enough cases to illustrate and not enough to confuse. The work has already been adopted as a text-book in the Albany Law School, and we would recommend it to all students as the very best of the kind. payment of the costs in the action in all the courts-Jane'S. Avery, respondent, v. Equitable Life Assurance Society of the United States. Motion to correct calendar granted without costs. Peter Gillen, appel. lant, v. Tucker aud Parker Cordage Company; Walter M. McKinney, an infant, respondent, v. Long Island Railroad Company. -Motion granted without costs Carrie Weil, an infant, v. Dry Dock, East Broadway aud Battery Railway Company; James Dorman, ad pany of Brooklyn.- -Motion denied without costsMarine Bank of Buffalo v. Butler Colliery Company. TIEDEMAN ON COMMERCIAL PAPER. Any work by the author of the excellent treatise on Limitations of Police Power is entitled to a respectful reception. The author claims a superiority for this work on the ground that it is the only one on this sub-ministrator, respondent, v. Broadway Railway Comject in one volume. But inasmuch as the book is three and a half inches thick, he surely cannot plume himself on that score, unless it may be in respect to the price. We have looked at the work sufficiently to be assured that it is sufficiently large for a general treatise on this topic, that the principles are well expressed and judiciously discussed, and that the citation of cases is discriminating. It is to be recommended to all who do not care to buy three volumes. Published by F. H. Thomas Co., St. Louis. A . NOTES. GENTLEMAN writes us: "A subscriber will be obliged by information as to the correct title and the publisher's name of two books cited in last year's "LAW JOURNAL." The one citation was in the issue of November 3 (1888), at page 350, and the book quoted was styled Leaming & Spicer." The other reference has been mislaid, but the book was thus named "Comparative Constitutional Law by Crane & Mosses." ["Leaming & Spicer" refers to a collection of the proprietary laws of New Jersey, republished by Honeyman & Co., Somerville, N. J., in 1881. The original volume is so scarce that it has brought above $100. The other reference we cannot trace at present.- ED. In Northern v. Williams, 6 La. Ann. 579, the question was of delivery of cotton on the levee at New Orleans. There was a custom of the cotton-pickers to pick from the bales what they considered damaged cotton, and to retain that as their own, in addition to their charges." The court said: "We think that such a custom conflicts too much with that state for which we should daily pray, 'Lord, lead us not into temptation;' and that it is a custom which would be more honored in the breach than in the observance." Commenting on the defendant's feeble efforts to rescue the cotton from the rain and mud, the court observed that "they wear too much the aspect of the husband, lately reported, who stood upon the deck of the vessel, and reproached the mate and men for not buffeting more lustily the surges of the sea, to save his wife and child who had fallen overboard." In regard to that custom, the judge might well have exclaimed, with Shakespeare: "By these pickers and stealers!" Apropos, it was held, in Com. v. Doane, 1 Cush. 5, that the taking of oranges by the crew from boxes on a vessel while in transit was larceny, although customary. THE COURT OF APPEALS DECISIONS. following decisions were handed down Tuesday, December 3, 1889: Orders of General and Special Terms reversed and motion granted with costs to the appellant of appeal to General Term and to this court, and $10 costs of motion-Charles H. Wood, appellant, v. William Mitchell; Robert Parkinson, respondent, v. Same.Order and judgment of General Term affirmed, with costs, with leave to defendants to answer within twenty days upon payment of costs in all courts since the demurrer-Robert Fitch Shepard et al., respondents, v. Manhattan Railway Company.- -Judgment reversed and judgment ordered for the defendant on the demurrer, with leave to plaintiff to amend upon - Motion to dismiss granted with costs - Wm. B. Slocum, appellant, v. Catharine Domol and another; Same v. Wm. C. Veghte, administrator, etc.-Motion for rearguments denied with $10 costs-John A. Post et al. v. Matilda Weilarx; Same v. Adolph Bernheimer.. Motion to open default. Ordered, that on return to this court of remittitur in this case the default be set aside on payment of $20 to the attorneys for the respondent and the case placed on present calendar for argument. Printed copies of cases to be served within ten days from December 5. The court below is requested to return the remittitur to this court-Theodore Vetterlein et al., appellants, v. Demas B. Dewey et al.--Motion to allow sureties to justify denied, $10 costs Wm. H. Dole and another, appellauts, v. Charles D. Belden.- -Motion to correct remittitur and for reargument. Motion to correct remittitur and the motion for reargument denied with $10 costs of motion; but the remittitur shall be so amended as to direct costs of the appeal in this court to be paid by the appellant to the executors and trustees of Joseph Colwell-Wm. Delama et al., executors, etc., v. S. S. Hepworth et al.- Motion to amend remittitur. Ordered, that the remittitur be amended so as to read: The judgment of the Special Term is modified by striking therefrom the words, "the deficiency shall become a debt of the estate, to be paid by the executrix and trustee, as other debts of the estate are to be paid," and inserting the words, "such deficiency in excess of current expenses beyond the moiety of income charged with their payment shall be charged upon the moiety of income given to the widow," and as modified affirmed, with costs to all parties who filed briefs on appeal to this court; one bill only being allowed to each attorney or firm filing such briefs, payable out of the estate, except as allowed in this order. The other motions made in the case are denied Harlin J. Woodward, by guardian, appellant, v. Julia L. James, individually and as executrix. Appeal dismissed with costs - Ann Duffy v. Michael Duffy, respondent, Rosanna Hughes et al., appellants. SECOND DIVISION. Judgment affirmed with costs-Elvira J. Bennett, respondent, v. Oliver Bennett, appellant; Acalus L." Palmer et al., respondents, v. Great Western Insurance Company, appellant; Helen D. Adams, respondent, v. Irving National Bank, appellant.-Judgment reversed, new trial granted, costs to abide eventCharles H. Hunter, respondent, v. New York, Ontario and Western Railroad Company, appellant; William Kayton et al., appellants, v. Aaron Barnett et al., respondents.Motion to reserve on calendar until decision of a motion at General Term denied without costs-Irving Dwight v. Harriet E. Roberts; Sarah J. Hanil v. Harriet E. Roberts.-Motion to revive and continue case in name of Mary Powers, individually and as executrix, granted without costs-George J. Leslie, as trustee for Frances A. Leslie, respondent, v. Motion Manhattan Railway Company, appellant.denied with $10 costs-Charles Robinson, appellant, V. Hugh J. Jewett, receiver, respondent. Motion for reargument denied-Hugh Tighe, respondent, v. James Morrison, appellant. The Albany Law Journal. IN ALBANY, DECEMBER 14, 1889. CURRENT TOPICS. time that newspaper editors and owners should be taught that mere family scandals are not legitimate news, whether false or true. It is true, and 'tis pity, that the nastier the newspaper the larger its patronage. The dirtiest newspaper in any town, which it would make any decent man blush to think of having found on his body when dead, has always a larger circulation than all the reputable newspapers N view of the recent desperate attempts by the in that town put together. "Town Topics" in the newspapers to procure legislation granting them city of New York, which like the vulture, subsists the right to libel people without much, if any, on garbage and carrion, is bought by men in broadrestriction or responsibility, it is instructive to cloth and slyly read by women in satin, and has a note a recent blackmailing case in Buffalo. Two of great audience. But no matter. If there is such the leading New York city newspapers and some in an unholy and unhealthy passion in the community, Chicago contained simultaneously an infamously the Legislature should be sedulous, if not to curb false and foul attack on the character of a female it, at least not to loosen rein upon it. It is a poison member of the family of one of the most honored as demoralizing as alcohol or opium. It rejoices us and respected judges of the Supreme Court. It to learn that the course pursued by the Buffalo famturns out to have been the work of two disappointedily meets the hearty approval of their fellow citiblackmailers at Buffalo, who calling themselves a zens. It was a painful duty, and few would have news syndicate," furnish to "forty leading newshad the pluck to perform it. It is said that the papers from Maine to California and from Chicago scoundrels in question have met with some success to New Orleans," dishes of scandal about prominent in their vile levies on other families, and there is families, so gross and absurd that the local press all the more need of a stand against them. The would spurn them. The precious scoundrels in swift and severe punishment of these wretches will question, taking advantage of the fact that the be a wholesome lesson to others of their sort, and judge had just sailed for Europe, guardedly ap- perhaps sound a note of warning which powerful proached the family, stated their pretended dis- and unscrupulous newspaper people will regard. covery, and their retainer to promulgate it, and We can tell these people that all men will not offered to suppress it for $200, just the price which always be so self-collected and considerate of the their lies would fetch them from these great pur- laws as the maligned family in this case, and that veyors of filth. Although the head of the family some day some man whose wife or daughter or siswas gone, they reckoned without their host, for ter is thus libelled will spurn the slow and uncerthere were two lawyers left in it, who scouted the tain processes of the law, and take the law into his proposal, and with their business partner hunted own hand with bludgeon, or cowhide, or pistol; down the authors of the scheme, and had them in- and what jury would not spring to acquit him? dicted for blackmail and in jail within two hours. The newspapers are standing in their own light by There they are, as we write, unless they are in the these disgraceful practices, and by struggling for State prison, and in prison let them rot, covered by greater license. A few may prosper as sinners prosthe muck-rakes of their own nastiness, the scorn of per, but every decent journal must deprecate them. every high-minded man and every modest and sym- From a remarkably well-considered and well-expathetic woman in the State. But what about the pressed editorial in the Buffalo Courier on this topic, base mechanics who set in motion these dirty tools we extract the following: "The men who have been the New York Herald and World and the other sending dispatches from Buffalo to forty papers "great dailies," who employ such creatures to col- (more or less) have little acquaintance and no standlect or concoct such libels, and then spread their ing here, and it is probable that not a single person lies before the eyes of millions of readers-power-connected with the management of any of the ful arbiters of public opinion and conservators of papers which they serve has ever seen them or has morals and decency, willing to pay $5 apiece for the least knowledge as to their truthfulness, their toothsome scandals on innocent and helpless women accuracy or their character in any respect. and scatter them broadcast, without investigation, these unknown adventurers are permitted to send without even knowing the authors, recklessly, wanfor publication in these papers the gravest charges tonly, venally, to coin a few dirty coppers and against the honor of men and the virtue of women. "increase the circulation!" In our opinion, Judas Not only every newspaper man, but every honest was an honorable fellow compared with the World man and woman whatever, knows instinctively that man, for at last he rejected the blood-money, and this is wrong. It is indeed an infamous wrong, and went out and hanged himself. No wonder that the every scrupulous and conscientious newspaper man, Herald man hides in Europe, fearing the fist of out-making it his chief concern that falsehood and malraged brothers or the rawhides which saltier-wise ice shall be kept out of his own paper, is filled with formed his father's fitting and only coat-of-arms! shame and indignation that such things should be. And these are the men who demand more license! It was such work that gained for a famous news-liberty to publish "the news" without liability paper the title The Satanic Press,' and for such unless personal malice can be proved! It is high work it is a fitting title." VOL. 40-No. 24. Yet The London Law Times announces in a leading independent paragraph: "Judicial salaries in America are the same now as they were seventy years ago." This is misleading. It is probably true only of North Carolina, in regard to which this statement was made by Mr. Battle in his paper, recently reviewed in this journal, and whence the Times | probably derived its information. But it is about one-fortieth right, and that is pretty good for an English writer on "America." At last our heart's desire and longing is satisfied. The Times has answered our question as to why the people demand that the Court of Appeals should be Democratic on account of constitutional questions. Here is its "answer:" "Finally our esteemed legal contemporary persists in repeating the question why we should prefer to have Democratic judges elected to every court that may have to determine cases of constitutional law. Volumes might well be written in answer to that question, and if we were editing a law journal we might take time and space enough to expound the subject thoroughly. But it The same journal also remarks: "An American is enough to say here that the reason we prefer court has been at some trouble to lay down that a Democratic judges to decide constitutional ques-murderer cannot take under the will of his victim.” tions is because the tendency of Democratic thought is toward a strict construction of the Constitution, while the tendency of anti-Democratic thought is toward a loose and latitudinarian construction. The LAW JOURNAL affects on this subject an ignorance of which we are quite sure it is not really capable, and to attempt to remove it would be a waste of words." We do not see that there is any thing here to discuss. Our acute friend must have smiled as he penned his answer. The idea that the rank and file of the Democratic party deliberately prefer Democratic judges on account of their preference of "strict construction" is enough to make an ascetic laugh. But we still feel that morbid curiosity to know what constitutional question has ever arisen, or could possibly arise, which should demand strict constructionists. We regret that the Times will not join us in denouncing the "snap" Court of Appeals scheme. It has "not the slightest objection" to it. One would suppose that such a strict constructionist would rebuke a trick Republican," the Times says by which the mandate of the Constitution requiring judges to be elected was defeated. The Times need not praise the governor for appointing four Republicans. In common decency, he could not have taken more than one from any judicial district, and this necessitated his action. Otherwise he, as a strict constructionist, would doubtless have made a court of Democrats to meet these great "constitutional" emergencies. It is true that if the new judges had been elected more Democrats might have been chosen. We do not complain of it. But possibly these particular Democrats might not have been elected, or even nominated. The point we emphasize is, that in a court necessarily permanent, the people should choose the judges by popular election. The Times' apology about Judge Learned seems flimsy. He was pre-eminently the man for the place. The president has made an excellent appointment to the Supreme Court bench in the person of David J. Brewer. Mr. Brewer is fifty-two years old, graduated at the Albany Law School in 1858, was judge of the Supreme Court of Kansas for fourteen years, and has been judge of the Federal Circuit Court of He is a man of the eighth circuit for five years. vigor, learning and sound sense, and of fitting experience. We hope the Court of Appeals of New York will recover from this sneer. The doctrine seemed so susceptible of doubt that two of the judges dis sented on statutory grounds. IN Req. V. The 1 og to L. 1. Rep. [N. S.] 'N Reg. v. The Bishop of London, Queen's Bench 389), a representation was made to the bishop of I principle, viz., as to whether such images had any tendency to idolatry had been decided in Phillpotts v. Boyd, 32 L. T. Rep. (N. S.) 73; L. R., 6 P. C. 435, and that litigation kept up irritation and party strife, embittered men's feelings, and inflicted much mischief on the church. Held (Pollock, B., dissenting), that the bishop had not an absolute discretion as to whether proceedings should be taken on the representation, and that the reason given by the bishop was not a sufficient reason within the meaning of the statute. Lord Coleridge, C. J., said, among others: "The only real importance, or at any rate, the great and general importance, of this case to my mind is that if my view be correct, the supremacy of law will at least be to some extent established over all the subjects of the queen. think it very mischievous that in matters which touch the inner life and the sincere religious feelings of men, when, as in matters of ritual, men must either join in what they honestly believe to be false and abject superstition, or cease to attend the services of a church which is perhaps endeared to them by a thousand memories and associations, or when they believe, as men do believe, that the practices and the outward forms of a building or a worship are in direct violation of the laws of the church to which they belong, and yet are forced upon them by the will of a single ecclesiastic, I think it in such cases very mischievous that such men, when they want honestly to try whether this or that practice is or is not within the law of their church, should be met by the simple will of a bishop, who tells them that the matter shall not even be discussed, and that like naughty school-boys, they must learn to obey their spiritual pastors and masters. A dispensing power cannot be safely lodged in hands entirely irresponsible; and to say this is quite consistent with the truest personal respect for those who sometimes, in my opinion, misuse it. The better a man is, the more averse to strife, the holier, the gentler in his own conversation, the more will he be tempted to disregard the law, and if he has the power, to prevent its being put in force against men of whose goodness and earnestness he is persuaded and whose lives he honors. I recognize this, and, in a sense, I highly respect it. But as a lawyer, I am before and above all things for the supremacy of law; and it is because I think that the later act does limit discretion to some extent that I am so anxious not to fritter it away. Under the old law the bishop had this to say-that he was, in form, a party to the proceedings; that his office was being promoted, and there was some reason therefore under the old Church Discipline Act, which dealt with procedure only, why he should still be allowed to say whether he would or would not permit his discipline to be enforced. Under the Public Worship Regulation Act this is not so. The bishop is not a party to the proceedings, and therefore unless there is some real reason capable of being clearly stated, the matter should be suffered to go on; and if in such a case as this, these reasons are to be held sufficient, we may as well admit at once that as to all religious observances, although we belong to a church clothed with dignity and maintained in a magnificent position by the law, our rights are not those which the law gives us, but what a few dignified ecclesiastics may from time to time determine." In Childs v. Childs, 55 Hun, 57, the court said, by Mr. Martin, P. J.: "The important question presented by this appeal is, was this court authorized, or had it the power to restrain the defendants from prosecuting an action in the Federal courts to secure their alleged rights under a patent issued by the United States. The Federal courts have exclusive jurisdiction of actions for infringement of patent rights. Dudley v. Mayhew, 3 N. Y. 9; Hovey v. Rubber Tip Pencil Co., 57 id. 119; De Witt v. Elmira Nobles Manuf'g Co., 66 id. 459; Continental Store Service Co. v. Clark, 100 id. 365, 370. 'An action for an infringement lies in favor of the owner of a patent against any one who claims to manufacture, use or enjoy the same in opposition to his rights.' Continental Store Service Co. v. Clark, 100 N. Y. 365, 371. A State court has no authority to restrain the proceedings of a Federal court. McKim v. Voorhies, 7 Cranch, 279; Riggs v. Johnson & Co., 6 Wall. 195; Ableman v. Booth, 21 How. 516; Duncan v. Darst, 1 id. 306; Amy v. Supervisors, 11 Wall. 136. While a State court has jurisdiction to decide questions as to the title to letters-patent or of an action on contract, although such action involves the validity of a patent, it has no authority to restrain a party from using the patent pendente lite, or in any way to pass upon a question as to an infringement of the patent; as to that the Federal courts have exclusive jurisdiction. Continental Store Service Co. v. Clark, supra; Hat Sweat Manuf'g Co. v. Reinoehl, 102 N. Y. 167. Nor have the State courts any jurisdiction to entertain a suit to restrain the infringement of a patent. Dudley v. Mayhew, 3 N. Y. 9; Gibson v. Woodworth, 8 Paige, 132. I think the doctrine of the authorities cited quite decisive of the question under consideration, and that it must be held that this court had no authority to restrain the defendants from prosecuting actions in the Federal courts against either the makers, sellers or users of a harrow which was an infringement upon their patent; and as this court could in no way pass upon that question, it could not enjoin the defendants from prosecuting their actions in a court having exclusive jurisdiction of the subjectmatter thereof, If this court has power to restrain the defendants from bringing an action in the Federal courts against one class of infringers, it can restrain them from bringing an action against any person who infringes upon their rights; if so, then it may enjoin every owner of a patent from maintaining an action for the infringement of his right, and hence a State court would possess the power to nullify the patent laws of the United States and render the patents granted by it valueless. I think no such power is vested in the State courts. The exclusive jurisdiction of that subject is vested in the Federal courts. The question here is not one * * * of comity, nor one of concurrent jurisdiction; it is a question of limitation and authority. No case has been cited which sustains a doctrine which will uphold the injunction granted in this case, and I have been unable to find any. The case of Emack v. Kane, 34 Fed. Rep. 46, does not sustain the doctrine contended for, and is not in conflict with the foregoing conclusion. If the plaintiffs' harrow is an infringement upon the defendants' patent, I can perceive no equity in restraining them from asserting their rights against any person or persons who are liable for such infringement, and as was said by Blatchford in the Asbestos Felting Company Case, 13 Blatchf. 454: 'I am not aware of any principle which would authorize the court in a suit of this character, to restrain a defendant from bringing suits on his patent before that patent is adjudged to be invalid. The granting of the patent to the defendants confers the right to bring suits thereon for its infringement.' In People, ex rel. Lockwood, v. Trustees of Saratoga Springs, 55 Hun, 16, the question was of the right of the relator, an honorably-discharged Union soldier, to the office of superintendent of public works. Ryall had been appointed, as in the opinion of the defendants better fitted, and had qualified, and the court found difficulty in perceiving how he could be removed. But passing that, they continue: "The act under which the relator claims the office in question (Laws 1887, chap. 464) provides that 'honorably discharged Union soldiers shall be preferred for appointment and employment.' It means, as I construe it, that where two or more apply for an office, one of whom is a discharged Union soldier, and all are equally qualified, the soldier shall be preferred, but not where the soldier is not equally qualified for the office as one of the others. There are degrees of fitness for such an office as the one in question. One candidate might barely be able to perform its duties in a reasonably proper manner, and another might have superior qualifications and be able to do the work much better. In such a case the appointing power, under the law, would not be bound to appoint the former, although a discharged Union soldier. In my judgment, the trustees having decided the matter that the law gives them the right to pass upon, their decision cannot be overruled by the Supreme Court. It is a universal rule in respect to all subordinate tribunals clothed with the exercise of judgment and discretion, that they cannot be compelled by mandamus to decide in any particular way. People, ex rel. Francis, v. Common Council, 78 N. Y. 33; People, ex rel. Banks, v. Board of Education, 2 Abb. (N. S.) 177; People, ex rel. Deitz, v. Easton, 13 id. 161; People, ex rel. Belden, v. Contracting Board, 27 N. Y. 381: People, ex rel. Gaige, v. Reardon, 49 Hun, 430; People, ex rel. Equitable Life Ass. Society, v. Chapin, 103 N. Y. 635; People, ex rel. Millard, v. Chapin, 104 id. 100; People, ex rel. Opdyke, v. Brennan, 39 Barb. 651; Howland v. Eldredge, 46 N. Y. 457. Although the trustees were bound to prefer a soldier, they were ** * * · not bound to appoint one they deemed incompetent, or one where the other candidate possessed superior qualifications for the office. The law con ferred upon them the power and duty of deciding as to the qualifications of the relator and his fitness as compared with Ryall; they have passed upon the question against the relator, and I think the decision is final, whether right or wrong. In People, ex rel. Equitable Ass. Society, v. Chapin, 39 Hun, 230, the court held that mandamus was not a remedy for erroneous decisions. It cannot be addressed to a judicial tribunal to require it to decide in a particular manner.' And the court referred to the case of People, ex rel. Francis, v. Common Council, 78 N. Y. 33, which holds, among other things: Where the duty of selecting the person to be employed is imposed by law upon the municipal body, and the question whether they possess the requisite qualifi cations is one of fact to be determined by it, no particular mode of determination being provided by law, and said body has exercised the power and made the selection, its action cannot be reviewed by mandamus, nor can it be compelled by that proceeding to appoint particular persons, on their allegation that in fact they, and not the persons actually selected, possess the prescribed qualifications. * * * Where the subordinate body is vested with power to determine a question of fact, the duty is judicial, and it cannot be compelled by mandamus to decide in a particular way, however clearly it be made to appear what the decision ought to be.' See also 103 N. Y. 635; 104 id. 100. The matter of the application of the relator for the appointment was passed upon by the trustees at the meeting of May 6. They knew he was a soldier, but had no evidence of his fitness or unfitness for the office he desired. But the trustees testify that they knew him and his qualifications, and also the qualifications of the other candidates. They were obliged to pass upon this matter then, and with the evidence before them they did pass upon the question, and found against the relator. I am of the opinion that their finding upon the question of fact, as to the relator's qualifications for the office, if wrong, cannot be corrected in this proceeding. Other questions were raised and discussed before me, but in the view I have taken of the case, it is not necessary for me to consider or pass upon them. I have been referred to a decision by Judge Forbes in the case of People, ex rel. Stevens, v. Bardin. It is sufficient to say that in that case the fitness of the relator for the position he desired, as well as the fact that he was an honorably-discharged Union soldier, was conceded and assumed by the judge in his opinion. No question was raised, as appears by the opinion, as to the qualifications of Stevens for the office he desired; hence that case is entirely unlike the case before us." |