Central Law Journal.

ST. LOUIS, MO., AUGUST 9, 1901.

One of the most interesting and perplexing problems of law was recently decided by the Appellate Court of Indiana in the case of Guethler v. Altman, 60 N. E. Rep. 355, where it was held that a store keeper had no right of action against a school teacher and members of a school board because of their maliciously dissuading pupils, by threats and otherwise, not to trade with him, no dishonesty or anything of a reproachful nature being imputed to him. The court reviews the authorities as follows:

"There seems to be some conflict in the cases as to whether a party is liable in damages for wrongfully and maliciously inducing another to break a contract with a third party. The better-reasoned cases hold there is no liability unless certain relations exist. In Lumley v. Gye, 22 Law J. Q. B. 463, it is held there is a liability if the contract is for exclusive personal services. In Jones v. Stanley, 76 N. Car. 355, the rule is applied to every case where one person maliciously persuades another to break any contract with a third person. In Boyson v. Thorn, 98 Cal. 578, 33 Pac. Rep. 492, 21 L. R. A. 233, it is held the action will not lie unless the relation of master and servant, or other personal relation, exists. Bourlier v. Macauley, 91 Ky. 135, 15 S. W. Rep. 60, 11 L. R. A. 550, holds that the action will not lie unless the party breaking his contract has, by coercion or deception, been procured to do so against his will or contrary to his purpose, or the party breaking the contract is within the statutory exception of apprentices, menial servants, and others whose sole means of living is by manual labor. See, also, Chambers v. Baldwin, 91 Ky. 121, 15 S. W. Rep. 57, 11 L. R. A. 545. We know of no authority holding that an action will lie for maliciously persuading a party not to enter into a contract. In Allen v. Flood (1898), App. Cas. 1, the jury found that Allen had maliciously induced the employers to discharge Flood and Taylor and not to engage them, and gave them a verdict for damages. It was held that Allen had violated no legal

right of Flood and Taylor, had done no unlawful act, and used no unlawful means in procuring their dismissal; that his conduct was therefore not actionable, however malicious or bad his motive might be; and that, notwithstanding the verdict, Allen was entitled to judgment. See Lyons v. Wilkins (1898), Law J. Ch. 383. In the case at bar no contract relation existed, and reasoning. from the above cases, we must conclude that there is no right of action for maliciously persuading the pupils not to enter into any contract of purchase, or make any purchases, of merchandise from appellant. If the language used had imputed dishonesty or anything of a reproachful character, appellant could have his action, but that is not the case made by the pleading."

How far a geographical name may be used for trade purposes and become the subject of a trade-mark, is well illustrated in the late case of La Republique Francaise v. Saratoga Vichy Springs Co., 107 Fed. Rep. 459. It seems that the name "Vichy," a geographical name applied to mineral waters by the owners of springs in the Commune of Vichy, France, to designate the locality of origin, and indicate the general characteristics of their waters, long favorably known to the trade, was very prominently displayed on labels on bottles purporting to contain "Saratoga Vichy Water," the "Saratoga" over it being in far less conspicuous type, so that, if the bottles stood on a table or shelf, the word "Vichy" was the marked and prominent object of sight, but otherwise purchasers would not mistake it for the French article. It was held by the court that the effect of such a label was to represent to purchasers unaccustomed to the article that the water in such bottles came from the French wells, and that the use of the name in such form would be enjoined. The court bases its decision upon the following argument: It is true that a mere geographical name, without attending facts, which have caused the name to become significant of a particular manufacture and to identify the manufacture as the product of a particular person, is not the subject of a trade-mark. The distinction, however, between mere names of a locality and the secondary signification of names which identify an article with its manufac

laymen at least, whether a physician or surgeon is not bound to answer a call for his services, especially in cases of severe emergency, and where no other medical assistance is to be obtained. Reprehensible and unprofessional as such an arbitrary refusal would be, it is still not sufficient to hold the offending individual liable for any of its consequences. Such seems to be the opinion of the Supreme Court of Indiana in the recent case of Hurley v. Eddingfield, 59 N. E. Rep. 1058, where the exact holding of the court was that a physician, licensed to practice medicine by a statute authorizing the licensing of physicians found to possess the necessary qualifications, etc., is not liable for arbitrarily refusing to respond to a call, though he is the only physician available. The court said: "Decedent became dangerously ill, and sent for appellee. No other physician was procurable in time to be of any use, and decedent relied upon appellee for medical assistance. Without any reason whatever, appellee refused to render aid to decedent. Death ensued, without decedent's fault, and wholly from appellee's wrongful act. Counsel do not contend that, before the enactment of the law regulating the practice of medicine, physicians were bound to render professional service to every one who applied. Whart. Neg. § 731. The act regulating the practice of medicine provides for a board of examiners, standards of qualification, examinations, licenses to those found qualified, and penalties for practicing without liconse. Acts 1897, p. 255; Acts 1899, p. 247. The act is a preventative, not a compulsive measure. In obtaining the sta.e's license (permission) to practice medicine, the state does not require, and the licensee does not engage, that he will practice at all or on other terms than he may choose to accept. CounFel's analogies, drawn from the obligations to the public on the part of innkeepers, common carriers, and the like, are beside the mark.”

DIVORCE-RIGHT OF WIFE'S ATTORNEYS TO RECOVER COMPENSATION FROM THE HUSBAND. -The interesting question of the right of the wife's attorneys in a suit for divorce brought by the wife against her husband to recover their compensation from the latter is discussed in the recent case of Dodd v. Hein (Tex.), 62 S. W. Rep. 811. In this case it was held that a petition in an action by attorneys to recover compensation from the husband for prosecuting a divorce suit against him on behalf of the wife which alleges that the attorneys relied on representations of the wife as to the husband's treatment of her, and that such representations showed a good cause of divorce, but that the jury found that the conduct of the husband did not authorize a divorce, affirmatively shows that the suit was not brought in good faith and for probable cause, and is insufficient to support a recovery. The court said in part:

That counsel for the wife in a divorce proceeding can recover, in an independent action

against the husband, a reasonable fee for services in a divorce suit, when the grounds for the divorce were probably true, and there was reasonable cause for bringing the suit, and the suit was brought in good faith, seems now to be settled law in this state. Ceccato v. Deutschman (Tex. Civ. App.), 47 S. W. Rep. 739; Bord v. Stubb (Tex. Civ. App.), 54 S. W. Rep. 634; McClelland v. McClelland (Tex. Civ. App.), 37 S. W. Rep. 350. These decisions, as do all the American opinions fixing such liability upon the husband, proceed upon the principle that the services rendered by counsel for the wife in instituting and prosecuting a suit for a divorce against the husband are as for necessaries furnished the wife. To constitute such services rendered the wife by counsel necessaries, it is essential that they be rendered in the prosecution of a bona fide suit for divorce, based upon reasonable grounds, instituted and conducted in good faith and on probable cause. It is the wife who must in good faith and on probable cause institute and prosecute the suit for a divorce, in order to constitute the services rendered by counsel necessaries. The bona fide belief of counsel whom she may have employed to institute such proceedings that she has, upon representations made to him by her, a sufficient ground for divorce, is not sufficient. If her representations to counsel are untrue, and she is not, under all the facts and circumstances known to her, reasonably entitled to a divorce, she cannot institute and prosecute a suit therefor in good faith; and to charge her husband with the fees of her counsel in such case would not be a charge for necessaries furnished her, for the services of counsel so rendered would be wholly unnecessary. As is said by the Supreme Court of Georgia in Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637: As this power on her part is founded on the necessity of the case, so its extent does not exceed the demands of the necessity. Where the action is not necessary for the wife's protection, or it does not appear that the grounds for the wife's complaint were true, the law will not imply a promise on the part of the husband to pay for legal services rendered to the wife in prosecuting an action for divorce.' Sherwin v. Maben, 78 Iowa, 467, 43 N. W. Rep. 292. In our opinion, it affirmatively appears from appellants' petition that the suit for divorce, in which they claim that the appellee is liable to them for services rendered as counsel, was not brought and prosecuted in good faith upon probable ground by appellee's wife, and that she was not entitled to a divorce in the suit wherein the alleged professional services were rendered by appellants, and that, therefore, their petition states no cause of action, and that the court below did not err in sustaining appellee's exception to it."

JURISDICTION OF FEDERAL COURTS - REMOVAL OF CAUSES.-The United States Circuit Court for the District of Kentucky, recently decided an interesting point of law in regard to the

In the case

removal of causes to federal courts. of Whitworth v. Railroad, 107 Fed. Rep. 557, it was held that a defendant by appearing in the courts of a state in which neither plaintiff nor defendant resided, and filing a bond and petition to remove the case to the federal court, thereby waived his right to be sued in the district of his residence guaranteed by the judiciary act, and thereby submitted himself to the jurisdiction of the state court; and hence plaintiff, after removal, is not entitled to have the cause remanded on the ground that the federal circuit court had no jurisdiction, in that neither plaintiff nor defendant was a resident of the state in which the suit was brought. The court gives an excellent review of the authorities:

"Neither of the parties to this action being a citizen, resident, or inhabitant of Kentucky (as, for the purpose of this case, we may assume is the fact), it is contended that the language of the statute above referred to, when properly construed, literally and necessarily excludes the right to remove the case, because, as neither party to the action is a resident or inhabitant of Kentucky, the circuit court of the United States would not, under section 1 of the act referred to, have original cognizance thereof, and consequently that the right of removal does not exist under section 2. Counsel for the plaintiff, in support of the motion to remand, cite the court to the cases of Yuba County v. Pioneer Gold Min. Co. (C. C.), 32 Fed. Rep. 183; Telegraph Co. v. Brown, Id. 337; Harold v. Mining Co. (C. C.), 33 Fed. Rep. 529; Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. Rep. 935, 36 L. Ed. 768; Railroad Co. v. Davidson, 157 U. S. 201, 15 Sup. Ct. Rep. 563, 39 L. Ed. 672.

"Undoubtedly, if there were no other decisions, those in the three cases first named would seem strongly to support the contention of the plaintiff, whatever may be said as to the two others referred to by his counsel. But while the judges who wrote, and those who concurred in, the opinions in those three cases did so rule at a date immediately succeeding the enactment of the statute, those cases have been expressly overruled, and the whole current of decisions since that time has been the other way, and it may be regarded as conclusively established that the right of removal exists in such cases where a general appearance is entered, especially if followed by an answer to the merits of the controversy. The cases are numerous, but the court will refer only to the following: Cowell v. Supply Co. (C. C.), 96 Fed. Rep. 769; Creagh v. Society (C. C.), 83 Fed. Rep. 849; Duncan v. Associated Press (C. C.), 81 Fed. Rep. 417; Long v. Long (C. C.), 73 Fed. Rep. 369; Sherwood v. Mississippi Valley Co. (C. C.), 55 Fed. Rep. 1; Bank v. Pagenstecher (C. C.), 44 Fed. Rep. 705; Uhle v. Burnham (C. C.), 42 Fed. Rep. 1; Amsinck v. Balderston (C. C.), 41 Fed. Rep. 641; Burck v. Taylor (C. C.), 39 Fed. Rep. 581; Kansas City & T. R. Co. v. Interstate Lumber Co.

(C. C.), 37 Fed. Rep. 3; First Nat. Bank v. Merchants' Bank, Id. 657; Hulbert v. City of Topeka (C. C.), 34 Fed. Rep. 511; Wilson v. Telegraph Co., Id. 561; Fales v. Railroad Co. (C. C.), 32 Fed. Rep. 673. Judge Dillon, in his well approved work on Removal of Causes (in section 96), says: At first it was held that if the action was brought against a defendant in a district of which he was not an inhabitant, so that the federal court would not have originally had jurisdiction of it under the first section of the act, it could not be removed under the second section. But this position was soon abandoned. It was next considered that, while the right of removal might depend upon the capacity of the particular federal court to entertain original jurisdiction of the suit sought to be removed, yet the statute permitted the plaintiff to sue the defendant in the federal district of the plaintiff's own residence as well as in that of which the defendant was an inhabitant, where the federal jurisdiction depended only on the fact of a diverse citizenship of the parties; and therefore such a suit was removable by the defendant, if brought in a state court of the plaintiff's own state. But this rule was in turn superseded by a more liberal doctrine. It came to be perceived that the restrictive language of the first section of the act was referable only to suits commenced in a federal court by original process or proceeding, and had no application to suits removed from state courts, and that the word "jurisdiction" in the clause in the section relating to suits of which the federal courts may have original jurisdiction is not to be taken in the narrow sense of a jurisdiction over the person of the defendant by reason of his residence within certain territorial limits, but in a wider sense, meaning jurisdiction over the whole class of cases enumerated in the statute. Accordingly, it is now well settled that, where the parties are citizens of diferent states and the other conditions of removability are satisfied, the cause may be removed to a federal court, notwithstanding the fact that neither plaintiff nor defendant is a citizen or resident of the state where the suit is brought, or of the district within the territorial jurisdiction of the federal court to which it is to be transferred.'"

HUSBAND AND WIFE MARRIED WOMEN'S ACTS-GIFT TO HUSBAND.-The extent to which a wife will be considered a feme sole in making a gift to her husband, as affected by the Married Women's Acts, is splendidly illustrated by the decision of the Court of Appeals of New Jersey in the recent case of Adams v. Spencer, 49 Atl. Rep. 10. The court held that the statutes in the several states as to the property of married women, when as broad as the Texas statutes, or that of New Jersey, have entirely overthrown the common-law ruleof the merger of the wife's entity and estate, upon marriage, in the husband, and that it is unnecessary under these statutes; that a wife shall take from her husband a promissory note, or other acknowledgment, upon

Nor is it

handing him money of her separate estate, to be able to establish that such taking by him was a loan. In such a transaction she will be considered as a feme sole, and as if a stranger to her husband. The court's opinion is a valuable annotation on the extent to which the recent married women's acts have gone in abrogating the common-law disability of the wife in contracting with her husband. The court said in part: "The statutes now existing in the several states as to the property of married women have entirely overthrown the common-law rule of the merger of the wife's entity and estate, upon marriage, in the husband. It is no longer necessary to hold that, because a husband takes his wife's property into his possession, she is remediless. necessary that she take from her husband a promissory note, or some other acknowledgment, that the handing him the money was not a gift. There seems no reason in common sense that when a husband takes of the principal of his wife's estate into his possession, that he should be presumed to acquire it as his own unless she has exacted some evidence in writing, or an express agreement by him, otherwise. There are many reasons why the rule should be the reverse of this, and that such a taking should be deemed a loan to him unless he prove otherwise. In equity, surely, no other rule should obtain. Even at common law a wife in equity might have a separate estate over which she had the jus disponendi as if she were a feme sole. Caton v. Rideaut, 1 Macn. & G. 599; Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908. If it is clear that a husband has taken the principal of his wife's separate estate, with or without her consent, but without an express gift or clearly implied intent to give, equity should hold it not to be a gift, but to be treated in the same manner as the money or property of any other person taken by the husband under like circumstances would be treated. The true principle is stated by Mr. Justice Field, of the United States Supreme Court, in speaking for that court, as follows: 'We are of the opinion that * * * there would be no presumption, since the passage of the married woman's act, that she intended to give to her husband the moneys she placed in his hand, any more than a gift would be inferred from a third person who in like manner deposited money with him. We think that whenever a husband acquires possession of the separate property of his wife, whether with or without her consent, he must be deemed to hold it in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of it to him.' Stickney v. Stickney 131 U. S. 227, 9 Sup. Ct. Rep. 677, 33 L. Ed. 136. The married woman's act of the District of Columbia, upon which this decision was founded, is very similar to that of our own state, and not as clear and full as that of Texas. The Supreme Court of Pennsylvania has even stated the proposition in some of its phases more strongly than the United States Supreme Court. Grabill v.

Moyer, 45 Pa. 533. They say (Strong, J.): 'When the act of assembly declares, as it does, that all property, real, personal and mixed, which shall accrue to any married woman during coverture by will, descent, deed of conveyance, or other. wise, shall be owned, used and enjoyed by such married woman as her own separate property; when the leading purpose of the act is to protect the wife's estate by excluding the husband-it is impossible for us to declare that mere possession of it by the husband is proof that the title has passed from the wife to him. After it has been shown, as it was in this case, that the property accrued to the wife by descent from her father's brother's estate, the presumption necessarily is that it continued hers. In such a case it lies upon one who asserts it to be the property of the husband to prove a transmission of the title, either by gift or contract for value, for the law does not transmit it without the act of the parties. If mere possession were sufficient evidence of a gift, the act of 1848 would be useless to the wife. Nothing is more easy than for the husband to obtain possession, even against the consent of the wife; and when he obtains it with her consent it can be at most but a slight evidence of a gift.' This case has since been followed in Bergey's Appeal, 60 Pa. 408. In passing upon a like case the Supreme Court of Michigan says: The usual rule is that, if one gives another money at his request, the law will imply a promise to repay; and we see no injustice in applying the rule against a husband, where there are no circumstances tending to show a different understanding between the parties. This court has frequently held that the presumption of the law is against a gift by the wife to the husband, and the burden of proving it is upon him.' Sykes v. Bank, 115 Mich. 321, 73 N. W. Rep. 369.

"The Missouri supreme court holds that, where a husband had reduced his wife's personal property to possession before the passage of the married woman's act of 1875, as he had the legal right to do, after the passage of that act the fact that he had done so would, to the extent he had so done, furnish a sufficient consideration for a valid deed of gift of land to the wife to make restitution of funds so taken. Scrutchfield v. Sauter, 119 Mo. 615, 24 S. W. Rep. 137. The Supreme Court of Pennsylvania, in Re Hauer's Estate, clearly states the rule here elucidated, and the distinction between the presumption as to a gift by the wife of her separate estate as between principal and income used by her husband, as follows: 'But a broad and plain distinction is drawn by the cases between the receipt by the husband of the income of his wife's separate property and the receipt by him of the principal or corpus of her estate. A gift of the income may be implied from his receipt of it with her consent, but a gift of the principal will not be presumed from her mere acquiescence in his receipt and use of it.' In re Hauer's Estate, 140 Pa. 420, 425, 21 Atl. Rep. 445, 446.