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126

PAGE.

PAGE. Manhattan Trust Co. v. Sioux City Cable Ry. Co..... 175 Sanders v. Racquet Club.

383 Manhattan Trust Co. v. Sioux City & N. Ry. Co 176 Sayre v. Sheffield Land, Iron and Coal Co..

256 Mastermap v. Lumberman's Nat. Bk. of Stillwater 127 Sayward v. Denny..

79 Mayor, etc., of Borough of Rutherford v. Alyed... 125 Schmidt v. Oregon Gold Minlog Co.

223 McClure v. Times Pub. Co 192 Scott v. Farmers' Loan and Trust Co..

240 McGrath v. Vananan. 240 Shaw v. Derecmon.

48 McHale v. Easton & B. Transit Co. 223 Shellar v. Shivers..

383 McMullin y. Hoffman

349
Shellenberg v. Fremont, E. & M, R. Co.

144 Merral v. Dobbins..

803
Simmons v. Burlington, C. R. & N. Ky. Co..

351 Merriman v. Chicago & E. I. R. Co. 16 Smith v. Jones..

126 Meyer v. People. 48 Smith v. London, Liverpool & Globe Ins. Co.

127 Montana Cent. Ry. Co. v. Migeon.

808 Smitheal v. Smith.... Moore v. Robbins.. 335 Smythe v. New England Loan & Trust Co..

256 Moore v. Steljes.. 850 South Omaha Nat. Bk. v. Wright..

79 Moore v. Taylor..

208
Stacy v,
Hammons.

383 Mullen v. St. John et al..

214
State v. Bargus.

223 Mundy v. Louisville & N. R. Co.. 125 State v. De Boy...

416 Murphy v. Battle 48 State v. McNamara.

96 Murphy v. First Nat. Bank of Cedar Falls. 126 St. Louis Trust Co. v. Riley

4017 St. Louis & St. Fe Ry. Co. v. Bennett.

850 National Foundry and Pipe Works v. Oconto Water Co. 803 St. Louis Type Foundry v. Jackson,

48 Newman v. Commercial Nat. Bank of Peoria.. 176 St. Paul, M. & M. Ry. Co. v. St. Paul & N. P. R. Co..

176 Northern Pac. Co. v. Smith....

351
Texas & Pacific Ry. Co. v. Smith..

125 Oakland Home Ins. Co. v. Allen ....

208
The Nebraska

399 Olds Wagon Works v. Benedict.

96

The People of the State of New York ex rel. The Olmstead v. Distilling and Cattle Feeding Co.

96

Hecker-Jones-Jewell Milling Company v. Edward P. Orrick v. City of Ft. Wortb..

388
Barker et al.

296 Overman Wheel Co. v. Griffin.. 127 The Shrewsbury:

399 Thomson v. Shirley.

350 Pacific Fruit Co. v. Coon... 126 Tischler v. Kurtz..

127 Pacific Rolling Mills Co. v. James Street Const. Co.... 803 Travellers' Ins. Co. v. Redfield...

61 Page v. Chicago, etc., Ry. Co.... 289 Tug River Coal & Salt Co. v. Brigel.

126 Parker v. China Mut. Ins. Co...

256
Turner v. Houpt..

383 Pate v. McConnell.

256 Patch v. Morrisett.

127
Ulman v. laeger

144 Pennsylvania Company for Insurance on Lives and

Union Pac. Ry. Co. v. United States.

144 Granting Appuities v. Philadelphia & R. R. Co 851 People v. Hammond.

United States v. Flournoy Live Stock & Real Estate 384 Col,...

400 People v. Powers..

384
United States v. Jones...

899 People v. Sheldon.

85
United States v. Thomas

850 People of the State v. Wm. W. McLaughlin

75 Phoenix Ios. Co, v. Center, Tex.

126 Pile Driver E. O, A.

390
Van Olinda v. Hall..

167 Pittsburgh, C., C. & St. L. Ry. Co. v. Russ. 125 Vermont Marble Co. v. Brow.

351 Price v. McKay.

126 Porter v. James.

79
Walker v. Coleman.

144 Weare Commission Co. v. Druley

144 Raymond v. Keseberg.. 884 Webster v. Bell..

175 Richmond & I. Const. Co. v. Richmond, N., & B. R. Webster v. Woolford.

192 Co 175 Werk v. Illinois Steel Co...

30 Ritter v. Mutual Life Ins. Co. of New York. 350 Westchester Annexation Cases..

181 Roberts Manuf'g Co. v. Schlick.. 382 Whetstone v. Crane Bros. Mfg. Co.

256 Roberts v. Wold... 144 White v. Ewing.

126 Robinson v. Holst.

383
Peabody

191 Rogers v. Scbneider. 192 White v. White...

191 Roggenkamp v. Roggenkamp 335 Wilson v. Ward Lumber Co.

126 Ross-Meehan Brake-Shoe Foundry Co. v. Pasci Goula Wright v. Hutchinson...

247 Ice Co......

883
Wright & Co. v. Hennessey.

104 Rouye, v. Carroll

61

White v.

THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

AS

had business at the licensing meeting. In an The Albany Law Journal. action of libel brought by the plaintiff against

the head constable in respect of his publication ALBANY, JULY 6, 1895.

of the above-mentioned objections, it was held

that the occasion of the publication was priviCurrent Topics.

leged. Lord Esher, in delivering the opinion [All communications intended for the Editor should be ad- of the Court of Appeal, says: “The resolution dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other

was passed, not merely that this book should be business matters, should be addressed to The ALBANY LAW compiled, but that it should be compiled beJOURNAL COMPANY.]

cause it would be a useful assistance to the S has been remarked before in these col-members of the court in the exercise of their

umns, the number of actions for libel, both judicial functions. But then the magistrates in this country and in England, seems to be in- passed another resolution to the effect that it creasing; while it is also a matter of note that would be of assistance to them, in exercising the number of verdicts recovered in these pro their judicial functions, that everybody who ceedings are proportionately decreasing yearly. should come before them, for the purpose of asThe proposition, therefore, seems to be that the sisting in that judicial operation, should have a feelings of men are becoming more and more copy of this book. They therefore directed sensitive to statements made in the newspapers, the head constable to sell this book to all perwhile the average juryman, and more particu- sons who might apply for and require it in orlarly the judge, does not place much value on der to facilitate their business at the general the so-called "slights ” which are alleged. An annual licensing meeting. When, therefore, the action which has been somewhat noised about head constable issued the book to persons, in the English papers is that of Andrews et al. whether counsel or solicitors, or parties who v. Nott-Bower. The facts of the case seem to came before the magistrates for the purpose of be that the head constable of a city, acting un assisting them in the exercise of their judicial der the directions of its watch committee and functions, he was, in my opinion, only doing magistrates, drew up a report containing a list that which the magistrates had the right of of all the public houses in the city in respect to commanding him to do, and which he was which a renewal of license was to be asked for bound to do. The order given to the constaat the approaching general annual licensing meet- ble was an order of the court, as to the mode in ing. Besides the names of the public houses, which its business should be carried on, and the report contained columns with dates and was an order given to one of its own officers. other details of information which would be what that officer did was, therefore, a thing useful to the magistrates at the licensing meet- done on a privileged occasion. There is no ing. It contained, among other things, oppo-evidence that he delivered this book to anysite the name of the public house, of which the body but those to whom he was directed to deplaintiff was licensee, the objections to the re- liver it, and, therefore, I think the occasion is newal of its license, notice of which had been privileged, and under these circumstances this served by the police. Acting in accordance appeal must be dismissed." with the directions given him, the head consta- Lopes, L. J., in his opinion, says: “There is ble sold copies of this report to persons who no evidence, as far as I can see, that the report

VOL. 52 - No. 1,

was delivered to anybody who had not business difficult to find stronger and more impressive at the Brewster Sessions; but it is said that the words than those written in this, now celedelivery of the report to persons other than the brated cause, by Justice Brewer, of the United justices, although they had business at the States Supreme Court, and which are: “A Brewster Sessions, was in excess of privilege. I most earnest and eloquent appeal was made to have said it is a somewhat new point, and one us in eulogy of the heroic spirit of those who naturally feels some hesitation about it. But I threw up their employment, and gave up their have come to the conclusion that the occasion means of earning a livelihood, not in defense was privileged. The report most clearly was of their own rights, but in sympathy for and to made and published by direction of a competent assist others whom they believed to be wronged. authority, namely, the justices. It cannot be We yield to none in our admiration of any act said but that it was a report that, at any rate, was of heroism or self-sacrifice, but we may be perconvenient and desirable for a proper and effec-mitted to add that it is a lesson which cannot tive discharge of the business of the Brewster be learned too soon or too thoroughly that Sessions. And, as far as I can see, the defendant under this government of and by the people the did not do anything more than that which he was means of redress of all wrongs are through the ordered to do by the court. Now, that being so, courts and at the ballot box, and that no wrong, I arrive at the conclusion that the occasion was a real or fancied, carries with it legal warrant to privileged one, and that nothing has been done invite as a means of redress the co-operation of which can be said to be a violation or an abuse of a mob, with its accompanying acts of violence." the privilege. There are certain words in the Continuing. Judge Brewer, in closing the case of Stuart v. Bell, 64 L. T. Rep. 633; (1891) opinion, says: “We have given this case the 2 Q. B. 341, which, I think, are very applica- most careful and anxious attention, for we reable to this case. They are these: "The reason lize that it touches closely questions of supreme for holding any occasion privileged is common importance to the people of this country. convenience and the welfare of society, and it Summing up our conclusions, we hold that the is obvious that no definite line can be so drawn government of the United States is one having as to mark with precision those occasions which jurisdiction over every foot of soil within its are privileged, and separate them from those territory, and acting directly upon each citizen; which are not.' I think those words are appli- that

, while it is a government of enumerated cable to the present case, because it seems to powers, it has within the limits of those powers me that this report was convenient, and indeed

all the attributes of sovereignty ; that to it is almost necessary, for the purpose of carrying

committed power over interstate commerce and

the transmission of the mail; that the powers out the business of these sessions, and it was ordered, as I have already said, by a competent are not dormant, but have been assumed and

thus conferred upon the national government authority. Then there was the point with regard to actual malice. That point has not been put into practical exercise by the legislation of relied upon. Clearly there was no evidence of congress ; that in the exercise of those powers

it is competent for the nation to remove all actual malice that ought to have been left to a

obstructions upon highways, natural or artijury. The occasion, therefore, was privileged,

ficial, to the passage of interstate commerce or and the appeal must be dismissed.”

the carrying of the mail ; that, while it may be

competent for the government (through the The Debs case has attracted from its incep- executive branch and in the use of the entire tion the liveliest interest, not only because it executive power of the nation) to forcibly reembraces what is perhaps one of the most vital move all such obstructions, it is equally within questions of the day, the relations between its competency to appeal to the civil courts for capital and labor, but because it was also neces- an inquiry and determination as to the existence sary to have finally adjudicated what is the full and character of any alleged obstructions, and power of the courts to regulate questions in- if such are found to exist, or threaten to occur, volving not only interstate commerce, but the to invoke the powers of those courts to remove peace and order of the country. It would be or restrain such obstructions; that the jurisdiction of courts to interfere in such matters ground alone. Every government, intrusted by injunction is one recognized from ancient by the very terms of its being with powers and times and by indubitable authority; that such duties to be exercised and discharged for the jurisdiction is not ousted by the fact that the general welfare, has a right to apply to its own obstructions are accompanied by or consist of courts for any proper assistance in the exercise acts in themselves violations of the criminal of the one and the discharge of the other, and law; that the proceeding by injunction is of a it is no sufficient answer to its appeal to one of civil character, and may be enforced by pro- those courts that it has no pecuniary interest in ceedings in contempt; that such proceedings the matter. The obligations which it is under are not in execution of the criminal laws of the

to promote the interest of all and to prevent land; that the penalty for a violation of injunc- the wrongdoing of one, resulting in injury to tion is no substitute for and no defense to a the general welfare, is often of itself sufficient prosecution for any criminal offenses committed

to give it a standing in court. This proposition in the course of such violation; that the com

in some of its relations has heretofore received plaint filed in this case clearly showed an exist the sanction of this court. In U. S. v. San ing obstruction of artificial highways for the Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct. passage of interstate commerce and the transmission of the mail,—an obstruction not only states to cancel and annul a patent for land on

850, was presented an application of the United temporarily existing, but threatening to con: the ground that it was obtained by fraud or tinue ; that under such complaint the Circuit mistake. The right of the United States to Court had power to issue its process of injunc- maintain such a suit was affirmed, though it tion ; that, it having been issued and served on

was held that if the controversy was really one these defendants, the Circuit Court had authority to inquire whether its orders had only between individuals in respect to their been obeyed, and, when it found that they had claims to property the government ought not to been, then to proceed under section 725, Rev.

be permitted to interfere, the court saying: 'If St., which grants power "to punish, by fine or

it be a question of property, a case must be

made in which the court can afford a remedy imprisonment,

disobedience, by any party or other person, to any

in regard to that property; if it be a question

of fraud which would render the instrument lawful writ, process, order, rule, decree, or command, and enter the order of punishment void, the fraud must operate to the prejudice complained of; and, finally, that the Circuit of the United States; and if it is apparent that Court having full jurisdiction in the premises, the suit is brought for the benefit of some third its finding of the fact of disobedience is not party, and that the United States has no peopen to review on habeas corpus in this or any cuniary interest in the remedy sought, and is other court. Ex parte Watkins, 3 Pet. 193;

under no obligation to the party who will be Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. benefited to sustain an action for his use; in 152; Ex parte Terry, 128 U. S. 280-305, 9 short, if there does not appear any obligation Sup. Ct. 77; In re Swan, 150 U. S. 637, 14 on the part of the United States to the public Sup. Ct. 225; U. S. v. Pridgeon, 153 U. S. 48, or to any individual, or any interest of its own, 14 Sup. Ct. 746."

-it can no more sustain such an action than Perhaps, as has already been suggested, the any private person could under similar circummost important question from a legal stand-stances.' point of view is the power of the United States “This language was relied upon in the subsecourts to preserve the peace and safety of the quent case of U. S. v. American Bell Tel. Co., citizens of every State alike. The opinion is 128 U. S. 315, 9 Sup. Ct. 90, which was a suit one which deserves the most careful study, and brought by the United States to set aside a we regret that we cannot in these columns patent for an invention on the ground that it print more of it; but concerning the point had been obtained by fraud or mistake, and it which we have just mentioned we print the was claimed that the United States, having no following from Judge Brewer's opinion: “We pecuniary interest in the subject matter of the do not care to place our decision upon this I suit, could not be heard to question the validity

*

was delivered to anybody who had not business difficult to find stronger and more impressive at the Brewster Sessions; but it is said that the words than those written in this, now celedelivery of the report to persons other than the brated cause, by Justice Brewer, of the United justices, although they had business at the States Supreme Court, and which are: “A Brewster Sessions, was in excess of privilege. I most earnest and eloquent appeal was made to have said it is a somewhat new point, and one us in eulogy of the heroic spirit of those who naturally feels some hesitation about it. But I threw up their employment, and gave up their have come to the conclusion that the occasion means of earning a livelihood, not in defense was privileged. The report most clearly was of their own rights, but in sympathy for and to made and published by direction of a competent assist others whom they believed to be wronged. authority, namely, the justices. It cannot be we yield to none in our admiration of any act said but that it was a report that, at any rate, was

of heroism or self-sacrifice, but we may be perconvenient and desirable for a proper and effec- mitted to add that it is a lesson which cannot tive discharge of the business of the Brewster be learned too soon or too thoroughly that Sessions. And, as far as I can see, the defendant under this government of and by the people the did not do anything more than that which he was means of redress of all wrongs are through the ordered to do by the court. Now, that being so, courts and at the ballot box, and that no wrong, I arrive at the conclusion that the occasion was a real or fancied, carries with it legal warrant to privileged one, and that nothing has been done invite as a means of redress the co-operation of which can be said to be a violation or an abuse of a mob, with its accompanying acts of violence." the privilege. There are certain words in the Continuing, Judge Brewer, in closing the case of Stuart v. Bell, 64 L. T. Rep. 633; (1891) opinion, says: “We have given this case the 2 Q. B. 341, which, I think, are very applica- most careful and anxious attention, for we reable to this case. They are these: “The reason

lize that it touches closely questions of supreme for holding any occasion privileged is common importance to the people of this country. convenience and the welfare of society, and it Summing up our conclusions, we hold that the is obvious that no definite line can be so drawn government of the United States is one having as to mark with precision those occasions which jurisdiction over every foot of soil within its are privileged, and separate them from those territory, and acting directly upon each citizen; which are not.' I think those words are appli- that, while it is a government of enumerated cable to the present case, because it seems to powers, it has within the limits of those powers me that this report was convenient, and indeed all the attributes of sovereignty; that to it is almost necessary, for the purpose of carrying committed power over interstate commerce and

the transmission of the mail ; that the powers out the business of these sessions, and it was ordered, as I have already said, by a competent

thus conferred upon the national government

are not dormant, but have been assumed and authority. Then there was the point with regard to actual malice. That point has not been put into practical exercise by the legislation of relied upon. Clearly there was no evidence of congress; that in the exercise of those powers

it is competent for the nation to remove all actual malice that ought to have been left to a jury. The occasion, therefore, was privileged, ficial, to the passage of interstate commerce or

obstructions upon highways, natural or artiand the appeal must be dismissed.”'

the carrying of the mail ; that, while it may be

competent for the government (through the The Debs case has attracted from its incep- executive branch and in the use of the entire tion the liveliest interest, not only because it executive power of the nation) to forcibly reembraces what is perhaps one of the most vital move all such obstructions, it is equally within questions of the day, the relations between its competency to appeal to the civil courts for capital and labor, but because it was also neces- an inquiry and determination as to the existence sary to have finally adjudicated what is the full and character of any alleged obstructions, and power of the courts to regulate questions in- if such are found to exist, or threaten to occur, volving not only interstate commerce, but the to invoke the powers of those courts to remove peace and order of the country. It would be

It would be or restrain such obstructions; that the juris

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