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his subject, is an enviable one, yet he will never have it laid at his door that he has spared himself or slighted his work. The appearance of this edition is far superior to that of the earlier one, notably in presswork and binding. The proof-reading is more carefully done, and we mark a decided improvement in the form of the index.
The Law of Remedies for Torts ; including Replevin, Real Action, Pleading,
Evidence, Damages. By FRANCIS HILLIARD. Second edition, greatly enlarged. Boston: Little, Brown, & Co. 1873.
MR. HILLIARD's treatise upon the Law of Torts has been found useful to the profession, and we may naturally look to this book for a valuable supplement to it. The preface anticipates an objection which would probably strike every reader at the outset, by the statement that the contents of the work might very properly have been incorporated passim in the other book, with a more systematic result. The principles which the author has adopted in the selection of his materials are not very clear; for the pages seem to be devoted to the law of wrongs, as well as to the law of remedies. The remarks, for instance, upon the choice of defendants will be read with interest by those who have no hesitation whatever in regard to their remedy, except as to the enforcement of their judgment. And throughout the chapters which treat of replevin, pleading, evidence, real action, are constantly laid down doctrines of law more pertinent to the right than the remedy; as, for example, "$ 2. Entry upon land is of course an important point in connection with suits relating to the title.” Indeed, this work offers to the student quite a full hand-book of real-estate law, as well as of the law of evidence, which occupies a considerable proportion of its pages.
The text is much encumbered by constant statements of points of local law, as, that in Massachusetts two cows may be appraised at one sum in a replevin suit; that in Arkansas the owner of a " posted” animal must prove property and pay charges before he can reclaim the beast; that in Indiana the declaration must allege that cattle killed upon a railroad were killed within the county: each of which propositions is treated in an independent section.
The author informs his readers that he has directed his attention to specific remedies, and not to those which result in damages; but this seems almost a groundless apology; for he treats fully of the general rules which govern damages, and, in particular, of mitigation, of special, exemplary, and vindictive damages. He views the question, further, with regard to particular wrongs, to the distinction of principal and agent, to the liability of bailees, and in a variety of other aspects; and when counsel are enlightened upon the choice of parties and the rules which govern their respective rights and liabilities, upon pleadings and evidence, and the matter of damages, they would seem to need little further research to complete their preparation for trial.
These are the inost obvious defects of the book. If we turn from them, we find that the author has apparently made a very extended examination of authorities, and that his pages are full of practical instruction. Of course the subject matter has been treated in the leading works upon evidence, pleadings, and other heads; but it is convenient to find it arranged with a view to the remedies for torts; and this edition will undoubtedly serve to maintain the reputation which the author has already acquired.
A Treatise on the Law of Patents for Useful Inventions, as enacted and
administered in the United States of America. By GEORGE TICKOR Curtis. Fourth edition. Revised and enlarged. Boston: Little, Brown, & Co. 1873.
Thx former editions of this work have afforded to the student a discussion of the whole law of patents, both statutory and judicial; and, while its principles have not been explained in so elementary a manner as to permit him to ascertain without some study of the cases themselves and some experience in the courts the reason and policy which have prevailed in elucidating and shaping into judicial decisions the abstruse theories upon which inventions are compared and discriminated, and the rules which have been adopted in administering the remedies provided by law, yet questions of general interest have rarely arisen in the trial of patent causes, the path to the solution of which has not been pointed out, or upon which light has not been thrown by this work. The courts have frequently cited Curtis on Patents as authority to be respected upon questions not fully settled by the cases; and the learned and philosophical reasonings of the author upon the possibility of so patenting a device for putting into operation a newly discovered principle of the laws of physics as to secure the monopoly of the principle itself to the patentee; the theory that our statutes permit the supposition that the invention of one may become by disuse a “lost art," so far as not to invalidate a subsequent patent for the same by another inventor; the “ double use " of inventions and other matters not yet fully settled by decisions, — have been read with great interest by lawyers.
In this edition a short chapter on repeal of patents, and interferences, is new; but it is with regret that we observe that the author has, for the most part, contented himself with the addition to his former text of abridgments of cases published since the third edition. Over a hundred new cases are cited, chiefly those in the United States courts, and the matter extracted from them fills more than a hundred pages of the present edition. Among those of interest are two, Hailes v. Van Warmer (7 Blatchf. 443) and Sarven v. Hall (9 Blatchf. 524), in which the law that a mere aggregation of old devices in one machine will not constitute a patentable combination, but that the combination must produce a new and useful result, not due to the separate, but to the co-operative or reciprocal action of its elements; and the former of these cases has been affirmed by the Supreme Court since the publication of this edition.
Several interesting cases, relating to the “ double use" of inventions, are also noted; and from one (Tilghman v. Morse, 9 Blatchf. 421) the opinion of the court is quoted, to the effect that the practice of projecting from locomatives a stream of sand in a jet of steam upon cows to drive them from the track (to which, the court says, “grave reference is made”) does not anticipate the ingenious invention of cutting glass and stone by sand projected in a jet of steam; and the humor of the suggestion that this was a case of a “double use," and the patience of the court in disposing of it, are as striking as the same features in a late case in the first circuit, in which the court, at the instigation of counsel for the defence, discriminated a modern burial-case from the wrappings of mummies.
Hall v. Bird, 6 Blatchf. 438, is mentioned as sustaining the theory of a “ lost art” enounced in Gayler v. Wilder.
Some new cases are cited in § 87 a to show how far a prior invention must have been carried in order to invalidate a patent; and Pitts v. Wemple, 2 Fisher Pat. Cas. 10, and Coffin v. Ogden, 7 Blatchf. 61, are adduced as authorities for the proposition that it is not necessary that the prior invention should have been actually USED; but it would seem that these cases do not go to this length. In the first one, it was held that a machine described in a prior patent which was set up in defence need not have been used to invalidate a subsequent patent, but such a machine stands upon a different ground from that upon which a prior machine does which is neither patented nor described in a public work; and although it is said, in the opinion in the second case above mentioned, that actual use of a prior mechanism was not necessary to make it a valid defence, yet the decision seems to be based upon the ground elaborated by the court, that the exhibition of the lock in question was a use of it within the meaning of the law.
Parker v. Ferguson, 1 Blatchf. 407, which is not cited, is more nearly an authority for the doctrine affirmed in the text; and Watson v. Bladen, 4 Wash. 580, Pennock v. Dialogue, ib. 533, 543, and Parker v. Hulme, 1 Fish. 44, which are not mentioned, and Swift v. Whisen, which is, are authorities which need to be reconciled to it; but no mention is made of the fact that they are against it. A discussion of these cases by the learned author would have been welcome.
The Patent Act of 1870 is printed at the end of the volume; and it appears to be one of the purposes of the text to compare the provisions of this act with those of the previous acts. But we are bound to say that the practitioner will be obliged to depend upon himself for an accurate statement of the existing law as affecting the subjects treated in the text. No mention is made of the change of the language of the law relating to the use or sale of an invention more than two years before a patent is applied for, although it is a question of importance whether the law as it formerly stood, and as it has been expounded in the cases and in this work, is not changed in an essential particular by the Act of 1870; and in § 439, the statement, applicable to earlier laws, that the defence of a public use is made a defence in actions at law only, is retained, although sect. 61 of the Act of 1870 provides that this and the other defences to an action at law named in the statute may also be pleaded or set up in an answer in equity; and in § 282c it is said unqualifiedly that 6. it is clearly settled, both by the statute authorizing reissues and by the construction put upon it by the courts, that the reissued letters-patent must be for the same invention as that embraced in the original patent," although it is provided in sect. 53 of the Act of 1870 that the drawings of a reissued patent may be amended by the model, and that “ when there is neither model nor drawings, amendments may be made upon proof satisfactory to the commissioner that such new matter was a part of the original invention.”
It is not in these particulars alone that we find reason to lament that the fashion of the times has been followed by the learned author in lending his name to the labors of another in book-making, instead of the old-time custom of the law-book writers of making their works the monuments of their own learning, experience, and observation, which he has heretofore eminently illustrated; for, we regret to say, the adaptation of the law, as expounded in the cases newly cited to the text, is neither full nor accurate. We find, in $ 111 c, under the head of “ Unity or Diversity of Invention,” where the question under discussion is, What changes in the elements of an old combination will produce a new and patentable combination, a statement to the effect that a device in a combination is none the less an equivalent of another device in the same cornbination, because, by a change in it, it is made to perform an additional function; and nearly two pages are given to the opinion of the court in Sarven v. Hall, 9 Blatchf. 524, on this point, all of which is purely applicable to the question of infringement, and not of patentability.
A long section, too (208 b), is given to the case of Jenkins v. Nicholson Pavement Co., 1 Abbott U. S. Reports, 567, which was overruled by the Supreme Court in 1872, as reported in the Official Gazette of the Patent Office of May 14, 1872. 14 Wall. 452.
The doctrine has lately arisen in the law of patents that a patented article purchased in territory, the title to the letters-patent in which the vendor of the article has, passes out of the monopoly of the patent, and may thenceforward be used in any territory; and this doctrine has been enounced in the two cases of Goodyear v. Beverly Rubber Co., 1 Cliff. 348, and Adams v. Burk, Official Gazette of the Patent Office, March 26, 1872, the latter of which has lately been affirmed by the Supreme Court on appeal. The soundness of these cases has been, and is yet, doubted by many of the profession. Three eminent judges of the Supreme Court dissented from the decision affirming the last named; and the owners of patents, and makers and users of patented machines, have been greatly interested to learn of the latest, best, and most conclusive authorities upon the subject. But this doctrine is not adverted to, and these cases are not cited in the edition before us; and no notice is taken of the law laid down in Hawley v. Mitchell, 4 Fish. Pat. Cas. '388, that a machine purchased of an owner who derives title to the patent by an instrument which explicitly provides that he may not sell a machine for use beyond the original term of the patent, does not pass out of the monopoly, and may not be used during the extended term; nor of the fact that this case has been affirmed by the Supreme Court on appeal (as reported in 16 Wallace, 544, and the Official Gazette of the Patent Office of March 4, 1873), upon the maxim Nemo dat quod non habet, which, we may remark in passing, is the very ground upon which the dissenting judges based their dissent, in Burk v. Adams, to the doctrine that a machine sold by a territorial assignee did pass out of the “ monopoly," and might be used elsewhere. But, notwithstanding our criticisms, we say no student nor practitioner of patent law can afford to omit the study of Curtis on Patents.
Reports of Cases argued and determined in the Court of Common Pleas for
the City and County of New York. By CHARLES P. DALY, LL.D., Chief Justice of the Court. Vol. IV. New York: Baker, Voorhis, & Co., Law Publishers, 66 Nassau Street. 1874.
It is now nearly two years since the third volume of Daly's Reports was published, containing the decisions of the Court of Common Pleas down to May, 1871. The present volume continues the cases to November, 1873. Some of the decisions of this court during this time have already been given to the profession in one or more of the so-called Practice Reports, and these are merely noticed, not fully reported, in this volume; but of the larger part of his court's decisions Chief Justice Daly is himself the reporter. His work is always done in a careful, scholarly manner, and his statement of the cases is terse and pointed. But, in our judgment, it is usually, and perhaps only, those cases in which, on appeal, the higher court adopts as its own the opinion of the court below that furnish an excuse for publishing a series of Reports like these. The cases that never reappear are usually of little importance, and involve no questions of principle. The cases that are reversed on appeal never were correctly decided, and merely cumber the Digests, and tend to confuse the ideas of the profession. We are disposed to take issue with the somewhat prevalent notion that a lawyer cannot safely advise his client until he has searched the decided cases of all the courts. But we are aware that many lawyers, especially in the State of New York, think otherwise, and for them the Reports are multiplied. It is perhaps a little unfair to apply these remarks to Daly's Reports, which are, in fact, recognized as a very respectable authority. The Bar Association of New York, in their sweeping condemnation of the swarm of New York reporters, expressly excepted them. Our examination of this volume has not disclosed many cases of general interest. From among those that arrested our attention we cite Wetzell v. Dinsmore, p. 193, in which the defendant carrier having limited his liability to $50 for “ the article" forwarded, but, having given a receipt for " one pkge. (3 cases Drugs),” it was held that the plaintiff could recover $50 for each case. Constant v. The Rector, 8c., of St. Alban's Church, p. 305, where the plaintiff, at the request of some of the trustees of an Episcopal church, undertook the management, and in large measure paid the expenses, of a fair for the benefit of the church, with the understanding that she was to be reimbursed for her payments from the proceeds of the fair. The gross receipts of the fair in the hands of the treasurer of the trustees was paid over by him to the building committee, and by them applied to the purchase of land and the erection of a church building. The plaintiff suing the church for the money she had expended, it was held that the individual separate acts and promises of the trustees could not bind the church, and the plaintiff could not recover. The court assumed that it was not ultra vires for a religious corporation to get up and carry on a fair for the purpose of raising money for the building of their church. Some other cases of interest appear, which want of space prevents our citing.
The New York Supreme Court Reports. Cases determined in the Supreme
Court of New York from June to November, 1873. Edited by ISAAC GRANT THOMPSON and ROBLEY D. Cook. Vol. I. Albany: John D. Parsons, Jr., Publisher. 1874.
The Reports of the New York Supreme Court have so long enjoyed an unenviable reputation for all the vices by which Reports can be disfigured, that we hail with peculiar pleasure a volume like this, which marks the adoption of a new system. The prospectus which is sent with it states the abuses