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ing that it is here sought to protect an individual possessed of special skill in the production of cartoons of his own creation."

The court thus granted to the artist an exclusive property right in the characters of his cartoons, as well as in the names and title which he had previously used. Both these rights were recognized by the court entirely outside the copyright law, and indeed in spite of the copyright law.

The same reasoning would, of course, apply to the case of an author of a purely literary product, were a similar state of facts presented, although apparently no case so far has gone farther than to hold that the nom de plume of an author may not be used by his publishers without the author's consent." 19

There is no apparent reason why an author who has created a novel literary character or a playwright who has created a novel dramatic situation should not be protected against the competition of imitators who, although they do not copy the original work so clearly as to infringe the copyright, nevertheless reap the benefit of the original artist's skill by fashioning their imitations after the original work. Certainly in cases where the copyright of the original novel work is owned by the publisher or theatrical manager, as is usually the case, the publisher or the theatrical manager should be restrained from employing another author or playwright to imitate the original work. If this is so, one of two things must happen. Either the copyright law will have to be changed to meet and protect these new rights of the author and artist, or the courts will be called upon in each case to apply the doctrine against unfair competition to the author's rights outside of the copyright law and grant him the degree of protection to which he is entitled.

19Lauda v. Greenberg, 52 Sol. J. (Eng.) 354 (1908).

The Cornell Law Quarterly

Published in November, January, March and May by the faculty and students of the Cornell University College of Law, Ithaca, New York

Subscription Price $1 a year.

EDITORS AND MANAGERS

Single number 35 cents

GEORGE GLEASON BOGERT, Faculty Editor

MARY HONOR DONLON, New York, Student Editor-in-Chief
SEARLES GREGORY SHULTZ, New York, Business Manager

SAMUEL CORBIN WHITMAN, New York, Assistant Business Manager

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The university year 1919-20 began on October 2, with the curriculum in the College of Law fully restored and the membership of the faculty increased to its pre-war number. Professor Bogert resumed his courses. He was granted leave of absence in 1917 to enter military service and after successive promotions became Lieutenant-Colonel and Judge Advocate of the 78th division, American Expeditionary Forces. Charles S. Collier, who was a member of the faculty temporarily during the past year while on leave of absence from George Washington Law School, Washington, D. C., has returned to his work at that school.

Robert Sproule Stevens has been appointed lecturer for the year 1919-20 and will give the courses in torts, equity and corporations. Mr. Stevens was graduated from Harvard College with the degree of A. B. in 1910, and from Harvard Law School with the degree of LL.B. in 1913. Upon graduation he entered the law office of Rogers, Locke and Babcock, in Buffalo, where he remained until 1915, when he became a member of the firm of Stevens and Reynolds in that city. He continued practice until the summer of 1917, when he entered the officers' training camp at Fort Niagara. From that time until the spring of 1919 he was in military service.

With the opening of the present fall term the increased entrance requirements of the College of Law went into effect. Students are no longer admitted to the four-year law course, the entrance requirements of which were merely fifteen units of high school work. Applicants for admission to the college as candidates for a degree are now required to present a diploma of graduation from a university or a college, or a certificate that the applicant has met the entrance requirements and satisfactorily completed two years of study, other than professional law study, in a university or college of approved standing. A concession has been made in the case of applicants who prior to entering military or naval service could have offered one such year of college work and have, by reason of such service, been prevented from offering the required two years.

The change in entrance requirements has been adopted after long and thoughtful consideration, and is in line with the requirements of other leading law schools. Of the fifty law schools comprising the membership of the Association of American Law Schools (which includes most of the better law schools of the country), twenty-six have entrance requirements as high as those now in effect at Cornell.

In connection with the Semi-Centennial celebration at the University in June, a conference of the graduates and former students of the law school was held on the afternoon of June 20, 1919. The attendance was large and the audience keenly interested in the remarks of the various speakers. Judge Irving G. Hubbs presided, and other speakers were: Judges Charles E. Hughes, C. W. Pound, and George McCann; Professors Francis M. Burdick and Frederick C. Woodward; Herbert D. Mason, and Dean Woodruff.

The registration of students in the College of Law is one hundred and ninety, including those seniors from the College of Arts and Sciences who are electing the full program of studies of the first year of the law course. In addition, there are twenty-three students from the College of Arts and Sciences and other colleges in the University electing courses in law. The total number receiving instruction in law is two hundred and thirteen.

Notes and Comment

Attorney and Client: Negligence. The case of Trimboli v. Kinkel, 123 N. E. (N. Y.) 205 (1919), raises the question as to the liability of an attorney to his client for the negligent performance of his duty toward the latter, and the measure of damages for such negligence. In this case the defendant, an attorney, was retained by plaintiffs to search title to certain lands which plaintiffs were about to purchase. Defendant reported the title good and marketable, without noting that an executor's deed in the chain of title was invalid because he exceeded his authority in exchanging instead of selling the land. There was therefore a flaw in the record title, but defendant making no mention of it to his clients, they purchased the land on the assumption that the record title was perfect. In 1910 plaintiffs made a contract of resale and the purchaser rejected title because of the flaw in the title. Defendant represented plaintiffs at the closing, claiming that the record title was sufficient. The purchaser sued for the deposit and the expenses of searching title and recovered, the title being adjudged unmarketable.1 This action was then brought to compel the attorney to respond for the damages resulting from his negligence. In defense he attempted to prove that the defect in the record title had been cured by adverse possession for more than fifty years. The trial judge held that, with this evidence available, there was a marketable title and that the defendant had not been negligent. The Appellate Division ruled that "the defendant was negligent in passing the title upon the view that the executor's deed was valid." That ruling was affirmed in the present case and the defendent held liable to respond in damages: (1) for broker's commissions and title examination fees incurred by plaintiff's on attempting to resell the property, and (2) for payments made in the reasonable endeavor to discover evidence of adverse possession, but not for expected profits of resale or costs incurred by unreasonably litigating the title question with the prospective purchaser.

It is a well established rule in both England and in the states of the union that a client, who has suffered damages as the result of his attorney's negligence or misconduct, may recover therefor2 in an action at law3 either in assumpsit for the breach of an implied

'Turco v. Trimboli, 152 App. Div. (N. Y.) 431 (1912).

2Spangler v. Sellers, 5 Fed. 882 (1881); Cox v. Sullivan, 7 Ga. 144 (1849); O'Barr v. Alexander, 37 Ga. 195 (1867); Reilly v. Cavanaugh, 29 Ind. 435 (1868); Jones v. White, 90 Ind. 255 (1883); Kepler v. Jessup, 11 Ind. App. 241 (1894); Nave v. Baird, 12 Ind. 318 (1859); Broholm v. Anderson, 178 Ill. App. 623 (1913); Cochrane v. Little, 71 Md. 323 (1889); McLellan v. Fuller, 226 Mass. 374 (1917); Beam Co. v. Bakewell, 224 Mo. 203 (1909); Jacobson v. Peterson, 103 Atl. (Ñ. J.) 983 (1918).

Newman v. Schuek, 58 Ill. App. 328 (1895); Brewster v. Spratt, 32 Md. 302 (1869); Beck v. Bellamy, 93 N. Č. 129 (1885).

promise, or in case, for the neglect of duty. If he has been guilty of any fraud or collusion for the deliberate purpose of injuring his client, equity will grant relief upon application, if made within a reasonable time. But a bill in equity will not lie against an attorney for damages for mere negligence since there is an adequate remedy at law. The measure of damages in an action against an attorney for negligence is the amount of loss actually sustained as a proximate result of such negligence, and an attorney who by his negligence causes his client to lose his cause of action is liable for the actual as well as the exemplary damages he might reasonably have recovered in an action thereon.8 Where a client has suffered no special damages he is entitled in most jurisdictions at least to nominal damages,9 for the breach of duty imposed by the contract is the cause of action and not the consequential damage resulting therefrom.10

A more

Thus far the rule seems simple and uniform enough. difficult question arises, however, in determining what acts of an attorney constitute negligence and how great a degree of care is to be expected of him. Further, in determining the amount of damages it is sometimes difficult to say how much of the loss sustained was occasioned by the defendant's negligence. As a general rule courts are slow to find an attorney liable for negligence. The reason for this tendency need hardly be explained when we consider the nature of an attorney's undertaking. A few states require even gross negligence in order to hold an attorney liable for the injury resulting. In such states he is protected when he acts in good faith and is liable only for gross or unreasonable negligence or ignorance." But the rule which seems to hold an attorney liable only for gross negligence can hardly be reconciled with more recent American authorities. The true rule of liability undoubtedly is, that an attorney is liable for want of such skill, prudence,and diligence as lawyers of ordinary skill and capacity commonly possess and exercise.12 It must not be understood that an attorney is liable for every mistake that may occur in practice13 or that he will guarantee the success of his proceedings or the soundness of his opinions, but that he undertakes to avoid errors which no member of his profession of ordinary prudence

'Walker v. Goodman, 21 Ala. 647 (1852); Sevier v. Holliday, 2 Ark. 512 (1837); Wilson v. Coffin, 2 Cush. (Mass.) 316 (1848); Holmes v. Peck, 1 R. I. 242 (1849).

"Robinson v. Sharp, 201 Ill. 86 (1903); Broyles v. Arnold, 11 Heisk. (Tenn.) 484 (1872).

"Nancrede v. Voorhis, 32 N. J. Eq. 524 (1880).

"Pennington's Exrs. v. Yell, 11 Ark. 212 (1850); Cox v. Sullivan, supra, note 2; Walker v. Dexter, 55 Ill. 151 (1870); Quin v. Van Pelt, 56 N. Y. 417 (1874); Vooth v. McEachen, 181 N. Y. 28 (1905).

Patterson v. Frazer, 79 S. W. (Tex.) 1077 (1904).

'Lilly v. Boyd, 72 Ga. 83 (1883).

10 Lawall v. Groman, 180 Pa. 532 (1897); Miller v. Wilson, 24 Pa. 114 (1854). "Fitch v. Scott, 3 How. (Miss.) 314 (1839); Pennington's Exrs. v. Yell, supra, note 7.

12Patterson v. Frazer, supra, note 8; Eggleston v. Boardman, 37 Mich. 14 (1877).

13Walker v. Dexter, supra, note 7.

14Kepler v. Jessup, supra, note 2; Varnum v. Martin, 15 Pick. (Mass.) 440 (1834); Eggleston v. Boardman, supra, note 12.

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