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day closing rule to barber shops without at the same time applying it to other trades? Some rational reason must be found, it is said, for singling out barber shops; another way of putting it is to say that some rational reason must be shown why the legislature. did not go farther. It would not be argued that the legislature must go, if at all, to the full length of closing all shops, including that of the apothecary. Some line must be drawn ; and it is conceivable that the legislature may from their present knowledge feel incompetent to draw that line. They may feel sure that barbers should fall on the prohibited side, and yet be in just doubt as to other occupations. Can it be said, then, that the legislature might not have had a reasonable ground for declining to carry their prohibition to its utmost extent? If not, then there is a conceivable reason why it should have stopped where it did. If, whenever a mischief arose in any particular instance, it were necessary for the legislature to consider all possible instances to which they might think the mischief applied, legislation would indeed be a slow process."

NOTES OF RECENT DECISIONS.

RAILROAD COMPANY-CONTROL OF PARALLEL LINES-VESTED RIGHTS.-The Supreme Court of the United States decides, in Pearsall v. Great Northern Ry. Co., 16S. C. Rep. 705, that a contract by which one railroad agrees to guaranty the bonds of a parallel, competing road, in consideration of which half the stock of the latter road is to be transferred to the stockholders of the former road, or to a trustee for their use, is within Laws Minn. 1874, ch. 29, providing that no railroad shall consolidate with, lease, purchase, or in any way control, any parallel or competing line and that a general power given a railroad by its charter, to consolidate with, purchase, lease, or acquire the stock of other roads, may, while it remains unexecuted, be limited by the legislature, without impairing any vested right, to cases where the other roads are not parallel or competing. Mr. Justice Field and Mr. Justice Brewer dissent.

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Supreme Court of California, in Simpson v. Ferguson, 44 Pac. Rep. 484, that the statute providing the manner of mortgaging growing crops, is intended to be exclusive of other modes, and is a declaration of legislative intent that such property shall be regarded as a chattel. They also declare that while growing crops are sometimes, and for some purposes, a part of the realty, as between a mortgagor of the land and the mortgagee, the mortgagor is the owner of the crops growing thereon, free from any lien of the mortgage, and with full power to dispose of or mort gage the same, until he is divested of possession of the land by foreclosure proceedings, either by a receiver, or under final decree. The following is from the opinion of the court:

It is urged that section 2955 and following of the Civil Code, providing for the manner of mortgaging growing crops, do not establish an exclusive method; that as this class of property may under some condi tions be regarded as realty, and under other condi tions as personalty, it must follow that under corresponding conditions the property may be the subject of a real estate mortgage, or a chattel mortgage, according to the circumstances; and that plaintiff hav ing a valid mortgage upon the land, with its rents, issues and profits, this gives him a valid lien upon the growing crops, as effectually, to the same extent, for all purposes, as if executed with the formalities required in the case of a crop mortgage. We are unable to coincide in this view. In the first place, we think it quite manifest, from the provisions of the Code in question that the legislature intended thereby to provide an exclusive mode for the mortgaging of growing crops, and intended to declare that for such purposes this species of property shall be regarded as a chattel. There is nothing in the statute to indicate that it was not intended to cover every case of a mortgage given upon that class of property. In the second place, while it is perfectly true that growing crops may be either personal or real property, according to circum. stances, and while, as suggested by respondent, a mortgage of the land gives a lien upon everything that would pass by a grant of the land, which includes crops growing thereon, it is nevertheless well established that such lien, so far as the growing crops are concerned, is limited in its effect to the crops growing upon and unsevered from the land at the time of foreclosure. It does not vest the mortgagee with a right to the crops grown intermediate the giving of the mortgage and the foreclosure thereof. Until the latter event, where, as in this State, the mortgage creates no estate in the mortgagee, but confers only a lien upon the property, the mortgagor is entitled to such crops, with the same absolute right and dominion over them as if the mortgage did not exist. This doctrine is thoroughly well settled, with no consider. able diversity upon the subject among text writers or the courts. The general rule is well stated in Mr. Jones' work on Mortgages (5th Ed.), § 670, where it is said: "So long as the mortgagor is allowed to remain in possession, he is entitled to receive and apply to his own use the income and profits of the mortgaged estate. His contract is to pay interest, and not rent.

Although the mortgagee may have the right to take possession upon a breach of the condition, if he does not exercise this right he cannot claim the profits. Upon a bill in equity to obtain foreclosure and sale, he may, in proper cases, apply for the appointment of a receiver to take for his benefit the earnings of the property. He is then confined to the rents and profits accruing during the pendency of the suit. If he neglects to apply for a receiver, the final decree, if silent upon this subject, does not affect the mortgagor's possession or right to the earnings in the meantime. It is only after sale under the decree, except where statutes provide otherwise, that the mortgagor is wholly divested of title, and consequently of right to possession. Unless restrained by the terms of the mortgage, the mortgagor in possession may work mines or quarries upon the mortgaged property, and whatever he severs from the realty becomes unincumbered personalty, and his own property. Even if the rents and profits of the mortgaged property are expressly pledged for the security of the mortgage debt, with the right in the mortgagee to take possession upon default, the mortgagee is not entitled to the rents and profits until he takes actual possession, or until possession is taken in his behalf by a receiver." In Teal v. Walker, 111 U. S. 242, 4 Sup. Ct. Rep. 420, the authorities upon this subject are exhaustively reviewed, and it is there held (quoting from the syllabus): "A conveyance to a trustee, absolute on its face, but with an instrument of defeasance showing that it is to secure payment of a debt due to a third party, is a mortgage, and is subject to the rule that a mortgagee is not entitled to the rents and profits until he acquires actual possession. The rule that the mortgagee is not entitled to the rents and profits before actual possession applies even when the mortgagor covenants in the mortgage to surrender the mortgaged property on default in payment of the debt, and nevertheless refuses to deliver it after default, and drives the trustee to his action to enforce the trust." In that case the court, stating the doctrine as laid down in Gilman v. Telegraph Co., 91 U. S. 603, say: "It was declared by this court that where a railroad company executed a mortgage to trustees on its property and franchise, 'together with the tolls, rents and profits to be had, gained or levied thereupon,' to secure the payment of bonds issued by it, the trustees in behalf of the creditors were not entitled to the tolls and profits of the road, even after condition broken and the filing of a bill to foreclose the mortgage, they not having taken possession or had a receiver appointed." Chancellor Kent states the rule thus: "The mortgagor has a right to lease, sell, and in every respect to deal with the mortgaged premises as owner, so long as he is permitted to remain in possession, and so long as it is understood and held that every person taking under him takes subject to all the rights of the mortgagee, unimpaired and unaffected. Nor is he liable for rents, and the mortgagee must recover possession by regular entry by suit, before he can treat the mortgagor, or the person holding under him, as a trespasser." 4 Kent, Comm. 157. In the case of Sexton v. Breese (N. Y. App.), 32 N. E. Rep. 133, where the mortgagor of the land, subsequent to the giving of the mortgage, but before it was due, sold a growing crop of wheat raised on the land, and, subsequently to such sale, delivered possession of the land to the mortgagee thereof, it was held that the vendee of the crop was entitled to the same, as against the mortgagee, and it is said: "If we assume that the plaintiff was in possession of the land as by an actual surrender from the

mortgagor, his rights in its use were subject to the previous disposition made of the growing crop of grain by the owner of the land. He had planted the crop, and it was perfectly competent for him to dispose of it while he held the title to the land. Though, in a sense, a growing crop of grain is a part of the real estate, it nevertheless possesses the characteristics of a chattel, and is salable and transferable as other personal property is, and may be taken upon execution, and sold in discharge of a judgment debt." In West v. Conant, 100 Cal. 231, 34 Pac. Rep. 705, where the mortgagor remained in possession of the mortgaged land after the foreclosure sale, and received all the rents, issues and profits therefrom, it was held that he was entitled to hold such premises until the expiration of the period of redemption, and that the purchaser at the sale was not entitled to a receiver to take possession of crops of hay and grain growing upon the land intermediate the sale and the expiration of the equity of redemption. In the recent case of Freeman v. Campbell, 42 Pac. Rep. 35, decided by this court, where the conveyance from Anderson, plaintiff's intestate, to defendant, was held to be a mortgage, and where defendant had taken possession of the land and received the rents thereof, it was held that the administrator of Anderson, the mortgagor, was entitled to recover the amount of the rents received by Campbell as money had and received, belonging to the estate, and it is there said: "The claim that the mortgage included the rents, as well as the land, does not aid the appellant, as under section 2927, Civ. Code, he had no right to the possession of the mortgaged security. His right to the rents was no greater than that to the land. A mortgage is a contract by which specific property is hypothecated (Civ. Code, § 2920), but such contract is independent of the fact of possession, and does not of itself confer the right of possession. If a receiver had been appointed to take possession of the mortgaged premises, the authority of that officer would have included the right to take possession of the rents, as well as the land, and the rents would then have been in the custody of the court, and subject to its direction; but, in the absence of some intervention by the court, the mortgagor has the right to these rents, even though they are included in the instrument of mortgage, and the mortgagee's right to them is limited to their disposition by the court in the judgment, or subsequent thereto." From the principles here declared, it follows that the mortgagor being in possession of the land, and entitled as of right to the crops grown thereon, it was competent for him to sell or mort. gage, or otherwise dispose of them, and convey good title thereto, as against the mortgagee of the land or his assigns, at any time prior to the foreclosure of the latter's mortgage.

It is claimed by respondent that the cases of Montgomery v. Merrill, 65 Cal. 432, 4 Pac. Rep. 414, and Treat v. Dorman, 100 Cal. 623, 35 Pac. Rep. 86, are in conflict with the doctrine that growing crops can only be mortgaged with the formalities prescribed for the execution of chattel mortgages. But we do not so regard them.

REFORMS IN THE LAW OF NEWSPAPER LIBEL.

The publisher of a newspaper possesses no immunity from liability in publishing a libel other or different from any other person.

2

The law makes no distinction between him and any private person who may publish an article in a newspaper, or other printed form, and if either abuses the right to publish his sentiments on any subject, and upon any occasion, he must defend himself upon the same legal ground.1 The publisher of a newspaper is liable for everything appearing in its columns, though he was ignorant or even forbade the publication. He is liable though he believed it to be true and acted in good faith. The proprietor, the editor, the printer and the publisher are liable to be sued either separately or together. Every sale or delivery of a libel is a fresh publication, for which a civil action lies against the seller, and the onus is on him to prove that he was ignorant of its contents. The proprietor is liable to a party libeled, notwithstanding the libel is accompanied with the name of the author, and he may be sued without joining the writer as a defendant. So an editor is not bound to give up the name of his correspondent, and if he refuses to do so no blame will attach to him, and the plaintiff must be content to sue the proprietor of the paper. Nor can the proprietor of a newspaper, who was made liable for the publication of a libel and mulcted, sue the writer for contribution, though the libel may be inserted by the latter without the knowledge or consent of the former. 10 Editors have the full liberty to criticise the conduct and motive of public men and the measure and policy of government," but the discussion must be fair and legitimate. If one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he must do so at his

7

1 Brouson v. Bruce, 59 Mich. 467.

2 Buckley v. Knapp, 48 Mo. 152; Rex v. Walter, 3 Esp. 21; Story v. Wallace, 60 Ill. 51; Scripps v. Reilly, 38 Mich. 10.

3 Storey v. Wallace, 60 Ill. 51; Andrews v. Wells, 7 John. 260, 5 Am. Dec. 267; Dunn v. Hall, 1 Ind. 344; Perrett v. Times Newspaper, 25 La. Ann. 170; Commonwealth v. Morgan, 107 Mass. 199; Curtis v. Mussey, 6 Gray (Mass.), 260; Detroit Post Co. v. McArthur, 16 Mich. 447; Scripps v. Reilly, 38 Mich. 10.

4 Littlejohn v. Greely, 13 Abb. (N. Y.) Pr. 41.

5 Ludwig v. Cramer, 53 Wis. 193; R. v. Dover, 6 How. St. Tr. 546.

6 Staub v. Van Benthuysen, 36 La. Ann. 467.

7 Doyle v. Lyon, 10 Johnson, 447, 6 Am. Dec. 346.

8 Ludwig v. Cramer, 53 Wis. 193.

9 Harle v. Catherall, 14 L. Tr. 802.

10 Colburn v. Patmore, 1 Cromp. M. & R. 73.

11 Negley v. Farrow, 60 Md. 176.

peril, and must either prove the truth of what he says or answer in damages to the party injured. 12 The same rule is applied to candidates for office. Editors may publish what they please in relation to the character and qualifications of the candidate, but they are responsible for the truth of all they so publish.18 publish.13 What is true may be published of any man, public or private, and proof of the truth of the charge under a plea of justification will be a complete defense in a civil action.14 Proprietors of newspapers are not to be punished for publishing a fair, full and true report of judicial proceedings, except on actual proof of malice in making the report. 15 The reason for this rule is that the public have a right to know what takes place in a court of justice, and unless the proceedings are of an immoral, blasphemous, or indecent character, or accompanied with defamatory observations or comments, the publication is privileged. Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private person whose conduct may be the subject of such proceedings.17 So every impartial and accurate report of any proceeding in a public law court is privileged, unless the court has itself prohibited the publication or the subject-matter of the trial be unfit for publication.18 If the publication is accompanied with defamatory comments it becomes illegal and libelous.19

16

12 Hamilton v. Eno, 81 N. Y. 116; Negley v. Farrow, 60 Md. 176; Shadden v. McElwee, 86 Tenn. 146; State v. Schmidt (N. J.), 9 Atl. Rep. 774.

13 King v. Root, 4 Wend. (N. Y.) 113, 21 Am. Dec. 102; Wheaton v. Beecher (Mich.), 33 N. W. Rep. 503. 14 Gathercole v. Miall, 15 M. & W. 321.

15 Commonwealth v. Blanding, 3 Pick. (Mass.) 304; Thompson v. Powning, 15 Nev. 202; Ackerman v. Jones, 5 J. & Sp. (N. Y.) 42: Hawkins v. Globe Printing Co., 10 Mo. App. 174; Cincinnati, etc. Co. v. Timberlake, 10 Ohio St. 548; Stanley v. Webb, 4 Sandf. Sup. Ct. 21; Forbes v. Johnson, 11 B. Mon. 48; Davison v. Duncan, 7 E. & B. 231; Wason v. Walter, 4 L. R. Q. B. 82.

16 Thompson v. Powning, 15 Nev. 202.

17 Cowley v. Pulsifer, 137 Mass. 396, 50 Am. Rep. 318; Rex v. Wright, 8 T. R. 293; Davison v. Duncan, 7 El. & Bl. 229; Commonwealth v. Blanding, 3 Pick. (Mass.) 304.

18 Odger's L. & S. 248.

19 Commonwealth v. Blanding, 3 Pick. (Mass.) 304;

20

So it is libelous to publish a pleading of one party in a newspaper or it would seem the whole proceedings before the matter has come to be heard.2 An accurate report of a portion of a judicial proceeding will still be privileged if it does not purport to be a report of the whole. Thus when the trial lasts more than one day, reports published in the newspapers each morning are protected. When a man publishes only a portion, when it is in his power to publish the whole, this fragmentary publication will be evidence of malice, if the part selected and published tell more against the plaintiff than a report of the whole trial would have done.21 The privilege attaching to fair and accurate reports may be rebutted by proof of actual malice.22 The reports of judicial proceedings, although fair and accurate, are not privileged and are indeed illegal, when the court has itself prohibited the publication, as it frequently did in former days.23 Where the subject-matter of the trial is an obscene or blasphemous libel, or where for any other reason the proceedings are unfit for publication, it is not justifiable not justifiable to publish even a fair and accurate report of such proceedings; such a report will be indictable as a criminal libel;24 nor is the publication of proceedings before a grand jury privileged. 25

The common law remedy allowed to a person injured by a libel: First, special damages for every injury of a pecuniary nature resulting from the wrong, which he had to both plead and prove; and second, general damages to his standing and reputation, which the law presumed without proof from the fact of the publication of libel actionable per se. Malice is the gist of every action for libel; either malice in fact consisting of im

Clark v. Binney, 2 Pick. (Mass.) 113; Thomas v. Croswell, 7 John. 264; Heywood v. Cuthbert, 4 McCord, 354; Roberts v. Brown, 10 Bingh. 519; Flint v. Pike, 4 Barn. & Cr. 473; Salisbury v. Union & Advertising Co., 45 Hun (N. Y.), 120; Godshark v. Metzzar, 17 Atl. Rep. (Pa.) 215; Stanley v. Webb, 4 Sandf. Sup. Ct. 21.

Cowley v. Pulsifer, 137 Mass. 396; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548; Kelley v. Lafitte, 28 La. Ann. 435; Burrows v. Bell, 7 Gray (Mass.), 301; Barber v. St. Louis Dispatch Co., 3 Mo. App. 377.

21 Odger's L. & S. 258.

Coleman v. Hartlepool Harbor & Ry. Co., 2 L. T. 766; Stevens v. Sampson, 5 Ex. D. 53. 23 Brook v. Evans, 29 L. J. Ch. 616.

24 R. v. Evening News, 3 Times L. R. 255.

25 McCabe v. Cauldwell, 18 Abb. (N. Y.) Pr. 377.

proper and unjustifiable motives, or constructive malice, which the law presumed without proof from the fact of the falsity of the publication. Evidence of intention, that is, of the absence of malice in fact, was always admissible when the communication was privileged in justification, and when it was not proven in mitigation of damages. A retraction was always admissible in mitigation. When a newspaper article is libelous and does not appear to be privileged, it is presumed to be false and malicious, and no other evidence of falsehood is necessary than the publication itself in order to establish a prima facie case for the plaintiff. 26 The law in all such cases implies malice; in other words, it says you have no right to libel another, whatever may have been the motive or intention.27 So if the publication is false the law will imply malice, though the editor believed it to be true and acted in good faith,28 and where malice is implied exemplary damages may without proof be awarded.29 But if the communication be privileged, express malice must be proved by the plaintiff before he can recover.

Newspapers have had a great deal to say concerning the inadequacies of this law as it now stands, and have discussed various changes which might relieve them from the annoyance of buncombe suits brought at the instigation of shyster lawyers. The agitation of the . question by the press apparently resulted in convincing the legislatures of some of the States that the law was unjust, and not in harmony with the spirit of modern journalism. Michigan and Minnesota have passed statutes modifying the old law. In Michigan, by the statutes of 1887 (Laws 1887, p. 153), it was enacted that, in suits brought for the publications of libels in any newspaper, the plaintiff should only recover actual damages if it shall appear that the publication was made in good faith, and did not involve a criminal charge, and its falsity was due to mistake or misapprehension of the facts; and that in the next regular issue of said newspaper, after such mistake or misapprehension

26 Dixon v. Allen, 69 Cal. 208; King v. Root, 4 Wend. (N. Y.) 133, 21 Am. Dec. 103; Negley v. Farrow, 60 Md. 177; Smith v. Bradwell, 11 Met. (Mass.) 369; Thompson v. Powning, 15 Nev. 208.

27 Negley v. Farrow, 60 Md. 177.

28 Littlejohn v. Greely, 13 Abb. (N. Y.) Pr. 41. 29 Illinois, etc. R. Coal Co. v. Ogle, 93 Ill. 353.

was brought to the knowledge of the publisher or publishers, whether before or after the suit was brought, a correction was published in as conspicuous a manner and place in said paper as was the article sued on as libelous. By section 3, it was enacted: "The words 'actual damages' in this act, shall be construed to include all damages the plaintiff may show he has suffered in respect to his property, business, trade, profession or occupation, and no other damages." Statutes substantially the same were enacted in Minnesota.

This is a step toward reform, but it does not cure all defects. In the first place, the statute purports to confine recovery, in certain cases, against newspapers, to what it calls "actual damages," and then defines actual damages to cover all direct pecuniary loss in certain specified ways, and none other, namely, in respect to property, business, trade, profession or occupation. Proof of actual damages would not only be impracticable and very difficult in these defined cases, but it does not reach all. Men may still be injured and their prospects blighted who have no property, business, trade or profession. Nine times out of ten such losses cannot be the true damages in the worse cases of libel. As Campbell, J., in Park v. Detroit Free Press,30 says: "A woman who is slandered in her chastity is, under this law, usually without any redress whatever. A man whose income is from fixed investment or salary, or official emolument or business not impending upon his repute, could lose no money directly unless removed from the title to receive his income by reason of the libel, which could seldom happen If contradicted soon there could be particularly no risk of this, and the same is true concerning most business losses. The cases must be very rare in which a libel will destroy business profits in such a way that the loss can be directly traced to the mischief. There could never be any such loss when employers or customers know or believe the charges unfounded. The statute does not reach cases where a libel has operated to cut off chances of office or employment in the future, or broken up or prevented relationships not capable of an exact money standard, or produced that intangible but fatal influence

30 29 Alb. L. J. 315.

which suspicion, helped by ill-will, spreads beyond recall or reach by apology or retraction. Exploded lies are continually reproduced without the antidote, and no one can measure, with any accurate standard, the precise amount of evil done or probable. There is no room for holding in a constitutional system that private reputation is any more subject to be removed by statute from full legal protection than life, liberty or property. It is one of those rights necessary to human society that underlie the whole social scheme of civilization. It is a thing which is more easily injured than restored, and where injury is capable of infinite mischief; and, on the other hand, it is one where the injury is frequently, and perhaps generally, aggravated by malice. The law has, therefore, always drawn distinctions between intentionally false and wicked assaults on character, and those which were not actually designed to create a false impression, although necessarily tending to injure reputation if false in fact, but it has made both actionable. This statute has not, apparently, attempted to relieve any persons, but the publishers of newspapers, from responsibility for every injury to character by libel, whether intentionally false or not. If a person, not a publisher, had written in a letter just what this paper published, and had done so under the same impression which Mr. Robison had, the statute would not save him from full responsibility for the damages of all kinds, to which the general rules of law have always subjected persons guilty of libel. While the statute is certainly ambiguous, we cannot attribute to the legislature the monstrous wrong of shielding the intended malice of writers, who impose on fair-minded publishers, from responsibility for newspaper libels, because the publishers themselves may be innocent of deceit, or of making the publishers responsible for the full degree of actual malice in the writer who misinforms them."

One of the leading journals of the country proposed, as a change in the law, that a "libel suit against a newspaper be a criminal suit brought against that person in the paper whose wickedness or carelessness wrought the injury, be he correspondent, news editor, reporter, editorial writer, or whoever may have been the effective 'utterer' of the offense, and the punishment be not a fine, but im

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