Augustus John Cuthbert Hare.

The Central law journal, Volume 28 online

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gives ample remedy to the one who suffers
from wrongful aspersions. The amendment,
as proposed in New York and Massachusetts,
prevents tiie maintenance of an action for
libel, for the publication of any matter of
legitimate interest to the public, if such pub-
lication is sNide without aetual malice, and
if Uio author or publi^er theTeof causes ^
ret^ioiiyiKf Mytbiog untrJiei td^ be mada
;as sooaaspraettcalifle after being requested I

Voi. 28^ - i^o. 1^.

to, do so. This law is objectionable for maaj
obvious reasons. Though the old oommop
law presumption of malice in nine oaseo out
of ten, is absurd, yet in the same proportion
of pases, proof of actual malice would be
exceedingly difficult. And the q[>eciflc value
of a retraction or correction in a Bbel pub*-
lished and SMflttered broadcast, is of minute

There is no -reason why newspapers and
their publishers should be sin^^ed out as
special objects of legislatiye protection, aB4
that laws should be framed to exempt them
from a rigid responsibility for torts commit-
ted. With as much show of justice, can the
railroads demand that they be relieved from
the results of their negligence under certain

The bill, as introduced in the Wisooasia
legislature, seems to be in the right direction.
It |f orbids the recovery of any but actual
damages sustained where actual nmlice is bo4
proved, and prevents the bringing gi aay
action for libel, unless the plaiiitiff sliaU bavo
asked for a retraction or correction ; but it
makes the retraction or correction pleac(ab)e
in mitigation of damages, and bars all snits
begun by lawyers for a contingent fee.

This seems to be as much as Bewspapars
should ask or expect. All that the latter
really need is protection against trivial or
trumped up suits, started simply for effect
or compromise, without any intention to
prosecute to the end and often supported and
encouraged by a hungry attorney. All that
the public desure is to require of publishers
care and caution in the dissemini^aon of
news, of a possible personal nature, and to
be secure from unwarranted attack.

It is proper to notice the death, on March
Idth, of Hon. John A. Campbell, ok'Mmso-
ciate Justice of the Supreme Court of the
United States. Born in Greorgia, in 1811, he
removed to Alabaina, where he soon took
front rank, as a member of the bar.. From
1887 to 1858 the story (rf bis life was the
routine of an industrious, painstaking, ear-
nest lawyer. An examination of the Alabama
reports from the «S^th volume of f^orter*s
reports tiurongfi.tiie 21st AUkbama will revml
the fact ffibt Hr. Cam^ll was engaged in
every civil case of importance that went to.

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No. 12

tiie supreme court from his section of tlDe
State. In 1853 be wm appointed by Presi-
dent l^erCe to fill tbe vacancy in tbe Supreme
Court of tbe United States, caused by tbe
deatb of Justice McKinley. As a member of
tbat court, of wbicb Mr. Taney was tben
cbief justice, be beld a bigb position by rea-
son of bis great ability and profound learn-
ing. At tbe outbreak of tbe war, be re-
signed liis position, and up to 1884, wben be
retired, continued in tbe active practice of
bis profession at New Orleans.


A NOVEL question of priority of mortgages
arose in tbe case^f Constant v. University of
Rocbester, 19 N. E. Rep. 631, in wbicb tbe
New York Court of Appeals reverses tbe de-
cision of the supreme court of tbat State.
This was a suit to foreclose a mortgage beld
by plaintiff, executed by one Meehan, Feb-
ruary 17, 1883. Tbe University of Rocbester
was joined as defendant, being tbe bolder of
a mortgage on the same property, dated
January 11, 1884. Tbe former was not re-
corded, but tbe court below found tbat
plaintiff's' mortgage was a lien superior to
that of tbe university, on tbe ground, tbat
although plaintiff's mortgage was never re-
corded, yet tbe agent who obtained tbe
university's mortgage had knowledge of the
existence of plaiotiff's mortgage, having
himself procured it and it being at the time
in his office, and that this knowledge must be
imputed as notice to bis principal. The
court says i

The transaction out of which the mortgage to the
university arose occurred eleven months subsequent to
the transaction out of which the mortgage in suit
arose; and the former mortgage was neither a part of
the same transaction as the latter, nor had it the least
connection therewith. Under the law, as decided by
the older .cases in England, such fact would have been
an absolute defense to the claim that there was any
constructtv^ notice to the defendant arising out of
notice to its agent, because such notice was in another
and entirely separate transaction. Warrick v. War-
rick, 8 Aik, 291; Mountford v. Scott, 1 Turn. & B. 274;
Hargreayes v. Rothwell, 1 Keen, 104; Nixon v. HamU-
ton, 2 Dun & Walsh, 864; Dresser v. Norwood, 17 C. B.
(N: S.) 466; * • • This modiflcaUon of the old
English rule is recognized tn the comparatively late
case of The.DistUted SpirtU, 11 WalK 866. Mr. JosUoe
Bradley, in.- deliyerin|[ the opiBion.. of . the Supreme
Court of the tJnitad States, stated that the doctrine in
England seemrto be established that, if the agent at

the time of effectbig a purchase has knowMga^aoy
primr lien, trust, or fraud effecting the property, no
matter when he acquired sudi knowledge, his princi-
pal Is effected thereby. If he acquire the knowledge
when he effects the purchase, no question can arise to
his having It at that time. If he acquired It previous
to the purchase, the presumption that he still retains
it, and has it present to his mind, wiU depend upon
facts and other circumstantses. Clear and satisfactory
proof that It was so present seems to be the ohly re-
striction required by the English rule, as now under-
stood; and the learned justice states that the rule, as
finally settled by the English courts, is, in his judg-
ment, the true one, and is deduced from the be^t
consideration of the reasons on which it Is founded.
And see Story on Agency, 1 140; Bank v. DaVls, S filU,
461; Holden V. Bank, 72 N. Y. 286; Cragie v. Hadley,
99N. Y. 181; Welsh v. Bank, 78 N. Y. 424; Bank v.
Savery, 82 N. Y. 291. From all these various cases it
wUl be seen that the furthest that has been gone In the
way of holding a principal chai|eable with knowledge
of facts communicated to his agent, where the notice
was not received, or the knowledge obtained. In the
very transaction in questlott, has been to hold the
principal chargeable upon clear proof that the knowl-
edge which the agent one had, and which he had
obtained In another transaction, at another time, and
for another principal, was present to his mind at the
very time of the transaotton in question. iTpon a
careful review of the testimony in this case, we have
been unable to find any such proof. It Is true the
learned trial judge finds that, contemporaneously with
the execution of the mortgage to the univentty. Dean
caused to be made a statement upon the basis that the
amount was to be loaned to the mortgagers, and tliat
out of the money coming to them, as a consideration
for the mortgage to the university, the amount oi the
bond and mortgage to the plaintiff's decedent, with
interest, was to be paid, and that mortgage was to be
satisfied; and he further found that the university
through Dean, had notice of the mortgage of the
plaintiff's decedent in connection with, and as part of,
any proposed transaction by which there was to be
loaned to the mortgagor the amount of the bond and
mortgage to the university. What is meant by the
word '^contemporaneously,*' as used in this finding, *i8
perhaps not absolutely clear. If It meant that the
statoment mentioned was procured to be made by
Dean as a part of and coincident with the execution of
the mortgage to the university, it is not, as we think,
based upon any evidence. There is no proof whatever
in this case that Dean procured tills statoment to be
made by anybody; and Dean himself says that a state-
ment of this nature would, by the course of practice
in his office, have come to him (made by some one in
his office) the day aftor the loan was closed. He does
not pretond to recollect this particular statoment, nor
is there any evidence that he procured it to be niade.
His testimony shows that he had no special reoolleo-
tion of the things which took place upon the occasion
of the execution of the bond and mortgage to the uni-
versity, further than appeared by his books and other
n%emoranda then made by others; and he does not
pretond to say that this particular statoment vvaS pre-
sented to him, or Uiat he had the least knowledge of
its exlstence» or of the facts therein stated, until, the
day after the closing of the transaction, and the exe-
cution of the mortgage to the university. This is
every particle of evidence that there is upOn whioh a
finding could be based such as the learned judge madSi
of knowledge or notice on the part of Pean oJthe ex-
istence of the Constant mortgage at tne time of the

Vol. 28.



transactioii with the university, and the execution of
the mortgage to it. • • • • • The plaintiff is
bound to show b]r clear and satisfactory evidence that
when this mortgage to the university was talcen by
Dean he then had knowledge and the fact was then
present to his mind, not only that he had taken a
mortgage to Constant eleven months prior thereto on
the same premises which had not been recorded, but
that such mortgage was an existing and valid lien upon
the premises. • • • The other question has been
argued before us which has been the subject of a good
deal of thought. It is this: Assuming that Dean had
knowledge of the existence of the Constant mortgage
at the time of the execution of the mortgage to the
university, is bis knowledge to be imputed to the uni-
versity, considering the position Dean occupied to
both mortgages? While acting as the agent of Con-
stant in taking the mortgage in question as security
for the funds which he was investing for him, it was
the duty of De^^n to see that the moneys were safely
and securely invested. The value of the property in
question was between eleven and twelve thousand
dollars, and it was obviously the duty of Dean to see
to it that the mortgage which betook upon such prop-
erty as a security for a loan of $6,000 for Constant
should be a first Hen thereon. See Whitney v. Mar-
tine, 88 N. T. 535. In order to become such first lien,
it was the duty of Dean to see to it that the Constant
mortgage was first recorded. In January, 1884, when
acting as agent for the university to invest its moneys,
he owed the same duty to the university that he did
to Constant, and it was his business to see to it that
the security which he took was a safe and secure one.
Neither mortgage was safe or secure if it were a sub-
sequent lien to the other upon this property. This
duty he continued to owe to Constant at the time he
took the mortgage to the university. At the time of
the execution of the latter mortgage, therefore, he
owed confiicting duties to Constant and to the univer-
sity ; the duty in each case being to make the mortgage
to each principal a first lien on the property. Owing
these conflicting duties to two different principals, in
two separate transactions, can it be properly said that
any knowledge coming to him in the course of either
transaction should be imputed to his principal? Can
any agent occupying such a position bind either prin-
cipal by constructive notice, where confessedly that is
all the notice that each principal had? It has been
stated that in such a case, where an agent thus owes
conflicting duties, the security which is taken, or the
act which is performed, by the agent, may be repudi-
ated by his principal, when he becomes aware of the
pobition occupied by such agent. Story, Ag. $210.
Tbe reason for this rule is that the principal has the
right to the bestetTorts of bis agent in the transaction
of the business connected with his agency, and where
tbe agent owes conflictiog duties he cannot give that
which the principal has tbe right to demand, and
which he has impliedly contracted to give. Ougbt the
university to l>e charged with notice of tbe existence
of this prior mortgage, when it was the duty of its
agent to procure for it a first Hen, while at tbe same
time in his capacity as agent for Constant it was
equally his duty to give to him the prior Hen? Which
principal should he serve? ♦ -* ♦ • i have found
no case precisely in point where the subject has been
discussed and decided either way. I have very grave
doubts as to the propriety of holding in the case of an
ageht situated as I have stated that his principal in
the second mortgage should be charged with knowl-
edge which he acquired in another transaction, at a

different time, while in the employment of a different
principal and where his duties to such principal still
existed and conflicted with his duty to his second
principal. We do not deem it however necessary to
decide the question in this case. Gray J. dissents.

The right to establish a trust by evidence
as to the rules and customs of the Catholic
church was one of the many important ques-
tions before the Supreme Court of . Ohio in
the case of Mannix v. Purcell, 19 N. E. Rep.
572, in which celebrated case it was sought
to withhold from the hands of the assignee of
Bishop Purcell, certain property, alleged to
have been held in trust by him for the use of
the church. The court, in deciding the ques-
tion above stated, says :

The parties have gone back fifteen centuries into the
laws and canons of the church, for proof of the nature
of the tenure by which the archbishop held the legal
title to the ecclesiastical property, and the proof is
overwhelming that he was not invested with an abso-
lute title to it as his own. It is practically conceded
that he held it in trust, but the parties were very far
from a concurrence of views concerning the terms of
the trust. The right to go to the rules and canons of
the Catholic Church for the purposes of establishing,
defining, and limiting the trust is denied. That parol
evidence may be resorted to to engraft a trust upon a
title held by deed absolute upon its face is a question
which in this State has passed beyond the range of
serious discussion, though the proof in such cases
should be clear, strong, and convincing. Mathews v.
Leaman, 24 Ohio St. 615; Broadrup v. Woodman, 27
Ohio St. 659. The contention is that to resort to the
law of the church as proof upon which to qualify the
absolute terms of tbe grant is 1o permit the law of the
church to supersede or dominate the civil law, and
much sensitiveness is shown by eminent counsel upon
this subject. There is here no ground for alarm. It
is no innovation upon the law of evidence, in deter-
mining questions like the one at bar, to call, in aid of
the civil tribunal, upon the law of the particular
church involved for tbe purpose of determining the
t4(le to church property. It surely is not unreasona-
ble, in a case like the present, to hold one of the great
prelates of the church of Rome to the terms upon
which, by the very law to which he has vowed his
fealty, he has consented to accept the legal title to
property which is appointed to the uses of the church
to whose service he has with most solemn unction
dedicated his life. It is but a form of establishing, by
convenient and very convincing proof, what entered
into the contemplation of tbe parties to the grant at
the time the title vested. It has been »eld that where
a religious body becomes divided, and the right to the
property is in corfiict, the civil courts will consider
and determine which of the divisions submits to the
church, local and general. This divisionis entitled to
the property. In determining which of the divisions
has maintained the correct doctrine, the findings of
the supreme tribunal of the denomination la question
is binding upon the civil courts. McGinnis v. Watson,
41 Pa. St. 9; Ramsey's Appeal,. 88 Pa. St. 60; Society
V. Society, 25 Ohio, St. 128; Ferrarla v. Yasooncelloe,
81 III. 26; 8 Am. A Eng. Cyclop. Law, 186. So where
a bequest is made for a church, to take effect whenever
a congregation shall be formed, the proper ecole-

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No. 12

slasUeal authorities are the Judges of fhe formation of
such cougrefc&tioD. Insurance Co.'s Appeal, 99 Pa.
St. 448. If, by the laws of a Masonic lodge, the master
—or of an Odd Fellows, the noble grand— was to be
the repository of the legal title to all the real property
of the lodge, to be held In trust for Its uses, would
there be anything startling in the proposal to prove
the law of the lodge in a controversy between the latter
and Its chief officer involving the title to such prop-
erty? Tet in such a case it could as well be contended
that the courts were permitting the law of Freemasonry
or Odd Fellowship to supersede the law of the State
as it can now be asserted that we are suffering such
law to be superseded by the canons and decrees of
Bome. It is no more than establishing, by a form of
proof which the courts have held to be competent, the
terms upon which, by the convention of the parties,
the title to church property was granted and accepted.

It is not libelous to publish of a profes-
sional man ''that he has removed his office to
his house to save expenses," says the Su-
preme Court of Minnesota, in the case of
Stewart v. Minnesota Tribune Co., 41 N. W.
Rep. 457. The court says :

It is not every false charge against an individual,
though reduced to writing, and maliciously published,
that will sustain an aclion for damages. It must appear
that the plaintiff has sustained some special loss or
damage following as the necessary or natural and
proximate consequencSB of the publication, or the
nature of the charge itself must be such that the court
can legally presume that the party has been injured in
his reputation or business, or in his social relations, or
has been subjected to public scandal, scorn, or ridicule,
in consequence of the publication. Stone v. Cooper, 2
Denio, 299; Cooley, Torts (2d ed.), 241-248; Townsh.
Stand. & Lib. 121; Pol. Torto, 207-211. Assuming that
the charge was maliciously made, it did not import
anything unlawful, disreputable, or unprofessional.
A professional man has a perfect moral and legal right
to change the location of his office tp his house, in his
discretion, for any reasons satisfactory to himself,
whether to save expense or otherwise. What ground
is there then for the legal inference that the plaintiff
has been degraded and injured by the publication? It
is not claimed that the charge as published would
tend to injure him, because the change or the report
of a change of his office would diminish his profes-
sional business in amount or profits, and no case is
made for special damages. 3 Bl. Comm. *124; Ter-
williger v. Wands, 17 N. Y.60; 72 Am. Dec. 428-483.
But it is claimed that the words "to save expense"
are, under the circumstances set forth in the com-
plaint, susceptible of a defamatory meaning, such as
would be calculated to injure plaintiff in his private
and professional character and standing in the com-
munity, and occasion loss or damage in consequence
thereof. But we do not think such inference is war-
ranted, or that the injury complained of could be rea-
sonably construed or contemplated as the natural and
proximate consequence of the publication, giving the
language used its proper and legitimate interpreta-
tion; and the charge itself cannot be expanded or
enlarged by simple averment. Donaghue v. Gafly, 58
Conn. 51, 2 Atl. Bep. 897; Platto v. Gteilfuss, 47 Wis.
493; Homer v. Eoglehardt, 117 Mass. 540; Stone v.
Cooper, supra; Walker v. Tribune Co., 29 Fed. Rep.
829. The allusion to the plaintiff in the article com-

plained of may be conceded to be impertinent, and in
bad taste; but the law of libel, however salutary as a
remedy in proper cases, cannot be invoked to redress
every breach of good morals or good manners in nevrs-
paper publications respecting individuals.

The right of the jury in proceedings for
condemnation of land, under eminent do-
main, to consider benefits to the land, was
exhaustively reviewed, by the Supreme Court
of Kansas, in Leroy & W. R. Co. v. Ross, 20
Pac. Rep. 197. The specific question there
was whether special benefits from the con-
struction of the railroad may be set off
against the damages to the remainder of the
land. Under the constitution are such ben-
efits to be deducted or allowed from the com-
pensation required to be paid? The court
cites the provisions of the constitution which
reads that '^no right of way shall be appro-
priated to the use of any corporation until
full compensation therefor be first made in
money * ♦ * irrespective of any benefit
from any improvement." This section was
construed in Railroad Co. v. Orr, 8 Kan. 419 ;
Hunt V. Smith, 9 Kan. 137. In Iowa, Ar-
kansas and Indiana, similar statutes were
construed in Frederick v. Shave, 32 Iowa,
254 ; Railroad Co. v. Anderson, 39 Ark. 167 ;
Railroad Co. v. Fitzpatrick, 10 Ind. 120;
Railroad Co. v. Horn, 41 Ind. 179, all ad-
versely to the claim made by the railroad
company here. The court concludes :

It is contended, however, that as the provisions of
our constitution concerning right of way were taken
from the constitution of Ohio, the decisions of that
State prior to the adoption of our constitution must
control. To this we agree, and the result is the same
as given above. In Giesy v. Railroad Co., 4 Ohio. St.
808, it was said: *^Tbe jury, in assessing the amount,
have no right to consider or make any use of the fact
that it has been increased in value by the proposal or
construction of the improvement." The opinion in
that case was delivered by Ranney, J., one of the
ablest of the Ohio judges. He said, among other
things: "The word Mrrespective' relates to this full
compensation, and binds the jury to assess the amount
without looking at or regarding any benefits contem-
plated by the construction of the improvement. When
this is done, and the consideration wholly excluded,
the jury have nothing to do but ascertain the fair
market value of the property taken ; which is but say-
ing that nothing shall be deducted from that value on
account of such benefits. And see Railroad Co. v.
Ball, 5 Ohio St. 568. * * * Both of the Ohio decis-
ions referred to were rendered only a few years prior
to the adoption of our constitution. The case of
Kramer v. Railroad Co., 5 Ohio St. 140, cited as sup-
porting the allowance of special benefits was made
under the Ohio constitution of 1802, and not the
constitution in force at the time of the adoption of our
own. The Ohio constitution of 1802 permitted the

Vol. 28



railroad to set off against the value of the property
taken for public use the increased benefits arising
from the improvement, and it therefore differed
widely from the Ohio constitution in force in 1859. It
is contended, however, by the railroad company that,
as this court, in Railroad Co. v. Blackshire, 10 Kan.
4T7, recognized that the fair way of determining the
injury for the appropriation of a right of way is to
determine the market value of the premises before
the right of way is set apart, and then again after, and
that the difference will be the true measure of dam-
ages; and as this rule has also been followed by the
court in many cases,— that this permits benefits to be
considered, and therefore that the construction given
to the constitutional provisions already referred to
cannot be sustained. If this latter rule permitted
separate benefits to be considered, so far as they affect
the value of the premises injured, we suppose the
rule must give way to the provisions of the constitu-
tion, which all concede are paramount. But this rule
does not conflict with our construction of the consti-
tutional provision, excepting in a few cases only; and
the conflict is more theoretical than substantial. The
Jury do not generally consider benefits when they as-
certain the market value of the land before the
appropriation, and then the market value of the land
after the appropriation or construction of the railroad,
and determine the difference as the damages. But

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 74 of 151)