and breach of promise are regularly so tried. Secondly, however, it might be urged that, granting such a policy, where it is admitted that the publication is false, or the falsity is so clear that there is really nothing for a jury to try, then, trial by jury being a mere form - there being no substantial occasion for it—the policy in question should not stand in the way of an injunction. The great majority of cases where an injunction has been sought have been of this character. Hence the requirement of trial by jury is no more an obstacle here than in the case of equity jurisdiction to enjoin trespass, disturbance of easements, or nuisance. 46 But it must be admitted that Lord Cottenham put his finger on a serious difficulty in the way of injunctions in these cases.47

44

Although the arguments thus far were wholly satisfactory in principle, it might still be argued that the settled course of decision against injunctions in case of defamation or disparagement of property has put the matter where it may only be reached by legislation. The cases prior to Gee v. Pritchard and Brandreth v. Lance have already been considered. The subsequent English cases which seem to sustain jurisdiction in equity are collected in Dixon v. Holden.18 Some of these are worthy of brief notice. Springhead Spinning Co. v. Riley,49 decided by the same judge who decided Dixon v. Holden, was a case of intimidation by placards and advertisements, exactly like the American cases above referred to.50 The injunction ran against all forms of coercion or intimidation of plaintiff's employees, and incidentally against intimidation by publications. There was no issue of fact as to the truth of the placards or notices. Hence the policy of trial by jury was not involved. One could pronounce the decision wrong only by adopting Blackstone's doctrine as to

* Miller v. Lynch, 149 Pa. St. 460, 24 Atl. 80; Hart v. Leonard, 42 N. J. Eq. 416, 418, 7 Atl. 865.

45 Selby v. Nettlefold, 9 Ch. App. 111; Newell v. Sass, 142 Ill. 104, 31 N. E. 176; Kelly v. Saltmarsh, 146 Mass. 585, 16 N. E. 460; McConnell v. Rathbun, 46 Mich. 303, 9 N. W. 426; French v. Smith, 40 N. J. Eq. 361, 3 Atl. 130.

46 The cases are collected in 1 AMES' CASES IN EQUITY JURISDICTION, p. 559, note. 47 Lord Cottenham seems to have thought that Fox's Libel Act applied only to "injuries to the person by defamation." In Dixon v. Holden, 7 Eq. 488, Malins, V. C.. thought to distinguish injuries to business by defamation on that ground. But no such line may be drawn. For one thing, in Fleming v. Newton the injury was to credit only. Again it is evident that Lord Cottenham was simply making a distinction between publishing one's own composition and such a publishing as was threatened in Gee v Pritchard. 50 Supra, note 41.

48 7 Eq. 488.

496 Eq. 551.

liberty of publication. Routh v. Webster 51 was an injunction against publication of plaintiff's name without authority as a trustee of a newly formed company. Here again no question could arise under Fox's Libel Act. Plaintiff was not seeking to prevent defamation. Instead he sought to protect himself against vexatious claims by creditors of the company to hold him as trustee. Question could arise only in case Blackstone's doctrine of liberty of the press were adopted. It might be said that the use of plaintiff's name as trustee was not an expression of belief or opinion. Still it was a statement of fact made as if and purporting to be true. Clark v. Freeman 52 was a case of unauthorized use of the name of a famous physician in advertising a pill made by defendant. The wrong was the appropriation of plaintiff's name, which had become a valuable bit of property through⚫plaintiff's skill, learning, and experience in his profession. In such case a name ought to be protected the same as any other property.53 The court denied an injunction on the ground that no special damage was shown—a ground which is now regarded as quite untenable — and said also that if the published statement was defamatory, as falsely imputing to plaintiff that he was concerned in making and vending a quack medicine, the issue of falsity would have to be established at law before there could be an injunction. This is a familiar proposition in suits to enjoin torts. But it has much more justification here than in the case of other torts because of the policy of the law as to jury trial of the question of libel or no libel.

The English cases since Gee v. Pritchard which deny jurisdiction to enjoin defamation are collected in Boston Diatite Co. v. Florence Mfg. Co.54 and Prudential Assurance Co. v. Knott.55 These two decisions have exercised a controlling influence in the United States.

In Boston Diatite Co. v. Florence Mfg. Co. the bill set up that plaintiff was manufacturing toilet articles under a patent and that defendant, which had an unpatented process from which it made competing articles, fraudulently, in order to get an unfair advantage over plaintiff, represented that it owned a patent covering plaintiff's process and that plaintiff was infringing its patent, and threatened

51 10 Beav. 561.

62 11 Beav. 112.

53 Maxwell v. Hogg, L. R. 2 Ch. 307; Edison v. Edison Polyform Co., 73 N. J. Eq.

136, 67 Atl. 392.

54 Mass. 69.

114

55

IO

Ch. App. 142.

those who bought from plaintiff with liability for infringement. A demurrer was sustained. It will be observed that the interest involved was one of substance, not of personality; that, while liberty of publication was involved if Blackstone's doctrine is to be adopted, the publication was admittedly false, malicious, and threatening, and that the case was not within the purview or the policy of Fox's Libel Act. The case was one of disparagement of property; of slander of title and cloud cast on the title to plaintiff's patent by defendant's false and malicious publications. In sustaining the demurrer, the court asserts that equity has no jurisdiction to prevent slander or libel, to prevent false representations as to the quality or character of a plaintiff's property, or to prevent slander of title to a plaintiff's property, unless breach of trust or breach of contract is involved. These propositions are not argued in the least. It is assumed that they are concluded by authority, the court holding Dixon v. Holden and Springhead Spinning Co. v. Riley to be contrary to the settled doctrine of the English cases. As the wrong here was an injury to property, the objection, on principle, would have to proceed on infringement of liberty of publication. The same court had previously removed a cloud on the title to personalty by canceling an invalid mortgage asserted by defendant.56 But apparently it would remove a cloud on the title to a chattel only by injunction coupled with cancellation, not by an injunction alone, when, as in this case, there was nothing to cancel. And yet in any decree removing a cloud on title there is likely to be an injunction against asserting the wrongful claim which, according to Blackstone's view, would infringe liberty of publication. Hence the decision must rest where the court puts it, namely, squarely upon authority, and the only authorities exactly in point at that time were the two decisions of Vice-Chancellor Malins, which the court rejects. For decisive authority it refers us to the dicta of Lord Hardwicke, Lord Eldon, Lord Cottenham, and Lord Campbell, already discussed, and to two other cases which must next be looked into.

In Seeley v. Fisher 57 plaintiff owned the copyright of the last edi

Ind. 37;

56 Sherman v. Fitch, 98 Mass. 59. Cf. cases where equity removes a cloud cast upon a title by oral assertions of adverse claims. Morot v. Germania Co., 54 Rausch v. Trustees, 107 Ind. 1, 8 N. E. 25.

57 11 Sim. 581.

tion of Dr. Scott's "Commentary on the Bible." As Dr. Scott was old at the time, this last edition was the joint product of the author and an assistant and was not complete when the author died. Defendants were reprinting the last prior edition, written wholly by Dr. Scott. They advertised it as containing "the whole unadulterated labors of the author, not as re-edited by a different hand and an inferior mind." An injunction against such advertisements was rightly refused. There was no legal wrong. The case in this respect is like White v. Mellin.58 A puffing advertisement, recommending one's wares as against plaintiff's, is not actionable, at least if it does not contain false statements as to plaintiff's wares. Moreover, if the statements or any of them could be proved to be false, the question was clearly doubtful and hence a jury trial would be the proper course.

In Mulkern v. Ward 59 plaintiffs were trustees of a building society which was also a bank of deposit. Defendant was what might be called a crank on the subject of building societies. He wrote a book on the subject in which he attacked plaintiffs' society, among others, criticised its balance sheet, and argued that such companies could not be solvent. The court properly refused an injunction, distinguishing the case from Dixon v. Holden in that the defendant was publishing an opinion, an argument, not a maliciously false assertion of fact. In truth there was no tort here at all, so that the criticism of Dixon v. Holden was wholly unnecessary. Nor does the decision sustain Boston Diatite Co. v. Florence Mfg. Co., for in the latter case there was a wrongful threat and an admittedly false statement published to get an unfair advantage over a rival by deterring the public from buying his wares. In Mulkern v. Ward there was no threat. There was an argument and a statement of opinion. If there was a statement of fact, there was a doubtful question whether it was true or false so that the cause called for trial by jury.

It is admitted in the opinion in Boston Diatite Co. v. Florence Mfg. Co. that if there had been a relation of trust or a contract between plaintiff and defendant, there could be an injunction. This statement is very common in the books. One may enjoin a breach of contract and incidentally have an injunction against publication; he may enjoin breach of trust and incidentally have an injunction against publication; he may have a decree canceling a cloud on 13 Eq. 619.

58 (1895) A. C. 154.

59

title and incidentally have an injunction against assertion of a claim under it. In other words, there is no objection to "previous restraint" upon publication by injunction if only it may be tacked to something else!

A long line of decisions accord with Boston Diatite Co. v. Florence Mfg. Co.60 But most of them involve the point that pending an infringement suit one is wholly within his rights in publishing to the world that he is bringing the suit and will endeavor to hold all infringers, or that one who is about to bring such a suit is within his rights in publishing in good faith what he claims and what he will attempt to do, unless such publication will interfere with the course of justice. In each case there is no legal wrong. In consequence the dicta following the more sweeping denial of relief in the Diatite case are of much less weight.61 Moreover, a strong current of authority contrary to the Diatite case has arisen in the federal courts.62 These decisions seem to be right on three grounds: (1) The publications involve malicious threats and the injunction is against the intimidation of plaintiff's customers and wrongful interference with his business relations thereby.63 (2) They are not statements of belief or sentiment or opinion within the principle of freedom of publication. (3) In substance they do not involve any question of truth or falsity for a jury to try. Almost without exception they are cases of what may be called hold-ups, defendant having no real intention to sue and often no serious pretense of a claim to sue upon. In Prudential Assurance Co. v. Knott 64 defendant published a

60 Chase v. Tuttle, 27 Fed. 110 (semble); Kidd v. Horry, 28 Fed. 773; Baltimore Car Wheel Co. v. Bemis, 29 Fed. 95; Welsbach Light Co. v. American Incandescent Light Co., 98 Fed. 613; Hobbs v. Gooding, 113 Fed. 615; Warren Featherbone Co. v. Landauer, 151 Fed. 130; Whitehead v. Kitson, 119 Mass. 484; Consumers Gas Co. v. Kansas City Gas Light Co., 100 Mo. 501, 13 S. W. 874; Mauger v. Dick, 55 How. Pr. 132; Cohen v. United Garment Workers, 35 Misc. 748, 72 N. Y. Supp. 341. Contra, Croft v. Richardson, 59 How. Pr. 356.

61 In Rollins v. Hinks, 13 Eq. 355, and Axmann v. Lund, 18 Eq. 330, Malins, V. C., who uniformly exhibited much good sense on this subject, held that a conditional injunction should issue enjoining publications like the one in the Diatite case, unless the defendant would undertake to sue at once to try the validity of the patent. Otherwise defendant could do plaintiff a great injury by threats which he had no intention of carrying out. The Irish chancery refused to take this course in Hammersmith Skating Rink Co. v. Dublin Skating Rink Co., 10 Ir. R. Eq. 235.

62 See cases cited in the last paragraph of note 41, supra.

63 See cases cited in the first paragraph of note 41, supra.