Page images

Miss Eulberg is an Iowa girl. She had a mis- | learned judge said it was a bad case, but no doubt understanding with a neighbor's dog. In the the prisoner was tempted by the fatal facilities course of it she not only spoke severely to the given him by persons who had relied upon him. dog, but threw sticks and stones at him. A few He doubted whether he ought not to send him to months later the dog lay in wait for her and bit penal servitude, but would not take that course. her. She sued the dog's owner, a Mr. Van Berger, for damages and got a verdict. The Iowa

A curious question arises as to the law under Supreme Court sustains it. “A dog," says the

which those British subjects are punishable who justices, “has no right to brood over his wrongs

have in the territory of the late South African and remember in malice.” – Hartford Courant.

Republic fought against the queen, says the Law

Journal: The Roman-Dutch law of treason curFollowing the established custom of electing rent in the Cape and Natal does not apply to acts their president one year from the country and the by British subjects outside these territories. The next year from Chicago, the Illinois Bar Associa- Roman-Dutch law of treason in the Orange River tion has elected as president Judge Jesse Holdom, Colony and the Transvaal is substantially the of Chicago, to succeed Judge Benson Wood, of same as in British South Africa, but of course the Effingham. The new president is of English British subjects who have aided the republics birth, but has lived in Chicago since boyhood. against the crown have earned praise and not His early education was obtained in the London penalties under the republican law. The rebels schools and his legal training in a Chicago law are not subject to military law, nor within the office. He has long stood among the leaders of provisions of the Army Act (section 41) which the Chicago bar, and two years ago was elected allow the trial of common-law crimes by courtsas a judge of the Superior Court. He is a promi- martial in certain cases. The result seems to be nent member of the Hamilton and Union League that at present the cases of treason to which we Clubs. – Law Register.

refer are triable only in England under 35 Hen.

VIII, c. 2, and 5 & 6 Edw. VI, c. II. But if proseThe Law Journal has been investigating the Nashville College of Law, and has obtained re

cutions are proposed, we assume that the crown liable information which justifies it in denouncing

can by a prerogative order in council establish i that institution as a fraud pure and simple. Wm.

competent court of justice to try British subjects

in respect of crimes against English law already Farr, president of the institution, who flourishes LL. D. after his name, is a man of very shady

cognizable here. reputation. He was at one time connected with The death of Mrs. Gladstone, the widow of the an institution at Chattanooga, Tenn., that sold illustrious statesman, will recall to the memory of diplomas. The Bar Association of Nashville is legal circles that Mrs. Gladstone came of a legal considering the advisability of taking some action stock. The father of Sir William Glynne, the first with regard to the college that will exonerate the holder of the baronetcy, which became extinct on name of that city from any responsibility for the the death of Mrs. Gladstone's brother, Sir Stephen presence there of the fraudulent concern. The

Richard Glynne, the ninth baronet, in 1874, was Law Journal has been imposed upon to the extent Sir John Glynne, an eminent crown lawyer and of advertising for the so-called college, but iipon politician in the time of Charles I. John Glynne Icarning the true facts of the case canceled the

was appointed recorder of London in 1643. In contract and discontinued the advertisement. 1655, during the commonwealth, he accepted the Detroit Law Journal.

position of chief justice of the Upper Bench
an office analogous to that of lord chief justice.

At the Restoration he made his peace with Charles
English Notes.

II, was created a serjeant-at-law in June, 1660, and

king's serjeant in the following November. He At the Hertford Assizes Charles Bullock, solici- rode in the coronation procession of 1661, and tor, of Great Berkhampstead, pleaded guilty to

was thrown from his horse and all but killed by several charges of converting to his own

the animal falling upon him. His great feat as an money entrusted to him for investment by clients, advocate was his speech on the impeachment of and was sentenced to twelve months'imprison- Strafford. His judgments on the bench were re

On behalf of the treasury it was said the garded as specimens of lucidity and method. His total sum received by prisoner as trustee was

inconsistent public career made him the victim of £28,000, all of which had been appropriated by much personal animosity. The memory of this him. Most of it had gone in financing certain

rancour is preserved in the well known couplet, building speculations. Mr. Grubb made an urgent

stated incorrectly by Wood to be taken from But

ler's Hudibras: appeal on behalf of the prisoner, who had not used any of the money for his own benefit, and had Did not the learned Glynne and Maynard handed everything over to the trustees. He had a To make good subjects traitors strain hard? wife and a large family depending upon him. The

- Law Times.




Legal Laughs.

eral States and territories. The book is adapted for use in other States as well as Michigan, as the

common law is given in most cases, and the prinLitigant – ” You take nine-tenths of the judg- cipal part of the book relative to affidavits and ment? Outrageous!” Lawyer “ I furnish all the skill and eloquence the common law. It has been prepared with evi

commercial papers is governed almost entirely by and legal learning for your cause."

dent care and thoroughness and cannot fail to Litigant — " But I furnish the cause."

prove in the highest degree useful to officials oi Lawyer — " Oh, anybody could do that."

the class to which it relates. Philadelphia Call.

Here's a marriage notice with comment that

Historical Jurisprudence. An Introduction to the appeared in a North Dakota paper: Married at Flintstone, by Rev. M. Windstone, Nehemiah

Systematic Study of the Development of

Law. Whitestone and Wilhelmina Sandstone, both of

By Guy Carleton Lee, Ph. D. New

York: The Macmillan Company. 1900. Limestone. This is getting mighty rocky," and there's bound to be a “ blasting” of these

The recent awakening of interest in scientific

stony hearts before many “pebbles" appear on the legal study, in which important field this country connubial beach. The grindstone of domestic. in

has been woefully backward, has stimulated the felicity will sharpen the ax of jealousy and discord,

author to publish the results of his researches

a number of years. and sooner or later one or the other of this pair which he has carried over will rest beneath a tombstone. Then look out for

· Historical jurisprudence,” says the author, "ha, brimstone.

been developed in the Old World. In university

and in study, during a score of centuries, the Judge Wright once reminded Judge Underwood ablest thinkers have given of their best effort to in a courteous way that justice was represented as

periect the science, until it has achieved an imbeing blind and holding the scales of justice evenly portance not excelled by that of theology. In balanced in her hand.

the New World the northern continent has been “ Yes,” said Underwood, “and I have long surpassed by the southern in this science. In thought that the representation was a mistake in

South America the study of jurisprudence early the designer, for how is it possible for her to tell

found an honored place. In the United States the whether the scales are evenly balanced without

rush and tumult of material progress have caused she raises the bandage a little? And there is an

the philosophical to recoil before the impact of the other mistake that the lawyers make. You mis

ultra-practical. Scientific prudence has been a construe the old maxim that a man shall be tried thing unknown to the majority, not even being by his peers, and so whenever you have a guilty considered a necessary background for the comscoundrel to defend, you try to get one or more

prehension of law. The inevitable reaction ha: guilty scoundrels on the jury. That is not what

lately occurred.” the Magna Charta meant by peers.” – Exchange.

This book is intended as a help in the systematic study of the history of law. Primarily written for lawyers and teachers, it also appeals to laymen,

for jurisprudence has been a mighty factor in the New Books and New Editions. development of civilization. The subject is treated

under three headings: The Foundations of Law. Rouech's Manual of the Rights, Duties and Lia

The Development of Jurisprudence and The Bebilities of Notaries Public, Under the Common ginnings of Modern Jurisprudence. The purpose Law as Modified by the Statutes of Michigan of the volume, as declared by the author in his

preface, is to prove a helpful guide to the system By August E. Rouech. The Richmond & Backus Co., Detroit, Mich. 1900.

atic study of law, an aid to the teacher of juris

prudence who seeks a basis for his expositions, or This excellent little work of some 200 pages is,

a means of conveying information to the general as its title indicates, intended for the instruction

reader. From such examination as we have been and guidance of those public officials who are by able to give to the volume, we are confident it will law authorized to attest signatures in deeds, con- prove highly useful and valuable. Few men in tracts, affidavits, declarations, etc., note and pro

the United States are better fitted by education, test bills of exchange, draw up protests, administer temperament or ability to perform the task which oaths, etc. It consists of nearly one hundredi

Prof. Lee has so well done.

In the historical pages of carefully prepared matter under appro- department of Johns Hopkins University he has priate heads and nearly an equal number of pages accomplished much in bringing the study of sciendevoted to useful and accurately prepared forms, tific jurisprudence to that place to which it is entiwith instructions as to their use, besides the forms tied, and the present work will stand as a monuof certificates of acknowledgment used in the sev- ment to his industry, research and culture.

[ocr errors]

It is well to call notice to the expiration of The Albany Law Journal. Judge Patterson's term now and to the duty of

re-electing him in November. It should be a

point of honor with the members of the bar unaniA Weekly Record of the Law and the Lawyers. Published by mously to favor his renomination. The managers Contributions, items of news about conrts, judges and lawyers

' of politics will do right to realize that the bar senqueries or comments, criticisms on various law questions, timent for Judge Patterson's re-election should be addresses on legal topics, or discussions on questions of timely interest are rolicited' from members of the bar and those inter

respected without regard to partisan consideraested iu legal proceedings.

tions which, fairly enough, affect and determine

choices for partisan offices. {All communications intended for the Editor should be ad.

The Appellate Division of the Supreme Court dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other in the First Judicial District has had no judge business matters, should be addresscd to THE ALBANY LAW JOURNAL COMPANY.)

more faithful, more respected and better regarded,

for reasons of character and of capacity, than Subscription price, Five Dollars per annum in advance. Single Judge Patterson. His reappointment would, of qumber Twenty-Five Conis.

course, follow from his re-election. The desira

bility of continuing the personnel of that high ALBANY, AUGUST 11, 1900.

tribunal unimpaired needs no argument. The Eagle takes the liberty of suggesting to its Man

hattan contemporaries the privilege and the obliCurrent Lopics. Juxtel

gation they have of urging the re-election of

Judge Patterson to a position which he strengthMONG those members of the judiciary ens and adorns.

of this State whose terms of office will Every word of this the ALBANY Law expire with the present year is Judge Ed-JOURNAL heartily indorses. There should be ward Patterson, of the Supreme Court in no question of partisanship in such an imNew York county, and of the Appellate Divi- portant matter as the re-election of a faithful sion in the First Judicial District. This thor- and upright judge such as Edward Patterson oughly equipped lawyer, upright and faithful has proved himself by long and arduous judge and exemplary citizen has, as is well service. Such jurists as he are not found known to the profession and the public, every day, even among the members of a bar served the people for the term of fourteen as rich in judicial material as the bar years, not merely acceptably, but with distin- of the city of New York. There is guished honor. He has, through his up- another suggestion which deem It rightness, impartiality, earnest and devoted entirely proper to make in this conattention to his high duties and rare ability nection, Aside from Judge Patterso:i's in the determination of causes, won the re-proved and tested qualifications for the spect and affection of the bench and of the high office he has so long adorned, it should bar, the confidence of suitors and the esteem be remembered that he has given fourteen of and regard of the people. It has been well the best years of his life to the public service, and truly said that “a good lawyer is likely and for a monetary compensation very much to make a good judge. A good judge re- less than he could have commanded in the elected is certain to make a better judge and practice of his profession, had he chosen to certain on the bench to give better public continue therein. While this is true, indisservice and greater satisfaction than any putably, the many years he has spent on the judicial novice can be expected to do." bench find him now not only abler, riper in Speaking of the expiration of Judge Patter- judgment and more thoroughly equipped son's term and the desirability of his re-elec- than ever, but in the prime of his powers. tion, the Brooklyn Eagle says:

His re-election should be, and we have no The Eagle knows of no reason why the De- doubt will be, put beyond the peradventure mocracy and the Republicans, too, for the matter

of a doubt. of that, should not re-elect Judge Edward Patterson in New York county. There are many rea

Justice Davy, of Rochester, of the Susons why they should, but they suggest themselves preme Court, has handed down a decision to from what has been already set forth.

the effect that an action for damages will lie VOL. 62 — No. 6.


when the right of privacy, so-called, is vio- person cannot recover damages for mental lated. The decision was rendered in the case anguish alone, and that he can recover such damof Miss Abigail Roberson, of Rochester, ages only when he is entitled to recover some

damages upon some other ground. It will genagainst the Rochester Folding Box Com-erally be found, however, that they are speaking pany and the Franklin Mills Company, and of cases of personal injury. If injury to the feelthe question at issue was whether a company ings be an element of actual damages in slander, or individual possessed the right to use a pic-libel and breach of promise cases it would seem ture or photograph of a private person for

that it should equally be so considered in cases of

this character. It has been remarked by a learned advertising purposes without consent. The author that the mind is no less a part of the person facts appear to be that some months ago the than the body, and the sufferings of the former are defendants printed 25,000 lithographs adver- sometimes more acute and lasting than those of tising a brand of flour, and used a picture of the latter. The theory of the case which calls for the plaintiff as part of the lithograph. The equitable relief is not that of mere protection to

wounded feelings, but the protection of plaintiff's picture is a profile and the likeness is said to right of privacy and the right of property in her be unmistakable. The advertisements were

own likeness. distributed all over the country to the annoy- I nere may be a distinction, however, between ance of the plaintiff, who, through her attor- private and public characters, as pointed out by

Lord Cuttingham in Prince Albert v. Strange (I ney, Milton E. Gibbs, began the action to

Macn. & G. 25). The moment one voluntarily restrain the defendants from using her por- places himself before the public, either in accepttrait and also demanding $15,000 damages. ing public office or in becoming a candidate for A demurrer was entered to the complaint office, or as an artist or literary man, he surrenders and argued before Justice Davy on June his right to privacy and cannot complain of any

fair or reasonable description or portraiture of 24th. Justice Davy in his decision sets aside

himself. this demurrer. In the course of his opinion

It does not appear from the complaint in this Justice Davy says:

action that the plaintiff is within the category of

what might be denominated a public character. The principal question in this case is whether

She is undoubtedly a young woman the defendants have the right to print and circu

beauty, and this she enjoys as a private citizen. late lithograph copies of plaintiff's likeness for the

It is very natural, if the plaintiff is of a modest purpose of profit and gain to themselves without

and retiring nature, that any such publicity would her approval and consent. The defendants con

be extremely disagreeable and offensive to her. tend that she is powerless to preevnt it. That there is no law that can restrain them from doing fered and continues to suffer great mental injury

It is not impossible, therefore, that she has sufthe act complained of. The substance of this con

and distress. In other words, there is plausible tention is that the feelings of the plaintiff may be

ground for the existence of the distress and injury outraged with impunity by any person who may desire to circulate her likeness as an advertising it is a pure fabrication or fancy. The act is such

alleged in her complaint. It cannot be said that scheme, and there is no power in the courts to

that every person can readily see might cause, protect her. If such were a fact, it would cer

and probably did cause, mental distress and injury tainly be a blot upon our boasted system of juris

to her nervous system. Take any modest and reprudence, that the courts were powerless

fined young woman, possessed of more than ordiprevent the doing of a wrongful act which would

nary beauty and intelligence, situate in like wound in the most cruel manner the feelings of a

circumstances as the plaintiff; she might naturally sensitive person.

be extremely shocked and wounded in seeing a The infliction of mental pain and distress by the

lithographic likeness of herself posted in public wrongful or unauthorized act of another gives a

places as an advertisement of some enterprising cause of action in many cases, such as libel and slander, and in all actions of tort where the wrong-buto permit every person to use a lithographic

business firm. ful act of another causes an injury, a recovery is

likeness of the plaintiff to advertise their business, allowed for mental pain and distress and disgrace and yet say there is no power in the courts to caused by such wrongful act. So also in an action

prevent it, would be asserting a proposition for breach of contract of marriage, the law recog

with the principles of justice and equity and in nizes that the infliction of such distress and dis- violation of the sacred right of privacy. Every grace caused by the wrongful act of another is personal interest which she possesses must be reground for a recovery against the wrongdoer. I garded as private, especially when the public has am aware that many of the text writers say that a acquired no right in them.

of rare


Privacy is regarded as a product of civilization. decision will be sustained, and we certainly It was unsought and unknown among the barbar- think it ought to be, for however much the ous tribes. It implies an improved and progres

courts may differ as to the rights of survivsive condition of the people in cultivated manners and customs with well-defined and respected doing relatives because of the exhibition of mestic relations. The privacy of the home in memorials or photographs of a deceased every civilized country is regarded as sacred, and person, there would seem to be no doubt when it is inavded it tends to destroy domestic whatever that with respect to living persons and individual happiness. It seems to me, therefore, that the extension and development of the

there is a clear right of privacy which the law so as to protect the right of privacy should

courts will respect and protect. keep abreast with the advancement of civilization. When private and domestic life is invaded, which brings pain and distress of mind and destroys the

Notes of Cases. pleasure and happiness of domestic life, the courts ought to have the power to protect the individual

Railroads Accident at Crossing. In Gulf, from such an invasion. For years there has ex- C. & S. F. R’y v. Marchand, decided by the Court isted in the public mind a feeling that the law was of Civil Appeals of Texas in June, 1900, it aptoo lax in affording some remedy for the unau

peared that defendant's train, on a bright moonthorized circulation of portraits of private persons, light night, while running at the rate of thirty and this invasion of privacy has been keenly felt miles an hour through a town of about 500 popuby the public.

lation, without slacking its speed, struck a cow and It may be asked how does the circulation of hurled it in the air so that it hit plaintiff, a pedesthese lithographic advertisements affect the plain- trian crossing defendant's track, and about ninetiff in her right of privacy. It is evident that the teen feet therefrom. The track was straight, and acts of the defendants in printing and posting her the engineer could have seen cattle on the track, likeness in public places as an advertisement to which an agent of the company attempted to drive sell their flour invites public criticism and brings away, and the animal struck got on the track when her name into more or less unenviable notoriety, the train was within ten feet of it. There was no and, to a certain extent, inflicts injury to her repu- signal or attempt to stop the train, and the engitation and feelings, especially if she desires a life neer and fireman knew that cattle frequented the of privacy, which she has a right to enjoy. grounds near the track, but were looking at a

If her lithographic likeness, owing to its beauty, merry-go-round at the side of the track while is of great value as a trade-mark or an advertising approaching the town instead of watching the medium, it is a property right which belongs to track. Plaintiff could not see the train, and did her and cannot be taken from her without her con- not know that the cattle were on the track. It sent. She has a right to say that without her con- was held sufficient to sustain a judgment in favor sent these lithographic copies of her likeness shall of plaintiff. The court said in part: not be circulated or used by the defendants.

We are of opinion that under the facts of this

case the appellant cannot be justified on the In conclusion Justice Davy says:

ground that the cow came upon the track and was After a careful consideration of the novel and

discovered by the train operatives too late to interesting questions raised on the demurrer, I check the speed of the train and prevent the colhave reached the conclusion that the plaintiff is

lision. The speed of the train, in the light of the entitled to the relief demanded in her complaint, circumstances, is the act complained of, and upon and to refuse her that relief would be to admit that

which the recovery can alone be upheld. It is a wrong has been committed which causes her true, as contended by appellant, that the high rate

of speed is not of itself negligence. This doctrine severe mental pain and distress and pecuniary injury, and yet the law can afford her no relief.

was announced on the former appeal, and has

But Such a rule is contrary to my views of equity juris

been settled by many well-considered cases.

we have found no case, and have been cited to prudence. The demurrer, therefore, is overruled, with

none, in which it has been declared that speed leave to the defendants to answer on payment of

may not become negligence under certain cir

cumstances. In determining whether the act of costs.

the train operatives in running a train at a high Under this decision the defendants are re

rate of speed amounts to negligence, it is proper strained from further use of the plaintiff's to consider, not only such attendant facts and

circumstances as were known to them, but such portrait, and the plaintiff is permitted to con

as, in the exercise of ordinary care, they ought to tinue the action begun to recover $15,000 have known: The following facts attendant upon damages. It is probable that Justice Davy's I or immediately preceding the accident in question

« PreviousContinue »