..
BLACK "'. EHRICH.
7:93
These are here. The complainant has refused to consent that they be opened by the clerk. The defendant, being about to open his case, now moves that they be opened and published. He bases his motion upon the ground that necessarily he does not know how complainant has sustained the allegations of his bill, and that he is unable to meet him. The pur. pose of taking testimony in a cause is to give the opportunity to each party to sustain his own position, and to meet the position of his adversary, if he can, by witnesses. Ordinarily the parties have the right to be present, and to hear the witnesses, alid, if thought best. to amine them upon the testimony they give. In exceptional cases, testimony, however, may be iaken by commission or deposition. The defendant has the right to compel the complainant to make out his whole casein chief, and complainant in our courts is confined, in his reply, to such testimony only as will reply to that of defendant. Thus the practice conforms to the rule which fairness and justice would prescribe, and the defendant is entitled to know the case of complainant, as made by the evidence. When, however, all the testimony of complainant is taken by commission, the most secret mode of procuring testimony, whose contents cannot be disclosed without perjury. the defendant is not only put at a great disadvantage, but he is deprived of a right. While the court, governed by these considerations, will grant this motion, care will be taken Dot to permit the defendant to avail himself of it, and deprive the complainant of any advantage he may now enjoy by reason of laches of defendant. It has been suggested that after an order of publication DO testimony can be taken, and Wood v. Mann, 2 Sum. 317, is cited. ltis not necessary to decide this point now. Non conatat that defendant will produce 'Yitnesses. if he does let the testimony be taken subject to tbisexception, if the exception be made. Let the commis· si<lllls takenin,:thiscause be opened, and published in the clerk's office.
BLACK
et al. 'I.l. EHRICH
et al.
{Cireu:£t Oourt, S. D. New York. January 81, 1891.}
Injunction"will not lie to restrain the publication and sale of a cycloplle<1ia of the same name. as one' pUblished by complainants, and of the same contents, .except lI.8 to certain copyrighted articles, when have not infringed any copyright, and use no meaDS to persuade the publio that their publication i& that of complainants.
PROPII:RTY-NnlES 011' BOOKS.
.
In Equity. On bill fo): injunction. Rawland Cox, for complainants. AugU8tus T. Garlitz, (Newtbn A. Partridge, of counsel,) fol' defendantB. Scot1apd,
WALLACE,J. The complainants, a publishing ann of Edingburgh, th.is., suit to the. who are doing busi-
794'
I'EDERAL REPORTER,vol.
44.
ness at New York city, from selling 'a work entitled "The. Eacyclopredia Britannica,"wbich is published by Messrs. R. S:Peale&Co. at Chicago, and, ,:frm;n issuing and distributing circulars and advertisements introduetoryof the book, which fire alleged. by the complainants to be misleading and.injurious. ,The case is.now here upon a motion for an injunction pendente lite. It appears by the pleadings and depositions that prior to 1873 several editions of tbeEncycloprediaBritannica had been issued by various publishers, the last, and eighth, ,edition having been issued in 1861. In 1873' the complainants undertook to bring out a new edition. They named it liThe Encyclopredia Britannica, Ninth Edition." They issued the ·first volume in 1875, and subseql.'lent volumes from time to time until 1889, when the work, consisting of 24 volumes,was completed. In the preparation and publication of work the complainants exPended an enormous sumiof money for editorial labor, for articles contributed by eminentspeoialists and authors, for mapsj drawings, and illustrations,and for the printing, binding, and othei' mechanical features. They intrusted to Messrs. Little, Brown & Co., of Boston, and Messrs. Charles Scribner's Sons, of New York, the introduction and sale oftheir, work in this country. With the exception, however, of a very limited number of their original edition, which was known to the. trade as 'the "Black Edition," their volllmessold here have not purported to be published by them,but bear upon their title-page the imprint of different American publishers:. The defendants are offering for sale a reprint of. thewdrk published by the complainants in a cheap form, except that in the placeC!)f certain artic1esOf the original, copyrighted pur'" suant to the statutes of the United States, they have substituted other articles, to avoid infringement of the copyright. The case for the complainantsrestS\lpon thelagal theory ,that the acts· of the defendants amount to unlawful competition in trade. With the exception of the copyrighted articles, the entire literary matter of "The Encyclopredia Britannica, Ninth Edition," is public property in this country, at least, and a rival publisher has the legal right to make any use of it he sees fit. He may use any paJ;t:of it, or ,all of it, al1d.caIJ. it by what name be prefers. Neither the author nor proprietor of a literary work has any property in its name. It is a term of description, which 'serves to identify the work; but any other person can with impunity adopt it, and ,l!-pply it to any other or to any trade cO!DqJ.odity, provided he dOes not use it as afalsetf.lken, to induce the publio to believe tbat the ,tJjling to. 'Which it is is the id\3ntical thing which it originally designated. 'If literary property could be protected upon the theory that the name by which it is christened is equivl;llent to a trade-mark, there would be no necessity for copyright laWS. There is not a scintilla of evidence in the present case to indicate that the defendants have held out ,tbtFtitle Of the book as token, or made any statements in circulars or advertisements, with a view or likely to lead any person to believe that their reprint, is the book which the complainliDts publish. Their book denotes that it is published by R. S. Peale
BRENNAN tI. MOLLY GIBflON CONSOLIDATED
&: MILLING 00.
795
& Co. at Chicago. Their: circulars announce .that the Peale reprint is the "latest andbestj" the "only AIl?erican reprint having all marginal ref· erences;" "artide!! rewritten by eminent Americans, substituted for those in English is and, in short, is a reproduction ofthe original, except as it has been improved. Their laudations go fqrwhat they are worth, but they do lIot tend in the motest degree to confuse the mercantile identity of. their book with that of the complainants. . The motion lor an injunction is denied.
BRENNAN 17. MOLLY GIBSON CoNSOLIDATED MINING
&
MILLING
Co.
(Ctrcutt Court, D. Colorado. January 22, 181lL)
1.
ACTION FOR WRONGFt7L DEA.TH-HEIRS-PLEADING.
In an action by a mother for tbe death of her sons caused by defendant's negligence, under the Colorado statute allowing such an action to tbe beirs of a deceased person, it is sufficient to allege that plaintiff is the sole beir of the decedents, with· out further averring tbat they were unmarried and cbildless.
I.
SAME-DEPENDENOE OF PLAINTIFF.
It is not essential to the right to maintain suoh action that plaintiff should have been dependent on decedents for her support.
At Law. On demurrer to complaint. O. W. Franklin, for plaintiff. W. W. Cooley, for defendant. HALLETT, J., (wally.) Catherine Brennan against 'J.'M MoUy Gibson Consolidated Mining Milling Company is a suit brought in the dis. trict court of Pitkin county, and thence removed into this court. The action is to recover damages for the death of Martin W. Brennan and Hugh Brennan while in the service of the defendant. It is averred that defendant was engaged in carrying on a mine, and employed Martin and Hugh Brennan as miners to work upon the property, and set them to work in a place which was dangerous on account of the nature of t.he ground. The ground was "filled with larp;e boulders, and surrounded by loose debris which made it unsafe and dangerous to work, which the defendant well knew from other developments previ. ously made upon said property, and which said Martin and Hugh Bren· nan had no knowledge of whatever." That defendant set them to work there without giving them notice of the danger to which they were ex· posed. That the danger was increased by defendant going upon the surface of the and drilling and blasting there in a manner to loosen the rock and dirt above the place where Martin and Hugh Brennan were at work. That the place was not sufficiently timbered; and that the earth came down upon them and killed them. The action is founded upon the statute of this state which provides that, in case of the .death of