bill, however, that irreparable injury might result from the delay necessary to a proper hearing, the court granted an order restraining the act sought to be enjoined until the motion for an injunction could be heard. It undoubtedly had the power to do so. It was done to preserve the status of the matter until the motion could be heard and decided. This was the order the defendants knowingly violated. There can be no question of the power of the court to grant such a temporary order until a proper hearing can be had, whether the question be that of jurisdiction or otherwise. It has, of course, the power to determine if it had jurisdiction, and the power to grant a temporary restraining order until it does so is necessary to the proper conduct of justice, and while in force it is the duty of the parties to obey it. IN Copy attest: Wм. H. HOLT, court towards the attorney are most kind, but this cannot enter into a question of duty. I have no doubt that the attorney believed he was acting in accordance with law, and yet in my opinion there was a disregard of the order of this court and misconduct as an attorney of this court which cannot pass unnoticed and unpunished. It is, therefore, the judgment of this court that the defendant, J. J. Pohl, be fined in the sum of two hundred dollars, and be committed to the custody of the marshal to be imprisoned until said fine is replevied, paid, or legally discharged; and that he be also now committed to the custody of the marshal to be imprisoned until the possession and the keys of the property in contest are restored to the plaintiff, Wenar, and the status of the possession of the property be restored as it was when the temporary restraining order was served. Also, that the defendant, T. D. Mott, Jr., Esq., be suspended from practicing in this court for six Ricardo Nadal, Clerk, by H. H. Scoville, months from this date, but, under all the circum- THE UNITED STATES DISTRICT COURT FOR JOSEPH WENAR v. J. J. POHL. stances, this order is not to be enforced as to him without further order of the court, save as to thirty days. An order will be entered conforming to this opinion. I also wish to add that this court has, upon all occasions tried to be very careful to not infringe upon the power of the insular courts. Wherever I have had a doubt upon that question I have resolved Contempt Proceedings Against J. J. POHL and it in favor of their jurisdiction. I think that is the T. D. MOTT, JR., His Attorney. OPINION. proper view to take of the matter. The practice, however, of transferring cases is quite common in the States. The State courts never fail to do it Upon the averments of the bill filed in this case when the petition is presented and the bond exethe court entered a temporary restraining order cuted, unless it is perfectly apparent upon the face for the purpose of preserving the property in statu of the papers that no ground of transfer exists, and quo, and to prevent any irreparable injury to any even then the United States court, upon the filing one until a hearing for a temporary injunction could of the copy of the petition, bond and transcript of be had at a near day and both parties be heard. I the case, is the judge at last as to whether it should have no doubt of the power of the court to enter be transferred, and it proceeds to hear and detersuch an order, nor have I any doubt that the party mine that question. Of course, however, if it was bound to obey it until the further order of should not have been transferred, it is the duty of the court. This is necessary to the very existence the United States court to remand it to the State of the court in the proper performance of its duties. or Insular court. I repeat, that wherever this court Upon the question now presented I am not deter- has a doubt as to whether a case is properly transmining any right to the property, nor am I deciding ferable it will be remanded, and this court will as this court has the right to do, however, whether refuse to take jurisdiction; but, in a case where the or not the Insular District Court, at that time, had jurisdiction is clearly and plainly given to this been divested of jurisdiction, and whether it had court there should be no ground for any difference attached to this court by virtue of any steps for between the courts as to the transfer and powers to removal of the suit brought there that may have try the case. In deciding this matter to-day, I do been taken in that court, but I am now hearing not pretend for a moment, to any extent or in any solely the question of contempt for a violation of way, to pass upon the rights of these parties to this an order of this court by the defendant and his property, nor to pass upon whether the Insular Disattorney. The duty is an exceedingly unpleasant trict Court was properly divested of jurisdiction one and that has given the court much unpleasant and this court invested with it. That is a question feeling since the occurrence. The feelings of the to be determined in future in this case, but I now In Union National Bank of Chicago v. Chapman, recently decided by the New York Court of Appeals (169 N. Y. 538), suit was brought upon a promissory note signed by the appellant, Elizabeth J. Chapman, and others, in Alabama, in the following form: "$5,000. Tuscumbia, Alabama, May 1, 1894. Six months after date, we promise to pay to the order of E. P. Reynolds, Jr., five thousand and no 100th dollars, value received, with interest at 8 per cent per annum from date, payable at Union National Bank, Chicago, Illinois. Chapman, keynolds & Co. W. P. Chapman. Elizabeth J. Chapman. Ella Howard. C. W. Howard." "The trial court has found as facts that the defendant, Elizabeth J. Chapman, was the wife of William P. Chapman, who was a member of the firm; that she signed the note at the request of her husband as surety for the firm, and that, while it was the intention of the firm that the note should be negotiated and discounted in the State of Illinois, she did not know of such intention except from what appeared on the face of the note; that she signed the note for the purpose of raising money for the firm, to enable it to continue its work upon the government contract in Alabama, and after the note was executed it was delivered to Reynolds, the payee therein named, who took it to the plaintiff's bank in Chicago, Ill., indorsed it and delivered it to the bank for the purpose of securing loans already made to the firm and for the purpose of procuring additional loans." Upon this state of facts the Court of Appeals (Vann and Bartlett dissenting), reversing the Appellate Division, held that the contract on the part of Mrs. Chapman was an Alabama contract, and, being void under the laws of that State, was not enforcible against her, although it was valid under the law of Illinois. With all due respect, we think the decision should have been the other way. The following is from the dissenting opinion by Vann, J.: "The payee was a member of her husband's firm, and she knew it when she signed the note. She also knew that it was an accommodation note, made to raise money for the use of the firm, and that until negotiated it was without binding force upon anyone. After signing it she intrusted it to the payee, knowing that, in behalf of the firm, he intended to negotiate it somewhere, and that he was at liberty to negotiate it anywhere. When the payee thus received the note signed by her, she had made no contract, for the paper had no inception as yet. The contract of a surety rests upon the contract of the principal, and until the latter becomes operative the former is not binding. The promise of the surety has nothing to act upon until the promise of the principal is in force as an effective contract. When the firm negotiated the paper in Illinois, as they had a right to do, by selling it to a bona fide purchaser for value, that which theretofore had been merely a note in form first became a note in fact. It then became a contract, and for the first time acquired the quality of commercial paper. Until then the law did not recognize Mrs. Chapman as a surety. She had made no enforceable contract, but merely an inchoate promise. which was without legal life until what was done in Alabama, with implied authority to complete it elsewhere, ripened into a lawful obligation by what was done in Illinois. All that was done in Alabama did not make a contract, and therefore the contract was not made in that State. It was made in Illinois, because there was no contract, either of principal or surety, until the paper was used in that State. That use of the note was necessarily within the contemplation of Mrs. Chapman when she signed it and gave it to Mr. Reynolds, the payee, with her implied consent that he or his firm might negotiate it anywhere, and hence within a State where the law permits a wife to become surety for her husband. As the law presumes a lawful, and not an unlawful, intent, when possible, the presumption arises, in the absence of eidence upon the subject, that she intended the note should be used in a State where she could become such a surety. Hence she is presumed to have contracted, not with reference to the laws of Alabama, where her action would not be binding, but with reference to the laws of any jurisdiction where her promise would be lawful, provided the paper should subsequently be used within such a jurisdiction. Otherwise she must have intended to aid in imposing upon someone, which will not be presumed, but must be proved. As the note was made payable in Illinois, was delivered by Mrs. Chapman with leave to negotiate it anywhere, and it was actually negotiated and had its first inception in that State, the mere fact that it was written in another State, where she had a temporary residence only and where she knew it could not be enforced and hence could not be honestly used, did not make it a contract of that State, nor prevent it from becoming a contract of the State within which she promised to pay it. I think it was an Illinois contract and should be governed by the laws of that State." In answer to this cogent reasoning, which, in our judgment, reaches a just result on the merits, the court advanced the technical and artificial theory that Mrs. Chapman's liability was to be tested simply by the meeting of her mind with that of the accommodation payee in Alabama; that although such payee was a member or the firm for whose accommodation the note was made, although it was made payable in Chicago, and although she knew the note was accommodation paper and was cognizant of the pur pose for which it was issued, still, as she was not expressly advised that the note was to be discounted in Chicago, her responsibility ended with the mere signing of the instrument in Alabama. It is difficult to see just what meeting of minds there could be between Mrs. Chapman and the payee, except a meeting of minds for the execution and delivery of the note for the general purpose that the parties had in view. The court remarks: "Mrs. Chapman's contract to become surety was complete when the instrument was signed and delivered to the payee. It was then a contract beyond her recall, upon which she in the future might become liable when negotiated by the payee, if otherwise valid, and the place of the negotiation could not, under the circumstances, in any manner change the fore or effect of her contract." We cannot perceive that any contract existed until the instrument was negotiated. The signing of the instrument was but a single and preliminary step in the consummation of an entire transaction. We are of opinion that the present decision is contrary to the spirit of the decisions in Scudder v. Bank (91 U. S. 406) and Milliken v. Pratt (125 Mass. 374), and that the reasoning distinguishing them is not convincing. Those cases turn upon the principle that the inception and validity of a contract depend upon the tact of its delivery, rather than that of its bare execution, which principle is ignored by the majority of the court in the case under discussion.- New York Law Journal. NATIONAL REGULATION OF TRUSTS. At Harvard University, James B. Dill, the wellknown corporation lawyer of New York, discussed for an hour recently the necessity of having "National Laws to Govern Trusts or Great Industrial Combinations." Besides the members of the Harvard Economic Society, the address attracted a large assemblage of visitors interested in the questions growing out of the anti-trust litigation before the United States Supreme Court. 66 tions to the State of its creation," he insisted that the trust was national in extent, and an integral part of the best growth and financial development of the country. Present State legislation tended to lack of uniformity, to diversity, and to direct antagonism. "Charter granting States are so shaping their corporate legislation," added Mr. Dill, "that their charters will be a salable product to other than their own citizens. More than this, they are permitting those of other States who will come to them for charters to do things which they deny their own citizens. The State of New York to-day forbids the organization of transportation, railroad and what is commonly known as quasi public corporations, to be organized under any other than the particular law providing for such corporations with its restrictions and safeguards. Nevertheless, that State has before it to-day a bill making it lawful to form a corporation for the business of constructing, maintaining and operating a railroad, telephone or telegraph lines under the Business Corporations Law, provided all operations of these companies shall be carried on wholly beyond its borders. In other words, New York is assuming to grant powers to corporations to carry into effect outside the State that it will not permit to be exercised within its own territory." Further, Mr. Dill contended that "State legislation for revenue was most pernicious in tendency, since, if the State, as a whole, was for sale, the moral example of the State tended to make legislators individually for sale." Mr. Dill contended that the power for good legislation affecting trusts was crippled by the lack of national jurisdiction. Each State legislated for itself in disregard of the nation's good. The result was confusion and frequent conflict between federal and State statutes. "Americans have not as yet begun to realize," declared Mr. Dill, the "force and power of these aggregations of capital. Viewed, on the one hand, from the standpoint of undoubted advantage to the country, certain intelligent people are inclined to do away with all legal restrictions upon the growth and progress of great organizations. Others, realizing the dangers which of necessity accompany power of any kind, and which when united in combinations, present, if uncontrolled, more than a menace to our country, are inclined to repress the trust movement in every possible way." The safe method, Mr. Dill thought, was not in abolishing trusts, but in properly applying the principles they represented. The basis of discussion respecting the legal control of combinations was not first utility and then control, but utilization and control pari passu. Mr. Dill, in opening, made the points (first) that the best intelligence of the country favored the adoption of national principles with respect to corporate measures; (second) that history showed that in instances where interstate warfare had affected trade and commerce unfavorably, federal assumption of the matters in dispute had frequently resulted; and (third) that whenever a force affecting the welfare of the country at large has been found "to have outgrown the swaddling clothes of the express powers of the Constitution," and entitled to the protection of a national law, the American people had always overridden mere technicalities, and taken, Citing several interesting instances of interstate unto themselves the requisite authority under the warfare, Mr. Dill contended that trusts had outgrown implied powers of the Constitution. the confines of mere State legislation and had now Saying that he accepted the term "trust" to signify become a national force. He said: "This contest a "corporate aggregation engaged in other than between States has reached the point where Minnemerely local business, and not confined in its opera-sota has in vain appealed to the Supreme Court of the United States for relief, openly charging New | portunity to organize under a national law? Yes, Jersey with permitting a great corporation to organ- for their tendency to-day is to assume a national ize under its laws for the express purpose of doing character. This is shown by the designations what was forbidden in Minnesota, and what directlyUnited States,' 'AMERICAN,' 'Federal,' 'National' affects and was intended to affect, property located and even 'International.' There is a tendency to in Minnesota. It needs no argument for the student of corporate legislation to reach the conclusion that it is not towards uniformity that State legislation is drifting, but towards interstate warfare." Mr. Dill then urged the passage of a federal law, along the lines of the national banking act, not abridging the powers of the State to create corporations, but giving the option to corporations, whose business is national in extent relating to trade with foreign countries or between States, to organize under national laws guaranteeing protection against conflicting State legislation and political enactments. Such an act should be based upon a public demand for cleaner legislation and purer politics, and providing: First. It should be optional, as in the case of the national banking act, leaving corporations free to organize under State acts, if they chose. Second. It should deny the name "national" to any but national corporations, compelling other corporations who assume that title to change it. Third. National corporations should have freedom from State supervision and should be subject to taxation by the State only to the amount of property actually in the State, and then upon the same basis as an individual. Fourth. The national corporation should be subject to national supervision and examination and should require at least private publicity, which would probably also result in a degree of public publicity. Fifth. It should be protected from State attack to the same extent that the national banks are, viz., it should not be subject to attachment or other provisional limitations which prevail in any State against non-residents, that is to say, being a United States corporation, it should be a citizen of the United States and a citizen of each State to the extent that it has all rights of citizens as to attacks in the courts. Sixth. The national corporation should be subject to national supervision and examination, and should require at least private publicity, which would probably result in a degree of public publicity. Seventh. An annual report should be made by the corporation showing the taxing situs of all its property. Such information should be collated by some federal authority and furnished to the taxing officers of the various States in order that the corporation might be justly and correctly taxed. Eighth. A national corporation should pay local taxes upon all its property. Its stock in the hands of stockholders should be exempt from taxation of every nature. publicity, at least to 'private publicity,' on the part of the better class of corporations, such as the United States Steel Corporations, the National Biscuit and others, as a matter of self-preservation. The tendency in each case is to publish more and more the details in order that the good corporations and the sound organizations may show themselves to be in a position where the others dare not follow them in making public statements. They proceed upon the theory that the man six feet tall can wade through a stream of such depth that a man five feet high would be drowned in the crossing, and the great corporations are quite willing to drown in the stream of publicity the other corporations who are following in their wake and attempting to imitate their standing and position. "No great corporation can be put upon the market without a financial syndicate. No matter how great or how strong is that syndicate, it must go to the banks for money. The banks will not perpetually advance funds upon underwritings or other securities. So the syndicate ultimately gets to the public. The bankers, knowing this, would insist that the financiers organize their company under that law which would inspire the greatest public confidence in order that the public would ultimately invest. Then, too, the law should have a requirement that present combinations might become national combinations upon a theory similar to that by which State banks are entitled to become national banks. This would be availed of by the sound corporations for their own good, not only for protection against imitators and those not able to follow them, but also as a protection against the diverse and inconsistent laws of the various States. The tendency of the States is to attract more and more foreign corporations and therefore the great corporations would avail themselves of the privilege of becoming a United States corporation, and thereby being a corporation foreign to no State, thereby securing to themselves the privileges and immunities of citizens of every State. "The point of the whole matter is that they would secure to themselves uniformity of legislation throughout the length and breadth of the United States. Texas and other States may drive insurance companies out of their territories, but they cannot drive national banks out because the national bank derives its existence from a power higher than that of a State-created organization. No corporation engaged in interstate commerce, no corporation desiring to do business throughout the length and breadth of the country, could afford to be other than a na Discussing the practical advantages of such a tional organization. measure, Mr. Dill said, in conclusion: "It would not be long before the investing public "Would corporations avail themselves of the op- would draw the lines sharply between State-created organizations assuming to do a business national in extent, and truly national corporations. In a word, the successful combination must be in its nature a national organization in order to even pretend to carry out the economic theories upon which it is based. Given a law which creates real national corporations and all others would become imitators and be so known to the public. The public would refuse to take the stock of such an organization on the same principle that it would refuse to take a counterfeit bill." In explaining what he meant by "private publicity," Mr. Dill added: “By private publicity I mean information concerning the management, affairs and details of the corporations accessible to every stockholder in much the same way as if he was a partner in the concern. This avoids arbitrary distinction between public and private companies and would still disclose all data that a stockholder had the right to learn. As, however, the number of stockholders increase until a corporation involves 5,000 stockholders. this private publicity would become public publicity, inasmuch as what is known to one, two and three might remain private, while what is known to 5,000 would be open to the world. "The tendency to conceal facts from stockholders is indefensible. The practice is too prevalent to call for investments from the public, and to decline to say what is being done with the funds. Stockholders are entitled to sufficient information, at least once a year, by way of clear and defined statements, which will enable them to act under a common understanding, and either to change their investments or change their directors." THE INDEPENDENCE OF THE JUDICIARY. At the Brooklyn Bar Association dinner, last month, one of the speakers was Justice John Woodward, of the Appellate Division of the Supreme Court, who took for his theme, "The Independence of the Judiciary." He said: these courts, and at last procured laws to be enacted by which such influence has been entirely prevented; all which measures, we must observe, were at the same time strong declarations that no subjects, however exalted their rank might be, were to think themselves exempt from submitting to the uniform course of law, or hope to influence or overawe it. The severe examples which they have united to make on those judges who have rendered themselves the instruments of the passions of the sovereign, or of the designs of the ministers of the crown, are also awful warnings to the judges who have succeeded them, never to attempt to deviate in favor of any, the most powerful individuals, from that straight line of justice which the joint wisdom. of the legislature has once marked out for them.' "This singular situation of the English judges, relative to the three constituent powers of the State (and also the formidable support which they are certain to receive from them as long as they continue to be the faithful ministers of justice), has at last created such an impartiality in the distribution of public justice in England, has introduced into the courts of law the practice of such a thorough disregard to either the influence or the wealth of the contending parties, and produced to every individual, both such an easy access to these courts and such a certainty of redress as are not to be paralleled in any other government. Philip de Comines, so long as three hundred years ago, commended in strong terms the exactness with which justice was done in England to all ranks of subjects; and the impartiality with which the same is administered in these days will, with still more reason, excite the surprise of every stranger who has an opportunity of observing the customs of this country." Inheriting our laws, and largely our judicial system, from England, we early asserted the independence of the judiciary in the colony of New York. Nearly every page of the early records ex'Gentlemen of the Brooklyn Bar Association.-presses the regard of the colonists for law, as well So much has been said, and so well said, upon the question of the independence of the judiciary, that I fear I shall be able to add little to the symposium. However, I may contribute my indorsement to the good things that have been produced upon this topic, thus adding to its currency, if not to its worth, and in this way aid in upbuilding a sound and enduring sentiment, which shall make the judiciary at least approximate our ideals. De Lolme, the great Swiss essayist, whose appreciative analysis of the English Constitution has never been excelled in clearness and conciseness, speaking of the period of 1770 and of the two houses of parliament, says: "They have, from the earliest times, preferred complaints against the influence of the crown over as their devotion to the rights of the people. The lawyers of the province stood shoulder to shoulder in their construction of the law from the standpoint of the English Whigs, and bench and bar were as one in defense of the liberties of the people under the laws of England as they understood them. So tenacious were they, that Colden, in a letter to the Lords of Trade (January 11, 1762), referring to Delancey, said that they had not long since a glaring instance' of the political power of a Chief Justice appointed for life. Determined to secure this great power on the side of royalty, one Benjamin Pratt was brought into the colony from Boston in October, 1761, and in November of the same year he was commissioned Chief Justice 'during |