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 Notes of Recent Cases. diseases without passing an examination. By what process of reasoning can massage, baths, and the defendant be excluded? In the cure of bodies as in the cure of souls, "Orthodoxy is my doxy, heterodoxy is the other man's doxy." This is a free country and any man has a right to be treated by any system he chooses. The court quotes the saying of Dr. Oliver Wendell Holmes, that if the whole materia medica were sunk to the bottom of the sea it would be all the better for mankind, and all the worse for the fishes, and also an eminent medical authority of North Carolina to the effect that out of twenty-four serious cases of disease, three could not be cured by the best remedies, three others might be benefited and the rest would get well anyway. MALICIOUS PROSECUTION. (PROKAHLE CAUSE —EXISTENCE OF COUNTERCLAIM.) NEW YORK SUPREME COURT.

In Coleman r. Botsford, 85 New York Supplement I, the fact that one brings an action on a valid claim, knowing that the de fendant has a valid counterclaim for a great er sum, is declared not to make the action malicious, for want of probable cause. The court says that such an action cannot be deemed to have been instituted without prob able cause, even though plaintiff was aware that if he sued, defendant could counterclaim her demand and obtain a judgment against him for the balance. The sole action which he prosecuted was to recover his own claim, and concededly he had a right to recover. It is true that the defendant would set up her claim against him and so judgment and execution would go in her favor instead of against her. But still plaintiff would by the very judgment so rendered have recovered upon his claim, and the action which he com menced would result in his favor to the full extent of the claim for which it was brought. Besson v. Southard, ю N. Y. 236; and An derson v. How, 116 N. Y. 336, 338, 22 Northeastern Reporter 695, and cited on the point that both malice and want of probable cause must unite to sustain the action.

441

MONOPOLIES. (SALE OF UNCOPYRICHTED BOOKS —PROTECTION OF PRICE OK COPYRIGHTED BOOKS) NEW YORK COURT ot APPEALS.

In Straus v. American Publishers' Asso ciation, 69 Northeastern Reporter 1107, an association of book publishers formed to pro tect the price of copyrighted books, but re fusing to sell them or any books to dealers who cut the price, or permitted their custom ers to do so, is held illegal. It is conceded that the copyright law cre ates a monopoly, and that, indeed, this is its very essence, but the refusal to sell books of any sort to dealers who cut the price on the copyrighted article is held to make the agreement a violation of Laws of 1899, c. 690, p. 1514, § i, providing that every con tract, agreement, or combination, whereby a monopoly in the manufacture or sale of an article of common use may be created or maintained, or whereby competition in the supply or price of such article may be re stricted or prevented, or whereby the free pursuit of any lawful business is restricted or prevented for the purpose of maintaining a monopoly, is against public policy and void. Park & Sons Co. Case, 175 N. Y. i, 67 Northeastern Reporter 136, 62 L. R. A. 632, is distinguished. In a lengthy dissenting opinion Judge Gray thinks that the Park case is controlling and that the agreement should be upheld. Judge Bartlett agrees with Judge Gray, saying, "This case discloses one of the saddest phases of our modern business life. It is a well-known fact that the greatest department stores of the coun try have encroached upon many lines of trade, entirely distinct from the main and legitimate business in which they are en gaged. As an illustration, a dry goods estab lishment, engaged in selling a vast number of articles legitimately related to its business, concludes, in order to promote its principal' trade, to offer for sale books, furniture, drug gists' sundries, and numerous other articles that need not be mentioned, at cut prices, representing only the cost of production, and oftentimes far below it. ... The result is that a large number of the retail dealers in