Page:Harvard Law Review Volume 9.djvu/391

RECENT CASES. 3^3 tatnte begun to run at the end of that term, at least. State ex re!. Daniel v. Grizzard, 23 S. E. Rep. 93 (N. C). The theory of the case is that a negligent breach of official duty is in itself an inva- sion of the rights of all members of the class likely to be affected by it. Such a doc- trine is fantastic on its face, and entirely at variance with the principle that actual damage is an essential part of an action for negligence. Bank, &'c. v. Waterman , 26 Conn. 324; Roberts v. Read, 16 East, 215; and a strong dissenting opinion in Belts v. Norn's, 21 Me. 314. And if the right to sue is complete at once, why should not the statute attach immediately, rather than at the end of the term } In accord with the principal case is a late decision by the same court in Shackelford v. Staton, 23 S. E. Rep. ID I. Torts — Locality of Offence. — A laborer working in the hold of a vessel, which was being loaded with lumber, was struck and injured by a plank, sent without warning down a chute by a person on the pier. Held, the jurisdiction of the tort is determined by the locality of the damage, not by that of the cause of damage. Herman V. Port Blakely Mill Co , 69 Fed. Rep. 646. The case cannot be distinguished from that of a man on one ship struck by a bullet from a gun on another ; U. S. v. Davis, 2 Sumner, 482 ; or on the shore ; Coombe^s Case, I Leach, 432. The determining point is the last physical act which affected the person struck. In the cases cited the act was intentional, but the principle applies equally to an act of negligence. The damage to the plaintiff, the substantial part of the cause of action, is the same, and this accrues at the moment of actual contact of the destructive agent. Abundant authority supports the principal case. The Plymouth, 3 Wall. 20; Leonard v. Decker, 22 Fed. Rep. 741 ; The Mand Webster, 8 Ben. 547. Torts — Malicious Interference with Business — Conspiracy. — The local officers of a branch of the National Association of Master Plumbers notified the whole- sale dealers in plumbing materials in the State not to sell to the complainants, who were not members of the association, under the penalty, in case of their continuing to do so, of losing the trade of the members of the association. This notification was in pursuance of resolutions adopted at a convention of the association. Held, no conspir- acy, for what was done was lawful and done in a lawful manner. The desire to free themselves from the competition of the complainants was a sufficient excuse to prevent the act from being the violation of a legal right. Macauley v. Tierney, 33 Atl. Rep. i (R. I.). Interesting as the latest decision on a much vexed question. See Notes, 8 Har- vard Law Review, 510. The court cites with approval the English C2.se oi A/oi^nl Steamship Co. v. McGregor, in which the question was practically the same. The question is one of policy rather than theory. See Mr. Justice Holmes's article, 8 Harvard Law Review, i. Torts — Unfair Competition — Fraudulent Simulation. — Plaintiff had built up a large trade for his store, known as the " Mechanic's Store." Defendant, a competing trader, moved his establishment to a building adjoining plaintiff's, and labelled his store the " Mechanical Store." Plaintiff on his lot put up a building of very distinctive appearance, in which he continued his business. Defendant on his adjoining lot erected a building exactly similar to plaintiff's, as regards the appearance of the lower stories. In using the name " Mechanical Store," and in erecting his build- ing, defendant intended to and did induce the public to buy of him, thinking they were trading with plaintiff. Held, defendant would be enjoined from using the name " Mechanical Store," and would be required to distinguish his store from plaintiffs. Weinstock v. Marks, 42 Pac. Rep. 142 (Cal). The result reached in the principal case, an eminently satisfactory one from all stand- points, is fully sustained by the authorities cited in the well reasoned opinion by Garoutte, J. : "Manufacturers . . . have no right to beguile the public into buying their wares under the impression they are buying those of their rivals." Brown, ]., in Coats V. Merrill Thread Co., 149 U. S. 562, at 566. In Pierce v. Giiitard, 66 Cal. 68, 8 Pac. Rep. 645, a defendant was enjoined from using an imitative label. Schmidt v. Brieg, 100 Cal. 672, 35 Pac. Rep. 623, semble. As pointed out in the opinion, defendant's liability must be the same whether he has pirated plaintiffs trade by the use of an imitative label or an imitative store front. 9 Harvard Law Review, 291. Trusts — Notice to Beneficiary. — Where a bank depositor changes a deposit in his own name to one in trust for his brother, but retains the bank-book until after his brother's death, and testifies that he never intended his brother to have the deposit, held, no trust arises in favor of his brother's administrator. Cunningham v. Davenport, 41 N. E. Rep. 412 (N. Y.). This case does not impugn the previous New York decisions to the effect that, when