The rule relating to exceptions to masters' reports 74 has recently been held 75 to apply to bankruptcy causes.

The rules relating to the reference to proceedings, powers and reports of the master under the rules 76 were substantially the same under the former practice and but few recent decisions are reported relative thereto.77

In considering the rule relating to petitions for rehearing," Judge Day probably discusses more rules than are considered in any other case, and, in doing so, says:

"It would seem to be the spirit of these new equity rules that they were drawn by the Supreme Court with the intent of leaving the judge free to adjust the matters in the interests of substantial justice, as he sees fit, unhampered by precedent and by technical definitions and distinctions."

This statement fairly expresses the purpose of the rules, although the results secured by them in some instances are hardly fulfilling that purpose.

Temporary restraining orders have been granted in some instances under the rules 79 without notice, where it clearly appeared that immediate or irreparable loss or damages would result to the applicant before the matter could be heard on notice,80 and in some instances temporary restraining orders have been granted pending a motion for preliminary injunction for infringement of a patent where the delay of a hearing of a motion was at the defendant's request.

The preparation of records on appeal is causing considerable inconvenience to the clerks of both the District and Appellate Courts as well as to attorneys and judges, owing to the uncertainty as to what shall be incorporated into the transcript upon appeal. In some districts the rules require that the record below 74 Federal Equity Rule 66.

75 In re Pierce, 210 Fed. 389 (1914).

76 Federal Equity Rules 59 to 68 incl.

77 Under Rule 62, In re Automatic Musical Co., 204 Fed. 334 (1913); Under Rule 63, In re Beckwith, 203 Fed. 45 (1913); In re Beckwith v. Malleable Iron Range Co., 207 Fed. 848 (1913); Under Rule 66, In re Pierce, 210 Fed. 389 (1914); International Harvester Co. v. Carlson, 217 Fed. 736 (1914); Under Rule 59, Goldsmith Silver Co. v. Savage, 211 Fed. 751 (1914).

78 Sheeler v. Alexander, 211 Fed. 544, 545, Rule 69 (1913).

79 Federal Equity Rule 73.

80 Triumph Electric Co. v. Thullen, 209 Fed. 938 (1913), 212 Fed. 143 (1914).

be printed, and in cases where the evidence has been taken by deposition this is quite generally the practice; when the record has thus been printed, the entire labor of preparing the record for the Court of Appeals has to be done over, and additional expense incurred, if the rules are strictly complied with. The Courts of Appeal appreciate this, and generally have permitted such records as have been printed below to be used in the Court of Appeals without being abstracted and reprinted, and, in fact, some of the Courts of Appeal indicate very plainly that they prefer to have complete record before them with the testimony of witnesses in form of questions and answers rather than in the narrative form. In some instances, however, the courts indicate that these rules 81 should be strictly complied with,82 although the costs for the infraction of the rules have been imposed only in rare instances upon the defending solicitors or the parties, and in extreme cases.

The Supreme Court, by the promulgation of the new rules, and its own decisions, has indirectly brought about a very radical saving in the expense of perfecting appeals and getting equity causes before the Appellate Court. Since February 1, 1913, the Supreme Court has rendered decisions 8 which practically eliminate all of the burdensome expense of appeal where the records are printed below and where these are either agreed upon by the parties or approved by the courts; these decisions make it unnecessary for the clerk of the lower court to make any comparison of the record, or prepare an index, where this has been previously printed.

The new rules have given great impetus to the disposition of the courts to curtail expenses to litigants in every possible way and to secure a speedy disposition of cases which have come before them, and attorneys are generally now co-operating with them in securing these results, but it is evident that they must not be too strictly adhered to, if equity causes are to be promptly disposed of in the most economical way for litigants.

CHICAGO, ILLINOIS.

81 Federal Equity Rules 75, 76, 77.

Wallace R. Lane.

Coxe v. Peck, 208 Fed. 409 (1913); Wong Keow v. United States, 215 Fed. 95 (1914); In re Equity Rule 75, 222 Fed. 884 (1914); Pittsburg C. C. & St. L. Ry. Co. v. Glinn, 208 Fed. 989 (1913).

* Rainey v. Grace & Co., 231 U. S. 703 (1914); Lovell-McConnell Mfg. Co. v. Automobile Supply Mfg. Co., 235 U. S. 383 (1914).

HARVARD LAW REVIEW

Published monthly, during the Academic Year, by Harvard Law Students

EZRA RIPLEY THAYER, for four years Dean of the Harvard Law School, died suddenly on Tuesday, September 14, less than two weeks before the opening of the term. From the tributes in another part of this issue may be gained an appreciation of the incalculable sense of loss which his death has left among the legal profession as a whole, as well as among the friends of the Law School. The loss was felt no less keenly among the students of the School. Indeed it is not easy to express in words the personal sorrow of those whom academic work had brought into intimate contact with him. Among the many treasures which these men will carry away from their course at the Law School there are few that they will prize more highly than the memory of Dean Thayer as a teacher, a legal scholar, and a friend.

THE LAW SCHOOL. The death of Dean Thayer has necessitated the appointment of an Acting Dean. The choice has fallen on Prof. Austin W. Scott, whose previous experience as a teacher in the School, and as Dean, for one year, of the Law School of Iowa State College, renders him peculiarly fitted to fill the responsible position. A rearrangement of some of the courses of instruction has also been rendered necessary. The course on Evidence will this year be given by Arthur D. Hill, LL.B. '94, and the course on Torts by Chester A. McLain,

LL.B. '15. Both Mr. Hill and Mr. McLain are former editors of the REVIEW. The School also has the long-awaited pleasure, this year, of welcoming back Prof. J. I. Westengard, LL.B. '98, who has been on leave of absence as legal adviser to the King of Siam since 1903. He will give the courses on third-year Property, on Deeds, and on International Law.

COMPULSORY SALES UNDER THE CLAYTON Act. It has become a deep-rooted principle of the modern common law that only an exceptional class of business enterprises, grouped under the designation of common employments, are under any affirmative duty to serve the public on demand, without discrimination, and for a reasonable remuneration. There is undoubtedly a strong modern tendency, despite supposed constitutional restrictions, to permit the legislature to add new types of business to this class.1 Indeed the historical validity of the whole distinction between "public service" companies and ordinary businesses has been disputed,2 and it has been urged that in the extension of public-service obligations to "private" business lies the solution of modern trade problems.3

Whether, aside from the conception of public employment, there is not in the rich field of common-law precedent some other principle from which can be evolved an obligation, under certain circumstances, to serve the public equally, and a correlative right on the part of individuals to require such service, is the question presented in the first case to arise under the Clayton Act. The Great Atlantic and Pacific Tea Co. v. Cream of Wheat Co., 224 Fed. 566. The defendant, the manufacturer of "Cream of Wheat," had induced jobbers to maintain prices at such a level that retailers could not profitably sell to the public below fourteen cents a package. The plaintiff, owner of a chain of stores, and a regular customer of the defendant, sold to the public at twelve cents. The manufacturer thereupon refused to sell him any more of the cereal. The plaintiff brought suit in the federal district court, praying that the price-maintenance scheme be declared in contravention of the anti-trust laws, and that the defendant be restrained from "cutting off the said plaintiff's supply" of "Cream of Wheat." Judge Hough refused to grant a preliminary injunction.1

Under federal authorities an attempt to fix prices among retailers is an unreasonable restraint of trade under the Sherman Law.5 Under Section

1 German Alliance Ins. Co. v. Kansas, 233 U. S. 389; The Pipe Line Cases, 234 U. S. 548. For a discussion of the tendency which these cases illustrate, see 28 HARV. L. REV. 84.

2 Adler, "Business Jurisprudence," 28 HARV. L. Rev. 135.

3 Ibid., at pp. 160 ff.

An appeal is pending in the Circuit Court of Appeals.

That price-fixing is unreasonable restraint of trade has been decided by the federal courts in numerous decisions holding contracts unenforceable. Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373; Bauer & Cie v. O'Donnell, 229 U. S. 1; John D. Park & Sons Co. v. Hartman, 153 Fed. 24. A recent decree enjoining such practice at the suit of the United States is based on that principle. United States v. Kellogg Toasted Corn Flake Co., 222 Fed. 725 (decree filed Sept. 20, 1915). The California

16 of the Clayton Act, therefore, the plaintiff is entitled to a decree enjoining the illegal conduct if he can show that it threatens him irreparable injury. This mode of relief, however, would bring the plaintiff no substantial benefit. A breakdown of the price-maintenance scheme among retailers will not secure to the plaintiff a supply of the coveted article. Indeed the plaintiff is not, on accurate analysis, injured by a violation of the Sherman Law, since it is not the illegal feature of the scheme the price maintenance - but the failure to deal with the plaintiff, from which he is suffering." It is, of course, possible to give the plaintiff what he wants by framing a decree in the alternative, directing the defendant to discontinue the illegal scheme or sell to the plaintiff. But there is nothing in any of the anti-trust laws to warrant such a decree, where the plaintiff is not himself suffering from positive illegal conduct. In the principal case the only relief which would help the plaintiff would be a decree compelling a sale at customary prices. But the defendant is not a public-service company, either at common law or by legislative fiat.8

There is, however, it is submitted, a common-law principle on which a statutory prohibition against discrimination among customers, involving, if need be, compulsory sales, can be predicated without raising any constitutional doubts even where the business is not a public service. It is a principle that is familiar in the law of torts. Let it be supposed and Washington courts distinguish the price-fixing of articles manufactured in competition with commodities identical except in quality and brand. Thus the vendors of a special brand of olive oil, sold as such, of "Ghirardelli's Ground Chocolate" and of "Fisher's Blend of Patent Flour" have been allowed to regulate prices. Grogan v. Chaffee, 105 Pac. 745; D. Ghirardelli Co. v. Hunsicker, 164 Cal. 355; Fisher Flouring Mills Co. v. Swanson, 137 Pac. 144. But as the line of reasoning of the federal cases seems to be that the legitimate benefit and protection to the manufacturer is more than counterbalanced by the evils attending the stifling of competition among jobbers and retailers, a distinction based solely on the competitive nature of the commodity does not seem sound, nor likely to be adopted by the federal courts. Further, though "Cream of Wheat" consists of a staple commodity known as "purified middlings," yet the defendant is marketing it as "Cream of Wheat," and the fact that the same article can be obtained under a technical or otherwise differing name does not distinguish but identifies the principal case with the main body of decisions.

But though an inflexible dogma condemning all price maintenance may satisfy the test of legal reasoning, it seems hardly adequate to meet the facts of business necessity. Price-fixing may under certain circumstances be reasonable. Although competition among retailers be desirable and opposition to economic means of distribution as such cannot be encouraged, yet a carefully nursed business dependent upon the maintenance of a uniformly fair selling price should be allowed to protect itself against the "piratical" attacks of an unfair price-cutter. Nevertheless, it would seem that price maintenance is at least primâ facie unreasonably in restraint of trade, and that only upon inquiry into the details of a business can this presumption of unreasonableness be rebutted. Upon application for preliminary injunction, therefore, as in the principal case, the practice of price-fixing should, it is submitted, be considered in restraint of trade.

6 (1915) I FED. STATS., ANN. SUPP. 127.

7 There was also an allegation that the defendant threatened to cut off the supply of jobbers who furnished the plaintiff with "Cream of Wheat." The court does not seem to have been convinced that this attempt showed sufficient prospect of success to injure the plaintiff seriously.

8 Whether the manufacture of a breakfast food is a business sufficiently "affected with a public interest," within the rule of Munn v. Illinois, 94 U. S. 113, to enable Congress to impose on it the obligations of common employment is a question which existing federal decisions leave in doubt. See n. 1, supra.