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■ ^^^k» I w



HARVARD LAW SCHOOL
LIBRARY



eceived MAY 1 3 t937




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THE

AMERICAN



LAW REGISTER



AND



REVIEW



Editorial Committee :
Hon. H. B. brown, Supreme Court of the United States.
How. JAMBS T. MITCHELL. Hon. SAMUEL W. PENNYPACKKR^

Hox. E. J. PHELPS. S. DAVIS PAGE.

C. STUART PATTERSON. SAMUEL S. HOLLINGSWORTH.

GKORGE TUCKER BISPHAM. HAMPTON L. CARSON.

H. LaBARRE JAYNE.

Editors :
GKORGE WHARTON PEPPER. WILLIAM DRAPER LEWIS.



(first series)
VOLUME XXXI.

(second series volume v.)



FROM JANUARY TO DECEMBER, 1892.



I

PHILADELPHIA i

UNIVERSITY OF PENNSYLVANIA PRESS
1892



I



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UNIVER8ITY OF PENNSYLVANIA PrESS

1892



MAY 1 3 1937



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TABLE OF CONTENTS.



ABSTRACTS OP CASES . .57, Ui. 216, 284, 365, 424, 498. 562, 624, 707,

804,901

ANNOTATIONS AND I.EADING CASES.

ADDITIONAI; DAMAGES FOR CHANGE OP PLAN. Merritt

Starr 536

Chicago & Western Ind. R. R. Co. v, Coggswell. Illinois Ap-
pellate Court,

ADMISSIBILITY OP CONFESSIONS AS EVIDENCE. Henry N.

Smalts 776

Early V. Common wealth. Supreme Court of Appeals of Virginia.

AGREEMENTS POR COMPENSATION BETWEEN ATTOR-
NEY AND CLIENT. H. Gordon McCouch 751

Pierce v. Kyle. Supreme Court of Ohio,

AUTHORITY OF THE TILDEN WILL CASE OUTSIDE OF NEW

YORKSTATE. Howard W. Page 123

Tilden tj. Green. Court of Appeals of New York,

CONTRIBUTORY NEGLIGENCE. Wm, Wharton Smith 266

Lake Shore & M. S. Ry. Co. v, Bodeman. Supreme Court of
niinois,

DONATIONES CAUSA MORTIS. John A. McCarthy 681

Thomas Adm*r v, Lewis et al. Supreme Court of Virginia,

DOWER. ANTE-NUPTIAL RELEASE OF. > Alfred Rowland

Haig 831

Pnllinf^'s Estate — Lothrop's Appeal. Supreme Court of
Michigan,

GERRYMANDERING. R, D, S, 851

People ex rel. Carter v. Rice, Secretary of State. Court of
Appeals of New York.

LAW OP THE FLAG. Horace L Cheyney 193

Th€ " August." Hi£^ Court of Justice, Probate Division.

LEVY ON GROWING CROPS. R, D. S. 602

Sparrow v. Pond. Supreme Court of Minnesota,

LIABILITY OF EMPLOYER FOR TORTS OF AN INDEPEND-
ENT CONTRACTOR. Ardemus Stewart 352

Bibb*s Adm'r v, N. & W. R. R. Supreme Court of Appeals of
Virginia,

MECHANIC'S LIENS. Benjamin H. Lowry 390

^Taylor v. Murphy. Supreme Court of Pennsylvania,

NATURAL USE OF LAND. THE. George Wharton Pepper, 38

Robb V, Carnegie. Supreme Court of Pennsylvania,

OFFENCES AT COMMON LAW. C, Percy Wilcox. 868

Commonwealth v, Randolph. Supreme Court of Pennsylvania.



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IV CONTENTS.

PROPER REMEDY FOR AN INTERFERENCE WITH THE
RIGHT OF ACCESS TO PUBLIC RECORDS, THE. Ar-

demus S$e wart 769

West Jersey Title, etc., Co. v. Barber. Court of Chancery of
New Jersey,

PURCHASES BY TRUSTEES AT ADVERSE SALES. Robert P.

Bradford, 743

Mullen, Trustee v. Doyle et al.y Appellants. Supreme Court of
Pennsylvania,

RIGHT OF ADMINISTRCATOR TO MAKE TRANSFERS. Maurice

G, Belknap 878

Solinsky z^. Fourth Nat. Bank of Grand Rapids. Supreme Court
of Texas,

RIGHT OF REAL ESTATE BROKER TO COMMISSIONS.

B.n.s 75S

Garcelon v, Tibbets. Supreme Judicial Court of Maine.

SET-OFF IN INSOLVENCY. Horace L. Cheyney 483

Nashville Trust Co. v. Fourth National Bank. Supreme Court
of Tennessee.

SOCIAL CLUBS AND THE LIQUOR LAWS. Mayne R. Long-

streth 861

Commonwealth v. Tiemey. Supreme Court of Pennsylvania.

BOOK REVIEWS.

American Digest, The 211

Bali^ard on Real Property 544

Beach on Private Corporations 493

BI.ACK ON intoxicating Liquors 799

Boisot on By-Laws of Private Corporations 900

Campbeli. on Puritan History 546

Chapman's Medical Jurisprudence and Toxicology 897

Chase's Leading Cases in Torts 801

Cox's Manual of Trademark Cases 898

Darlington on Personal Property ^52

Finch's Insurance Cases 545

Gould's Story's Equity Pleadings 543

Lambertenghi's II Dirrito' Commune 544

Lawson's Leading Cases 416

Lewis on the Federal Power over Commerce. 412

Lewis's American Railroad and Corporation Reports 553

Murphy on Corporations 415

Ordronaux on Constitutional Law 129

Patterson on Contracts in Restraint of Trade 209

Pepper on Pleading 362

Richards on Insurance 420

Reno on Non-Residents and Foreign Corporations 704



EDITORIAL NOTES.

American Law Register and Review, The 612

Circuit Courts of Appeal 45

The Death of President and Vice-President 702

Injunctions to Restrain Libels and Courts of Criminal

Equity 78*



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CONTENTS. V

jcrisdictiok of the suprhme court over politics 403

Justice Bradi,ky 203, 270

Ulv Ow Beu, Petitiokkk., In Rb 48

Membership of the Next Blectorai, Coi*i.ege 700

McsT A Social Club Take Dux a License 892

Negligence Ain> the Appellate Courts, The Question of... 407

A New State Tax. 406

Railway Co. v. State of Maine 203

Reading Rallroac Lkasbs, The 270

Right of Contracting with Citizens of Other States 208

Stare Decisis 489

Tildes v. Greene 203

yfu. Wharton Smith, Esq., In Memoriam 488



LEADING ARTICLES.

AMERICAN JURISPRUDENCE. Simeon E. Baldwin 644

AyTHRACITE TRADE SITUATION— THE PROBLEM BEFORE

THE COMMISSION. Thomas Z. Greene 145

BEHRING SEA CONTROVERSY, THE. Henry Flanders 590

BEHRING SBA CONTROVERSY, THE BRITISH SIDE OF

THE. La'wrence Godkin 713

BEHRING SEA CONTROVERSY, THE AMERICAN SIDE OF

THE. Stephen B. Stanton 809

BELIEF IN THE PRETERNATURAL AND ITS EFFECT UPON
DISPOSITIONS OF PROPERTY. Ardemus Stewart.

1. Conveyances, Inter vivos 505

2. Testamentary Dispositions 569

BILL OF LADING. ADOPTION OF A UNIFORM, BY INTER-
NATIONAL CONFERENCE. Morton P. Henry 633

BOUNTY ON SUGAR, CONSTITUTIONALITY OF. William

Draper Lemns 301

CONSTITUTIONALITY OF THE RECIPROCITY CLAUSE OF

THE Mckinley tariff act. C Stuart Patterson .... 65

CRIMES AND THEIR PUNISHMENT. Hampton L, Carson ... 458

EQLTTY JURISDICTION AS APPLIED TO CRIMES AND MIS-
DEMEANORS. Richard C. McMurtrie ^ i

INTERSTATE COMMERCE COMMISSION BEFORE THE FED-
ERAL COURTS, THE. Crawford Hening 156

LEGISLATIVE AND JLT)ICIAL POWER, DISTINCTION BE-

TWBEN. William Hamilton Cowles 433

MORICE -v. BISHOP OF DURHAM, RULE IN. Richard C. Mc-
Murtrie 522

MORTGAGES EXECUTED UNDER POWERS TO SELL LANDS

AND PAY DEBTS. Daniel Waite Howe 17

PENNSYLVANIA DEFEASANCE ACT OF 1881, AND THE

CASE OF SANKEY v, HAWLEY. C. Stuart Patterson . . 378



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VI CONTENTS.

PROCEDURE IN EARLY CRIMINAL TRIALS. Hampton Z.

Carson 371

RAILROAD LEASES TO CONTROL THE ANTHRACITE COAL

TRADE, THE. Sydney G. Fisher 289

RECIPROCITY ACTS OF 1890 — ARE THEY CONSTITU-

TIONAL? Edward B, Whitney 173

"RES ADJUDICATA." E.T.Merrick 611

SHYLOCK V. ANTONIO— JUDGMENT AFFIRMED. George

Wharton Pepper 225

SUNDAY LAWS IN THE UNITED STATES. James T. Ring-
gold 723

TILDEN V. GREEN, EXAMINATION OF DECISION IN.

Richard C McMurtrie 235



NOTES AND COMMENTS.

HOMBSTEAD RioTS, The. /. Per^ Keating 556

Methods by which the States May Tax Interstate Com-
merce. Frdncis Cope Hartshorne 496

A New Criterion of Contract. Richard C. McMurtrie. 364

O'NBn,!, V. The State of Vermont. Sentinel 619

Power of the State Over the Right of Contracting.

Richard C. McMurtrie 213



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THE

AMERICAN LAW REGISTER



JANUARY, 1892.



EQUITY JURISDICTION APPLIED TO CRIMES
AND MISDEMEANORS.



By Richard C. McMurtrib, Esq.



" For an evil wbich is not felt, and which is, therefore, considered a
trifle and little tliou^t of, draws after it consequences only so much the
more disastrous " (Wickliff, as quoted by Neander).

Some time since a distinguished judge, now dead,

went out of his way to commend, in the name of the

Supreme Court of the United States, the new departure

in criminal legislation and the administration of criminal

justice in extending the jurisdiction and forms of procedure

of courts of equity to the statutory misdemeanor of selling

intoxicants. At that time an article was inserted in the

Evening- Post^ of New York, deprecating the legislation

and the commendatory expressions of the Supreme Court.

A learned judge requested that the objections should be

pointed out- Not that he doubted as to the impropriety

^f ^e legislation, but as it is evident that when such a

court as the Supreme Court of the United States allowed

a commendation by one of its number, while speaking for

the whole bench, to pass unchallenged, it is impossible to

telv on the mere legal instiBRj: as sufficient to condemn it.



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2 EQUITY JURISDICTION

The commendatory expressions referred to are found in the
case of Eilenbecken v. Plymouth County.^

Before speaking of this case, it may be said that it is
quite evident, from reports of judgments in the daily press,
that many judges are assuming to use the forms of equity
jurisdiction over crimes — not, of course, of crimes generally,
this would be an absurdity too great — and also in matters
to which the same objections exist, as in the particular
instance to which I refer — political elections, strikes of
workmen, etc. Believing this subject belongs to political
jurisprudence, and that its importance is measured only by
the value of the rule that removes criminal jurisprudence
from even the apparent caprice of the judiciary and com-
pels the intervention of a public trial with the witnesses
and the accused brought face to face, a jury to determine
the facts, the public discussion of the admissibility and
eflFect of evidence, and a fixed standard of punishment, with
a right to a review and to an appeal to the pardoning
power, I now propose to point out the one sufficient ob-
jection to the new system.

It may be well to state the particulars of the case of
Eilenbecken v, Plymouth County.

Iowa, by a statute, prohibited the selling or other dis-
tribution of intoxicants. It then conferred on the courts
the power of a Court of Chancery to deal with the violation
of the statute. For this purpose it declared the act of
selling to be a nuisance, as also the place where it was
done, and, while limiting the penalty, it gave the court
the power to restrain the sale by an injunction and to
punish the breach of the mandate like a court of equity.
There are absurdities and iniquities in the statute that
seem incredible. The provisions that have had the ap-
proval of the Supreme Court, however, have alone been
stated. The suppressed provisions might well be referred
to as illustrating the disastrous consequences that may
follow from a disregard of the rule on which, more than

1 134 U. S., 31. An abstract of this case and the commendatory ex-
pressions of the Court referred to will be found in note at the end of this
article.



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APPUED TO ciu:mbs and misdemeanors. 3

<Hi anything else, all civil and political liberty depends, —
the reputation for purity of the judiciary itself; and also the
consequences of committitig legislation to persons who ap-
parently are ignorant of the foundations of that liberty.

To enable one not a lawyer to comprehend the ques-
tion it is necessary to say this much as to what is called
chancery or equity jurisdiction. It is an exceptional
jurisdiction. It iw^as designed to furnish a kind of redress
that the law did not and could not give; to deal with rights
of property not recognized by the law, but established by
courts of equity. It has always, and by every author or
court been recognized as confined to matters of property,
and to cases where the law failed to furnish an adequate
remedy, and never to have any right to interfere in respect
to the rights of persons as distinguished from property,
much less with crimes or anything involving persons or
personal liberty. Its mode of procedure differs from that
of the law. Its remedies are as wholly different as the com-
pelling of the doing of an act differs from merely exacting
compensation as estimated by a jury for not doing it. And
out of this, and as a part of this very exceptional and
peculiar power of compelling the delivery of a specific
thing under penalty of imprisonment until it is delivered,
or restraining or compelling the performance of an act
under the same penalty, there was invented a writ or form
of procedure called injunction, which is simply a writ com-
manding the doing or prohibiting the doing of some de-
fined act which is enforced by imprisonment at the dis-
cretion of the judge. The disobedience is called contempt^
that is disregard of the command of the judge. ^

The capacity to determine whether there is a violation
of this order depends upon the discretion of the judge. It
\s not necessary that there shall be a trace left of the proof
or evidence, for it may all be by unwritten testimony, and
\t may all be ex parte without the accused seeing the wit-
nesses or having an opportunity to ^k them a single

qoestion.

Now this system, confined as it has been to mere mat-

I See 35 Cli. rHv., 455.



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4 EQUITY JURISDICTION

ters of property — to commands not to do some particular
act relative to property, such as not to negotiate a bill, or
not to build or not to pull down until a final hearing — has
never been complained of. On the contrary, it is one of
the most useful of all the forms given us for administering
justice, and this arises from the fact that passions are ex-
cluded when the rights of property alone are under con-
sideration, and the remedy is a provisional, temporary and
protective remedy only. Is it wise or prudent, is it con-
sistent with the great fundamental laws that protect civil
liberty, to extend this sort of remedy to crimes and misde-
meanors ? And if it is inconsistent with these, is that not
a suflScient objection ?

It may be that the uniform voice of the equity lawyers of
England, where the system originated, and by whom alone
it has been formed, will, with some people, be sufficient to-
condemn this extension of equity jurisdiction. Not one
solitary feature in the system arises through legislation.
It is all judge-made law, and it is submitted that the
recognition by the equity judges of England of the limi-
tation on equity jurisdiction clearly implies their belief
that it ought to be so limited, seeing that they alone have
ever attempted to set the limits to their own jurisdiction.

That there is no jurisdiction in a court of equity to-
prevent crime or any act because it is criminalvf^s distinctly
decided by Lord Eldon, in Lee v. Pritchard.* It was also-
there decided that the publication of a libel could not be
prevented by a court of ^uity. It is important for our
present purposes to observe that at the same time it was
decided that there was nothing in the way of the Court pre-
venting the publication or the doing of the act because it
is a crime, if these prohibitions are necessary for the pro-
tection of property. This principle was recognized by
Chancellor Kent, and, in fact, made the basis of a great
judgment' It was also recognized and applied in Spring-
head V. Riley,* in j866, showing that under the reformed

* 2 Swanston, 440 (1818).

•Attn.-Gen. v. Utica Ins. Co., 2 Johnson's Rep., 271.

»L. R.6Eq.,558.



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APPLIED TO CRIMES AND MISDEMEANORS. 5

law no change had taken place in this fundamental rule,
nor had the supposed fusion of law and equity produced
such a revolution as to permit the application of equity
forms and processes to matters involving personal liberty or
merely to illegal aiad injurious acts not aflFecting property.
The authority is not a very high one ; but the precise point
was clearly stated and abundantly fortified by authorities
there cited to maintain the proposition, that the jurisdiction
of this Court is to protect property. The distinction as
to when a trespass can and cannot be prevented,* the
trespass must amount to waste, that is, an injury for which
•damages are not a compensation.* When forged notes may
or may not be restrained, citing Austria v, Day.^ In this
case the eminent patriot Kossuth was preparing to wage
war by flooding his enemies' country with forged currency.
The jurisdiction to restrain this as an invasion of the pre-
rogative was disclaimed, as was any jurisdiction in political
cases, or because a revolution would result A quotation
is given from this judgment containing the reason upon
which the judgment was rested : * * I agree * ' (it is here Lord
Campbell who speaks) **that the jurisdiction of this Court
in a case of this nature rests on injury to property actual or
prospective, and that this Court has no jurisdiction to pre-
vent the commission of acts which are merely criminal or
merely illegal, and do not aflFect any rights of property."
Then there is a citation from Lord Eldon's judgment in
Macauley v. Shackell. ** This Court has no criminal Juris-
dt€tion^ but it lends its assistance to a man who has in view
of the law a right of property, and who makes out that an
action at law will not be sufficient remedy and protection"
There is no more perfect illustration that property, and
that alone, is the subject of equity jurisdiction than the
ludgmentof Lord Langdale, in Clark z/. Freeman,* coupled
with the comment of that great lawyer. Lord Cairns, in

' Lewdes v. Bette. L. J., Ch. 451, by Kindersley, V.C; Turner i\ the
Highway Board, 18 U. R., 424.
»3D. F. &L, 217.

• I Bl. N. S., 76, 127.

* II Beavan, 113.



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6 EQUITY JURISDICTION

Maxwell v, Hogg.' The decision was that the manufact-
ure and sale of spurious pills under a false representation
that they were made under a prescription of Sir James
Clark could not be enjoined. Lord Cairns' comment was
that Sir James might be said to have a property in his own
name to warrant the interference. Certainly the pills ought
to bear the palm as against the whiskey if the sale of either
could constitute a nuisance. The judgment reviewed in
this case was a very singular one, and savored altogether
of the line of reasoning that, with regret, we are very
familiar with in this country leading to this proposition,
that boycotting and its tribe of crimes could be enjoined
because they are injurious to property. In Prudential v,
Knott these cases will be found to be thus characterized :
'* The Vice-Chancellor, in his desire to do what was right,
was led to exaggerate the jurisdiction of this Court in a
manner for which there is no authority in any reported
case, and no foundation in principle?^ * The decision cited
deserves notice, it being that of Lord Cairns, Sir W.
M. James and Sir G. Melush : There is no jurisdiction to
. restrain the publication of a libel^ even though it affects rights
of property.

There is a passage in the judgment of Knight-Bruce,
V.C., in Soltau v, Deheld,' which perfectly illustrates the
exceptional character of the jurisdiction. An injunction
was asked to restrain a nuisance by the ringing of bells ;
one of the reasons urged was that the ringing of the bells
of Roman Catholic churches was illegal. He .said : '*That
is perfectly immaterial .... because if it be illegal I am
not to grant an injunction to restrain an illegal act merely
because it is illegal. I could not grant an injunction to
restrain a man from smuggling, which is an illegal act.
If it be illegal, the illegality of it is no ground for my in-
terfering.' ' Suppose we extend the jurisdiction to theft or
even to gambling. Is it nothing to have a public order
made on a particular person commanding him to abstain

>L. R. 2 Ch, 310.
^loChanc, 142.
»2Siin. N. S., 153-4.



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APPLIED TO CRIMES AND MISDEMEANORS. ^

from stealing or gambling ? The utmost limit of punish-
ment for the most malicious suit of this kind is the pay-
ment of costs; and if we yet intfoduce the securities gfiven
by the common law against similar accusations, which the
courts cannot, we may ask, why make the change in the
forms of criminal procedure, except to conceal the real
purpose?

There is a striking passage or sentence of Lord Lang-
dale, in Ryves v. the Duke of Wellington,^ that may be of
service to gentlemen who conceive that whenever the law fails
to produce the result they desire the remedy may be had in
equity. In that case the Probate Judge had re-fused to make
an order on George IV to produce and prove the will of
George III, because there was no precedent to compel the
wearer of the crown to produce and prove the will of his
predecessor. The Duke of Wellington was the executor
of George IV. This was the equity of the bill, to compel
payment by the executor of the person who had suppressed
the will of his father. Lord Langdale said : "It was
argued that if i^o remedy can be obtained here, the law of
Kngland does not afford any remedy for an alleged wrong,
such as is stated on this record. I may observe that the
absence of a remedy for a supposed wrong in another place
is not, of itself, any reason for this Court assuming a juris-
diction on the subject ; the case must be such as to bring
it properly within the jurisdiction of this Court on other
grounds.''

There is a passage in a judgment of a man who stands
second to none in the estimation of the Bar and Bench of
the United States that may possibly be deemed of weight
on this point. It is not a dictum^ it is a ratio decidendi oi
a very important case. It is the decision of Chancellor



Online LibraryUniversity of Pennsylvania. Dept. of LawThe American law register and review, Volume 40 → online text (page 1 of 94)