Page images

bunals. This, however, never can be an answer to proceedings in a court of equity, which, as in the case of nuisances and patents, will always exercise its jurisdiction, notwithstanding any remedy which may exist at law.

The principal question is, whether contemplated damage to reputation or property is a sufficient reason for restraining the publication of an alleged libel. On this point the case of the Springhead Spinning Company is, as Sir J. Wickens said, peculiar, and, indeed, can hardly be called an authority. Actual damage to property had been inflicted, and there was every reason to expect that the placards would operate to intimidate workmen and prevent their continuing in the service of the plaintiffs. But anticipating injury to reputation is a different head of damage. Properly to estimate such damage beforehand, or, indeed, to say whether any damage at all will result from a particular publication, must be a matter of great difficulty. The doctrine laid down in the Springhead case was extended to this class of damage by the same learned judge, in the case of Dixin v. Holden. In the course of his judgment he said: "I am told that a court of equity has no jurisdiction in such a case as this, though it is admitted it has jurisdiction where property is likely to be affected. What is property? One man has property in lands, another in a business, another in goods, another in skill, another in reputation; and whatever may have the effect of destroying property in any one of these things (even in a man's good name) is, in my opinion, destroying property of a most valuable description."

A decision which has been extensively criticised in all these cases is that of Clark v. Freeman, 11 Beav. 561, in which Lord Langdale refused to grant Sir James Clark an injunction to restrain the advertisement of certain pills said to have been made from his prescription. The eminent physician was not engaged in making pills, nor was he preparing to give his name to such a commodity, and the damage sustained by him, therefore, was confined to the improper user of his name. In Maxwell v. Hogg, 16 L. T. Rep., N. S., 130; L. R., 2 Ch. 310, Lord Justice Lord Cairns said he thought that Clark v. Freeman might have been decided in favor of the plaintiff, on the ground that he had a property in his own name. Another case would seem to favor this suggestion, that, namely, of Routh v. Webster, 10 Beav. 561. In that case a joint-stock company was established for carrying passengers by omnibus and steamboat at a cheap rate. The defendants, the provisional directors, had published prospectuses, in which the name of the plaintiff was used without his authority, as a trustee of the company. The plaintiff, conceiving that he might be subjected to responsibility by the unauthorized use of his name, filed his bill against the directors, and moved for an injunction to restrain them from using his name in connection with the company. Lord Langdale granted the injunction, and observed that it would be a warning to the defendants not to use the names of other persons without their authority. "The defendants were not to be allowed to use the names of any persons they pleased, representing them as responsible in their speculations and involving them in all sorts of liabilities." That case, however, will be seen to be stronger than Clark v. Freeman, where the plaintiff could only have suffered somewhat in his reputation if the pills had been bad, whereas in Routh v. Webster, the plaintiff was held out as a responsible member of the com

pany, and was, therefore, made subject to attempts at any rate to fix him with liability.

We will now return to Mulkern v. Ward, and it is noticeable that the vice-chancellor there drew a distinction as to the nature of the property to be injured. He pointed out that the association in the case before him had for its object simply the bringing together of borrowers and lenders, and was, therefore, not precisely analogous to a trade association; and this leads to the conclusion that to found an injunction in equity to restrain libelous publications, the individual or association, whose injury is contemplated, must possess a reputation of marketable value, and the threatened libel must be the statement of a fact, and not a mere literary criticism. "The statements," the vicechancellor observed, "are only made as deductions." Finding, therefore, that the association was not analogous to a trade association, that the defendant had not been proved to have acted maliciously, and that he had made no actual statement that was proved to be false, but simply deductions which, if shown to be untrue, would be injurious to the society, the injunction was refused, the vice-chancellor saying, "surely, if I granted the injunction, I should do more against the liberty of unlicensed printing, or as it is commonly called, the liberty of the press, than has ever been done in any decided case, or than properly can be done in this country and in this century."

The case of A'Beckett v. Mortimer suggested these observations, but it is hardly necessary to observe that the application in that case was not in the nature of an injunction to restrain the publication of a libel, but it was an application to commit for contempt of court in the publication of articles tending to prevent the plaintiffs, in certain actions against the publisher, from proceeding with them, and, therefore, an attempted interference with the due course and action of the law. Had these articles constituted a libel and stood alone, we need scarcely say that the publication of similar articles would not have been restrained in equity. But, following on proceedings in respect of prior libels, the case was a very proper one for the interference of a court of common law by the process of attachment.-Law Times.

THE WITHDRAWAL OF JUDGE MCCUNN. The senate, engaged in investigating the charges against Judge McCunn, were surprised, on the 26th ult., by the following communication from Judge McCunn and his counsel:

ALBANY, June 26, 1872. To the Honorable the Senate of the State of New York: I inclose you herewith a letter just placed in my hands by my counsel, who have been conducting, in my behalf, the investigation now going on before your honorable body. It is impossible for me to disregard the advice of these gentlemen, so distinguished at the bar for ability and integrity. I therefore feel it my duty to yield to the advice of my counsel, and leave it to your honorable body to take such action in the premises as you may deem advisable.

Very respectfully,

[blocks in formation]

where, as your counsel, we consider it our duty to make the following communication to you:

Before undertaking your defense we were entirely satisfied of your innocence of intentional wrong in the transaction on which were based the charges against you; and we have thus far seen nothing to induce a change of the opinion with which we entered upon the investigation.

Our examination of that part of the constitution upon which the proceedings against you are assumed to be based, viz.:

"All judicial officers, except those mentioned in this section (judges of the court of appeals and justices of the supreme court) and except justices of inferior courts, not of record, may be removed by the Senate on the recommendation of the governor if two-thirds of all the members elected to the senate concur therein," has led to the conclusion, in which we are supported, as we believe, by the actions and opinions of two former governors, acting under the same or similar constitutional provisions, that an unqualified recommendation by the governor of your removal was necessary to confer jurisdiction upon the senate. This recommendation the governor has not, in your case, made, and we are of opinion, therefore, that the proceedings before the senate are not warranted by the constitution.

The determination of the senate to investigate charges for acts alleged to have been done by you prior to the time of the election under which you now hold your office, involves of necessity a mere review of the propriety of your election by the people, a power which, we believe, is not conferred upon the senate. If it can be done in one case it can be done in all cases of the election of officers coming within the provisions of the constitution which we have quoted, without reference to the conduct of the officers after their election.

Notwithstanding these convictions we were willing to aid you as far as our assistance could be of service; and the senate, having determined that "all the rules legal and usual in courts of record in this State, in regard to the introduction of evidence and the examination and cross-examination of witnesses" should be observed, we hoped not only that the investigation might lead the senate to the conclusion that you ought not to be removed from office, but that nothing for which you were not properly and legally responsible would be admitted in evidence, to operate elsewhere than before the senate to your prejudice.

We beg leave, however, to state, without intending any reflection upon the senate or upon the gentlemen conducting the proceedings against you, that our views in regard to the admissibility of much of the evidence produced against you differ so widely from the ruling on the subject, that we are disposed to question the propriety of our continuing longer in the position we have occupied, and to doubt whether our doing so would be of any essential service either in your defense or in excluding from the record of the proceedings against you, of what we deem irrelevant and improper evidence. We, therefore, with your approbation, are disposed (and we would advise you to that course) to leave it to the senators, unimpeded by you or by us in your behalf to make such disposition of the charges against you as in their judgment of their power and duty shall seem just and right.

If their judgment should be against you, which we earnestly desire may not be the case, the jurisdictional question to which we have alluded will, as we believe,

be open to review by another tribunal, if it should be
your choice to present them there.
Very truly yours,





In 1689 Sir George Lockhart, president of the Scotch court of sessions, was shot dead by a man against whom he had rendered a judgment. The act was done in the presence of numerous witnesses. The assassin made no attempt to escape, but boasted of the deed, saying: "I have taught the president how to do justice." The murderer, after undergoing the torture, by a special act of the estates of parliament, was tried before the lord provost of Edinburgh, as high sheriff, and condemned to be dragged on a hurdle to the place of execution, to have his right hand struck off while yet he lived, and finally to be hung on the gallows, with the pistol wherewith he shot the president tied around his neck, and Scott, who tells the story, says: "The incident was long remembered as a dreadful instance of what the law books called the perfervidum, Yours, ingenium sco'orum! J. W. EDMONDS.


The new law just passed makes some important changes in existing postal regulations. The most important is the authorization of one-cent postal cards for correspondence or printed circulars, similar to those which were introduced in Great Britain nearly two years ago, and are now in use in nearly all European countries. The house provided in the bill for cards with a paper flap to cover and conceal the writing. The senate changed this to an open card. In conference committee the style of the card was left to the discretion of the postmaster-general, who prefers the open cards, and wil order that kind only to be manufactured. The face of the card will bear a one cent stamp, and will be provided with lines for the address, and the back will be ruled for the letter. The price of the card and stamp will be only one cent. It will probably be three or four weeks before they will be ready for sale, as the plates for printing have yet to be prepared.

The following are the new rates to be charged on third-class printed matter, viz. :

On all pamphlets, occasional publications, transient newspapers, magazines, handbills, posters, unsealed circulars, prospectuses, book manuscripts, proof-sheets, corrected proof-sheets (passing between author and publisher), flexible patterns, sample-cards, phonographic paper, letter envelopes, postal envelopes and wrappers, cards, plain and ornamental paper, photographic representation of different types, seeds, cuttings, bulbs, roots and scions, a postage of one cent for each two ounces, or fraction thereof, on packages to one address, to be prepaid by postage-stamps affixed.

On all books (other than those printed by order of congress) postage at two cents for each two ounces, or fraction thereof, limited to four pounds in weight.

On samples of merchandise, metals, ores and mineralogical specimens, two cents for each two ounces, or fraction thereof, packages limited to twelve ounces in weight.


Apropos of the centennial celebration of the laying of the corner stone of the court-house at Johnstown, N. Y., which took place on Wednesday the 26th ult., we notice the celebration of the tercentenary of the Middle Temple of the Inns of Court, London, which occurred on the 12th ult. The hall is thus described in the London Globe:

The noble Elizabethian hall is one of the most stately and beautiful structures of the kind in London, if not even in England. Its construction was begun in the year 1562, and the works, which were for nearly ten years carried on under the superintendence of the learned Edmund Plowden, were finished in 1572. The length of the hall is about 100 feet, and the breadth about 40 feet. Its most striking feature is the lofty and well-constructed oaken roof, of which the proportions, carving, and ornament excite the admiration of all lovers of Elizabethian architecture. The dark oak screen at the western end supports a music gallery, and is exceedingly beautiful. It is of what used to be called 'right wainscot,' supported by fluted Doric columns, the pedestals being enriched with figures in high relief. The carving of the panels and intercolumniations and other parts of the screen is most elaborate. The stained windows present the armorial bearings of some hundred and fifty persons of eminence and rank who have been members of the society of the middle temple, including those of his royal highness the Prince of Wales, who was called to the bar in the hall and made a bencher of the inn in the year 1861. The wainscoted panels on the side walls contain the emblazoned arms and names of the readers, from those of one Richard Swaine, in 1597, to the present time. Above the dais at the western end is placed a full-length equestrian portrait of King Charles I, by Vandyck, one of four replica copies of the same picture of which the other three are at Windsor Castle, Warwick Castle and Chatsworth respectively. There are also fine portraits of Charles II, James Duke of York, William III, Queen Anne, and George II, besides marble busts of the present Prince of Wales, of the brother Lord Eldon and Stowell, and of Plowden. The colors of the old inns of court volunteers of 1803, occupy a prominent resting place above the dais, while the spaces between the windows are filled with pieces of ancient armor, said to have been captured in the Spanish Armada, and presented by Queen Elizabeth to the society of the middle temple. There is some reason, however, to doubt the complete authenticity of the fact. The hall has on several occasions been honored by the presence of royalty. Tradition states that Queen Elizabeth was present on the occasion of a performance of Shakespeare's "Midsummer Night's Dream" within its walls, and it is on record that Queen Henrietta, the consort of Charles I, the Czar Peter the Great, and King William III, were entertained at grand banquets, followed by masques and other revels. Truly the old hall is rich in interesting associations. The halls of Lincoln's inn and the inner temple are vast and costly structures, but are quite modern, the former having been built in 1842, and the latter as recently as 1869.

Judge Lucas was impeached by the lower house of the Missouri legislature, but the charges were withdrawn before the trial was ended.


The Law of Arbitration and Award, by John T. Morse, Jr., author of "Law of Banks and Banking." Boston: Little, Brown & Company, 1872.

This is the first attempt by an American writer to collect and present the law of arbitration and award, a subject certainly of sufficient importance to demand a separate treatise. The principal English work on the subject is that of Mr. Russell, which, wing to the fact that the law of arbitration there is almost entirely the creature of statute, has never been extensively used in this country. Mr. Morse has made free use of this treatise, which, he truly remarks, "alone ought to insure no inconsiderable value to the (his) work."

But the original labors of Mr. Morse are quite as valuable as are those of Mr. Russell. He has displayed an unusual power of analysis, his statements are almost uniformly clear and concise, and his research appears to have been as thorough and unlimited as the subject could require. The work is arranged on a scientific basis, the following being the contents: Part I. Parties-The Submission. Chap. I. Parties to the submission; Chap. 11. The submission; Chap. III. Agreement to submit. Part II. The arbitrator. Chap. IV. The office of arbitrator; Chap. V. Proceedings in the arbitration; Chap. VI. The arbitrator's authority; Chap. VII. Duration of the arbitrator's authority; Chap. VIII. The umpire. Part III. The award. Chap. IX. The formalities and contents of the award; Chap. X. Mistake in the award; Chap. XI. The award must be co-extensive with the submission; Chap. XII. The award must be entire and possible; Chap. XIII. The award must be mutual; Chap. XIV. The award must be final; Chap. XV. The award must be certain; Chap. XVI. Rules of construction; Chap. XVII. Divisibility of the award: award good in part, bad in part; Chap. XVIII. Effect and operation of the award; Chap. XIX. Misconduct and fraud; Chap. XX. Performance of the award; Chap. XXI. Testimony of the arbitrator; Chap. XXII. Pleading and practice; Chap. XXIII. Costs.

Each of these subdivisions is fully and learnedly treated, and in a style more agreeable than one is in the habit of meeting with in the majority of law books. There are a few points on which we are not prepared to coincide entirely with the author's views, but none of them are of sufficient importance to incline us to withhold our hearty approval of the work.

THE MEMOIR OF THE LATE CHIEF JUSTICE TANEY.We very much doubt if there was ever an American judge so misunderstood or maligned as was Roger Brooke Taney, late chief justice of the supreme court of the United States. His was the misfortune of being ground between the nether millstone of the law and the upper millstone of public opinion or sentiment. But naturally, as we get farther away from the days in which he lived, we form juster opinions as to his motives and merits. Biography and history, like painting, need perspective, and although the time has hardly come yet in which the life and acts of the late chief justice can be really estimated at their true worth, it is time that we had some memoir of them. This is being prepared by Samuel Taylor of the Maryland bar, who was selected by the chief justice, some years before his death, as his biographer, and into whose hands the executor and the family have placed his private

papers. The first chapter of the memoir was prepared by Mr. Taney himself and covers twenty three years of his life, a life covering the historical part of our government and reaching from 1777 to 1864. The fact that a portion of the profits of the work is to be devoted to the benefit of the family of the deceased, who (owing to the niggardly manner in which we reward our judges) are sadly in need of the assistance, should give the memoir an extensive sale among the profession of the country.


Ex-judge Cardozo has resumed the practice of the law in New York city.

The Connecticut legislature has displayed its good sense by repealing the usury law. Connecticut laws are not quite so "blue" after all.

There will be no district courts in Salt Lake city until September next, which causes much dissatisfaction among the attorneys.

Prince Mohamed Wuhiduddin, a member of one of the most powerful and influential Mohamedan families in India, and a grandson of the famous Tippo Sultan, recently received a call to the English bar.

Governor Hoffman has issued a proclamation ordering an extraordinary general term of the supreme court for the third judicial department, on the 16th inst., at Albany, at which will be heard the appeals in the suits brought in the Tweed and other New York


L. H. Roots, recently suspended from the office of marshal of the western district of Alabama, is charged with having expended, during one year, nearly $240,000 for expenses of the court, or more than the expense attending all the United States courts in the State of New York. His last requisition was for $25,000. The department of justice ordered $25,000 to be sent to him, but afterward withheld the amount.

A French paper gives the following summary of the result of the trials of the Communist prisoners: sentenced to death, 72; hard labor for life, 212; transportation of the first degree, 894; of the second degree, 2,900; detention, 1,169; imprisonment with hard labor, 60; imprisonment of three months and under, 305; imprisonment of three months and upward, 1,373; imprisonment to periods exceeding one year, 1,138; banishment, 291; total, 8,415; acquittals, 2,112, being at the ratio of about twenty per cent.

The following are the important changes made in the bankruptcy act: The time during which bankrupts may be discharged, upon payment of fifty per cent of their indebtedness, is extended until July 1, 1873; life insurance policies to the amount of $5,000 are exempted from assets available for creditors, and all judgments obtained against parties or property before petitions are filed are to be first and fully satisfied. It also allows all exemptions allowed by any State law on the 1st of January, 1871. It also exempts a widow's dower, or other estate in lieu thereof, if the State law so provides.

CHAP. 693.

AN ACT in relation to the service of citations on lunatics and idiots.

PASSED May 14, 1872; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. In proceedings for the proof of any last will and testament, or on any accounting or other proceedings in the surrogate's court, where any party entitled to be served with a citation shall be insane or an idiot, the citation shall be served on the committee of the person and estate, or of either, of such lunatic or idiot; and in case there shall not be any committee of the person and estate, or of either, then the citation shall be served on the lunatic or idiot personally, and also on the person in whose care and custody said lunatic or idiot shall be.

§ 2. Whenever a citation shall have been served on any lunatic or idiot, the surrogate shall appoint a special guardian for said lunatic or idiot, whose duty it shall be to take the care and charge of the interest of said lunatic or idiot on the proceedings for which he shall be cited.

CHAP. 696.

AN ACT to amend chapter two nundred and nine of the laws of eighteen hundred and forty-seven, entitled "An act in relation to cemeteries in incorporated villages."

PASSED May 14, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section one of chapter two hundred and nine of the laws of eighteen hundred and forty-seven, entitled "An act in relation to cemeteries in incorporated villages," as amended by chapter one hundred and seventeen of the laws of eighteen hundred and sixty-four, is hereby amended so as to read as follows: § 1. The tax payers of any incorporated village, at any meeting thereof lawfully convened, may, by resolution, direct the trustees of such village to purchase suitable lands for a burying ground for such village, or lands in addition to any burying ground now owned by said village, upon such terms and conditions, not inconsistent with this act, as such meeting shall prescribe; but the whole expense of purchasing such ground or additional lands in any village, fencing the same, and putting it in proper condition to be used as a burying ground, shall not exceed ten thousand dollars, unless the population of the village shall exceed four thousand persons, nor more than twenty thousand dollars in any case. And the title of such burying ground, when so purchased, shall be vested in such village by its corporate name, and shall be inalienable, except in the manner and for the purposes hereinafter mentioned.

§ 2. This act shall take effect immediately.

CHAP. 699.

AN ACT to establish a rifle range and to promote skill in marksmanship among the National Guard. PASSED May 14, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Whenever the National Rifle Association shall raise the sum of five thousand dollars, for the

purpose of securing, by lease or purchase, of a rifle range for the use of first and second divisions of the national guard of the State of New York, and of such association, and for the purchase and erection of the necessary buildings and appurtenances to fit up and equip the same, and shall, by resolution of its board of directors, appropriate the same to such purpose, the sum of twenty-five thousand dollars, which is hereby appropriated, out of any funds in the treasury not otherwise appropriated, shall be expended for the same purpose, as hereinafter provided.

§ 2. The grounds for such range shall be selected by the board of directors of said National Rifle Association, and their location, together with the price to be paid therefor, shall be approved by the adjutant-general of the State, and also by the officers then commanding the first and second divisions of the said national guard, or by a majority of such officers, which approval shall be in writing, and shall be filed with the comptroller before any of the moneys hereby appropriated shall be expended for the payment thereof.

§ 3. The fitting up, equipping and managing of such range shall be done by the board of directors of said National Rifle Association, of which board the persons holding the office of adjutant-general of the State and those commanding the first and second divisions of said national guard shall hereafter always be ex-officio members; and no moneys in excess of one hundred dollars shall be expended for such purpose without a two-third vote of such directors, and without the approval of at least two of such ex-officio members.

$ 4. The comptroller of the State is hereby authorized and directed to draw his warrant upon the treasury of the State for the payment of the moneys expended by said board of directors for the purposes aforsaid, as the same shall be drawn upon by them from time to time, but no drafts shall be drawn by said board upon the funds hereby appropriated, except for an expenditure authorized and approved as provided in the preceding section.

§ 5. All such drafts shall specify upon their face the purpose for which they are drawn, and shall be drawn by the treasurer of said association and countersigned by another of the officers thereof, and by at least one of such ex-officio members of the said board of directors, and shall, in case such draft exceed the sum of one hundred dollars, be accompanied with the vouchers therefor, approved by two of such ex-officio members, and by the oath of the treasurer of said association, certifying that the sum or sums so ordered to be paid have been expended for the purpose of leasing or purchasing such range, or fitting up the same, or that the labor and materials have been duly performed or furnished thereon. It shall also be the duty of the treasurer of said association to file with said comptroller, every six months, a detailed account of all expenditures of said association during said period, verified by him under oath.

§ 6. No officer or member of said board of directors of said National Rifle Association, nor any of the officers named herein as ex-officio members of such board, shall be in any way interested, directly or indirectly, in any of the contracts made by said association for the purposes aforesaid, or in any of the purchases or expenditures made under the provisions of this act; neither shall they, or any of them, receive any salary or compensation for any services they may render in and about the purchase or fitting up of such range, or the management thereof.

§ 7. The said board of directors of said National

Rifle Association are hereby authorized, from time to time, to establish regulations for the use and management of such range, and shall have power to employ the necessary markers and assistants, which regulations shall be in writing, and shall be approved by said adjutant-general and the officers then commanding the first and second divisions of said national guard, or a majority of them, before becoming operative.

§ 8. For the purpose of preserving the property of the State, and of said National Rifle Association upon said range, and of preventing accidents, the persons employed thereon by said rifle association are hereby vested with the powers of constables when in the performance of their duties, and wearing such badge of office as shall be prescribed by said association, and all persons trespassing upon such range, or injuring any of the targets or other property situate thereon, or willfully violating any of the regulations established to secure safety thereon, shall be deemed guilty of a misdemeanor.

§ 9. The commanding officer of either the first or second divisions of said national guard is hereby authorized to direct the use of said range by any of the regiments of his command without compensation for practice, field drill or any military purpose, whenever, and for such time, as he shall deem it proper or necessary.

§ 10. The commander-in-chief is hereby authorized to direct the issuing of such ammunition and military equipments from the stores of the State for use upon said range by the national guard, or for rifle practice elsewhere by them, at such times and under such regulations as he shall prescribe.

§ 11. The said commander-in-chief is also authorized to offer annually, on behalf of the State of New York, a prize not exceeding one hundred dollars in value, to be known as the "State Prize," to that regiment or battalion in each division throughout the State, which shall display the greatest proficiency in marksmanship during each year, and a similar prize, not to exceed the sum of five hundred dollars in value, to the regiment or battalion which shall surpass in that respect all other regiments throughout the State during each year. Such prizes to be competed for under regulations to be established by said National Rifle Association, and approved by the commanderin-chief. And the comptroller is hereby authorized to draw his warrant in favor of the adjutant-general for the costs of such prizes, not to exceed the sum of fifteen hundred dollars in any one year, out of any moneys appropriated for military purposes.

§ 12. The boards of supervisors of the counties of New York and Kings may each, in their discretion, appropriate an amount not to exceed the sum of five thousand dollars, in any one year, for the purposes provided in the first section of this act; and they are hereby authorized to levy a tax for such purpose upon the real and personal property of said county or counties, to be levied and collected as other moneys authorized by law are by them levied and collected. § 13. This act shall take effect immediately.

CHAP. 736.

AN ACT to provide ways and means for the support of government.

PASSED May 15, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. There shall be imposed, for the fiscal year

[ocr errors]
« PreviousContinue »