O'Connor, 58 L. T. Rep. 857). The ground of the decision was that the telegraph office was the medium through which the parties were brought into communication, and that they were accordingly in the same postion as if they had met together within the city and made the contract.- Law Times. THE ELECTION SLANDERS. HE circulation of false statements as to parliamentary candidates has become an unpleasant feature of modern elections. These statements in some cases do not fall within the law of libel ori slander, and, therefore, constitute an evil with which until recently there was no legal weapon to cope. In other cases to which the common law is applicable, the remedy by action for damages is quite inadequate owing to the necessary lapse of time before trial, and the reluctance of judges and juries to entertain actions for election slanders long after the election is over. The legislature endeavored to provide a remedy in the Corrupt and Illegal Practices Prevention Act, 1895 (58 and 59 Vict. c. 40). Whether or not this enactment will prove effective in suppressing the evil which it was designed to meet will undoubtedly depend upon the efficiency with which its provisions are judicially administered. The making or publishing before or during any parliamentary election of any false statement of fact in relation to the personal character or conduct of any candidate for the purpose of affecting the return of any candidate at the election is by section I of the Act of 1895, made an illegal practice with all its attendant penalties. The object of the act in creating this new illegal practice is to prevent the making or circulation, with the intention of influencing the election, of any false statement as to a candidate's character or conduct. To this end the act provides that any person making or publishing any such false statement of fact may be restrained by interim or perpetual injunction from any repetition of such false statement or any false statement of a similar character in relation to such candidate. Certain important points with regard to the administration and construction of the act are brought into prominence by the present election, and certainly require judicial interpretation. In the first place, the procedure appropriate for obtaining an injunction to restrain the repetition of a false statement is not yet settled. No rules have been made as yet under the Act of 1895. Hitherto the practice in applying for an injunction under the act has been to proceed by an action for an injunc- | tion commenced by writ in the usual way. Such practice is extremely inconvenient, inasmuch as the trial of the action in most cases would be reached many months after the election, and consequently a long time after the defamatory statements are likely to be of any practical importance. It is true that an interim injunction is obtainable, and that the hear ing of the application might possibly be treated as the trial of the action, but there should be no necessity for the initiation of an action by writ. In cases of such urgency as the publication and repetition of false statements during an election, the only appropriate procedure is by summary application to an election judge in the matter of the Corrupt and Illegal Practices Prevention Acts, 1883 and 1895. This was probably the mode of procedure in contemplation by the legislature when the Act of 1895 was passed. There is, indeed, the analogy of the procedure in applications for relief under the Act of 1883. It is also of importance to have some definite legal construction of the act as to the nature of the statements which are within its purview, so as to secure uniformity of decision. Any false statement of fact affecting, or calculated to affect, the election, is within the statute, even though the false statement be an allegation of a perfectly innocent act. If, for instance, as was pointed out by the late Baron Pollock, a candidate in a country constituency were to say of his opponent that he had shot a fox, or if it were said of a candidate who was a temperance man that he had been seen drinking a glass of sherry, these statements, if false and made for the purpose of affecting the return, would come within the act (see Sunderland Indeed, the words [1895], 5 O'M. & H. 62). case affecting the return' are probably wide enough to include beneficial as well as prejudicial statements, for a false statement in favor of a candidate may be as important in its influence on the election as a derogatory statement. In an unreported (Bayley v. Edmunds), the Court of Appeal appear to have held the view that the act referred only by statements derogatory to the personal character of a candidate; but the question did not arise in that case, and there is as yet no decision upon it. It is submitted that the true criteria of the illegal practice are the falsity of the statement and its potential effect upon the return, and that its derogatory nature is not the test of its illegality. In 1896 there was a magisterial conviction for an illegal practice under the act for publishing of a candidate that there was "a very dark passage in his life and a skeleton in his cupboard which might be exposed." This conviction was upheld in the Court of Appeal, who stigmatized the statement as a flagrant breach of the act (see Silver v. Benn, 12 L. T. 199), but with this exception, and that of a recent conviction, the act seems to have become little more than a dead letter. Take, for example, some quite recent unreported decisions in chambers in applications under the act. In one application before the vacation judge, where it was proved that a verbal statement had been made to the effect that a candidate was an atheist and did not believe in a God." Mr. Justice Darling refused to grant an injunction, having intimated a doubt as to whether this was a statement of fact. It might fairly be submitted that to say of a man that he is an atheist is as much a statement of fact as to say he is a drunkard. In another application, also made withing the last few weeks, the words complained of were published in a pamphlet, and were to the effect that the candidate's explanation of certain drastic changes in his views upon political questions was that he had "humbugged" the electors of the constituency which he formerly represented. Although the candidate denied on affidavit ever having made such an explanation, Mr. Justice Buckley, without reading the affidavits in opposition, dismissed the applica tion. The statute, having regard to the urgency of immediate action in case of such defamatory statements during elections, expressly enacts that for the purpose of granting an interim injunction prima facie proof of the falsity of the statement shall be sufficient (see section 3). In both the cases referred to, be it observed, evidence of the falsity of the statement was given; yet an injunction was not granted. In another case, Mr. Justice Buckley suggested that the act did not apply to verbal statements, but only to statements in writing. The very words of the statute appear to refute this view. Again, the application of Mr. J. E. Ellis, M. P., for an injunction was refused, as has already been noticed in the press. During the present election the applications under the act have necessarily been made to the vacation judge, and not to an election judge. There seems to have been a disposition at the hearing of these applications — notwithstanding that the legislature in passing the Act of 1895, clearly indicated the importance and urgency of redress in such cases - to minimize the importance of untrue statements made at elections with regard to the character or conduct of candidates, and there has been evinced considerable reluctance to grant an injunction to which, upon prima facie proof of the falsity of such a statement, a candidate has now a legal right.- Law Journal (London). DOES THE RELATION OF LANDLORD AND TENANT BECOME SEVERED BY OPERATION OF THE BANKRUPT LAW? accruing after an adjudication of bankruptcy, are incapable of being proven, there is no doubt whatever that such is the accepted rule. But there is a difference of opinion among judges and referees as to such rent not being affected by a discharge. In other words, it has been decided in some tribunals that "the relations of landlord and tenant are severed by operation of the bankrupt law;" while in other jurisdictions it is as emphatically laid down that the relation is "not determined by the bankruptcy of the lessee." Since the passage of the Bankruptcy Act of 1898 the judicial utterances on the subject of the effect of bankruptcy on unaccrued rent have been three in number, viz.: Those of Judge Evans, of the District Court of Kentucky, In re Jefferson (93 Fed. 848, 2 Am. B. R. 206 [1899]); Judge Lowell, of the District Court of Massachusetts, In re Ells (3 Am. B. R. 564 [1900]), and Judge Purnel, of the District Court of North Carolina, in Bray v. Cobb (3 Am. B. R. 788 [1900]). In addition to the opinions of the aforesaid United States Circuit Court judges, there are quite a number of reported opinions of referees, representing jurisdictions in various parts of the country. Judge Evans, in the course of his opinion In re Jefferson (supra), says: “The court sees no way to avoid the conclusion that the relation of landlord and tenant in all such cases ceases, and must of necessity does cease, the landlord afterward has no tenant cease when the adjudication is made. If the relation and the tenant has no landlord. At the time of the adjudication the bankrupt is clearly absolved from all contractual relations with, and from all personal obligations to, the landlord growing out of the lease, subject to the remote possibility that his discharge may be refused a chance not worth considering. After the adjudication there is no obligation on the part of the tenant growing out of the lease. He not only owes no subsequent duty, but any attempt on his part to exercise any of the rights of a tenant would make him a trespasser. His relations to the premises and to the contract are henceforth the same as those of a stranger. He can neither use nor occupy the property. No obligation on his part to pay rent can arise when he can neither use nor occupy the property. The one follows the other, and it seems clear that no provable debt, and indeed no debt of any sort against the REFEREE HOTCHKISS, of Buffalo (In re bankrupt can arise for future rent. No rent can Collignon, 4 Am. B. R. 250 [1900]), in speaking of unaccrued rent, says: "The law has been fairly well settled, and seems to be that, at the time of the bankruptcy, installments of rent accruing thereafter are neither provable debts against the bankrupt's estate, nor affected by his discharge" (citing In re Jefferson, 2 Am. B. R. 206; 93 Fed. 948 [1899]; In re Goldstein, 2 Am. B. R. 603; 1 N. B. N. 422 [1899]; In re Shilliday, 1 N. B. N. 475 [1899]; In re Mahler, 2 N. B. N. Rep. 70 [1899]). As to the proposition that installments of rent, accrue after the adjudication in such a way as to make it the debt of the bankrupt." In line with this opinion is Bray v. Cobb (supra), in which Judge Purnel says inter alia: “An adjudication in bankruptcy terminates all contractual relations of the bankrupt. The object of the proceeding is to administer completely the bankrupt's estate, to collect his assets, apply them to the payment of his debts then owing and discharge him from further liability. As to the rent the contractual relations being terminated, a landlord is not entitled to prove a claim for rent against a bankrupt after such bankrupt ceases to use the building. The relations of landlord and tenant are severed by operation of the bankrupt law." On the other hand we have the opinion of Judge Lowell, of Massachusetts, In re Ells (supra), in the course of which he states that: "The law concerning the effect of bankruptcy upon a leasehold is stated in Ex parte Houghton (1 Low. 554, Fed Cas. No. 6725 [1871]): The earlier law of England, which we have adopted in this country, was that the assignees of a bankrupt have reasonable time to elect whether they will assume a lease which they find in possession, and if they do not take it, the bankrupt retains the term on precisely the same footing as before, with the right to occupy and the obligation to pay rent. If they do take it, he is released, as in all other cases of valid assignment, from all liability, excepting on his covenants; and from these he is not discharged in any event'" (see also Hall, Landlord and T." 346). "I can find nothing in the act of 1898 to produce a result different from that of the act of 1867. Had there been no clause giving the lessor the right to re-enter, the trustee in bankruptcy would have had a reasonable time to elect whether to assume or to refuse the lease. If he had assumed it, the bankruptcy would have operated like any other assignment, and would have released the bankrupt from all liability, except upon those of his covenants not already broken which would have remained binding upon him after any assignment. If the trustee had refused to take the lease the bankrupt would have remained as before." Judge Lowell then considers the opinion of Judge Evans, In re Jefferson (supra), and comments thereon as follows: "With all respect for the learned judge, I must think the above remarks made somewhat hastily, unless they are to be taken as limited to the particular lease in question, or made to depend upon some peculiar statutes of Kentucky. * It follows, then, that the lease here in question was not determined by the bankruptcy of the lessee, but only by the re-entry of the lessor (Savory v. Stocking. 4 Cush. 607 [1849]: Treadwell v. Marden, 123 Mass. 390 [1877])." The opinions of referees on the question under discussion are numerous and various. The majority of them seem to incline to the idea that the relations of landlord and tenant are not severed by bankruptcy of the tenant, although others view the question from the opposite standpoint. It is, perhaps, interesting to notice that Vol. IV, No. 2, of the advance sheets of Am. B. R., has the two views expressed within the space of nine pages. On page 246 (In re Arnstein et al., 1900), Referee Pendleton, of the southern district of New York, holds that a lease is terminated and the right to collect unaccrued rent gone where the landlord, after the bankruptcy of the lessee, rents the property to the trustee and receives compensation therefor, and the property is thereafter surrendered by the trustee to the landlord. In the case next reported in the same pamphlet, viz., In re Colignon (page 259, 1900), Referee Hotchkiss, of the northern district of New York, opines that rent to accrue on a lease not expired at the time of the bankruptcy is not affected by the bankrupt's discharge. Perhaps the opinion which evidences the most careful preparation and which thoroughly discusses the question is that of Reieree Harlow P. Davock, of the eastern district of Michigan, In re Mahler (2 N. B. N. Rep. 70). In that case the referee holds that a lessor's rights against the bankrupt are unaffected by the discharge in bankruptcy, but he can collect payment from after-acquired property only. He reasons that rent afterward to accrue, not being a personal debt, is not provable and, unless the creditor, at the time allowed for proving claims, be able to produce and verify such debt, he will not be entitled to receive from the bankrupt's estate his dividend; ergo, he should not be barred from his future action against the bankrupt. Referee Davock's opinion bristles with authorities, both English and American. He cites cases construing the former bankruptcy acts, and all of the cases referred to by him seem to sustain his view of the case; although had he been so inclined, he doubtless might have found some cases in support of the opposite view of the question, even under the former bankruptcy acts. For example, there is In re Breck (12 N. B. R. 215, 8 Ben. 93; Fed. Cas. 1822 [1875]). In that case (which was under the Bankruptcy Act of 1867) Judge Blatchford, of the United States District Court for the southern district of New York, said that a lease which cannot be assigned without the consent of the landlord is cancelled by the bankruptcy of the tenant. Referee Davock's opinion, weighted with "numberless precedents," is in strange contrast to Judge Evans' decision In re Jefferson (supra), which is a bare but logical and fair-minded exposition of the law, based upon the broad ground of public policy. While it is true that no prior decision should be reversed without good and sufficient cause, yet the rule of stare decisis is not in any sense ironclad, and the future and permanent good to the public is to be considered rather than any particular case or line of cases. Precedent should not have an overwhelming or despotic influence in shaping legal decisions. The benefit to the public in the future is of greater moment than any incorrect decision in the past. Of the four bankruptcy acts passed by congress, the act of 1867 is the only one which, in specific and direct terms, refers to the subject of rent. Section 19 of that act provides that where the bankrupt is liable to pay rent or other debt falling due at fixed and stated periods, the creditor may prove for a proportionate part thereof, as if the same accrued from day to day, and not at such fixed and stated periods. This act like all the other bankruptcy acts, is, how ever, silent on the question of a bankrupt's liability and though still in doubt, the San Francisco merfor future-accruing rent. What is the object of the bankruptcy law? Is it not twofold, viz., (1) the distribution of the property of an insolvent debtor among his creditors, and (2), the discharge of the debtor from his liabilities? (In re Klein, 1 How. [U. S.] 227; In re Silverman, 4 B. R. 523; In re Reiman et al., 11 B. R. 21). chants decide to give him an allowance of fifty cents a day, which he is obliged to call for every twentyfour hours. This sort of heroic treatment is, of course, gall and wormwood to the young spendthrift, but he accepts the inevitable, and the result in the end is beneficial. Later on he meets a school teacher, with whom, of course, he falls in That being the case, and the fact that legislation love, and all ends happily in a reformation and a and judicial decision should, as far as practicable, marriage. Altogether, it is a delightful little book, be based upon the broad ground of public policy, every page of which exhibits the art of story-telling does it not seem proper that a discharge in bank-in its highest development. With the materials at ruptcy should sever the relations of landlord and hand, few writers of fiction could have produced a tenant? Alexander the Great, at Gordium, unable more fascinating tale. to find the ends of the knot which fastened the fa mous chariot, cut the cords asunder with his sword, and, tradition doth say, was thus enabled to conquer the world. Judge Evans, with the apodictical sword of common sense, has cut the cords of dialectical subtleties" which would not release the bankrupt from the very obligations that he sought the law to relieve him of.- John M. Patterson, in American Law Register for November, 1900. NEW BOOKS AND NEW EDITIONS. The Peace Conference at The Hague, and Its Bearings on International Law and Policy. By Frederick W. Holls, D. C. L. New York: The Macmillan Company, 1900. As a record of the aims, purposes and accomplishments of the recent Peace Conference, this volume will be recognized at once as official and authoritative. The author, as is well known, was a member of the conference from the United States, and, therefore, in a position to clear away those many misconceptions that seem to have arisen over the meeting of this international body. This he has done with clearness and force. We are told in detail what has been accomplished not only in the “humanizing of warfare, but in the promulgation of the Magna Charta of International Law, the binding together of the civilized powers in a federation of justice, and the establishment of a permanent international court of arbitration." The Prodigal. By Mary Hallock Foote. Illustrated by the Author. Boston: Houghton, Mifflin & Co., 1900. Stage-Coach and Tavern Days. By Alice Morse Earle. Illustrated. New York: The Macmillan Mrs. Earle's admirable work in the study of colonial times, particularly in view of the development and extraordinary vogue of the so-called historical novel, has attracted wide attention and a host of charmed readers. She has shown not only persistent research and scholarly attainment, but also a happy faculty of presenting the mass of materials gathered by her in a popular and interesting form. This, her latest book, is well worthy to rank with her previous studies of colonial times, for it will be found by those interested to contain a veritable mine of information. The text is most admirably supplemented by copious illustrations, very many of them of rare old prints and documents that cannot fail to give delight to the student of former times which will never lose their fascination and charm. Springtown on the Pike. By John Uri Lloyd. Amidst the mass of current fiction this strange tale of Northern Kentucky stands out prominently in many respects as one of the most remarkable books of the year, a novel of undoubted force, individuality and human interest. Its popularity is all the more remarkable when it is remembered that the author was previously unknown and unheralded, and that the book had been written without thought of its publication, but merely as a solace and amusement to the writer, a prominent chemist in the city of Cincinnati. The characters have the merit of being strongly drawn, entirely American, and, in While there is nothing particularly original about essential respects, truthful, including some of those the materials of this little story, they have been put types that go to make up the South and West - the together with an art that is almost consummate. parson, the colonel, the slave, the soldier, the negro "The Prodigal" is a young Aucklander whose victims, nearly all of them of feud, pride, war, father is a capitalist. The latter's correspondents superstition. In tragic interest the book is surin San Francisco are surprised one day by the passed by few modern works of fiction, holding the appearance of the prodigal son, who arrives in a interest enchained, and in weirdness of imagination, forlorn state, weather-beaten, hungry, half-clothed strength and mysticism stands almost alone - altoand with a deep-seated grudge against the world, gether a very remarkable work. It is safe to say which he thinks has badly abused him. He wants that the jaded reader of common-place modern ficmoney and is not loath to make his wants known, tion will find here a book that will not only please but there is a serious question as to his identity, but enthrall. The Albany Law Journal. A Weekly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, NY. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest, are most unanimously against the accused, and that his conviction in the pending civil case would hardly add to the popular detestation with which he is regarded. If Benham is really innocent of the foul charge brought against him, he is one of the most outrage solicited from members of the bar and those interested in legal Oously wronged and persecuted men of whom proceedings. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters should be addressed to THE ALBANY LAW JOURNAL COMPANY.] the closing century gives us any record. The appalling extent to which the crime of Subscription price, Five Dollars per annum, in advance. Single homicide prevails in the United States is well number, Twenty-five Cents. R ALBANY, N. Y., DECEMBER 8, 1900. Current Topics. exhibited by the investigations of the Chicago Times-Herald, which has recently compiled a table showing the average number of murders committed in the several States of the Union during the last decade. It is as follows: South Carolina Georgia . Iowa. North Dakota... .... 221 Maryland. . 280 381 Dist. of Columbia... 24 157 Virginia. 305 EADERS of the newspapers were surprised, the other day, to learn that Howard C. Benham, of Batavia, N. Y., who was twice tried on the charge of murdering his Indiana wife, by administering poison to her; on Illinois the first trial convicted and sentenced to Michigan be electrocuted, and on the second trial Wisconsin granted by the Court of Appeals acquitted, is to be compelled to face the charge a third time, although his life will not be in jeopardy. this time. It will be remembered that the theory of the prosecution was that Benham Kansas.. poisoned his wife in order to get possession of Maine her property, which she had willed to him. New Hampshire I Vermont.. Being now in a fair way of enjoying the esMassachusetts. tate, Benham's infant son, through his guardian, has brought suit to prevent his father from entering into possession of the property in question, on the ground that he caused the death of his wife. Justice Nash held that practically the only question at issue in the case was whether or not Benham killed his wife, and, as this was purely a question of fact, he maintained that he had no right to decide, but that the question must go to the jury. Having been once acquitted of the charge of murdering his wife, Benham could not now be made to suffer any penalty for the crime, even should the jury in the present proceeding find that he murdered his wife. There is here, whole, furnishes much food for reflection, and presented an anomaly that has few parallels in the history of criminal jurisprudence. It is stated that public sentiment in those localities where Benham is best known is still al-, during the coming decade. VOL. 62.- No. 23. Rhode Island ...... 512 Washington 120 Oregon.. 312 California. That New York, with its population of approximately seven millions, should be second in the list is not surprising, but that so sparsely a settled State as Texas should show nearly twice the number of homicides that the Empire State has had during the past decade is an eloquent proof of the insecurity of human life in the Lone Star State. The table, as a should lead not only to a study of the causes for this great prevalence of the crime of murder, but also of the means of diminishing it |