common law under the rules of unfair competition, in which fraudulent intent, liability to deceive, and probable damage to the complainant are essential, as well as certain technical requirements by analogy to trademarks; but this statute omits all the foregoing requisites, and purports to afford protection to a bare form of advertisement, as such, without pretence of requiring it to indicate origin, proprietorship, or anything arbitrary or distinctive.

The opinion of the court was rendered by Judge Loring, who, after explaining the nature of the advertising device, a "Lucky Penny Pocket Piece," and pointing out that the defendant had deliberately copied the plaintiff's article to get the benefit of the latter's trade, continued:

"The plaintiff is trying to get the monopoly of manufacturing and selling, as a piece of merchandise, what is called by the counsel an advertising device, and what, to my mind, would be more accurately described as an article of the nature of a 'throw-in' to attract customers. It is used in the same way that advertisements are used, to a certain extent, but does not advertise the plaintiff's goods, profession, work, or anything of

that kind, but is sold to others. The only way that you can get a monopoly on an article of manufacture, as rightly stated by the defendant, is by a patent.

"It is contended that the plaintiff originated certain phrases, . . . and that these phrases have caught the fancy of the people, so that they have become useful to the plaintiff as a means of selling his goods, and that by registering these phrases as an advertising device or form of advertisement,' under this statute, he has obtained the right in those phrases which he could not get in them as a trademark. But two difficulties arise which seem to me insurmountable. The plaintiff has no trademark right, because the device has not been used exclusively to denote his manufacture, and there is nothing about it which indicates that it was made by the plaintiff; and the special features cannot constitute such indication, as their value is destroyed as a mark of plaintiff's manufacture because not used exclusively in that connection. There can be no right to the exclusive use of those words or phrases, because they simply make statements of truth or fact. The statute gives a person a right to a form of advertising something of his own. Bill dismissed."

The decision is of value as being the only decision on this particular phase of this unique trademark statute, and because it holds that the designation of origin or ownership and a certain degree of originality are essential, even in a registered "form of advertisement."

G. H. M.

CHOSES IN ACTION OF A BANKRUPT PASSING TO HIS ASSIGNEES. The distribution of a bankrupt's property ratably among his creditors has always been a principal object of bankruptcy legislation. To effect this the statutes have aimed at giving the bankrupt's representatives control of all his valuable rights. By an early enactment the commissioners took what the bankrupt might "lawfully depart withal." 13 Eliza. c. 7. By 5 Geo. II. c. 30, the bankrupt yielded all rights whereby he "hath or ... may . . . expect any profit, possibility of profit, benefit, or advantage whatsoever." Under such provisions, with the ancient admonition that the acts "shall be . . . largely and beneficially construed ... for the aid, help, and relief of creditors," 21 Jac. I. c. 19, few valuable rights could be left to the bankrupt.

Nevertheless, apart from statutory exemptions, two kinds of choses in action have never been held to pass to the assignees. Rights deriving their value from future acts of the bankrupt remain to him, because, as Lord Mansfield remarked, "the assignees cannot let out the bankrupt." Chipendall v. Tomlinson, Cooke's Bankrupt Laws, 1st ed., 260. By a second qualification, based on principles analogous to the common law rules against maintenance, the bankrupt keeps rights of action for personal damages. Benson v. Flower, Sir W. Jones, 215; In re Haensell, 91 Fed. Rep. 355.

When one wrongful act injures both the person and the property of the bankrupt, there is considerable difficulty in applying these principles. If the damages arise ex delicto, apparently two actions can be brought, unless the result be greatly to harass the wrong-doer. Brunsden v. Humphrey, 14 Q. B. D. 141. In such a case a proper solution would be to allow one action to the assignee and one to the bankrupt. Yet for this no authority has been found except a dictum by Lord Bramwell in

Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127, 144. Where, however, the action is not divisible, probably the jury may be compelled to apportion the damages. Certainly this is true in many American states. 28 Am. & Eng. Enc. of Law, 1st ed. 395. The rules against maintenance to-day would hardly prevent suit on the whole claim by the assignee as trustee for himself and the bankrupt. This procedure appears free from technical and practical difficulties.

A recent English case is interesting as involving these questions. Rose v. Bucket, 17 T. L. R. 544. In an action for trespass to land and conversion of goods, the principal damages claimed were for personal annoyance. The trial judge, on application made before the jury were sworn, ordered the action stayed because the plaintiff was adjudged a bankrupt after the action accrued. The court of appeal reversed the decision, saying the "essential cause of action " was the "primary personal injury to the bankrupt." It would seem that on proper motions two actions might have been ordered, or, at least, that the damages might have been apportioned. The decision, however, follows earlier cases in making the character of the main portion of the damages the test of the rights of the bankrupt and his assignees. Brewer v. Dew, 11 M. & W. 625. It is to be regretted that the court was unable to find a more accurate rule.

The

PUBLICATION OF A LIBEL BY DICTATION TO A STENOGRAPHER. court of appeals of Maryland has recently decided that the dictation by the defendant of libellous letters to a stenographer by whom they are subsequently typewritten and transmitted to the plaintiff is a publication of a libel. Gambrill v. Schooley, 48 Atl. Rep. 730. In view of the present almost universal method of indirect correspondence the decision is of great importance to the business community. Little authority is to be found directly on the point. An English case is cited in support of the decision, but the Supreme Court of New York has reached an opposite result. Pullman v. Hill, [1891] 1 Q. B. 524; Owen v. Ogilvie Pub. Co., 32 N. Y., A. D. 465.

As in the principal case, the plaintiff was the addressee of the libellous letter, the publication if any must have been to the person to whom the words were spoken. Hence the question involved must be distinguished from that raised in two other classes of cases. It is not a case of privileged communication. In those cases the same policy, which demands that the communications be privileged, requires that the method of making them be not narrowly restricted. And if incidentally, in the usual course of communication, a subsidiary publication be made, that too should be privileged. Here, at all events in the absence of malice, there should be no liability. Boxsius v. Frères, [1894] 1 Q. B. 842. On the other hand, the cases in which the defendant procures another to publish the former's words are not authorities for the principal case. There is always in those cases a publication of words after they have been reduced to writing, and the question is merely as to responsibility. Pullman v. Hill, supra, falls within this class. The defendant was there liable at all events for the publication to the plaintiff's clerks who read the letter. Delacroix v. Thevenot, 2 Stark. 63. The decision, therefore, not necessarily involving the point at issue, lends little support to the principal case.