Gambar halaman

according to Thorley's invention. The invention is be got into a joint-stock company limited, for the sake said to be by somebody else, whose recipe is said to of selling these goods. Why was that name got in have been purchased by the original Thorley, and there except for the purpose of inducing the world to "Thorley's Food for Cattle" here, according to my believe that it was the same concern, or that it was the view, does not mean food consisting of particular in- Thorley, that it was the same Thorley whose name was gredients or made up according to a particular recipe, the principal characteristic of the name of the article ? because no purchaser would care about that; but The name of the company, I cannot help observing, “Thorley's Food for Cattle" meant that food which was J. W. Thorley & Co., Limited ,and that J. W. Thor. for many years was manufactured at works belonging ley & Co., Limited, is, to my mind, to begin with, a to Joseph Thorley, and afterward was manufactured fiction, an intentional fiction. The meaning of J. W. by his executors carrying on his business at the same Thorley & Co., Limited, that which it would convey to works. The words “ Thorley's Food for Cattle" would any person's mind, is that there was a partnership of indicate, according to my view of the case, to a pur- J. W. Thorley & Co., a real partnership, which had chaser, this: You have always had a very good article been carrying on business in the manufacture of this called “Thorley's Food for Cattle;” any article bear- food for cattle, and that for some reason or other, such ing that name is to you a guarantee that it comes from as we have seen constantly in our experience in this the same place from which that has come with which court, the partnership had been minded to convert you have hitherto been well satisfied and content. itself into a limited company for the more convenient That in truth is the meaning and object and result of transaction of its business. But here the J. W. Thora trade-mark. That is what a trade-mark is; it does ley was not a partner. J. W. Thorley was employed as not signify what it is -- whether it is a name, or a sym- an agent, as the manager; and J. W. Thorley's only bol, or a fancy name, or any thing else. It indicates connection with the company, quâ company, is that he this, a warranty that the article to which it is attached had a one-shilling share in it, the company itself hav. has come from the particular manufacturer of the ing a capital of 2001., or something of that kind. To goods with which buyers have been hitherto pleased. my mind that really would be exactly the same thing “ Thorley's Food for Cattle" never became an article as if somebody were to establish a brewery at Burton, of commerce as distinguished from the particular finding some one of the name of Bass, or somebody manufactory from which it had proceeded. I referred who would take the name of Bass – because there is in the course of the argument to a case as an illustra- no law to prevent a man assuming any name he likes tion which was the converse of this, the case of Liebig's - and then calling themselves J. Bass & Co., Limited, Extract of Meat Company, where the company wanted or W. Bass & Co., Limited, and advertising Bass & Co.'s to prevent some defendants from selling Liebig's ex- pale ale. really can see no distinction between Bass tract of meat, or ling any thing of that name, the & Co.'s pale ale, as advertised by such a company got company having got Liebig to assist them and lend up in that way, and “Thorley's Food for Cattle," ad. them his name. The answer to that was: Liebig's vertised by the company which has procured a person extract of meat has ceased to be a thing made by of the name of Thorley to be connected with their Liebig, because Liebig has published to the world the company. That of itself, to my mind, is a very strong mode by which it is made, and it has been made and thing to begin with. And then next we have to look manufactured generally, and has got into the Pharma- at the advertisements and circulars, aud the almanac. copoeia, into books of cookery, into a dozen places, First of all, as to the packages, could any thing be where a dozen people can make it, and has now become more calculated to deceive? Those are the things by as much known as if it were called “Extract of Meat' which the company really influenced customers. It is alone, or any thing else, and Liebig's extract has ceased said by the defendants that they are very careful, and to have any connection with Liebig as the maker of it they have always been very careful, to avoid auy thing for the purpose of the manufacturer, and was merely which could be considered as indications of any inthe description of it as the article known to the medi- tention on their part to pass their goods off as the cal world and other persons who had occasion to use others'. If they had been so very much minded in it. That was the converse of this case. There is that way, why did they not make their packages dif. nothing like that in this case of “Thorley's Food for ferent—the same shape and the same size it might be, Cattle." Then we have to consider what was the because it might be convenient; but why did they not animus. It appears to me that that would be almost put them in a scarlet, blue, or orange and blue wrapsufficient to dispose of it; but there is one thing that per, or something that would have immediately shown struck me in this all through. We have had nothing like not only to a person minutely comparing the things a satisfactory explanation of how J. W. Thorley's com- together, but to any person who was in the habit of pany came into existence; how they came to form them- having the things in an orange packet, that it was a selves into a company, unless it was that they thought blue packet? Why did they vot do that, if they were that Thorley was making a very good thing; that they minded, as they say they were, not only to take care thought that Thorley's food was a very profitable thing; that their things should not be mistaken, but that the that it had got a very great reputation, and that some world should know that they were rival manufacturof them would like to steal the reputation which Thor-ers? Then there is the almanac which they have cirley's article had acquired. In order to do that, they culated, and in which they put things which were paid seem to have somehow or other got into communica- for by Thorley – Dr. Hassall’s description and report, tion with a gentleman who was a relation of the late and things of that kind, and other passages — for the Joseph Thorley, and a connection of his executors, and purpose of implying that they were the persons for who for some years had been in the service of Joseph whom Dr. Hassall's report had been obtained, and that Thorley, and during those years, according to his own Dr. Hassall's report was a report on their manufacture. account, which I take to be true, had acquired a knowl- Then there is this again. they put, “ It is the best cat. edge of the recipe, and had acquired the exact knowl- tle food in the world. Upward of 95,0001. has been edge of the manufacture, but who for several years awarded to horses and cattle fed on Thorley's food for previous to the existence of this company had never cattle. It has gained the diplomas from the Pennsylhad any thing to do with the manufacture of food for vania State Agricultural Society and of the Royal cattle, but was probably gaining his livelihood in some Agricultural Society," and so on, all of which was true other way; but having the same name of Thorley, of the article which was manufactured by Joseph which was the distinguishing mark of food for cattle, Thorley, but was not true of the article which was he either tendered himself for sale, or was found for manufactured by them; that is to say, their article purchase by some person, in order that his name might | had not received any of these things. They may say their article is the same or as good, but in my opinion | round circulars of warning to the effect that the the representation is not, “We are making an article company were seeking to foist upon the public an as good or the same as Thorley's, which gained the article which they pretended was the same as that prize,” but “This is the thing, we are the persons who manufactured by the late Joseph Thorley. I do are selling the thing, the produce of the manufactory, not think that the defendants in that action were which has obtained those prizes." There are other justified in issuing either the one or the other. In things which I need not stop to dilate upon. On the my opinion they had no right to state that they were parol evidence I am satisfied, and I agree very much alone possessed of the secret, nor had a right to say with what Mr. Townsend said with regard to the wit- that the plaintiffs in that action were seeking to foist ness Stillwell, who was a traveller for the company, upon the public an article which they pretended was and who went to people and said, “I come from Thor- the same as that manufactured by the late Joseph ley's; Joseph Thorley is dead; the persons I represent Thorley. It is unnecessary to go through the evidence are carrying on the business.” I have not the slightest in the case, but I feel bound to say that, in my opindoubt that, being well warned that he was not to say ion, the burden was on the defendants in such a case any thing which could be construed into a positive to show that there was some difference, and I think assertion that the company were carrying on the same something more than a mere nominal difference, some business, at the same premises, or were the successors substantial difference between the article made by the in business, he took care to say that they were carry- plaintiffs and the article made by the defeudants. In ing on the business of manufacturing food for cattle. my opinion, having very carefully gone through the sevIt might be said, it was true that they were carrying eral analyses in each case, there does not appear to be on the food for cattle business; but the intention and any substantial difference. There may be a little more the effect of that, in my mind, was to cause a belief to of the spice in the one than in the other, and so far as be entertained by the persons to whom it was ad- there might be a little excess of spice the article may dressed, who all say they did form that belief from it, be perhaps a little more useful, but there is no subthat it was the same concern; that the company were stantial difference between the constitution of the carrying on the same manufactory from which the contents of the two packets. But passing from the things used to be distributed to the world. I am there-appeal in that case to the appeal in the action in which fore of opinion that, in this case, what the defendant the executors of Joseph Thorley are the plaintiffs, I company have done has been calculated to deceive, and am of opinion that the question for determination by I am bound to say in my judgment I have no doubt us is this: Have the company, in offering for sale the was from the first intended to deceive, the persons article manufactured by them, made representations purchasing their article, into the belief that they were which were calculated to induce a reasonable belief on purchasing the article which Joseph Thorley had for- the part of those to whom the offers were made that merly inanufactured at the works which had obtained the article was manufactured by the successors of the great reputation which Thorley's manufacture ap- Joseph Thorley? In my opinion that question must pears to have obtained from the purchasers of those be answered in the affirmative, and, being so answered, condiments. I am of opinion that the order should it appears to me that an injunction ought to issue subhave been granted very much in the general words in stantially in the form in which it is mentioned in the which it was asked.

writ. Now, the circumstances under which this man

ufacture was commenced by the company in the year BAGGALLAY, L. J. The first of the two appeals 1877 cannot be disregarded. Down to that period the which was opened to us was against the judgment in manufacture of the article kuown as “Thorley's Food the action in which Thorley's Cattle Food Company for Cattle” had been carried on for twenty years, first were the plaintiffs. The vice-chancellor declared that of all by Joseph Thorley, and after his death by his the defendants were not entitled to advertise or rep

executors. He had acquired the recipe for the manuresent that they or the proprietors of the establish- | facture of this article from a person, I think, of the ment carrying on business as Joseph Thorley were

name of Fawcett twenty years before the time when alone possessed of the secret for compounding the con- the company was formed. No doubt, after a time, when diment known as "Thorley's Food for Cattle,” and Fawcett had fully instructed him in the manufacture of proceeded to grant an injunction restraining the de- the article, his brother, J. W. Thorley, was taken by fendants from advertising or representing, or inserting him as clerk or as some other servant, into his employor suggesting in their advertisements or circulars, that ment, and whilst in that employment he acquired a they were alone possessed of the secret, and from rep- knowledge of the way of compounding this condiment. resenting or suggesting, or doing any thing calculated But he had left his service for ten years before Joseph to represent or suggest, that the cattle food manufac- died in 1876, and then, his business having been confined tured and sold by the plaintiffs was spurious, or not to Joseph Thorley and his executors, within nine or ten genuine, or not compounded in accordance with the months after Joseph Thorley's death we have this true recipe. I need not read the remainder of it. I company formed uuder circumstances which are very agree with the lord justice in thinking that that appeal suggestive of an endeavor to get the benefit of the should be dismissed. The company having been sale, or the good repute which the manufacture and founded in March, 1877, these advertisements were in- sale of this article had produced to Joseph Thorley. serted in the newspapers, and the circulars issued in We have a company formed and called “J. W. Thorthe latter part of the month of June in the same year. ley's Cattle Food Company, Limited." The only exThe advertisement was in fact in the form of a caution: cuse for having the name “J. W. Thorley” introduced * The public, and in particular all farmers, graziers, into the description of the company is this, that he dealers and others, purchasing this world-famed food, took a share to the extent of one shilling, the shares are warned that any food for cattle purporting to be of this company being one shilling only. He took one Thorley's Food for Cattle, and not signed with the share of one shilling in the company, and was then name of 'Joseph Thorley,' is not the manufacture of employed by the company as the manager of their the establishment carrying on the business as Joseph business. I say this company was started under Thorley." Thus far no objection could be raised to it; circumstances of a very suspicious character. We but it goes on, “The proprietors of which are alone have had a good deal of argument as to the right possessed of the secret of compounding that famous to use the name “Thorley's Food for Cattle,” and condiment, and carry on business at Pembroke wharf, whether any person at the present time could use Caledonian road. "In the circular which was the sec- that name except the executors of Joseph Thorley. I ond subject of complaint, they said that they had sent think the passage which James, L. J., has referred to

[ocr errors]

in the judgment of Turner, L. J., in the case of Bur- looking at the form of the attractive words on the gees v. Burgess, indicates very clearly what the rights counter bills, or whatever they are called, at the conare under similar circumstances. I do not profess to tents of the almanacs, the sending round of these say now whether J. W. Thorley, if honestly carrying almanacs purporting to be the Illustrated Farmers' on a business on his own account in the manufacture Almanac, or words very similar, implying the same and sale of this article, might not call it by the uame thing - all these things bear out the same view. But of “Thorley's Food for Cattle," provided he took when we come to consider what took place between proper precautions to prevent it being supposed that the travellers and the different persons whom they the article he was so manufacturing was manufactured visited, unless we are to disbelieve some eight or ten by the representatives of Joseph Thorley, but I feel witnesses, all of whom speak most positively on the satisfied that the company has no right whatever to subject, there were representations made to them, use that name. I strongly lean to the opinion which representations, I fully admit, in particular instances, was given by Lord Westbury in the Glenfield Starch as far as regards the words used, not in themselves case in describing the expression “Glenfield" as hav- false, but calculated and proved to convey a very coning a secondary signification indicating the trade de- trary impression of what the real fact was to those nomination of the article manufactured by the partic- who listened to them. It has been said that Mr. ular person, but as I have said, I do not think it Stillwell must have been almost an idiot to think that necessary to express a decided opinion on that point. these representations would be successful. Very posI should be prepiired to assume in this case that the sibly it occurred to him that in the great majority of defendant company had not only the right to manu- instances it would be uusuccessful, that it would facture this article, but to call it “ Thorley's Food for be found out; but still would it always be found Cattle,” and even on that assumption I have come to out? Was there not that prospect of success in the conclusion on the evidence in this case, that they making these representations to the different persons did adopt such a mode of endeavoring to push that to whom he was going that some at least would be inarticle in the market as to induce the reasonable belief duced to purchase? The evidence shows that they did which was entertained by many persons, that the arti- purchase. It is unnecessary to go further into the cle they were so putting upon the market had been facts of this case. I am satisfied on the whole transmanufactured by the representatives of Joseph Thor- action from beginning to end that the object was to ley. Now, in that sense, even the adoption of the obtain as far as possible a slice of the large business Dame is not to be left out of consideration, because no previously carried on by Joseph Thorley and by his doubt, in a doubtful case, the article being sold under executors, and to obtain that by making representathe same name as that by which it was sold by another tions which the practice of this court will not allow to person helps the deception, if any is practiced. I pass be made. from that to the forin in which this article was sold. Mr. Higgins said that nothing was made in the evi- BRAMWELL, L. J. I am of the same opivion, and I dence with reference to these packets, but it came out have very little to add. As to the action in which the in this way: He was putting forward a strong case on company are plaintiffs, I am satisfied that the two behalf of the defendants that they had done every

documents were libels. As to that one which uses the thing that they possibly could to prevent any mistake. word “foist," it is needless to say any thing at all He talked loudly about the different sized boxes, and about it, because it seems to be confessed that it is a the carriers observed that the shape of one box was libel. I had some misgiving about the other one, bedifferent from the shape of the other. But when we cause I doubted at first whether it was any thing more come to look at the packets with which these said than that sort of commendation of their wares which boxes were filled - and that is the article which finds people may put in; but really, when one thinks of the its way into the hands of the customers — I cannot old way of declaring for libel or defamation, and confail to be struck with the remarkable resemblance be- siders this advertisement in that way, that is to say, tween the one and the other. You have a packet not with the statement of the surrounding circumstances only of the same size and the same shape, but you have to which it is applicable, and begins to have an idea of them of the same color, and you have indorsed upon this introduction that the plaintiffs carried on the them corresponding terms as regards the amount to be business of preparing food which they said they pregiven to each description of cattle, whether horse, pared according to a recipe which Joseph Thorley had cow, sheep, or pig, to which it is to be given, every formerly used in his life-time — when one considers thing exactly following not in every case according to this case with such an introduction as that, it is manithe same words, but the same character of direction fest that this advertisement is a libel on the plaintiffs being given in almost every case. It is all very well to in their trades. It begins “ ('aution," and it says, say that we sitting here, having heard this discussion, “The public, and in particular farmers, are warned and looking at the two together, at once see there is a that any food for cattle not signed with the name of difference between the two; but how would it affect Joseph Thorley, is not the manufacture of the estabthe customer who went into a druggist's shop, or some lishment carrying on the busiuess of Joseph Thorley, other shop, in a country town, and asked for a packet the proprietors of which are alone possessed of the of this condiment to be given to him, and had it given secret of compounding that famous condiment." I to him in a packet similar in color, similar in shape, am satisfied that was a libel on the plaintiffs in the way similar in size, and exactly at the same price as that of their trade, and calculated to do them injury, and which he had been in the habit of having given him consequently an action is maintainable with reference before? The form of these packets is enough to indi. to that as well as with reference to the other. Now as cate an intention to deceive. As has been very often to the other case, the complaint of the plaintiffs is not said in these cases, why did they choose to adopt every that the defendants made and sold the same article thing which could make what they are selling as like that the plaintiffs made, but the complaint of the as possible to what was being sold by somebody else? plaintiffs is that it was sold in such a way as to induce Why adopt the same color, the same size, why sell it purchasers to believe, or cause purchasers to believe, exactly in the same form ? The only reply which, look- that it was the article manufactured by the establishing at it with common sense, we can give to such a ques- ment which was Joseph Thorley's, and now is his extion as that is, that it was done with a view to induce ecutors'. That is the complaint which is made, and it the public to believe they were the same. I think is admitted by the learned counsel for the defendants that if those are the suggestions which come to our in that action that if that is so there is a cause of acminds in the first place, looking at the packages, and tion against them, and they must be restrained from

doing it. The question tberefore is one of fact. Was for Cattle,” just as I suppose anybody may make the trade so carried on by the defendants as to give Liebig's extract of meat, or auy body may make Daffy's rise to that belief? Now really it is almost impossible elixir, or the other things which havo been mentioned. to make a doubt about it. I confess, for my own part, Very likely they got hold of Thorley, who had the directly I saw the two packages I thought there was an good fortune to have that name, and to know the end of the case. It is impossible to suppose that those secret, and so they began this business. Now, let us are not calculated to deceive. It is all very well to suppose, for instance, that Bass's firm consisted of say, if you examine them you will find a difference Bass, Smith, and Jones - and it seems as though it between them. No doubt; so you will between a would be admitted, as long as Bass continued one of Bank of England note and a Bank of Elegance note, the firm, no one would havo a right to brew ale and but people have got into trouble for obtaining money sell it under the name of “Bass's Pale Ale," unless he under false pretenses who passed off a Bank of Ele- took care it was not confounded with that well-known gance note, although they never could be convicted of

beer or ale which is produced by tho firm which, I forgery. It is impossible to suppose that there was suppose, to consist of Bass, Smith, and Jones. Now, not an intention to mislead at the bottom of that. If suppose Mr. Bass retired, and Smith and Jones carnot, all I can say is, the defendants ought to be very ried ou the business under the same name as before much obliged to those who have pointed out to them that is to say, Bass & Co. - could it be supposed for a that they are doing that which they do not intend to moment that, because Mr. Bass had left the firm, do, but which there is no doubt they are doing, that is people would then have a right to say, “Oh, there is to say, misleading people. I should like to say one no longer a Bass who makes Bass's palo ale, therefore thing about this expression, “Thorley's Food for Cat- we will call ourselves makers of ‘Bass's Pale Ale.'” tle." It has been said that tho defendants have a right It seems to me manifest there would be no right to do to say they make Thorley's food for cattle, if they do such a thing as that. Bass's pale alo has acquired, as not deceive. Well, I agree, and if one could by any Thorley's cattle food has here, a sort of name, and is possibility suppose - I ought not perhaps put it so known as the production of a certain establishment, strongly, but if one could suppose that they could use and that is a right-a property I suppose one can that expression without the risk of deceiving, I should hardly call it - in the proprietor of the establishment, think tbey ought to have a right to do so; but it seems and no one else has tho right to so act that people to mo almost impossible that they can. Now it is said dealing with him may think they are dealing with tho that it is hard upon them, because it is said every original establishment. If after Thorley's death some Thorley has a right to make food, and therefore to sell time had elapsed before anybody had started afresh, it in his own name, and consequently I suppose call it before his executors had started the manufacture of "Thorley's Food." But not only has every Thorley a this food, then tho words “Thorley's Cattle Food" right to do that, but every John Doe has a right to do might have become common property just in the same that, because he may give himself the name of Thor- way as Liebig's extract of meat. But that not being ley, and carry on business under that name if he thiuks the case, it seems to me the defendants have done, fit. A surname is acquired by reputation, and is not and I must say I think willfully done, what is to be any man's legal property or conferred upon hinn by regretted and what they must be restrained from law in any particular way; it is gained by reputation, doing, that is to say, endeavored to injuro, not for the and if he choose to adopt it and other peoplo call him sake of injury no doubt, but endeavored to make a by that name, he is " Thorley” to all intents and pur-profit at the expense of tho plaintiffs, by producing an poses, although his name was originally John Doe. article and selling it in such a way as to cause tho Then it is said it is hard, if a man has the name of public to believe that they are buying the article Thorley, that he cannot make food and call it “Thor- manufactured by the plaintiffs and not a different arley's Food.” So he may, but if unfortunately for him ticle. some preceding Thorley has carried on the business of Appeal in the first case dismissed, in the second making cattle food in such a way that by the name allowed. “Thorley's Cattle Food " is understood the manufacture of that man, then the second Thorley, or the man

DISBARRING ATTORNEY FOR LIBEL ON who assumes his name, must take care so to conduct

JUDGE. his business that he is not mistaken for the original Thorley, and if he willfully, or even I should say with

PENNSYLVANIA SUPREME COURT. out willfulness, does carry on his business so as to be mistaken, he must be restrained from doing it, and

IN THE MATTER OF THE RULES DISBARRING ANDREW really there is no hardship upon him at all. It is not

J. STEINMAN AND WILLIAM A. HENSEL, a hardship upon him that he should put into his ad

ATTORNEYS. vertisernents, as these persons might do here, “The article produced is the same as Joseph Thorley pro- An attorney, who is also an editor of a newspaper, cannot duced it; it is the article which he called Thorley's

be summarily disbarred on account of his publishing in Food for Cattle; it is the same article, and we make it,

his newspaper a libel on a judge, not designed to ac

quire an influence over him in tho exercise of his judiand you may buy it of us as well as of them.'

cial functions through the instrumentality of popular do that, in that sense they might use the words "Thor

prejudice. ley's Food for (attle," no doubt; but if they cannot use that expression without misleading people they

RIT of error to review an order summarily dismust not use it, because it is a thing to the detriment barring the plaintiffs. The opinion states the

case. of the plaintiff. I should like to make one remark relating to the same business which James, L. J., SHARSWOOD, C. J. [Omitting a technical point.] The mentioned. I think I can see very well how this complainants were members of the bar of Lancaster thing arose. The persons who got up this thing, who county and were also the editors of a newspaper pubhave done this, who are now sought to be restrained, lished there. They printed in their paper an article on the death of the original Thorley, I suppose, severely reflecting upon the conduct of the court in a there was no one who had any particular right to use certain prosecution in the Quarter Sessions in which ** Thorley's Food for (attle” any more than anybody the defendant had been acquitted on an indictment else had; consequently anybody with the name of for violating the liquor law. It charged that the acThorley, and possibly without for all I know, could quittal " was secured by a prostitution of the machine manufacture this article and call it "Thorley's Food ery of justice to serve the exigencies of the Republican

If they


[ocr errors]

party,” and added that as the judge belonged to that public capacity where the fact that such publication party it was “ unanimous for once that it need take no was not maliciously or negligently made shall be cognizance of the imposition practiced upon it and established to the satisfaction of the jury." the disgrace attaching to it.” We may safely assume But the grievance of the offense of the complainants that it meant to charge and did charge that the judge was that the publication was a libel on the court of had decided the case wrongfully from motives of polit- which they were attorneys - and this, it is earnestly ical partisanship. We have no hesitation in pronoun- contended, was “misbehavior in their office," which cing such a publication to be a gross libel on its face. gave the court power to exercise summary jurisdiction Nothing can be more disgraceful — not even, perhaps, by removing them from their office. acharge of direct bribery — than such an imputation on The duty of an attorney is briefly comprehended in the motives of a judge in the administration of jus- the terms of his oath “to behave himself in the office tice.

of attorney according to the best of his learning and The court thereupon sent for the complainants, and ability, and with all good fidelity, as well to the court on their appearance and taking upon themselves the as to the client.” Was the publication in question a responsibility of the publication in question, entered breach of this oath? Fidelity to the court includes rules upon them to show cause why they should not many particulars, but they all evidently concern his be disbarred and their names stricken from the list of official relations. “The sum of the matter," says Chief attorneys for misbehavior in their office as attorneys. Justice Gibson in Austin's case, 5 Rawle, 205, is that To this rule they appeared and put in answer respect- an attorney-at-law holds his office during good beharively, and the rule was afterward made absolute. ior and that he is not professionally amenable for

Many objections have been raised to the roceeding, assaulting the official conduct of the judge which which we will not stop to consider. We entertain no would not expose him to legal animadversion as a citidoubt that a court has jurisdiction without any formal zen. Some of the remarks in the opinion in that case complaint or petition upon its owu motion to strike the have been much relied upon by the learned counsel in name of any attorney from the roll in a case, provided support of the action of the court below. But there he has had reasonable notice and been afforded an op- are two considerations bearing upon the question, portunity to be heard in his own defense.

which now exist, but did not at the time that decision No question can be made of the power of a court to was ordered. The first is the new provision on the strike a member of the bar from tbe roll for official subject of the liberty of the press, which has been inmisconduct in or out of court. By the 73d section of troduced into the Bill of Rights of the Constitution of the act of April 14, 1834, P. L. 354, it is expressly 1873, and the second is that at that time the judiciary enacted that “if an attorney-at-law shall misbehave was not elective. Judges in 1835 were appointed by himself in his office of attorney, he shall be liable to the governor, and their term of office was during good suspension, removal from office, or to such other pen- behavior. There might then be some reason for holdalties as have heretofore been allowed in such cases by ing that an appeal to the tribunal of popular opinion the laws of this Commonwealth." We do not mean was in all cases of judicial misconduct a mistaken to say - for the case does not call for such an opinion course and unjustifiable in an attorney. The proceed

- that there may not be cases of misconduct not ings by impeachment or address were then the ones, strictly professional which would show a person not to and the only ones, which could be resorted to to effectbe fit to be an attorney, nor fit to associate with hon- | ively remedy the supposed evil. To petition the Legest men. Thus if he was proved to be a thief, a forger, islature was then the proper step. To appeal to the a perjurer or guilty of other offenses of the crimen people was to diminish confidence in the courts and falsi. But no one, we suppose, will contend that for bring them into contempt without any good results. such an offense he can be summarily convicted and We would not say that the case is altered and that it is disbarred by the court without formal indictment, a not the right and the duty of a lawyer to bring to the trial and conviction by a jury, or upon confession in notice of the people who elect the judges every inopen court. Whether a libel is an offense of such a stancc of what he believes to be corruption or partischaracter may be a question, but certain it is that if anship. No class of the community ought to be the libel in this case had been upon a private indi- allowed freer scope in the expression or publication of vidual, upon a publio officer, such as the district- opinion as to the capacity, impartiality or integrity of attorney, the court could not have summarily con- judges, than the members of the bar. They have the victed the defendants and disbarred them from best opportunities of observing and forming a correct practice. The office of an attorney is his property, and judgment. They are in constant attendance on the he cannot be deprived of it unless by the judgment of courts. Hundreds of those, who are called on to vote, his peers, the law of the land - the last phrase meaning never enter a court-house, or if they do, it is only at as we have been taught by Lord Coke, “due process of intervals as jurors, witnesses or parties. To say that law." By the seventh section, the first article of the an attorney can only act or speak on this subject under Constitution of 1874 -- the Bill of Rights -- it is de- liability to be called to account and to be deprived of clared “that no conviction shall be had in any prose- his profession and livelihood by the very judge or cution for the publication of papers relating to the judges he may consider it his duty to attack and exofficial conduct of affairs of men in publio capacity, or pose, is a position too monstrous to be entertained for to any other matter proposed for public investigation a moment under our present system. or information when the fact that such publication In admitting, as he seems to do, that a libel on the was not maliciously made shall be established to the court may be a breach of professional duty in an attorsatisfaction of a jury.” This is a new and very im- ney, Chief Justice Gibson adds a most material portant provision introduced into the Bill of Rights by qualification. “The motive should be clearly shown to the Constitution of 1873. It would be a clear infraction have been the acquirement of an iufluence over the of the spirit, if not the letter, to hold that an attorney judge in the exercise of his judicial functions by the can be summarily disbarred for the publication of a instrumentality of popular prejudice." No such molibel on a man in a public capacity, or when the matter tion has been or can be imputed to the complainants. was proper for public investigation or information, for The learned judge who delivered the opinion of the as he certainly does not forfeit his constitutional court below imputes no such motive to them. He rights as a free man by becoming an attorney, it says: “Their motive, though not openly or at all guarantees to him immunity from all liability to avowed in the publication, is too obvious to admit of punishment in the case of “the publication of papers doubt. The least reprehensible motive by which their relative to the official conduct of affairs of men iu professional misconduct can be supposed to have been

« SebelumnyaLanjutkan »