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The Albany Law Journal.
been at Gettysburg with Brother Longstreet and Brother Gordon, hugging the hireling generals of the tyranuical north on the spot where that foul jes
ter, "old Abe," uttered his immortal little address. ALBANY, JULY 14, 1888.
We shall not discuss the comparative merits of Jeff Davis and Abraham Lincoln, but must express our surprise that our friend should regard our state
ments as " news.” We thought that all well reguCURRENT TOPICS.
lated people, south as well as north, regarded the
matter very much as we do. But let us hope that THE editor of the Virginia Law Journal, whom
we shall both live long enough to see what esti1 we have always greatly admired - being doubt
Imate history will put on the two men, and which less thereunto induced in some measure by the kind
it will pronounce the better friend of the south, things he has said of us -- in some remarks on our
and that in a green old age the Virginia will acrecent comments on a decision as to what consti
knowledge bis error, like the candid and goodtutes a "newspaper," after quoting our lament that
natured gentleman we deem him. "we are not a newspaper," proceeds: “We should be slow to decide that question against him, seeing the scope he usually allows himself. A part of the But there are times when we regret that " we are court's description of a newspaper is that it contains not a newspaper." Especially in vacation, when intelligence of current events and news of general in- | food for current topics is scarce, and it goes hard terest. Has not the JOURNAL a column of 'current to find once a week a few items of interest to lawtopics?' And then we suppose it must regard its , yers without straying too far over the boundary fiery assaults upon Jefferson Davis, Mr. Justice which separates law from politics, or literature, or Lamar and other traitors,' 'rebels' and 'secession-theology, or science. This necessity has made us ists' as news of general interest.' And in a still prematurely aged. We imagine that we might more recent issue it has some things to say about have gained a success as a political editor, and in Abraham Lincoln which have no very obvious con- that opinion we have been confirmed by Mr. Bishnection with law. In reviewing Governor Boutwell's op's recent affirmation that we are a "blackguard." book, “The Lawyer, the Statesman and the Soldier,” | How easy it would be to get up half a dozen neat he says of Lincoln that his character is only just little editorials once a week if we were unrestrained now beginning to be appreciated by the world in its | by considerations of truth, or fairness, or decency, unique beauty and glory,' * * * 'The good- | or probability, or knowledge, or good judgment! ness and greatness of * * * the noblest pro Sometimes we yearn to take a hand in the presiduct of American civilization * * * wisest, | dential tussle -- with gloves, you know -- we don't most patient and most humane spirit * * * so want to kill anybody. But with a retainer by the admired and sainted in his death. Such is the party of the red bandanna or that of the inherited homage which the world pays to virtue,' etc. The log-cabin, and with carte blanche for vituperation, JOURNAL not long since gave Mr. Bishop a very and sarcasın, and innuendo, and sophistry, and cant, just and deserved hauling over the coals because of and credulity, and statistics based in imagination, certain extravagant, grotesque and childish state we think we could keep up with the procession ments of his regarding the common law. We im- and gain “inflooence." We might even invent or agine that unfortunate gentleman will smile when buy forged letters against an opponent, and get ourhe reads the above laudation of the statesman who selves sued by a friend for libel in order to show insisted that the States bore the same relation to the letters. There is another good thing about the Union that the counties bore to the States, and political newspapering - one is never called to acthe paragon of virtue whose daily conversation was count for his mistakes or mis-statements like a legal said to have been interlarded with jests which can editor; indeed, these are what is expected of him. Dot be put into print. But we do not mean to His realm is mere opinion, and no one is responsiquarrel with the JOURNAL's taste; we only give | ble for his opinions. This country is governed by this as an illustration of the claims it might make newspapers -- no longer by lawyers. Still, we think to be included in the select circle of the news we shall stick to the law. It is better to die papers. We also commend the Columbia Law respectable, although poor. Times to apply for membership in the same class; no doubt the Tribune would propose its uame after reading the following, which we take from a recent It would have delighted Judge Folger to glance issue of the Times : It is encouraging to mark the over the table of cases in the last volume of this great advance made in many localities in the south, 1 journal, and note the odd names. We have rarely both in business enterprise and the grade of life. | seen so many in one volume. Bulwinkle, Hudnut, It is most remarkable in those sections where | Comfort, Cover, Dugger, Herbage, Drumgoode, northern influence and capital have found their Laimbeer, Mares, Deacons, Pancoast, Hyman, Hair, abode. * * * Many localities are however far | Moonelis, Handyside, for example. But all other behind the time politically and morally,'" etc. queer names are as nothing in comparison with the We infer from this that our good friend has not 1 title of the first cause in which we ever did any
VOL. 38 No. 2.
law copying —"Nicholas Dick against Debby Ann tion now exhibits! Kent, Walworth, Cowen, Spen-
NOTES OF CASES.
their horses and wagons in the public street in front lawyers cease from troubling and suitors are at rest.
of the complainant's dwelling, to such an extent Peace to their folios !
that unpleasant and noxious odors were created,
and at certain times carried into the dwelling of In making some researches among the records of
the complainant, making his hiome uncomfortable.
Held, subject to injunction. Bird, V. C., said: our Court of Appeals for 1860 we came across some
“In cousequence of the presence of these horses, choice passages in the brief of an appellant's attor
flies became more numerous and troublesome than ney, criticising the conduct of the trial judge. The
they otherwise would have been, and the atmosangry gentleman cried : “ Jury trials are a farce,
phere became foul and so vitiated as to obliged and jurors pliant instruments," etc. "One solid, honest, capable judge, appointed for life, would
the complainant to close the doors and windows of outweigh all the fanciful benefits of the boasted sys
his house. Now if the proof sustains these allegatem of trial by jury.” “What lot, or part, or voice, or
tions of the complainant, most clearly he is entitled
to an injunction. None will pretend that the deword has a jury had in determining this common
fendants had a right to appropriate any portion of law claim? None, except that of a slave who gives an answer as the master dictates.” “He has set
the public street in this manner to their own pri
vate purposes. *
The public highway is only desigup an image, framed in his own mind, * *
nated for the use of the public as a passage-way, as and compelled others to fall down and adore it as
| a means of communication between different points. the emblem of the law. He has narrowed the
It never was intended or designed to be used as a thoughts of twelve thinking men, * * * de
stable or as a private yard or other inclosure for the cided like a lawyer in his chamber and not like a magistrate in his robes of office
convenience of men of business. And yet the com* * * dragged
| plainant would have no special right to the protecand defiled in the mire, the ermine * * * worthy
tion of this court unless he suffered some special only of the worst ages of imperial Rome or the lowest barbarism of Madagascar.” The judge thus
injury over and above what the public generally
suffer from such obstruction or use of the highway. criticised was John A. Lott, afterward chief commissioner of appeals. How differently counsel talk
In my judgment he has shown such special injury.
It is clearly proved that the odors coming directly now-a-days! Judges are sometimes arbitrary and disagreeable, but counsel do not so much as for
from this locality, and which were occasioned by
the use made of this locality by the owners of these merly imagine that the judge has taken pains beforehand to inquire into the particular suit, and
horses, penetrated the dwelling of this complainis determined corruptly to take sides. No man's
ant, and made it not only unpleasant and uncom
fortable but exceedingly offensive. I do not forget suit is so important as it was in old times.
that an offer was made to show by certain respect
able citizens, glass-blowers, who spend a great deal A full-length and life-size portrait of David Dud- / of time near by while they were not employed in ley Field now hangs opposite that of Mr. Evarts in their ordinary daily work, who swear that they the corridor adjoining the court of appeals' cham- never noticed any of these offensive odors. It is ber at the capitol. These portraits both have a poor said however that they were smokers, and generlight and hang too high. We are quite willing to ally employed their time sitting together thus in look up to these gentlemen as lawyers, but not as social chat, and smoking as well, and that they portraits. The portrait of Mr. Field is a strong and would not be very likely to detect the odors comfaithful piece of work by Mr. Robert Gordon Har plained of did they exist. It is not necessary that die, a promising young artist of New York. In our | I should determine the extent of the capacity of judgment it is the most meritorious of the entire these men to detect these odors, nor whether they collection, except that of Judge Folger, by Eastman were in the immediate neighborhood at such times Johnson. The painter had a good subject. Mr. as were most favorable for their dissemination; for Field stands erect and vigorous with the burden of as long as the complainant and his wife and aneighty-two years resting lightly upon him. What other witness are unimpeached before me, their tesa list of strong intellects or great lawyers this collec- timony to the effect that at certain periods of the
day, and in certain conditions of the atmosphere, it which the person setting the fire should not be held was very offensive in the front of their dwelling, responsible. 1 Thomp. Neg. 144. Our cases are in must be given the credit that such evidence is al. | harmony with the general principles herein anways entitled to. The fact that the dwelling of nounced. Smith v. Thomas, 23 Ind. 69; Pennsylvathe complainant is the only one in that immediate nia Co. v. Hensil, 70 id. 569; City of Greencastle v. vicinity cannot in the least detract from or dimin- | Martin, 74 id. 450; Billman v. Railroad Co., 76 id. ish his rights as a citizen in a case of this character. 106; City of Crawfordsville v. Smith, 79 id. 308; The defendants anxiously insist that if the injunc- Railroad Co. v. Buck, 96 id. 346; Bloom v. Insurtion is made perpetual it should be without costs, ance Co., 97 id. 478; Pennsylvania Co. v. Whitlock, because the suit was instituted without justifiable | 99 id. 16. Heavenridge was clearly an intervening cause, and has been prosecuted more for the costs as well as an independent human agency in the inthan for any beneficial purpose, Counsel pressed fliction of the injuries of which the plaintiff comthe point that if the complainant had any rights he plained.” was pursuing them with a malicious intent and spirit, and therefore he should not be encouraged Apropos of the right of foot-travellers in streets, by awarding to him the ordinary fees fixed by law | in Undhejem v. Hastings, Minnesota Supreme Court, which attend such a litigation. This view cannot June 11, 1888, an action for an injury caused by debe entertained. Davis v. Flagg, 35 N. J. Eq. 491; fendant's negligently driving his buggy against Phelps v. Novolen, 72 N. Y. 39; Kiff v. Youmans, 86 plaintiff in a public street, it not appearing that id. 329; Nichols v. Pinner, 18 id. 303. The defend- | the street was much thronged with vehicles, held, ants were warned of the wrong they were doing that it was not negligence per se in plaintiff to go the complainant before he filed bis bill, and they along in the street, for a lawful purpose, without persisted in the course which the court now finds | looking behind him to see if vehicles might be apitself called upon to condemn."
proaching from that direction. The court said: "The plaintiff, carrying his dinner-basket, and on
his way to his home, entered a street car on Twentieth A rather amusing application of the doctrine of avenue north, in the city of Minneapolis. Finding remote cause was made in Alexander v. Town of he was on the wrong car he immediately left it Nero Castle, Indiana Supreme Court, May 29, 1888, while it was going rapidly, intending to take anwhere it was held that a town is not liable to one other car. In leaving it he dropped some articles who is injured by falling into an excavation in the | from his basket upon the ground and at once went street when the fall was wholly occasioned by the back, walking along the street-railway track pickact of another, who willfully seized plaintiff and ing up the dropped articles, and without looking threw him into the pit. The court said: "Whar- / behind him, when the defendant, who was in his ton in his work on the Law of Negligence, at sec buggy, driving rapidly along the street toward him tion 134, says: "Supposing that, if it had not been from the direction behind him, drove so that the for the intervention of a responsible third party, 1 buggy-wheel struck plaintiff's leg and broke it. the defendant's negligence would have produced no Plaintiff did not see the horse or buggy till he was damage to the plaintiff is the defendant liable to struck, nor did he look in the direction from which the plaintiff? This question must be answered in it came after he let go of the street car. The court negative, for the general reason that causal connec- below held that to go along the street picking up tion between negligence and damage is broken by the articles he had dropped without looking to see the interposition of independent responsible human | if any vehicle might be coming along the street beaction. I am negligent on a particular subject- hind him, was so clearly negligence that there was matter as to which I am not contractually bound. | no question upon it for the jury to pass upon. In Another person moving independently, comes in / this the court erred. It cannot be laid down and either negligently or maliciously so acts as to as a rule that in all cases, without regard to the exmake my negligence injurious to a third person. If tent to which the street is usually traveled, it is $0, the person so intervening acts as a non-conduc- | negligence for one ou foot to cross it or walk in it tor, and insulates my negligence so that I cannot | without looking in each direction to see if a vehicle be sued for the mischief which the person so inter may be approaching. To do so upon a crowded vening directly produces, he is the one who is lia city street, where vehicles driven rapidly pass each ble to the person injured. I may be liable to him, way every instant, and where the crowd of vehicles for my negligence in getting him into difficulty, prevent the drivers seeing readily a person on foot but I am not liable to others for the negligence in a part of the street other than the crossings, and which he alone was the cause of making operative.' | where, consequently, danger is nearly always presSo if a house has been negligently set on fire, and ent, might be so patently negligent that a reasonathe fire has spread beyond its natural limits by ble mind could come to but one conclusion; while means of a new agency; for example, if a high | it would be otherwise if the street were but little wind arose after its ignition and carried burning frequented. In the latter case it might or might brands to a great distance, thus causing a fire and a not be negligent, depending on other circumstances; loss of property at a place which would have been such, for instance, as the length of time spent in safe but for the wind, the loss so caused by the the street without looking around. Conduct that wind will be set down as a remote consequence for would be manifestly negligent in crossing or going
along a railroad track owing to the magnitude of the question can be decided on the common-law prin. the danger to be apprehended, and the difficulty of
ciple that husband and wife are one. The uttering of escaping it, might raise no imputation of negligence
a libel to the party libelled is clearly no publication
for the purposes of a civil action. And if a libel is in crossing or traveling along a common country
uttered on a privileged occasion to a husband when road. It does not appear that Twentieth avenue, his wife is present, it has been held that her presence at the place where the injury was sustained, was does not take away the privilege. much traveled. The only evidence touching the
In Odgers on Libel aud Slander (2d ed.), p. 153, point was that of plaintiff, that 'there were no
there is a reference to Trumbull v. Gibbons, 3 City
Hall Recorder, 97, an American case, of which there other teamıs or conveyances on the street,' indicat
is & note in Townshend on Slander and Libel, as foling that it was not thronged to such extent as to lows: “Gibbons wrote defamatory matter of Trumcall necessarily for the conclusion that no prudent | bull, and had fifty copies printed in pamphlet form in man would have gone along the street as plaintiff
Massachusetts. Forty-five copies he retained and five (he being there for a lawful purpose) without look
he sent to his wife in New Jersey, indorsing four of
them with the names of certain persons, acquainting behind to see if vehicles might be approaching.
ances of his wife, but without any instructions to the The question of his negligence was, on the evidence, wife as to how she should dispose of the copies so sent for the jury.”
to her. The wife delivered two of the copies in New
thereon, and the others she delivered in New Jersey LIBEL - PUBLICATION – COMMUNICATION to Trumbull, who exhibited them to various persons.
BY HUSBAND TO WIFE - DEFACEMENT Ou Trumbull suing Gibbons in New York for libel, it
publication by defendant, (2) or no publication within
the State. The second point was overruled, and as to 20 QUEEN'S BENCH DIVISION, 635, FEB. 7, 1888. the first it was held that the delivery of the manu.
script to be printed was a publication, although a deWENNHAK V. MORGAN.
livery to a wife in confidence would not be a publica
tion, yet in the case then before the court the wife In an action for libel, the fact that defendant has disclosed
acted as the ageut of her husband, and her delivery the libel to his wife is not evidence of publication. In an action for maliciously defacing the written character
of the pamphlets amounted to a publication by the
defendant. Trumbull v. Gibbons, supra." of a servant by writing upon it a disparaging statement,
We think it our duty to hold, that according to a the plaintiff may recover substantial damages.
well-recognized principle, husband and wife are in the MOTION by the plaintiff for a new trial on the
same position, and therefore that the uttering of a W ground of misdirection.
libel by a husband to his wife is no publication, in The action was against the defendant and his wife
cases apart from the Married Women's Property Act, for libel, and for malicious damage to a document. and that on that ground the decision of the learned
At the trial before Mathew, J., and a jury, it ap judge was right. peared from the opening speech of the plaintiff's com.
With respect to the other questions it was a matter sel that the plaintiff, a domestic servant, had been in
of much more difficulty, viz., how for the learned the employ of a lady who had since gone abroad, and
judge at the trial was justified in taking on himself who gave him a good character in writing. The plain
the duties of a jury with respect to damages. tiff afterward entered the service of the defendant ou
For the defendant it is contended, first, that the the faith of the character, which he hauded to the de
document defaced was not the plaintiff's property; fendant. Finding that the place did not suit him,
and next, that the act done to it was not done malicthe plaintiff gave notice to leave. After the notice Liously or mischievously, but bouo fide and without bad been given, the defendant one morning summa
malice. The learned judge held that the testimonial rily dismissed the plaintiff, charging him with having so handed over by the plaintiff to the defendant was been absent from the house during the night without
ht without and remained the property of the plaintff. I do not at leave. The plaintiff asked for his character, which present think that we are in a position to say that the was delivered to him by the defendant's wife, when it
learned judge was right or wrong on the point. There was found that the defamatory words complained of l is much in the argument of the learned counsel that had been written upon it by the defendant.
it would be a question for the jury, looking at all the The words were to the effect that plaintiff had been
circumstances, whether when the plaintiff handed dismissed for staying out all night without leave.
over the testimonial to the defendant he did so with On the opening the learned judge held that there
the intention of passing the property in it. There is was no publication, aud with respect to the claim for
a material distinction between the letters ordinarily maliciously damaging the character, that it was the
written in answer to an inquiry as to a servant's charproperty of the plaintiff, but that he could not recover
acter--which would probably be the property of the more damages than a shilling. The verdict was en
master proposing to engage the servant-and a general tered accordingly.
testimonial of good character, which is, I should Bassett Hopkins, for plaintiff.
think, intended to be used as a voucher on future 00
casions. In this case the lady who gave the testimoRoland V. Williums, for defendant.
pial was abrond, and could not be applied to for a reHUDDLESTON, B. Two questions arise in this case. newal of it. There might have been a question for First, whether there was a publication under the oir the jury whether under the circumstances the handcumstances; and secondly, whether the learned judge ing over of the testimonial was a deposit, or a parting was right in taking upon himself the issue as to the with the property so as to vest it in the defendants. If amount of damages to which the plaintiff was entitled. the jury found that it was merely a deposit, the illusWith respect to the first of those points this is, as far tration given in argument of handing over the diploma as we know, the first time it has ever been alleged in on an application for a situation would apply. How. cases of this kind that the banding over of a libel by ever the learned judge decided that point in favor of the libeller to his wife is a publication. I think that the plaintiff. The next point is that the learned judge
took upon bimself to decide the amount of damages. | trial, and the verdict and judgment for the defendant We think that was a matter entirely for the jury. The on the first part of the claim will stand. learned judge seems to have thought that the only meas Judgment accordingly. ure of damage was the expense of obtaining a renewal [See Larison v. State, 36 Alb. L. J. 77.-Ed.) of the character. But it cannot be said that that expense would be no more than a shilling. There might be much expense in finding out where the lady was,
CONSTITUTIONAL LAW-OLEOMARGARINE and in communicating with her. Further if the injury
ACT. found that the indorsement was malicious they might have given large damage, Under these circumstances we think that on the ground that there was no public UNITED STATES SUPREME COURT, APRIL 9, 1888. cation the verdict must be entered for the defendant on the claim for libel, aud that the other issues must · POWELL v. COMMONWEALTH OF PENNSYLVANIA.* be sent down to be retried by a jury.
FIELD, J. (dissenting). The plaintiff in error was in.
mha | dicted in one of the courts of Pennsylvania for selling MANISTY, J. I come to the same conclusion. The
as an article of food two cases of oleomargarine butter, case, although in one view a comparatively small one,
containing five pounds each, and was sentenced to pay involves a very important principle. On the first point
a fine of $100. The case being taken to the Supreme the maxim and principle acted on for centuries is still in existence, viz., that as regards this case, husband
Court of the State, the judgment was affirmed, and to and wife are in point of law one person. The earlier
review it the case was brought to this court. The stat
ute under which tho conviction was had was passed on authorities on this point are collected in Montague Lush on Husband and Wife, at p. 3.
the 21st of May, 1885, and went into effect on the 1st
of July following. It declares in its first section “that It would be enough to say that that is the law avd the ground of the law. But wbat is the real founda
no person, firm or corporate body shall manufacture tion of it? It is, after all, a question of publio policy,
out of any oleaginous substance or any compound of or as it has been well called, social policy. No doubt
the same, other than that produced from unadulterthat principle has been interfered with by judge-made
ated milk, or cream from the same, any artilaw. Publio opinion has altered in some circumstances,
cle designed to take the place of butter or cheese, and no better illustration of that can be given than
produced from pure, unadulterated milk, or cream the change of view as to deeds of separation between
from the same or of any imitation or adulhusband and wife. But if the public policy is consid
terated butter or cheese, nor shall sell, or offer ered, what is there to show any change in judicial
for sale, or have in his, her or their possession, opinion or public policy with respect to communica
with intent to sell the same as an article of food." In tions between husband and wife hitherto held sacred ?
another section the act made a violation of these proIt has been argued that in some cases it might be well
visions a misdemeanor punishable by a fine of not less that publication of slander by a man to his wife
than $100, por more than $300, or by imprisonment in should be actionable. But look at the other side;
the county jail for not less than ten por more than would it be well for us to lay down now that any de
thirty days, or both such file aud imprisonment, famation communicated by a husband to a wife was
for the first offense, and imprisoument for one year actionable? To do so might lead to results disastrous
for every subsequent offeuse. The aot, it is to be obto social life, and I for one would be no party to mak
gerved, is not designed to prevent any deception in the ing new law to support such actions. I may say inci
manufacture and sale of the article of oleomargarino dentally that there is no pretense for arguing that this
butter, or any attempt to pass it off as butter action could be maintained against the female defend
made of milk or cream. The title would indicate that ant, for all that she did was to hand the alleged libel
the act was intended for the protection of the public to the plaintiff himself, so judgment should have been
health, and to prevent the adulteration of dairy proentered for her. Then as to the other question. The
ducts, and fraud iu the sale thereof. It is probable learned judge proceeded on the ground that there was
that the original draft of the act had such a purpose, no evidence of damage. If that was so, what becomes
and that the title was allowed to remain after its body of the cause of action? The allegation is that the de
was changed. Be this as it may, the act is one prolendant maliciously-for mischievously may be put
hibiting the manufacture or sale, or keeping for sale,
of the article, though no concealment is attempted as out of consideration-defaced the testimonial. That involves two questions; first, whether the indorse
to its character, nature or ingredients. Its validity is ment was written maliciously or bona fide on a docu
rested simply upon the fact that it has pleased the ment not the property of the plaintiff. The learned
Legislature of the Commonwealth to declare that the judge held that the document was the property of the
article shall not be manufactured or sold or kept for plaintiff, and must also bave held that the indorse
sale within its limits. On the trial the defendant ofment was maliciously written, but he thought that
fered to prove by competent wituesses that the article the damages were only a shilling. I think the ques
manufactured was composed of ingredients perfectly
healthy, and was as wholesome and nutritious as buttion of property was for the jury. Under certain circumstances the testimonial might be the property of
ter produced from pure milk or cream; but the court
refused to allow the evidence on the ground that it the defend aut. It might be that the testimonial was only deposited with the defendant, and was the prop
was immaterial and irrelevant. It was sufficient, in erty of the servant. But that is a question of fact and
its judgment, that the Legislature had passed the act, not of law. The next point is more serious. The
to render a disregard of its provisions a public offense. learned judge held that there was no evidence of dam
The defendant also offered to prove that the article
sold by him was a part of a large and valuable quanage, but to sustain the verdict on this part of the claim
tity manufactured prior to the passage of the act of the act of indorsing must bave been done maliciously.
May 21, 1885, in accordance with the laws of the ComThe damage was a question for the jury. So I think
monwealth relating to the manufacture aud sale of tbat in coming to the conclusion that there was no evi
the article: but this offer was also rejected on the dence of damage, aud therefore taking on himself to
same ground, as immaterial and irrelevant. The case gire & verdict for a shilling, the learned judge was
is therefore to be cousidered as if the proof offered wrong and therefore that the issues on the second part of the statement of claim must go down to a new
* For majority opinion see 37 Alb. L. J. 370.