Charles R. Darling, "The Law of Strikes and Boycotts." (A. L. Reg., LII, 73.) William Draper Lewis, "The Modern American Cases Arising out of Trade and Labor Disputes." (A. L. Reg., LIII, 465.)

William Draper Lewis, "Motive in Trade and Labor Cases." (C. L. R., V. 107.)

Oliver Wendell Holmes, Jr., "Privilege, Malice and Intent." (H. L. R., VIII, 1.)

Ernst Freund, "Malice and Unlawful Interference." (H. L. R., XI, 449.) Bruce Wyman, "Competition and the Law." (H. L. R., XV, 472.) James Barr Ames, "How Far an Act may be a Tort because of the Wrongful Motive of the Actor." (H. L. R., XVIII, 411.)

Jeremiah Smith, "Crucial Issues in Labor Litigation." (H. L. R., XX, 253, 345, 429.)

Ernest W. Huffcut, "Interference with Contracts and Business in New York." (H. L. R., XVIII, 411.)

F. P. Walton, "Motive as an Element in Torts in the Common and in the Civil Law." (H. L. R., XXII, 501.)

Francis E. Baker, “The Respective Rights of Capital and Labor in Strikes." (I. L. R., V, 453.)

Henry T. Terry, "Malicious Torts." (L. Q. R., XX, 10.)

Ernest W. Huffcut, "Malice in the Law of Tort." (Northwestern Law Review, 1894, II, 65.)

NOTES:

American L. Reg.: "Blacklisting." (L, 577.)

"Unlawful acts and purposes in boycotts." (LVII, 109.)

"Trade and labor disputes — Malicious motive." (LIX, 113.) "Injunction - Strike for a closed shop." (LIX, 340.)

--

"Blacklisting Concerted refusal to deal-Want of justification." (LIX, 405.)

Columbia Law Rev.

"Interference with business or employment." (II, 37, 57, 124, 400, 424, 552, 560; IV, 145, 59, 79; I, 123; III, 426.)

"Interference with business or employment: Ticket speculators." (VI, 123.) "Labor unions: Picketing: Right to enjoin." (VI, 124.)

"Interference with trade: Injunction."

(VII, 429.)

"Malice: Inducing breach of contract." (VII, 628.)

"Contract, breach of: When actionable as a tort." (VIII, 666.)

"Interference by combinations of labor with employer's business." (X,

6.52.)

"Inducing breach of oral contract void under the statute of frauds." (X,

678.)

Harvard L. Rev.

"Lumley v. Gye, principle of, and its application." (II, 19-27; XVI, 228, 299, 600; XVII, 135.)

"Justification: Motive as affecting justification." (II, 27; VII, 180; VIII, 499; X, 447; XI, 405, 452-457; XVI, 244–246, 299.)

"Contracts other than contracts for personal service." (VII, 180, 428; VIII, 113; XI, 201; XII, 285.)

"Boycott held to be unlawful." (VII, 180; VIII, 510; X, 56; XV, 223.) "Combination: Whether necessarily unlawful." (VI, 156; VII, 500; IX, 363; XVI, 243, 249-250.)

"Liability to workmen discharged." (VII, 184; IX, 159; XI, 201, 405; XVI, 299.)

"Allen v. Flood, American authorities on the question of." (VII, 184; XI, 459-460; XIV, 219, 247-248.)

"Civil liability: Conspiracy to do acts lawful when done by individual." (VI, 156; VII, 181, 500; VIII, 228; XI, 457-459; XV, 223, 402; XVI, 243.) "Strikes, boycotts, etc." (VIII, 227; X, 65, 301; XII, 502; XIV, 219; XV, 482; XVI, 392-403, 518.)

"Publication of 'black list' of non-union employees." (VIII, 499.) "Boycott." (VIII, 510.)

"Inducing workmen to leave plaintiff's employment." (VIII, 499; XII, 285; XV, 223; XVI, 251.)

"Sympathetic strikes, legality of." (X, 448; XVII, 558.)

"Injunction, remedy by." (XI, 469; XVI, 71, 600.)

"Allen v. Flood, analysis and discussion of." (XII, 405; XV, 223.) "Picketing: Injunction against picketing: effect of criminal statute: particular cases.' (XII, 502; X, 65, 301; XV, 482.)

"Threats of strike enjoined at suit of rival workmen." (XIV, 219; XVI,

71.)

"Combination of wholesalers refusing to sell to plaintiff." (XV, 402.) "Blacklisting: How far lawful.” (XVII, 139.)

"Forcing others to join combination against plaintiff." (XVII, 558.) "Intention to improve conditions of labor as justification." (XVII, 285.) "Strike to procure discharge of employee classed as 'boycott." (XVII, 558.)

"Competition as justification for procuring discharge of employee." (XVII,

140.)

"Compelling member of association not to deal with plaintiff: whether justifiable." (XVII, 558.)

"Blacklisting: how far lawful." (XVII, 139.)

"Intention to improve conditions of labor as justification." (XVII, 285.) "Competition as justification for causing discharge of employee." (XVII,

140.)

"Interference with business or occupation: Inducing breach of contract." (XIX, 68.)

"Theatres: Combination of managers to exclude a critic." (XX, 68.) "Strike against one man to reach another." (XX, 243.)

"Interference with business or occupation: Enjoining threatened sale by ticket-brokers of non-transferable tickets." (XXI, 365.)

"Interference with business or occupation: Inducing breach of contract not to sell a chattel." (XXI, 415.)

"Interference with business or occupation: Using personal influence to attract customers to one's own shop from an enemy's shop, for the sole purpose of injuring the enemy, as an actionable tort." (XXII, 616.)

"Interference with business or occupation: Causing workmen to cease work by threatened imposition of fine through medium of labor union.” (XXII, 243.)

"Interference with business or occupation: Threatened strike against one man to reach another." (XXII, 458.)

"Combinations in self-interest." (XXIII, 154.)

Michigan L. Rev.

"Violation of injunction by labor union pickets." (III, 328.) "Scalper In law and equity." (VI, 328.)

"Picketing-Lawful and unlawful." (V, 712.)

"Strikes - Scope of order restraining." (VI, 710.)

"Interference with another's right of employment." (IX, 536.) Yale L. J.

"Malicious interference with business." (XX, 69.)

"Injunction strikes unlawful acts." (XX, 329.)]

--

SUB-TITLE (IV): POLICIES SEEKING JUSTIFICATION IN THE NECESSITY FOR EQUALITY OF OPPORTUNITY FOR THE ACQUISITION OF A TRADAL REPUTATION

Topic 1. Common Surname

859. CROFT v. DAY

ROLLS COURT OF CHANCERY. 1843

7 Beav. 84

THIS was a motion, on behalf of the executors of Mr. Day, the wellknown blacking maker, to restrain the defendant, his nephew, from selling blacking manufactured by him. . . . It appeared from the case of the plaintiffs, that in 1801, Charles Day and Benjamin Martin entered into partnership as blacking manufacturers, for the terms of 21 years, and carried on the business at 97 High Holborn. In 1808, Martin transferred his interest to Day. . . . Martin died in 1834, and Day died in 1836, and the business was carried on in the names of Day and Martin by Day's executors. The defendant Day, the testator's nephew, had recently set up as a blacking maker at 901⁄2 Holborn Hill, and had sold blacking in similar bottles and with similar labels (with some variations) to those which had heretofore been used by Day & Martin, and to those now used by the executors of Day. . . . The defendant by his affidavit stated, that the carts of the plaintiffs now bore the names of Charles Day and Richard, and not Benjamin, Martin. That previously to his the defendant's vending or offering for sale any blacking, he applied to an intimate acquaintance of his, of the name of Martin, to join him in the manufacture and sale thereof, and obtained permission to use his name, in conjunction with his own, as manufacturers and vendors of blacking, and that he, the defendant, was now in treaty, and only waiting the result of this suit, finally to settle the terms of a partnership with Mr. Martin, for carrying on the said business of blacking manufacturers.

Mr. Tinney, Mr. Purvis, and Mr. Toller, in support of the motion, argued, that the defendant was intentionally practising a fraud upon the plaintiffs, and a deception on the public. .

Mr. Turner and Mr. Mylne, contra, contended that the defendant had an undoubted right to affix his own name to his own manufacture, and that he had authority to add that of Mr. Martin, with whom he was in treaty for a partnership. . . .

...

The Master of the Rolls, Lord LANGDALE (without hearing a reply). What is proper to be done in cases of this kind must, more or less, depend upon the circumstances which attend them. . . . The accusation which is made against this defendant is this: that he is selling goods, under forms and symbols of such a nature and character as will

induce the public to believe that he is selling the goods which are manufactured at the manufactory which belonged to the testator in this cause. It has been very correctly said, that the principle, in 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. . . . My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the names Day and Martin, but upon the fact of the defendant using those names in connection with certain circumstances, and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself, to which he is not, in fair and honest dealing, entitled. Such being my opinion, I must grant the injunction restraining the defendant from carrying on that deception. He has a right to carry on the business of a blacking manufacturer honestly and fairly; he has a right to the use of his own name; I will not do anything to debar him from the use of that, or any other name calculated to benefit himself in an honest way; but I must prevent him from using it in such a way as to deceive and defraud the public, and obtain for himself, at the expense of the plaintiffs, an undue and improper advantage.

860. RUSSIA CEMENT COMPANY v. LEPAGE

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1888

147 Mass. 206, 17 N. E. 304

BILL in equity, filed September 16, 1886, to enjoin the defendants from using as trade-marks the words "LePage's Liquid Glue" and "LePage's Improved Liquid Glue," and from doing business under the style of "LePage's Liquid Glue Co." At the hearing before GARDNER, J., there was evidence tending to prove the following facts. About January 1, 1880, the defendant and one Brooks, co-partners, doing business under the name of Russia Cement Company, began to manufacture and sell glues. . . . The name "LePage's" accordingly was decided upon, with the consent of LePage, as the name by which the light glues should be known, that word being always employed. . . . On February 4, 1882, the defendant and Brooks, as such co-partners, executed and delivered to the plaintiff corporation, which had been organized by them, a bill of sale of all the personal property belonging to the firm, "together with all the cash and book accounts belonging

...

to the said firm, the good-will of the business, and the right to use the trade-marks belonging to or in use by the said co-partnership." Thereupon the plaintiff engaged in, and continued to carry on, the business of making and selling such gluès as the defendant and Brooks had made and sold as co-partners, using similar labels, selling the light glues under the trade-mark or trade name of "LePage's" and advertising the goods at an expense of over $30,000. The defendant was treasurer of the plaintiff corporation from its organization until some time in 1884, and was afterwards a director. . . . The defendant withdrew from the plaintiff corporation in February, 1886, and shortly after engaged in the manufacture and sale of liquid glue at Gloucester, Massachusetts, where the business of the plaintiff had always been carried on. The defendant adopted the name and address of "LePage's Liquid Glue and Cement Co., Gloucester, Mass." and advertised his business under this name, called his liquid glue "LePage's Improved Liquid Glue," and described its manufacture as carried on "under the management of William N. LePage, the original inventor and manufacturer of LePage's Liquid Glue." The judge refused the injunction, and dismissed the bill, and reported the case for the consideration of the full court.

E. R. Hoar & Causten Browne, for the plaintiff.

W. Gaston & F. Forbes (F. L. Washburn with them), for the defendant. DEVENS, J. The plaintiff and the defendant are manufacturers of liquid glue, and the defendant, whose name is LePage, uses the same name as that used by the plaintiff to describe his glue, and by which to advertise it, except that he introduces therein the word "improved." The introduction of this word into the name of the article manufactured by him does not justify its use, if in other respects the plaintiff has just ground to object to it. Sebastian on Trade-Marks, 52. Frazer v. Frazer Lubricator Co., 18 Bradw. (Ill.) 450, 462. Gillis v. Hall, 2 Brewst. 342. A person cannot make a trade-mark of his own name, and thus debar another having the same name from using it in his business, if he does so honestly, and without any intention to appropriate wrongfully the good-will of a business already established by others of the name. Every one has the absolute right to use his own name honestly in his own business for the purpose of advertising it, even though he may thereby incidentally interfere with and injure the business of another having the same name. In such case the inconvenience or loss to which those having a common right to it are subjected is damnum absque injuria. But although he may thus use his name, he cannot resort to any artifice or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name. . .

It is also true that one may so sell or part with the right to use his own name as a description or designation of a manufactured article