Page images
PDF
EPUB

influencing judicial decisions and such an opportunity for vengeance because of adverse ones will be allowed to remain unused.

But it is said that the people of Arizona are to become an independent stsate when created, and even if we strike out judicial recall now, they can reincorporate it in their constitution after statehood.

To this I would answer that in dealing with the courts, which are the corner stone of good government, and which not only the voters, but the nonvoters and nonresidents, have a deep interest as a security for their rights of life, liberty, and property, no matter what the future action of the state may be, it is necessary for the authority which is primarily responsible for its creation to assert in no doubtful tones the necessity for an independent and untrammeled judiciary.

The White House, August 15, 1911.

A COUNTER CASE.

WM. H. TAFT.

Upon being called in the police court at Asheville, North Carolina, charged with assault upon a clerk at a soda water fountain, the defendant arose and said: "Your Honor, I am guilty but I plead a counter case." Whereupon the aforesaid clerk arose and replied: "Your Honor, the counter did not have anything to do with it. I walked around the counter before I struck him.'

Amended. The Court: "You will swear that the prisoner stole your umbrella?"

The Plaintiff: "Your Honor, I will swear that he stole the umbrella that I was carrying."

A Purist in Court.-Lawyer: You drive a wagon, do you not!

Witness: No, sir, it's a horse I drive.

THE POLLACK STOGIES IN COURT.

In Hazlett v Pollack Stogie Co., in the United States Court, W. D. Pennsylvania (June, 1911, 188 Fed., 494), an interesting application was made of the doctrine that one invoking the aid of a court of equity must come with clean hands. It appeared that decedent during his lifetime had built up a large and profitable business in stogies, which were sold under his name and became known as "Pollack's Stogies," the word "Pollack" alone becoming generally connected with cigars made by him Among other distinctive marks used on his packages was a guaranty signed in script over his reproduced signature and the factory certificate, which also stated that decedent was the manufacturer, and on the front of his factory, which constituted his principal trade mark, was decedent's name as manufacturer. Two years after his death, complainant, who succeeded him, sent out a letter to the trade, printed in script. and purported to be signed by decedent, calling attention to the development of the business and soliciting continued favorable consideration, the business being continued by plaintiff as agent of decedent's wife and children. It was held that complainant's continuance of the use of decedent's trade marks and dress of package, without anything to show that the goods were no longer made under the personal supervision of decedent, tended to mislead the public, and therefore precluded him from maintaining a bill for infringement.

The will of Augustus Pollack, the decedent, was inoperative because not properly executed. Letters of administration on his estate had been granted Hazlett, the complainant, and under written agreement of all the parties interested in the estate, confirmed in a chancery proceeling, the complainant was carrying out the provision of the will, with certain exceptions, and pursuant to such agreement, continuing the decedent's business. The court said in part ·

"The public by such unchanged marking of the goods was led to believe that the goods were being made and guaranteed by Mr. Pollack. It is true that some time after this bill was filed an inconspicnons label was placed on packages stating the goods were made by Pollack's administrator: but even this statecontinued still to be acompanied by prominent labels stating: 'None genuine without my signature. Augustus Pollack.' And that the goods are 'manufactured of select air cured and fer

mented Pennsylvania tobacco and packed in good shipping order by Angustus Pollack, Wheeling, W. Va.'

"In view of these facts can the present bill be maintained by the complainant? Without imputing to the complainant any bad faith or intent to deceive the public, we are of opinion that under the fact stated the law forbids the maintenance of his bill One of the esentials of an enforcible trade mark right is that the goods it represents shall in no way mislead the puh. lic. When a manufacturer has by his personal skill or character built up a reputation or good will for his goods which gives them a higher value than those of other makers, it is quite clear that he cannot transfer to others the right to affix his name to those goods when he has ceased to manufacture them and his transferee mislead the public into the belief that the skill and character which gave the product distinctive merit still continue to do so. Under such circumstances fairness to the public demands that he who succeeds to the manufacture of a product of earned personal repute must in some appropriate manner apprise the public of the changed condition. Thus in Manhatton Co. v. Wood (108 U. S., 223, 2 Sup. Ct., 439, 27 L. Ed., 706), it is said:

"The object of the trade mark being to indicate, byits meaning or association, the origin or ownership of the article, it would seem that when a right to its use is transferred to others, either by act of the original manufacturer or by operation of law, the fact of transfer should be stated in connection with its use; otherwise a deception would be practiced upon the public and the very fraud accomplished to prevent which courts of equity interfere to protect the exclusive right of the original inanufacturer. If one aflix to goods of his own manufacture signs or marks which indicate that they are the manufacture of others he is deceiving the public and attempting to pass upon them goods as possessing a quality and merit which another's skill has given to similar articles and which his own manufacture does not possess in the estimation of purchasers. To put forth a statement, therefore, in the form of a circular or label attached to an article, that it is manufactured in a particular place, by a person whose manufacture there had acquired a great reputation. when in fact it is manufactured by a different person at a different place,, is a fraud upon the public which no court of equity will countenance.'

"So also in Leather Co. v. American Co., postea, it is said: "When the owner of the trade mark applies for an injunction to restrain the defendant from injuring his property by making

false representations to the public, it is essential that the plain. tiff should not in his trade mark or in the business connected with it be himself guilty of any false or misleading representations; for, if the plaintiff makes any material false statement in connection with the property he seeks to protect, he loses, and very justly, his right to claim the assistance of a court of equity. Where a symbol or label claimed as a trade mark, is so construed or worded as to make or contain a distinch assertion which is false, I think no property can be claimed in it, or, in other words, the right to exclusive use of it cannot be maintained.

"The facts of the present case bring it within these rulings. The right of Augustus Pollack has been transferred by operation of law to his wife and children, and they have empowered Halett as their representative to continue the business. But unfortunately it has been continued not according to existing facts and conditions and with appropriate notice of the succession, but precisely as if the personal service and skill of Augustus Pollack were still directing it, and indeed his name and signature have been actively used as if he were still living. On the authority of these cases, and in view of the facts referred to, it is clear that this bill cannot be sustained.'

Of course the doctrine laid down in this case is not inconsistent with the right of a person to use another person's name when the same has been lawfully acquired as a trade name and no actual deception of the public is practiced. When, however, the nublic is misled, the court will refuse equitable relief, though the defendant be itself an offender against business morality. Costs were denied on that ground in the principal

case.

A decision of similar purport was that by the U. S. Circuit Court, N. D. Illinois, E. D., in Leach v. Scarff (August, 1911, 188 Fed., 446), in which it was held that complainant is not entitled to enjoin use by a competitor of such names as "oil of pine," "virgin oil of pine (pure)," or "virgin oil of pine compound (pure)," though complainant's use of the names is original and fanciful as appliled to his compound, where he is in the position of perpetrating a fraud on the public by falsely claiming the presence of oil of pine as an ingredient or claiming a trade name in a mere proper pharmaceutical designation of the drug he seeks to protect.

RELATIVE FUNCTION OF COURT AND JURY AS TO DEFENSE OF INSANITY.

There has been a variety of theories on the question whether the definition and existence of insanity which will excuse crime is a question of law for the court, or of fact for the jury, and there are cases which seem to hold that all the questions connected with the question of insanity as a defense for crime are questions of fact. And it has been claimed that the opinion of experts in the matter of insanity is the only reliable test of the existence of insanity. It is to be observed, however, that the question of guilt or innocence does not depend upon the question of sanity or insanity, but upon that of responsibility or irresponsibility; and one may be innocent to some degree, and yet not irresponsible to the law for his acts. Criminal responsibility is necessarily, therefore, a question of law, though complicated probably in all cases more or less by questions of fact; and the practice of dividing the functions between the court and jury in each particular case, according to its own facts, is gaining strength; and the rule seemingly supported by the preponderance of modern authority is that the question as to how much intellect, understanding, judgment, and comprehension a man must have to make him amenable to the law with respect to a criminal act is one of law for the court. And the sanity of a person who pleads guilty is an issue for the court, and is required to be shown before he can be convicted, and evidence of such sanity should be introduced at the time of the plea. But the question of the existence of such insanity as will excuse the crime in question, where the commission of the criminal act is established, is one of fact for the jury, under proper instruetions, to be submitted to and determined by it like any other fact in the case. And it is a question for the jury to determine whether the mental condition of the accused was such that he was incapable of a specific intent to take life, and the weight and sufficiency of evidence to establish the defense of insanity are quetsions exclusively for the jury, and the verdict or finding will not be disturbed where thee vidence as to insanity was conflicting. It is not improper for the court to tell the jury that the defense of insanity should be examined with caution.

Likewise, the rule that the question as to how much intellect one must have to make him amenable to the criminal law is one for the court, and that the existence of insanity which will

« PreviousContinue »