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Central Law Journal.

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 ST.LOUIS, MO., SEPTEMBER 27, 1903

to incite others to tumult and riot and murder, those who advise or instigate the others

to violence will be held responsible for the The assassination of President McKinley has murder that may result from their aid and forced upon the consideration of the country encouragement.”. Spies v. People, 122 questions of the most serious import—ques Ill. 1. Further on, in speaking of tions which have arisen heretofore, but have the liability of editors and orators who been permitted to smolder and to remain spread the pernicious doctrine of anarchy, ananswered.

the court advances this bold statement of The act which resulted in the death of | the law so appropriate to the present crisis the President is, of course, murder and pun. and its lessons: “He who inflames people's ishable by death, but the motives which minds and induces them by violent means prompted the assassin are important. It was to accomplish an illegal object, is himself a a blow directed, not against Mr. McKinley, rioter, though he takes no part in the riot. If but against the President of the United States; he wakes into action an indiscriminate it was prompted not by anger or spite against power, he is responsible. If he gives directhe man, but a deep seated prejudice against tions vaguely and incautiously, and the perthe office and the authority it represented. son receiving them acts according to what It was executed, not out of hope of any mere he might have foreseen would be the underpersonal advantage, but under a settled con standing, he is responsible. It can make no viction that the success of certain principles difference whether the mind is affected of government, called "anarchy,” were neces by inflammatory words addressed to the sary to release the world from an imagined reader through the newspaper organ of a tyranny, and that the death of those high in society to which he belongs, or to the hearer authority were the legitimate and nearest through the spoken words of an orator whom means of its attainment. The assassin, there. he looks up to as a representative of his fore, in this case, as in every such case, poses own peculiar class.” This rule does not as a martyr to principle, and the death penalty deny the right of free speech or of the liberty does not call him to repentance. Herein of the press, but holds both the orator and lies the exceeding seriousness of this ques the editor liable for the results which flow tion. These principles have other votaries, from the expression of his sentiments. and a propaganda which seeks to obtain the The proper limitations on the liberty of the same awful and controlling influence over press and their criminal responsibility for others. What is the remedy.

creating a feeling of discontent among the The criminal liability of those who di unthinking masses, and of disrespect for rectly incite others to deeds of violence or law and authority, or for instigating to combine with them to overthrow the govern crime and immorality, is a very difficult ment is one of the first questions which sug problem and one which has never been gest themselves, and was clearly decided in definitely or satisfactorily determined. The the cases which arose out of the anarchist up late case of Re Banks, 56 Kan. 242, goes rising in Chicago in 1886, known as the very far in applying a remedy. In that Haymarket Cases. In one of these cases case a statute of Kansas providing for punthe editor of the Arbeiter Zeitung, who had ishment for publishing a newspaper devoted incited the anarchists to violence together | largely to the publication of scandals and acwith a number of their leaders were con counts of lecherous and immoral conduct victed of murder and executed. Chief was held not in violation of the constitutional Justice Magruder, of the Supreme Court of right of all persons freely to "speak, write, Illinois, in passing upon the case, declared or publish their sentiments on all subjects, the law to be as follows: “If men combine being responsible for the abuse of such together as conspirators to accomplish an right.” The court said: “We entertain no unlawful purpose, as the overthrow of so- | doubt that the legislature has power to sup

press this class of publications without in home for them, which he did promptly. The reany manner violating the constitutional

spondents were convicted. The court charged liberties of the press.” Most authorities,

the jury in very clear language, that if they be

lieved defendants to be honest in their religious however, are not willing as yet to go to the

belief, no matter how misguided they migbt beextent of this case, and deny the right of lieve them to be, they could not be convicted. the legislature to prohibit the publication of The supreme court, on appeal, held the charge a newspaper for any reason, holding that the

to the jury to be a most correct one, and further only proper remedy is against the news

that the jury are the sole judges of the sincerity

of defendant's belief in such cases. paper and its publisher, either criminally or

In view of the fact that certain leaders and civilly, for any abuse of his privileges. Ex promulgators of strange religious teachings parte Neill, 32 Tex Cr. Rep. 275.

have been alleged to have grown extremely Where a newspaper, however, attempts to

wealthy under the successful growth of their ridicule and abuse the judiciary they are

new propaganda, it is very possible that cases

of a similar nature will arise. The difficulty in treading on very dangerous ground. A most

handling such cases is to find the line between a commendable and wholesome tendency is to

proper regard for the freedom of conscience and be observed of late years on the part of courts religious belief on the one hand and the protecall over the country to hold newspapers to a tion of the weak-minded and those easily influstrict accountability for all publications de

enced, from the schemes of religious tricksters.

Even a jury of twelve sensible men will find it rogatory of the court or its decisions. The

hard sometimes to carefully distinguish between rule in this regard was wellstated by the court

religious trickery on the one hand and sincere in the case of State v. Morrill, 16 Ark. 388, as belief on the other, but, undoubtedly, they are follows: “Any citizen has the right to pub the most competent judges of that question. lish the proceedings and decisions of a court, and if he deems it necessary for the public

MORTGAGES-RIGHT OF MORTGAGEE TO FOREgood, to comment upon them freely, and dis


of the mortgagee will operate to release or discuss the fitness or unfitness of the judges for

charge the lien of a mortgage has always been their stations, but he has no right to attempt a litigated question of law. One phase of this by defamatory publications to degrade the question arose in the recent case of National Fire tribunal, destroy public confidence in it, and Insurance Co. V. Fitzgerald (Neb.), 85 N. W. dispose the community to disregard and set

Rep. 948, where it was held that a mortgagee

may, after the death of the mortgagor, institute at naught its orders, judgments and decrees.

a suit to foreclose bis mortgage, and the mere Such publications are an - abuse of the | filing in the county court of the mortgage debt as liberty of the press, and tend to sap the very a claim against the decedent's estate whilo the foundation of good order and well-being in foreclosure suit is pending will not operate as a society. The liberty of the press is one thing,

release or a discharge of the mortgage. Reviewand licentious scandal is another.”

ing the authorities the court said in part: "Considering together the various provisions of chap

ter 23, supra, it is quite apparent that the right of NOTES OF IMPORTANT DECISIONS. a mortgagee to foreclose his mortgage is not

affected in any way by the death of the mortCRIMINAL LAW-OBTAINING MONEY UNDER gagor; and it is equally clear that the legislature FALSE PRETENSES-RELIGIOUS INFLUENCE.-A did not intend that the filing in the county court case has recently risen in which the facts, while of a claim secured by a mortgage or other lien on quite unique, are not unlikely to arise more often the debtor's property should work a forfeiture of in the future. We refer to the recent case of the security. The following authorities bear Dowd v. Dowd (Mich.), 86 N. W. Rep. 86. The upon the question, and tend directly or inferen. question of law was whether the honesty of their tially to sustain the conclusion we have reached : belief in certain religious teachings by which Meeban v. Bank, 44 Neb. 213, 62 N. W. Rep. 490; they obtained money had any effect on a charge State v. Nebraska Sav. Bank, 40 Neb. 342, 58 N. against them for obtaining money under false W. Rep. 976; Andrews v. Morse, 51 Kan. 30; pretenses. The defendants represented to a Mr. Kobl v. Hall, 141 Ind. 411, 40 N. E. Rep. 1060; Curtis that they were the apostles of Christ; that Simms v. Richardson, 32 Ark. 297; Jones, Mortg. said Curtis and they were to be the judges of the $ 1218; 5 Am. & Eng. Enc. Law (1st Ed.), 213; people in that part of the country; that the son 8 Am. & Eng. Enc. Law (20 Ed.), 1069. The auof Curtis was to be Christ in his second coming; thorities cited by counsel for appellants (Libby that they (respondents) were sent by the Lord to v. Cushman, 29 Me. 429; Whitney v. Farrar, 51 tell Curtis these things; and that the Lord re- Me. 418; Evans v. Warren, 122 Mass. 303; Buck quired of him to pay to them $300, to make a v. Ingersoll, ji Metc. (Mass.) 226, to the effect

that a mortgagee may waive bis lien, and will, Co. v. Dew, 100 Tenn. 317, 45 S. W. Rep. 790, 66 under some circumstances, be held to have waived Am. St. Rep. 754; Jones v. Railroad Co., 7 it, by his conduct, are not, we think, applicable | Miss. 970, 23 South. Rep. 358." to the facts of this case. The plaintiff did not actually intend to abandon his lien, and he has RAILROADS-LIABILITY FOR NOT RINGING done no act which is inconsistent with the exist BELLS.-A question often arising and on which ence of the right to enforce it. His position is as the courts are still in dispute is the liability of logical now as it would have been had he brought railroads for injuries at crossings where the a foreclosure suit against Fitzgerald in his life statutory signals were not given. This question time, and afterwards sued him to recover a per arose recently in the case of Mankey v. Railway sonal judgment on the mortgaged debt."

Co. (South Dak.), 85 N. W. Rep. 1013. In that

case a statute provided that whenever a railroad RAILROADS-ACTION FOR KILLING DOG.-An train approaches any crossing a bell shall be rung interesting case was recently decided by the Su or a wbistle blown, and that, in case of neglect, preme Court of Alabama, in the case of Louis the railroad shall be liable for damages sustained ville & Nashville Ry. Co. v. Fitzpatrick, 29 South. by any person by reason of that neglect. Held, Rep. 859, where it was held that a dog is a species that where a horse was injured by being run into of property for the injury of which an action at by a train between a whistling post and a crosslaw may be maintained; and that the owner of a ing, and no statutory signals were given, there dog can maintain an action against a railroad could be no recovery for the injury, in the abcompany to recover damages for the negligent sence of evidence that such failure was the cause killing of such dog. The court gives the follow of the injury. In construing the statute just ing explanation of the position: “By the com referred to, the court said in part: mon law ownership of a dog carried with it “The decisions of the courts under similar property rights sufficient to afford the owner a | statutes are not in entire harmony, and no usefu civil remedy for injuries to the animal, but which purpose would be served by an attempt to rewas not a subject of larceny. 4 Bl. Comm. 235. yiew them; but the general rule laid down seems This court has followed the common-law doc to be that unless the failure to comply with the trine entire as to action for damages in Parker v. statute in some manner contributes to the injury Mise, 27 Ala. 480, and White v. Brantley, 37 Ala. complained of, the company is not liable. In 430, and representing larceny in Ward v. State, other words, there must be some connection be48 Ala. 163, and Johnson v. State, 100 Ala. 32, tween the failure to comply with the statute and 14 South. Rep. 629. In otber jurisdictions the civil the injury, and this, like any other fact in the remedy has been generally accorded, but to case, must be proven by evidence, or, at least, justify the proposition that a dog cannot be there must be evidence from which the jury may stolen has been difficult to an extent which has reasonably draw the inference that the neglect of produced much conflict in decisions on that sub duty was the cause of the injury. Railway Co. ject. See note to Hamby v. Samson (Iowa), 67 v. Stebbing, 62 Md. 504; Hayes v. Railroad Co., Am. St. Rep. 285, 74 N. W. Rep. 918, 40 L. 111 U. S. 228, 4 Sup. Ct. Rep. 369, 28 L. Ed. 410; R. A. 508, which collates and reviews authori Railway Co. v. Blackman, 63 Ill. 117; Railway ties. Still more difficulty is invited by the theory Co. v. McDaniels, 63 Ill. 122; Pike v. Railroad of appellee's demurrer and argument going upon Co. (C. C.), 39 Fed. Rep. 754; Bellv. Railway Co. the assumption that a dog, though property, 72 Mo. 58; Evans v. Railroad Co., 62 Mo. 57; when willfully injured has no such attribute as Railway Co. v. Taylor, 104 Pa. 306; Holman v. will merit the exercise of care to avoid his in Railroad Co., 62 Mo. 562; Wallace v. Railway jury. That theory seems to be favored by the Co., 74 Mo. 594; Railway Co. v. Pierce, 33 Kan. opinion in Jamison v. Railroad Co., 75 Ga. 444, 61,5 Pac. Rep. 378; Reynolds v. Railway Co., 16 58 Am. Rep. 476; but it was not necessary to the C. C. A. 435, 69 Fed. Rep. 808, 29 L. R. A. 695; decision there made. In that opinion Wilson v. Blankenship v. Railway Co., 15 Tex. Civ. App. Railroad Co., 10 Rich. 52, is cited as authority, 82, 38 S. W. Rep. 216; Railway Co. v. Parker but the latter decision, as is shown in Salley v. (Tex. Civ. App.), 37 S. W.Rep. 973, 46 S. W. Rep. Railroad Co., 54 S. Car. 481, 32 S. E. Rep. 526, 71 289; Railroad Co. v. Burke, 93 Ga. 319, 20 S. E. Am. St. Rep. 810, turned on the construction of a Rep. 318. In Wallace v. Railway Co., supra, the statute relating to the burden of proof on the Supreme Court of Missouri, speaking upon the question of negligence. In Salley's case, supra, subject, says: Neither does the failure tbe decision was on a demurrer to a complaint to ring the bell or sound the whistle claiming damages for alleged negligence of a constitute negligence per se; there must railroad company in running over and killing a appear to be some necessary connection bedog, and is, therefore, directly in point here. It tion between the failure and the injury.' In Holupheld the cause of action as a conclusion result- | man v. Railroad Co., supra, it appears from the ing from what had been held on kindred ques opinion that the plaintiff, to maintain the issues tions in many adjudications referred to in the on his part, introduced evidence tending to show opinion. To the same effect are Railway Co. v. that the bell was not rung nor the whistle Hanks, 78 Tex. 301, 14 S. W. Rep. 691; Transit sounded, and the court says: "The damage must be shown to be the result of the negligence; that that it did not itself have." See, also, Bouton v. is, the negligence must first be shown, and this Dement, 123 III, 142, 14 N. E. Rep. 62; Institution fact must be supplemented by testimony tending V. Adae (C. C.), 8 Fed. Rep. 106, 109; Clapp v. to show that the negligence occasioned the dam Nordmeyer (C. C.), 25 Fed. Rep. 71, 73; Manu. age.'"

facturing Co. v. Wright (C. C.),22 Fed. Rep. 631.

See, also, the case of Anderson v. Amonzett, 9 CORPORATIONS – CANCELLATION OF STOCK

Lea, 1, 13, 14, where it is held that an asSUBSCRIPTION_RIGHTS OF RECEIVER.-An in

signee for creditors does not occupy the status of teresting case of the right of a receiver of a cor

a creditor, but merely that of a volunteer. To poration to bring suit on subscription for stock

the same effect see Trust Co. v. Bank, 91 Tenn. which had been cancelled by the corporation was

336, 18 S. W. Rep. 822, 15 L. R. A. 710; Stainthat of Lellyett v. Brooks (Tenn.), 62 S. W. Rep.

bank v. Manufacturing Co., 98 Tenn. 306, 319, 596, where it was held that where a corporation

39 S. W. Rep. 530. permits the cancellation of a stock subscription, it and its assignee in insolvency are estopped to JUDGMENT-ASSIGNMENT OF PART OF JUDGsue thereon; creditors existent at the time, and MENT.—There has been some dispute whether the still unpaid, being the only ones who can sue on assignment of part of a judgment without the. such subscriptions.

debtor's consent is valid against the latter's objecThis decision is in line with the authorities. tion. This question arose in the recent case of 'Thus, in the case of Glenn v. Hatchett, 91 Ala. Line v. McCall (Mich.), 85 N. W. Rep. 1089. In 316, it was held that a resolution adopted by a this case A and L were partners, and as such corporation-that is, by the stockbolders directly, obtained a judgment against defendants for or ratified by tbem after its adoption by the board $6,000. On July 26, 1895, L assigned his interest of directors-authorizing the surrender and can in the judgment to plaintiff, and notice thereof cellation of one-half of the number of shares sub was served on defendants' attorney. In August, scribed for, so that 5 per cent. paid on the whole 1895, A settled with defendants, through their number shall be considered as ten per cent. paid attorney, for $1,100, and A executed a release of on the half retained, is valid and binding as be the judgment in the name of the firm. Held that, tween the corporation and the stockholders who as the assignment of a part of the judgment was avail themselves of it; and it is equally binding enforceable in equity, a decree dismissing plainton a trustee appointed in a deed of assignment iff's bill to set aside the satisfaction of the judgfor the benefit of creditors, executed by the cor ment was erroneous. Montgomery, C. J., reporation on its subsequent insolvency, or a trustee viewed the authorities on this point as follows: appointed in his stead by a court of equity; but "There is no doubt of the fact of the assignment creditors may, it seems, set aside such surrender by Le Veque of his interest in the judgment to and cancellation as a fraud on their rights. The the complainant Line. It does not appear that case of Insurance Co. v. Swigert, 135 Ill. 150, 25 any creditor is complaining, and it does appear N. E. Rep. 680, 12 L. R. A. 328, is equally in that Le Veque's co-partner, Alway, assented to point. In that case it appeared that proceedings this assignment. In what manner, then, the as. were instituted by a receiver whose powers were signment works any injury to the judgment debtthe same as those of an assignee under a volun or, I am unable to see, unless it be true, as contary assignment, and that the question was tended, that an assignment of a portion of a whether such receiver could sue and recover | judgment is of no effect, either in law or amounts on subscriptions to stock which had equity, as against the judgment debtor. I do been previously cancelled by the company. Said not understand this to be the rule. It is the court: "A corporation may, if it acts in good true that it has been held in some jurisdictions faith, buy and sell shares of its own stock. Rail that at law an assignment of a portion of a judgroad Co. v. Town of Marseilles, 84 III. 145, 643; is wholly ineffectual. In Missouri it seems to Chetlain v. Insurance Co., 86 IIl. 220; Clapp v. have been held that it is equally ineffectual in Peterson, 104 Ill. 26. The surrender by stock equity. See Love v. Fairfield, 13 Mo. 300, 53 Am. holders to the company of the certificates of stock Dec. 148, and Burnett v. Crandall, 63 Mo. 410. upon wbich 20 per centum had been paid, and But elsewhere the rule seems to be firmly estabthe issuance to such stockholders of certificates lished that an assignment of a portion of a claim for paid-up stock, was, in substance and in legal is good in equity, and creates at least a trust in effect, a purchase by the company of the unpaid favor of the equitable assignee, or, as is said by stock at its par value. The transaction in question the Supreme Court of Ohio, in Railway Co. v. was lawful and valid, so far as the company it Volkert, 58 Ohio St. 362, 50 N. E. Rep. 924: self was concerned, and was binding upon it, "Whatever term is applied to it (the assignment) and it bad no right to impeach it; only the by way of description, the result reached is to creditors were entitled to that privilege. And I give to the assignee a property right in the thing the company had no authority to enforce or to assigned-a right which is cognizable and encontrol' the claims, and it could not pass by its forceable in a court of equity.' In the case last deed of assignment to any one, either assignee or cited it was distinctly held that, after an assignreceiver, any right of control or enforcement | ment of a portion of a demand or judgment, the

Ricilio Di i A.


Vol. 53


debtor, having notice of the assignment, could may be shown but it is wholly incompetent to not discharge the entire demand, so as to cut off show subsequent acts for any purpose.' Citing the rights of the assignee. See, also, Railroad People v. Clark, 33 Micb. 112; People v. Etter, Co. v. Ackley, 58 Ill. App. 572; Moore v. Robin. 81 Id. 571; People v. Hubbard, 92 Id. 326. The son, 35 Ark. 293; Beers v. Henderson, 45 N. Y. other case is that of Mathews v. The Detroit 665."

Journal, 123 Mich. 609, decided April 3, 1900. It might be well to call attention to some of the The plaintiff, Mrs. Mathews, had obtained a latest authorities on tbis question. In the case of heavy verdict against the defendant, in an action McMurray v. Marsh, 54 Pac. Rep. 852, it was held of libel for having published an article charging, that a partial assignment of a judgment is bind. that on a certain day at the village of Wayne, she ing on the assignor, even when made without the had committed adultery with one Ainsworth. In judgment debtor's consent. In the case of Pitts an opinion written by Justice Montgomery the burg, etc. R. R. v. Volkert, 58 Obio St. 362, judgment of the lower court is reversed for the 50 N. E. Rep. 924, it was held that a judgment following reason: "The defendant offered to debtor, after knowledge of an equitable assign show that about October 25th, plaintiff and one ment of an interest in the judgment, has no Ainsworth were seen on Fort Street Bridge, power to compromise the debt with the assignor Detroit, embracing and kissing each other. This alone, and thus defeat the claim of the assignee. testimony was excluded, the court remarking, The assignment of an interest in a right of an “Improper conduct in October don't prove imaction for a personal injury which is to proper relations in July." This offer presents the be proseeuted in the name of the assignor, most important question in the case. The queswith an agreement to assign a correspond. tion of whether subsequent acts of familiarity and ing interest in the judgment which might be re intimaey can be shown in corroboration of testicovered in the future, is equivalent to an equitable mony tending to show adulterous intercourse, has assignment of the specified interest in the judge never been distinctly decided in this court. But ment the moment it is perfected, and binds all we find the courts of other states have frequently parties having notice or knowledge of the same. had occasion to consider this question and in North Chicago St. Ry. Co. v. Ackley, 58 Ill. App. numerous and well considered cases the admis572. In Missouri, as stated by the court, the rule sibility of such testimony has been affirmed. * is diferent. The case of Loomis v. Robinson, 76 * The testimony should have been received." Mo. 488, lays down the rule emphatically that a Justices Montgomery and Long, the authors, part of a judgment cannot be assigned without signed both of these opinions, although they dethe debtor's assent, and that such an assignment cide exactly the same question in directly oppowithout consent of debtor is void, both at law site ways. The latter opinion innocently asserts and in eqnity.

that this question has never before been passed on

by the Supreme Court of this State, while the ADULTERY-EVIDENCE OF INTIMACY PRIOR

first opinion shows five distinct rulings on it. Not AND SUBSEQUENT TO THE OFFENSE CHARGED.-A

a word is said in the last opinion of the intention local paper recently sent to us by a correspondent

of the court to overrule the earlier decisions, so in Michigan contains a severe editorial arraign

that we are left in profound ignorance of what ment of one of the latest decisions of the supreme

he law really is." court of that state in which, it is asserted, the

While it is difficult to understand how a court has directly contradicted itself on a ques court of last resort can contradict itself on tion of law of more than usual importance. The so important a rule of law in such a short editorial criticism referred to is as follows:

interval or why the diligence of counsel should "Is it any wonder that a lawyer's hair grows pre not have disclosed the contradiction, it is to be maturely gray practicing law in Michigan, while noted that the Supreme Court of Michigan is not glaring inconsistencies are so common among the alone in this failing. It is a fault more common decisions rendered by the supreme court? To with courts of appeal now than formerly, owing, illustrate our point we will refer to two quite no doubt, to the vast amount of business which recent opinions filed in cases in which the subject overcrowds the courts of the present day and matter was the same, and the precise question in make anything like a carefully worded and coneach was: What familiarity is admissible in evi sidered opinion out of the question. Or the two dence to corroborate a charge of adultery? The opinions of the Michigan court alleged to be in first case is that of The People v. Fowler, 104 contradiction, the latter is undoubtedly the corMich. 453, decided March 19, 1895. The defend rect one and in line with the great weight of ant had been convicted of adultery, and in setting authority. In all cases charging adulterous interaside the conviction the court, in an opinion by course evidence of the particular acts alleged to Justice Long, said: "Testimony was admitted to constitute the unlawful intimacy must first be show a similar offense on May 6th, 1892. This introduced before any other evidence whatever is was some three months after the offense charged admissible. What other acts of intimacy may be in the information. The court was in error in proven in corroboration has been a matter of admitting this testimony. Acts of intimacy in some conflict of opinion. Very early, however, this class of cases prior to the offense charged | the rule became established that evidence having

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