a license tax imposed on "every itinerant who puts up lightning rods," imposes no burden on interstate commerce, Interstate Commerce, as the sale and delivery of the articles are separable License from the erection of the same; and the original packages must of necessity be broken before the articles are put up: State v. Gorham, 20 S. E. Rep. 179. Penalty The Supreme Court of Appeals of Virginia, also, maintains that a statute, which allows the receiver of a telegram to recover a penalty from the telegraph company for failure to deliver the telegram as soon as practicable, is not in conflict with the interstate commerce clause of the constitution: Western Union Tel. Co. v. Bright, 20 S. E. Rep. 146. The telegram in this case was a domestic one, and therefore within the rule laid down last year by the Supreme Court of the United States, in Postal Telegraph Co. v. Charleston, 153 U. S. 692; S. C., 14 Sup. Ct. Rep. 1094, which held that a license tax imposed on such telegrams was valid. But the Virginia Court went a step further, and, though obiter, reasserted the doctrine already declared by it in Western Union Tel. Co. v. Tyler, 18 S. E. Rep. 280, that the penalty could be recovered for failure to deliver a telegram from another state, at least in the absence of conflicting legislation by Congress. Judge, The Supreme Court of California holds, as no one should have been foolish enough to question, that a judge, who, by marriage, is first cousin, or cousin-german, of a Disqualifica stockholder in a corporation, is not thereby distion qualified to hear a case in which the corporation is interested: Robinson v. So. Pac. Ry. Co., 30 Pac. Kep. 94. If the contention in the case were sound, it would apply with tenfold force to the case of a judge who is himself a stockholder in a corporation; and yet these sit almost every day, and no one questions their qualification. It may and safely be taken as the general rule, that none but a direct interest in the subject matter is now sufficient to disqualify a judge. See 1 AM. L. REG. AND Rev. (N. S.) 817. The Supreme Court of South Dakota has recently decided a very interesting point of law, in Brettell v. Deffebach, 60 N. W. Rep. 167, in which case it held that though, Judgments as a general rule, none but parties to a judgment can have it set aside, a real party in interest, who is the only one prejudiced by a judgment rendered by default in an action to which he was not made a party, has a standing in court that entitles him to move to have that judgment vacated, on the ground that there was no service of sumptons sufficient to give the court jurisdiction of the persons of the nominal defendants, and that the case was not prosecuted with reasonable diligence. The facts of this case were peculiar. The applicant for relief purchased the real estate affected by the judgment, of the parties defendant, in 1882, and took title in 1887, on a certificate of the clerk of the circuit court that no suits were then pending against them, but this was in fact pending, having been begun in 1880, though no steps had been taken since that time. In 1889, judgment was entered against the vendors by default, which, under the laws of that state, bound the land in the hands of the purchaser. Libel In Vallery v. State, 60 N. W. Rep. 347, the Supreme Court of Nebraska has ruled that it is no defence to a criminal prosecution for libel that the writing complained of was a repetition of previous oral publications, and that the defendant was induced to make the written publication by the acts of the person concerning whom the libel was published. License The Supreme Court of Pennsylvania, in Patterson v. Graham, 30 Atl. Rep. 247, has announced the very reasonable rule, that when the purchaser of growing trees for the purpose of manufacture enters on the land within a reasonable time, and cuts all the timber apparently worth taking, and thereupon removes his mill, and abandons the premises for eleven years, his right to enter and cut timber is gone. According to the Supreme Court of Iowa, a statement in a letter to the writer's creditor, in regard to a certain note, that "you know that I will pay what I can, and what Limitation is right," is not a sufficient admission of liability to remove the bar of the statute of limitations: Nelson v. Hanson, 60 N. W. Rep. 655. Lottery The Circuit Court of Appeals of the, Seventh Circuit, in MacDonald v. U. S., 63 Fed. Rep. 426, has held, that when the value of bonds in an investment company depends on their numbering, and the numbering is done by the secretary of the company, according to the order in which the applications happen to reach him, the result of the purchase of such bonds is so dependent on chance, as to render their sale a lottery. Malicious The Supreme Court of Iowa has lately ruled, that when a person institutes a criminal prosecution, with full knowledge of all the material facts, and of their insufficiency Prosecution to support the charge, the facts that the accused waived a preliminary hearing, that he was indicted, and that the jury disagreed on the trial, are no defence to an action for malicious prosecution, though the person who prosecutes did not appear before the grand jury, nor give false testimony on the trial: Barber v. Scott, 60 N. W. Rep. 497. Master and The Circuit Court of Appeals of the Seventh Circuit has rendered a most interesting and important decision, in Arthur v. Oakes, 63 Fed. Rep. 310, on appeal from the famous order of Judge Jenkins, in Farmers' Loan & Trust Co. v. N. Pac. Ry. Co, 60 Fed. Rep. 803, which called down on that unhappy gentleman's head the woes of a. CONGRESSIONAL INVESTIGATION. Justice Harlan, in delivering the opinion of the court, reviews the ground very carefully, and concludes that the court below erred in granting the clause of the injunction, restraining the employés of the road from "so quitting the service of the said receivers, with or without notice, as to cripple the property or prevent or hinder the operation of the said railroad," on the ground that it would be an invasion of one's natural liberty to compel him to work for, or to remain in the personal service of another. One who is placed under such restraint is in a condition of involuntary servitude. The rule is, without exception, that equity will not compel the actual affirmative performance by an employé of merely personal services, any more than it will compel an employer to retain, in his personal service, any one who, no matter for what cause, is not acceptable to him for service of that character. The right of an employé, engaged to perform personal service, to quit that service, rests upon the same basis as the right of his employer to discharge him from further personal service. If the quitting, in the one case, or the discharging, in the other, is in violation of the contract between the parties, the one injured by the breach has his action for damages, and a court of equity will not, indirectly or negatively, by means of an injunction restraining the violation of the contract, compel the affirmative performance from day to day, or the affirmative acceptance, of merely personal services. Relief of that character has always been regarded as impracticable. In the case of a railroad, the injury and inconvenience to the public that may result from simultaneous cessation of work by any considerable number of employés should be remedied by legislation. This, however, studiously ignores the fact that the remedy by action for damages for breach of contract is wholly inadequate, and that the position of the railroad employé is quasipublic, and his services not of a “merely personal " nature. A public officer may be compelled to perform the duties of his office by mandamus; and equity can certainly enjoin him from refusing to perform those duties. The failure of the court to pass upon these questions robs the decision of much of its weight. But even as it stands, it is by no means the victory for labor that it has been boasted to be, and as the worthy gentlemen who composed the Strike Commission, in their fatherly solicitude for the poor workingmen, seem to have understood it to be, judging from the reference to it in their report. Justice Harlan admits that while individual cessation of work cannot be restrained, a combination or conspiracy to procure an employé or body of employés to quit service in violation of their contract of service, would be unlawful, and in a proper case might be enjoined, if the injury threatened would be irremediable at law; and that, accordingly, the clause of the injunction granted, restraining the employés "from combining and conspiring to quit, with or without notice, the service of said railroad, with the object and intent of crippling the property in their custody, or embarrassing the operation of said railroad," was good. See I Am. L.. Reg. & Rev. (N. S.) 609. Mechanics' Mechanics' liens are always a fruitful source of litigation; and the reports are usually plentifully scasoned with cases on that subject. The present month is no exception. The Supreme Court of Michigan, in Davis & Rankin Bldg. & Mfg. Co. v. Murray, 60 N. W. Rep. 437. has recently decided, that when a number of subscribers to the stock of a creamery company contract for the erection of a building, but the contract of subscription creates only a several liability, a mechanics' lien cannot be enforced on the joint property for the non-payment of the contract price; and the Supreme Court of Kansas has held, that a lien for materials furnished for the erection of improvements on land in one state, may be maintained when the contract for the materials was entered into in another: United States Irv. Co. v. Phelps & Bigelow Windmill Co., 37 Pac. Rep. 982. Waiver According to the Supreme Court of South Dakota, in the absence of an express agreement, or anything indicating an intention to the contrary, a mechanic or materialman does not waive his right to file and enforce a lien, by merely accepting, for the amount of his claim, the promissory note of the owner, at his instance and request, and for the sole purpose of suspending his right to foreclose such lien for sixty days, at which time the note, according to its terms, matures: Hill v. Alliance Bridge Co., 60 N. W. Rep. 752. This is in accord with the general rule on the subject, that the mere taking of coilateral security will not amount to. |
