Central Law Journal.

ST. LOUIS, MO., SEPTEMBER 27, 1901

The assassination of President McKinley has forced upon the consideration of the country questions of the most serious import-questions which have arisen heretofore, but have been permitted to smolder and to remain unanswered.

The act which resulted in the death of the President is, of course, murder and punishable by death, but the motives which prompted the assassin are important. It was a blow directed, not against Mr. McKinley, but against the President of the United States; it was prompted not by anger or spite against the man, but a deep seated prejudice against the office and the authority it represented. It was executed, not out of hope of any mere personal advantage, but under a settled conviction that the success of certain principles of government, called "anarchy," were necessary to release the world from an imagined tyranny, and that the death of those high in authority were the legitimate and nearest means of its attainment. The assassin, therefore, in this case, as in every such case, poses as a martyr to principle, and the death penalty does not call him to repentance. Herein lies the exceeding seriousness of this question. These principles have other votaries, and a propaganda which seeks to obtain the same awful and controlling influence over others. What is the remedy.

The criminal liability of those who directly incite others to deeds of violence or combine with them to overthrow the government is one of the first questions which suggest themselves, and was clearly decided in the cases which arose out of the anarchist uprising in Chicago in 1886, known as the Haymarket Cases. In one of these cases the editor of the Arbeiter Zeitung, who had incited the anarchists to violence together with a number of their leaders were convicted of murder and executed. Chief Justice Magruder, of the Supreme Court of Illinois, in passing upon the case, declared the law to be as follows: "If men combine together as conspirators to accomplish an unlawful purpose, as the overthrow of so

ciety and government and law, called by them a 'social revolution,' and seek, as a means to an end, to print and speak, in order to incite others to tumult and riot and murder, those who advise or instigate the others to violence will be held responsible for the murder that may result from their aid and encouragement." Spies v. People, 122 Ill. 1. Further on, in speaking of the liability of editors and orators who spread the pernicious doctrine of anarchy, the court advances this bold statement of the law so appropriate to the present crisis. and its lessons: "He who inflames people's minds and induces them by violent means to accomplish an illegal object, is himself a rioter, though he takes no part in the riot. If he wakes into action an indiscriminate power, he is responsible. If he gives directions vaguely and incautiously, and the person receiving them acts according to what he might have foreseen would be the understanding, he is responsible. It can make no difference whether the mind is affected by inflammatory words addressed to the reader through the newspaper organ of a society to which he belongs, or to the hearer through the spoken words of an orator whom he looks up to as a representative of his own peculiar class." This rule does not deny the right of free speech or of the liberty of the press, but holds both the orator and the editor liable for the results which flow from the expression of his sentiments.

The proper limitations on the liberty of the press and their criminal responsibility for creating a feeling of discontent among the unthinking masses, and of disrespect for law and authority, or for instigating to crime and immorality, is a very difficult problem and one which has never been definitely or satisfactorily determined. The late case of Re Banks, 56 Kan. 242, goes very far in applying a remedy. In that case a statute of Kansas providing for punishment for publishing a newspaper devoted largely to the publication of scandals and accounts of lecherous and immoral conduct was held not in violation of the constitutional right of all persons freely to "speak, write, or publish their sentiments on all subjects, being responsible for the abuse of such right." The court said: "We entertain no doubt that the legislature has power to sup

press this class of publications without in manner violating the constitutional any liberties of the press." Most authorities, however, are not willing as yet to go to the extent of this case, and deny the right of the legislature to prohibit the publication of a newspaper for any reason, holding that the only proper remedy is against the newspaper and its publisher, either criminally or civilly, for any abuse of his privileges. Exparte Neill, 32 Tex Cr. Rep. 275.

Where a newspaper, however, attempts to ridicule and abuse the judiciary they are treading on very dangerous ground. A most commendable and wholesome tendency is to be observed of late years on the part of courts all over the country to hold newspapers to a strict accountability for all publications derogatory of the court or its decisions. The rule in this regard was well stated by the court in the case of State v. Morrill, 16 Ark. 388, as follows: "Any citizen has the right to publish the proceedings and decisions of a court, and if he deems it necessary for the public good, to comment upon them freely, and discuss the fitness or unfitness of the judges for their stations, but he has no right to attempt by defamatory publications to degrade the tribunal, destroy public confidence in it, and dispose the community to disregard and set at naught its orders, judgments and decrees. Such publications are an abuse of the liberty of the press, and tend to sap the very foundation of good order and well-being in society. The liberty of the press is one thing, and licentious scandal is another."

NOTES OF IMPORTANT DECISIONS.

CRIMINAL LAW-OBTAINING MONEY UNDER FALSE PRETENSES-RELIGIOUS INFLUENCE.-A case has recently risen in which the facts, while quite unique, are not unlikely to arise more often in the future. We refer to the recent case of Dowd v. Dowd (Mich.), 86 N. W. Rep. 86. The question of law was whether the honesty of their belief in certain religious teachings by which they obtained money had any effect on a charge against them for obtaining money under false pretenses. The defendants represented to a Mr. Curtis that they were the apostles of Christ; that

home for them, which he did promptly. The respondents were convicted. The court charged

the jury in very clear language, that if they believed defendants to be honest in their religious belief, no matter how misguided they might believe them to be, they could not be convicted. The supreme court, on appeal, held the charge to the jury to be a most correct one, and further that the jury are the sole judges of the sincerity of defendant's belief in such cases.

In view of the fact that certain leaders and promulgators of strange religious teachings have been alleged to have grown extremely wealthy under the successful growth of their new propaganda, it is very possible that cases of a similar nature will arise. The difficulty in handling such cases is to find the line between a proper regard for the freedom of conscience and religious belief on the one hand and the protection of the weak-minded and those easily influenced, from the schemes of religious tricksters. Even a jury of twelve sensible men will find it hard sometimes to carefully distinguish between religious trickery on the one hand and sincere belief on the other, but, undoubtedly, they are the most competent judges of that question.

MORTGAGES-RIGHT OF MORTGAGEE TO FORECLOSE AFTER DEATH OF MORTGAGOR.-What acts of the mortgagee will operate to release or discharge the lien of a mortgage has always been a litigated question of law. One phase of this question arose in the recent case of National Fire Insurance Co. v. Fitzgerald (Neb.), 85 N. W. Rep. 948, where it was held that a mortgagee may, after the death of the mortgagor, institute a suit to foreclose his mortgage, and the mere filing in the county court of the mortgage debt as a claim against the decedent's estate while the foreclosure suit is pending will not operate as a release or a discharge of the mortgage. Reviewing the authorities the court said in part: "Considering together the various provisions of chapter 23, supra, it is quite apparent that the right of a mortgagee to foreclose his mortgage is not affected in any way by the death of the mortgagor; and it is equally clear that the legislature did not intend that the filing in the county court of a claim secured by a mortgage or other lien on the debtor's property should work a forfeiture of the security. The following authorities bear upon the question, and tend directly or inferentially to sustain the conclusion we have reached: Meehan v. Bank, 44 Neb. 213, 62 N. W. Rep. 490; State v. Nebraska Sav. Bank, 40 Neb. 342, 58 N. W. Rep. 976; Andrews v. Morse, 51 Kan. 30; Kohl v. Hall, 141 Ind. 411, 40 N. E. Rep. 1060; Simms v. Richardson, 32 Ark. 297: Jones Moni

that a mortgagee may waive bis lien, and will, under some circumstances, be held to have waived it, by his conduct, are not, we think, applicable to the facts of this case. The plaintiff did not actually intend to abandon his lien, and he has done no act which is inconsistent with the existence of the right to enforce it. His position is as logical now as it would have been had he brought a foreclosure suit against Fitzgerald in his lifetime, and afterwards sued him to recover a personal judgment on the mortgaged debt.”

RAILROADS-ACTION FOR KILLING DOG.-An interesting case was recently decided by the Supreme Court of Alabama, in the case of Louisville & Nashville Ry. Co. v. Fitzpatrick, 29 South. Rep. 859, where it was held that a dog is a species of property for the injury of which an action at law may be maintained; and that the owner of a dog can maintain an action against a railroad company to recover damages for the negligent killing of such dog. The court gives the following explanation of the position: "By the common law ownership of a dog carried with it property rights sufficient to afford the owner a civil remedy for injuries to the animal, but which was not a subject of larceny. 4 Bl. Comm. 235. This court has followed the common-law doctrine entire as to action for damages in Parker v. Mise, 27 Ala. 480, and White v. Brantley, 37 Ala. 430, and representing larceny in Ward v. State, 48 Ala. 163, and Johnson v. State, 100 Ala. 32, 14 South. Rep. 629. In other jurisdictions the civil remedy has been generally accorded, but to justify the proposition that a dog cannot be stolen has been difficult to an extent which has produced much conflict in decisions on that subject. See note to Hamby v. Samson (Iowa), 67 Am. St. Rep. 285, 74 N. W. Rep. 918, 40 L. R. A. 508, which collates and reviews authorities. Still more difficulty is invited by the theory of appellee's demurrer and argument going upon the assumption that a dog, though property, when willfully injured has no such attribute as will merit the exercise of care to avoid his injury. That theory seems to be favored by the opinion in Jamison v. Railroad Co., 75 Ga. 444, 58 Am. Rep. 476; but it was not necessary to the decision there made. In that opinion Wilson v. Railroad Co., 10 Rich. 52, is cited as authority, but the latter decision, as is shown in Salley v. Railroad Co., 54 S. Car. 481, 32 S. E. Rep. 526, 71 Am. St. Rep. 810, turned on the construction of a statute relating to the burden of proof on the question of negligence. In Salley's case, supra, the decision was on a demurrer to a complaint claiming damages for alleged negligence of a railroad company in running over and killing dog, and is, therefore, directly in point here. It upheld the cause of action as a conclusion resulting from what had been held on kindred questions in many adjudications referred to in the opinion. To the same effect are Railway Co. v. Hanks, 78 Tex. 301, 14 S. W. Rep. 691; Transit

Co. v. Dew, 100 Tenn. 317, 45 S. W. Rep. 790, 66 Am. St. Rep. 754; Jones v. Railroad Co., 7 Miss. 970, 23 South. Rep. 358."

RAILROADS-LIABILITY FOR NOT RINGING BELLS. A question often arising and on which the courts are still in dispute is the liability of railroads for injuries at crossings where the statutory signals were not given. This question arose recently in the case of Mankey v. Railway Co. (South Dak.), 85 N. W. Rep. 1013. In that case a statute provided that whenever a railroad train approaches any crossing a bell shall be rung or a whistle blown, and that, in case of neglect, the railroad shall be liable for damages sustained by any person by reason of that neglect. Held, that where a horse was injured by being run into by a train between a whistling post and a crossing, and no statutory signals were given, there could be no recovery for the injury, in the absence of evidence that such failure was the cause of the injury. In construing the statute just referred to, the court said in part:

"The decisions of the courts under similar statutes are not in entire harmony, and no usefu purpose would be served by an attempt to review them; but the general rule laid down seems to be that unless the failure to comply with the statute in some manner contributes to the injury complained of, the company is not liable. In other words, there must be some connection between the failure to comply with the statute and the injury, and this, like any other fact in the case, must be proven by evidence, or, at least, there must be evidence from which the jury may reasonably draw the inference that the neglect of duty was the cause of the injury. Railway Co. v. Stebbing, 62 Md. 504; Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. Rep. 369, 28 L. Ed. 410; Railway Co. v. Blackman, 63 Ill. 117; Railway Co. v. McDaniels, 63 Ill. 122; Pike v. Railroad Co. (C. C.), 39 Fed. Rep. 754; Bell v. Railway Co. 72 Mo. 58; Evans v. Railroad Co., 62 Mo. 57; Railway Co. v. Taylor, 104 Pa. 306; Holman v. Railroad Co., 62 Mo. 562; Wallace v. Railway Co., 74 Mo. 594; Railway Co. v. Pierce, 33 Kan. 61, 5 Pac. Rep. 378; Reynolds v. Railway Co., 16 C. C. A. 435, 69 Fed. Rep. 808, 29 L. R. A. 695; Blankenship v. Railway Co., 15 Tex. Civ. App. 82, 38 S. W. Rep. 216; Railway Co. v. Parker (Tex. Civ. App.), 37 S. W. Rep. 973, 46 S. W. Rep. 289; Railroad Co. v. Burke, 93 Ga. 319, 20 S. E. Rep. 318. In Wallace v. Railway Co., supra, the Supreme Court of Missouri, speaking upon the subject, says: 'Neither does the failure to ring the bell or sound the whistle constitute negligence per se; there must appear to be some necessary connection betion between the failure and the injury.' In Holman v. Railroad Co., supra, it appears from the opinion that the plaintiff, to maintain the issues on his part, introduced evidence tending to show that the bell was not rung nor the whistle sounded, and the court says: The damage must

be shown to be the result of the negligence; that is, the negligence must first be shown, and this fact must be supplemented by testimony tending to show that the negligence occasioned the damage."

CORPORATIONS CANCELLATION OF STOCK SUBSCRIPTION-RIGHTS OF RECEIVER.-An interesting case of the right of a receiver of a corporation to bring suit on subscription for stock which had been cancelled by the corporation was that of Lellyett v. Brooks (Tenn.), 62 S. W. Rep. 596, where it was held that where a corporation permits the cancellation of a stock subscription, it and its assignee in insolvency are estopped to sue thereon; creditors existent at the time, and still unpaid, being the only ones who can sue on such subscriptions.

This decision is in line with the authorities. Thus, in the case of Glenn v. Hatchett, 91 Ala. 316, it was held that a resolution adopted by a corporation—that is, by the stockholders directly, or ratified by them after its adoption by the board of directors-authorizing the surrender and cancellation of one-half of the number of shares subscribed for, so that 5 per cent. paid on the whole number shall be considered as ten per cent. paid on the half retained, is valid and binding as between the corporation and the stockholders who avail themselves of it; and it is equally binding on a trustee appointed in a deed of assignment for the benefit of creditors, executed by the corporation on its subsequent insolvency, or a trustee appointed in his stead by a court of equity; but creditors may, it seems, set aside such surrender and cancellation as a fraud on their rights. The case of Insurance Co. v. Swigert, 135 Ill. 150, 25 N. E. Rep. 680, 12 L. R. A. 328, is equally in point. In that case it appeared that proceedings were instituted by a receiver whose powers were the same as those of an assignee under a voluntary assignment, and that the question was whether such receiver could sue and recover amounts on subscriptions to stock which had been previously cancelled by the company. Said the court: "A corporation may, if it acts in good faith, buy and sell shares of its own stock. Railroad Co. v. Town of Marseilles, 84 Ill. 145, 643; Chetlain v. Insurance Co., 86 Ill. 220; Clapp v. Peterson, 104 Ill. 26. The surrender by stockholders to the company of the certificates of stock upon which 20 per centum had been paid, and the issuance to such stockholders of certificates for paid-up stock, was, in substance and in legal effect, a purchase by the company of the unpaid stock at its par value. The transaction in question was lawful and valid, so far as the company itself was concerned, and was binding upon it, and it had no right to impeach it; only the creditors were entitled to that privilege. And the company had no authority to enforce or to 'control' the claims, and it could not pass by its deed of assignment to any one, either assignee or receiver, any right of control or enforcement

that it did not itself have." See, also, Bouton v. Dement, 123 Ill. 142, 14 N. E. Rep. 62; Institution v. Adae (C. C.), 8 Fed. Rep. 106, 109; Clapp v. Nordmeyer (C. C.), 25 Fed. Rep. 71, 73; Manufacturing Co. v. Wright (C. C.),22 Fed. Rep. 631. See, also, the case of Anderson v. Amonzett, 9 Lea, 1, 13, 14, where it is held that an assignee for creditors does not occupy the status of a creditor, but merely that of a volunteer. To the same effect see Trust Co. v. Bank, 91 Tenn. 336, 18 S. W. Rep. 822, 15 L. R. A. 710; Stainbank v. Manufacturing Co., 98 Tenn. 306, 319, 39 S. W. Rep. 530.

In

JUDGMENT ASSIGNMENT OF PART OF JUDGMENT.-There has been some dispute whether the assignment of part of a judgment without the debtor's consent is valid against the latter's objection. This question arose in the recent case of Line v. McCall (Mich.), 85 N. W. Rep. 1089. this case A and L were partners, and as such obtained a judgment against defendants for $6,000. On July 26, 1895, L assigned his interest in the judgment to plaintiff, and notice thereof was served on defendants' attorney. In August, 1895, A settled with defendants, through their attorney, for $1,100, and A executed a release of the judgment in the name of the firm. Held that. as the assignment of a part of the judgment was enforceable in equity, a decree dismissing plaintiff's bill to set aside the satisfaction of the judgment was erroneous. Montgomery, C. J., reviewed the authorities on this point as follows:

"There is no doubt of the fact of the assignment by Le Veque of his interest in the judgment to the complainant Line. It does not appear that any creditor is complaining, and it does appear that Le Veque's co-partner, Alway, assented to this assignment. In what manner, then, the assignment works any injury to the judgment debtor, I am unable to see, unless it be true, as contended, that an assignment of a portion of a judgment is of no effect, either in law or equity, as against the judgment debtor. I do not understand this to be the rule. It is true that it has been held in some jurisdictions that at law an assignment of a portion of a judgis wholly ineffectual. In Missouri it seems to have been held that it is equally ineffectual in equity. See Love v. Fairfield, 13 Mo. 300, 53 Am. Dec. 148, and Burnett v. Crandall, 63 Mo. 410. But elsewhere the rule seems to be firmly established that an assignment of a portion of a claim is good in equity, and creates at least a trust in favor of the equitable assignee, or, as is said by the Supreme Court of Ohio, in Railway Co. v. Volkert, 58 Ohio St. 362, 50 N. E. Rep. 924: 'Whatever term is applied to it (the assignment) by way of description, the result reached is to give to the assignee a property right in the thing assigned-a right which is cognizable and enforceable in a court of equity.' In the case last cited it was distinctly held that, after an assignment of a portion of a demand or judgment, the

VOL. 53

GEORNNA

debtor, having notice of the assignment, could not discharge the entire demand, so as to cut off the rights of the assignee. See, also, Railroad Co. v. Ackley, 58 Ill. App. 572; Moore v. Robinson, 35 Ark. 293; Beers v. Henderson, 45 N. Y. 665."

It might be well to call attention to some of the latest authorities on this question. In the case of McMurray v. Marsh, 54 Pac. Rep. 852, it was held that a partial assignment of a judgment is binding on the assignor, even when made without the judgment debtor's consent. In the case of Pittsburg, etc. R. R. v. Volkert, 58 Ohio St. 362, 50 N. E. Rep. 924, it was held that a judgment❘ debtor, after knowledge of an equitable assignment of an interest in the judgment, has no power to compromise the debt with the assignor alone, and thus defeat the claim of the assignee. The assignment of an interest in a right of an action for a personal injury which is to be prosecuted in the name of the assignor, with an agreement to assign a corresponding interest in the judgment which might be recovered in the future, is equivalent to an equitable assignment of the specified interest in the judgment the moment it is perfected, and binds all parties having notice or knowledge of the same. North Chicago St. Ry. Co. v. Ackley, 58 Ill. App. 572. In Missouri, as stated by the court, the rule is diferent. The case of Loomis v. Robinson, 76 Mo. 488, lays down the rule emphatically that a part of a judgment cannot be assigned without the debtor's assent, and that such an assignment without consent of debtor is void, both at law and in eqnity.

ADULTERY-EVIDENCE OF INTIMACY PRIOR AND SUBSEQUENT TO THE OFFENSE CHARGED.-A local paper recently sent to us by a correspondent in Michigan contains a severe editorial arraignment of one of the latest decisions of the supreme court of that state in which, it is asserted, the court has directly contradicted itself on a question of law of more than usual importance. The editorial criticism referred to is as follows:

"Is it any wonder that a lawyer's hair grows prematurely gray practicing law in Michigan, while glaring inconsistencies are so common among the decisions rendered by the supreme court? To illustrate our point we will refer to two quite recent opinions filed in cases in which the subjectmatter was the same, and the precise question in each was: What familiarity is admissible in evidence to corroborate a charge of adultery? The first case is that of The People v. Fowler, 104 Mich. 453, decided March 19, 1895. The defendant had been convicted of adultery, and in setting aside the conviction the court, in an opinion by Justice Long, said: "Testimony was admitted to show a similar offense on May 6th, 1892. This was some three months after the offense charged in the information. The court was in error in admitting this testimony. Acts of intimacy in this class of cases prior to the offense charged

245

may be shown but it is wholly incompetent to show subsequent acts for any purpose.' Citing People v. Clark, 33 Mich. 112; People v. Etter, 81 Id. 571; People v. Hubbard, 92 Id. 326. The other case is that of Mathews v. The Detroit Journal, 123 Mich. 609, decided April 3, 1900. The plaintiff, Mrs. Mathews, had obtained a heavy verdict against the defendant, in an action of libel for having published an article charging, that on a certain day at the village of Wayne, she had committed adultery with one Ainsworth. In an opinion written by Justice Montgomery the judgment of the lower court is reversed for the following reason: "The defendant offered to show that about October 25th, plaintiff and one Ainsworth were seen on Fort Street Bridge, Detroit, embracing and kissing each other. This testimony was excluded, the court remarking, "Improper conduct in October don't prove improper relations in July." This offer presents the most important question in the case. The question of whether subsequent acts of familiarity and intimacy can be shown in corroboration of testimony tending to show adulterous intercourse, has never been distinctly decided in this court. we find the courts of other states have frequently had occasion to consider this question and in numerous and well considered cases the admissibility of such testimony has been affirmed.

But

The testimony should have been received.' Justices Montgomery and Long, the authors, signed both of these opinions, although they decide exactly the same question in directly opposite ways. The latter opinion innocently asserts that this question has never before been passed on by the Supreme Court of this State, while the first opinion shows five distinct rulings on it. Not a word is said in the last opinion of the intention of the court to overrule the earlier decisions, so that we are left in profound ignorance of what he law really is."

While it is difficult to understand how a court of last resort can contradict itself on so important a rule of law in such a short interval or why the diligence of counsel should not have disclosed the contradiction, it is to be noted that the Supreme Court of Michigan is not alone in this failing. It is a fault more common with courts of appeal now than formerly, owing, no doubt, to the vast amount of business which overcrowds the courts of the present day and make anything like a carefully worded and considered opinion out of the question. Of the two opinions of the Michigan court alleged to be in contradiction, the latter is undoubtedly the correct one and in line with the great weight of authority. In all cases charging adulterous intercourse evidence of the particular acts alleged to constitute the unlawful intimacy must first be introduced before any other evidence whatever is admissible. What other acts of intimacy may be proven in corroboration has been a matter of some conflict of opinion. Very early, however, the rule became established that evidence having