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This, however, only amuses the reader, belonging as it does to that class of obvious errors that cannot mislead and are easily forgiven, — and the invigorating breezes of Lake Michigan have, in general, had the effect of keeping the typographer awake.
To lawyers in active practice this book will be very convenient, and in an especial degree to that large class to wrhom we have so frequent occasion to refer as not having easy access to large libraries. Its title-page sufficiently indicates its contents, — the comprehensive quality of the definite article at the beginning being limited by what follows, as the " Ornamental Pond " in the auctioneer's advertisement is made to appeal less vividly to the reader's imagination by the addition, in more modest type, of the words " may be at any time constructed by the purchaser in the less elevated portion of the domain."
The Law of Design Patents; containing all reported Decisions of the United
States Courts and the Patent Office, in Design Cases, to A.D. 1874, with
Digests and Treatise. By William Edgar Simonds, Couusellor-at-law.
New York: Baker, Voorhis, & Co., Publishers, 66 Nassau Street. 1874.
The law of design patents, although of small volume, affords a very good field for a work of this kind, because it is untouched, and because vague statutes and conflicting decisions are to be filled out and reconciled, either by the writer or by legislation which may be induced by his exposition of them.
The author has arranged the matter of his work very well; giving, first, reported cases in the courts and Patent Office, those of the courts being well illustrated by the drawings and specifications of the patents litigated, then copious digests of the cases, and, finally, the statutes and comments on them, and a treatise on all the subjects embraced in the cases.
The statute of 1861 is not correctly reprinted, as it omits the important clause relating to design patents for "any new and original shape or configuration of any article of manufacture."
In his treatise the author has attempted to discriminate the authorities to be received among the conflicting decisions, to expose alleged fallacies in some, and to shape certain topics not clearly elucidated by the statutes and cases. Among his efforts in the last-named respect, we think his essay to show that the provision of the statute that a design patent is to be issued to any one "who by his own industry, genius, efforts, and expense has invented or produced" a design, requires the patentee to have invented it, contains all that is to be said upon the subject, thqugh it is still a matter of doubt whether the above italicized words were used by the legislators to indicate the requisite origin of the design, or to argue the justice of granting a monopoly.
The chapters on " The Claim," "Identity and Infringement," and " Prior Use," constitute a clear summary of the judicial law on those subjects; and it is with a feeling of disappointment that we find that, as he says here, it is settled by the Supreme Court that infringement is made out if a casual purchaser would regard the appearance of two designs as the same; for, while we would not have the courts regard designs with a vision as judicial as that which led a judge to disregard his own conviction that a coat did not fit because a tailor swore it did, yet we think that, with the right in the patentee to claim the elements of his design separately no harm would result in confining him to them substantially, as did Judge Blatchford in a case which the Supreme Court reversed.
We do not think the author so fortunate in his treatment of "patentable subject-matter." The Act of 1842 enumerates as patentable "new and original" designs for a manufacture, printing fabrics, a bust, statue, &c, and an impression or ornament to be placed on any article of manufacture, and any " new and original shape or configuration of any article of manufacture," and any "new and useful" pattern or print or picture to he either worked into, or worked on, or printed, or cast, or otherwise fixed on any article of manufacture.
The Act of 1861 enumerated all these, except designs for printing fabrics; and the Act of 1870 restored these, omitted the word "useful" where it was used before, and inserted it as descriptive of a patentable "shape or configuration of any article of manufacture." The first case in the courts left it undecided whether utility was a quality which went to make the shape of an article of manufacture patentable; and in the next case Judge Blatchford said that it was. and the Supreme Court, iu reversing the decision in this case, on appeal, said that it was "appearance" which "mainly" constituted the patentable quality. The Commissioners of Patents have differed on this point; and at present it is the doctrine of the Patent Office that it is inadmissible to even mention the utility of an article of new design in the specification.
The author thinks that the Supreme Court, in the case above mentioned (Gorham Manufacturing Co. v. While), settled the law now to be that utility is not to be considered in a design patent; but we fail to find language hi that case which warrants his assertion to that effect, and the patent in question in it was not granted under the Act of 1870, which is the first that specifies that a patentable shape of an article of manufacture must be useful. He argues that this word in the statute is descriptive of the article itself, and that the patentable quality of its shape consists in ornamentation alone; but we see no reason to suppose that Congress imported this word into the statute of 187U to describe this class of designs with this intent, and at the same time struck it out of the description of other designs applicable to useful articles, and we cannot comprehend why, if the statute means to make patentable a neic and original shape or configuration of a useful article, it does not say so. A chapter is devoted to refuting 'the decision of Acting Commissioner Duncan, in Sj>erry's Case, that under the Act of 1870, which authorizes extensions of patents "issued prior to March 2, 18t11," no patents issued after that date can be extended, although the act of that date (repealed by the Act of 1S7<*) provided that patents granted under it should be extended, and the author asks why the former class are so made extensible, "except to put them on an equal footing with those granted since March 2, 186r." It does not occur to him that, inasmuch as all patents issued prior to March 2, 18(51, ran only seven years, and therefore had expired before the passage of the Act of 1(S70, which expressly forbids extensions of expired patents, therefore no patent could be extended under the clause of that act above quoted.
In view of this fact it would seem that the meaning of the statute had been reversed by a clerical error.
A TreatUe on the Measure of Damages: or. An Inquiry into the Principles which govern the Amount of Pecuniary Compensation awarded by Courts of Justice. By Theodore Sedgwick. Sixth edition. By Henry D. SedgWick. New York: Baker, Voorhis, & Co. 1874.
It is quite unnecessary to renew the praises of this admirable work. More than one generation of lawyers has testified to its value. It has been cited for many years with the highest respect and approval by eminent judges and text-writers, not only in this country, but in England, and is a book of constant reference for any practitioner. The work was originally published in 1847, and passed to second and third editions, in 1852 and 1858, under the author"s supervision. A fourth edition was published in 1868, with notes by the present editor; a fifth edition in 1860, by Arthur G. Sedgwick, Esq., a son of the learned author; and the sixth edition, with a careful collection of recent eases, is now laid before us, with many additional notes and citations, and in handsome form as to paper and print.
In a certain sense, a treatise on the law of damages is a review of almost the entire domain of the law. Pecuniary reparation is the main or an incidental feature in the relief sought in the vast majority of legal proceedings. Even courts of equity, while adhering to the rule that claims sounding in damages are not properly within their jurisdiction, constantly award damages as incidental to other relief. Payment in money is accepted as the most exact and satisfactory method for obtaining redress, not merely for violated contracts, but for injuries to life, person, or property. And yet the reperusal of the work before us suggests anew how inadequate this method is. We speak of a plaintiff as entitled to compensation. But in what form of action does he get it'.' Leave out of consideration entirely every thing but the mere pecuniary loss, and yet there remain, as excluded from the verdict, the expenses of suit, the loss of time and injury to business, all of which are immediate and positive pecuniary losses, and the first two of which, at least, are as easily susceptible of calculation as most claims for damages upon which a jury are called to pass. Our author quotes the language of Judge Story, " Whoever does an injury to another is liable in damages to the extent of that injury," and other judges to the same effect, and truly remarks upon it," This language attributes to legal relief a degree of perfection which it is very far from possessing.-' It is not to be expected that courts, at this late day, will disturb the well-settled rules defining the limits of legal compensation; but we can see no harm, on the contrary it appears to us a plain dictate of justice, that the legislature should authorize the verdict to include compensation, at least beyond our present meagro allowance of interest and costs, for the actual expense of establishing the just claim of the plaintiff, or of defending the unjust claim upon the defendant.
On the other hand, however, we cannot go with the learned author in his approval of the doctrine of exemplary damages. This may be the fault of our training in the courts of Massachusetts, where the highest authorities have steadily refused to recognize the principle, in opposition, as we humbly admit, to the weight of authority. So far as exemplary damages are understood as meaning compensation, not merely for the pecuniary loss, but for the mental suffering, sense of wrong, &c., —in a word, adequate compensation, — we find no fault with the doctrine. There is, then, only a verbal difference in the way in which it is stated. But where, as in many cases, it is expressly declared that the damages to be awarded shall include, besides those elements, a sum representing the penalty which, in the judgment of a jury, society at large should exact for the injury done it, and which shall serve as a warning to future wrong-doers, the doctrine appears to us absurd and indefensible. If the law, in the vast majority of cases, deliberately refuses to give adequate compensation for reasons which have been generally held good and satisfactory, upon what principle can it, in these exceptional cases, deliberately give much more than adequate compensation?
We must not omit to add that the notes to this, as to all previous editions, have been prepared with great care. Cases are not merely cited, but a concise and intelligent statement of the points decided is given. In this respect the plan of the author has been most worthily followed.
An Epitome of Leading Common Law Cases, with some short Notes thereon; chiefly intended as a Guide to " Smith's Leading Cases." Second edition. By John Indeumaur, Solicitor. London: Stevens & Hayues, Law Publishers, Bell Yard, Temple Bar. 1874.
This should be placed in the handy-volume series of law-books. Its title expresses its object, — that of an epitome and guide to leading cases. The cases themselves are stated with admirable brevity and clearness, and the notes turn out to be more full and instructive than their material size would seem to indicate. The type and binding are excellent, and in several respect* this is an improvement on the first edition.
Cases aryued and determined in the Circuit anrl District Courts of the United States for the Seventh Judicial Circuit. By Josiah H. Bissell, of the Chicago Bar, Official Reporter. Vol. III. 1871-73. Chicago: Callahan & Co. 1874.
Mb. Bissell has in this volume brought down the reported cases to May, 1873. We find from inspection the marks of careful and accurate reporting, and should be disposed to accord to this volume unqualified praise, were it not that we find reported numerous charges to juries in a volume that purports to contain " cases argued and determined." We have had occasion heretofore in noticing a previous volume of this scries to call attention to this point, and have said all that we feel called upon to say with regard to it. As an illustration of our views we refer the reader to page 45 of the present volume. It may be that some people are of differeut minds, and prefer to have the reporter select such charges to juries as seem to him of interest, and add them to his pages. If there be any such, they will find Mr. Bissell's views on this subject at length under the head "Correspondence," at the end of this number of our Review. There are many decisions in bankruptcy contained in this volume, that alone make it an interesting and valuable one. We find in Kingsbury v. Kinynbury, p. 60, that a minor is incapable of consenting to a change of forum, and that when a state court has obtained jurisdiction of the person and property of a minor, neither he, nor his guardian ad litem, nor any person for him, can consent to a removal to the United States courts.
In Goodall, Assignee v. Tuttle, p. 219, Judge Hopkins decides a question on which there has been some diversity of opinion, that a suit may be maintained by an assignee in bankruptcy to collect the assets of the bankrupt in any district court of the United States, whether the proceedings in bankruptcy are or are not there pending.
The mechanical execution of the book is excellent.
The Doctor and Student; or, Dialogues between a Doctor of Divinity and a Student in the Laws of England, containing the Grounds of those Laws; together with Questions and Cases concerning the Equity thereof. To which are added two Pieces concerning Suits in Chancery by Subpoena. By ChrisTofher Saint Germain. Revised and corrected by William Mcchall. One volume. 8vo, cloth, $3.00. Cincinnati: Robert Clarke & Co. When the young law student has got over the first appalling consciousness that the recent college "senior" who knew every thing is all at sea in his ignorance of the mere alphabet of his newly attempted science, his bumptiousness returns in the form of his belief that his first year at the law school has taught him some law, and, what is better, the reason and the principle of all law; and he begins to think poorly of Kent, as a much overrated man, of no method, and no clear conception of the logical connection of principles and their results. But after a short practice and a little wearying of the court with disquisitions which may throw light on the nature of things, and the principles of eternal justice and other like trifles, he discovers that the first business of a true lawyer is to know the law as it is, and that the much looked-down-upon Kent had this slight advantage over the admired professors of the " logical" method of writing law-books, that he knew what the law was as well as the others thought they knew what It ought to be. And, finally, as he grows stili older, if he be a man devoted to the professional part of his profession, he finds that our common law, and our commercial law, and our equity, generally illogical on paper, have the singular faculty of bringing out good results when applied to the generally illogical but ordinarily natural transactions of the men whose difficulties they were made to fit.
Doctor and Student was written by a man in this latter stage of professional life, yet it tastes much of the earliest period. The a priori reasoning of the doctor sometimes pushes the student hard, and is answered oftenest by reasons which, more briefly stated, would resolve themselves into this, "the law is so settled;" nevertheless he generally gives clearly the steps whereby the law came to be so settled, and for most of the law of English-speaking men thero is no better explanation to be given; and no other method of showing the reason of the law is needed. And these explanations of the reasons of our law are so well founded in the nature of men, and the ordinary course of the affairs of men, that, though they can seldom be stated with the sharply defined lines of the geometer, one side of which is within and the other side without the area included, yet the sound sense on which they rest, which is the equivalent of or is better than a logical reason, is pre isely the same as that which supports new and modern doctrines. Most of the questions discussed in Doctor and Student are obsolete; yet no better statement of the true ground on which the rule in Minot's Case must rest can anywhere be found than in ch. Vol. nil. 49