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In State v. Hamlin, which will be found in our abstracts this week, it was held that the expression of opinion by a grand juror before he is sworn as to the guilt of an accused person, does not become a cause of disqualification. The common law requires grand jurors to be good and lawful freeholders and inhabitants of the county; and where that law prevails, a disqualified grand juror may be challenged before indictment found. 3 Bac. Abr. Juries, A; 1 Chitty on Crim. Law, 309; United States v. Williams, 1 Dill. 492. In People v. Jewett, 3 Wend. 314, it is said: "There are causes of challenge to grand jurors, and these may be urged by those accused, whether in prison or out on recognizance, and it is even said that a person wholly disinterested may as amicus curio suggest that a grand juror is disqualified. But such objection, to be availing, must be made previous to the jurors being impanneled and sworn. In the case of United States v. Burr, before the Circuit Court of the United States at Richmond, Virginia, the prisoner was allowed to challenge grand jurors, on the ground that they had formed and expressed opinions of the prisoner's guilt. But the challenges

were made before the grand jury was impaneled and sworn. Burr's Trial by Robertson, 38. In Tucker's Case, 8 Mass., the court said that Burr's Case was solitary in allowing challenges to grand jurors, and a juror objected to by the amicus curia was sworn. In Commonwealth v. Smith, 9 Mass. 107, it was held that objections to the personal qualifications of a grand juror, or to the legality of the returns, can not affect any indictments found by the jury after they have been received by the court and filed. In Musick v. People, 40 Ill. 268, it was held that if an expression of opinion by a grand juror were a ground of challenge, the objection must be taken before the juror is sworn. In Indiana, a person under prosecution for crime, and in custody or on bail, may challenge, for good cause, any person returned or placed on the grand jury. Hudson v. State, 1 Blackf. 317; Jones v. State, 2 Id. 475; State v. Herndon, 5 Id. 75; Hardin v. State, Id. 347; Mershom v. State, 51 Id. 14. In Hardin v. State the court say that, "no doubt, challenges to the polls may be made where any of the jurors have not the necessary qualifications. These challenges, however, must be made before the jury are sworn and charged." In Pennsylvania, the defendants in the case of Commonwealth v. Clark, 2 Browne, 325, being in jail on a charge of homicide, were allowed to challenge grand jurors for favor,before the grand jury were sworn. In New Jersey, the court in the case of the State v. Rockafellow, 1 Halst. 332, held that it was a good plea in abatement to an indictment for rape, that one of the grand jurors by whom the bill was found was not a freeholder as required by the statutes of that State. In State v. Richey, 5 Halst., a plea in abatement of the indictment, that two of the grand jurors who found it had expressed an opinion before they were sworn, was not sustained. See, also, United States v. White, 5 Cranch. C. C. 457; Boyington v. State, 2 Port. (Ala.) 100; State v. Easton, 30 Ohio St. 542.

An instance of a contract which is regarded by the courts as against public policy, will be found in the case of Haines v. Lewis, recently decided by the Supreme Court of Iowa. The plaintiff sued for a note executed by one Danforth, and placed in the hands of defendant to be delivered to the plaintiff, in case one

Ellen Patterson, a client of plaintiff, should sign a petition to the Governor asking for the pardon of Danforth for an offense of which he was convicted; or if the judgment should be reversed on appeal, that she would forbear to prosecute. The court held that he could not recover, Adams, C. J., saying: "The plaintiffs' action is based upon an alleged agreement upon the part of the defendant to deliver to them the two notes made payable to them and placed in the defendant's hands. With whom such an agreement was made,does not appear from the petition. If it was made solely between Danforth and the defendant, then the defendant was solely Danforth's agent or bailee, and the delivery by Danforth to his own agent or bailee was not such delivery as would put the notes in force. But if the petition had averred an agreement between the defendant and plaintiffs, they would still not be entitled to recover unless the agreement was of such a character that we could properly enforce it. The defendant insists that we can not, for the reason that it would be against public policy to do so. It is the right of the State to have the unbiased testimony of all its witnesses in every criminal prosecution. If the tendency of such agreement would be to defeat such right, it can not be upheld. All the notes, including those made payable to the plaintiffs, were executed for the benefit of Ellen Patterson, the prosecuting witness in the criminal case. From the time they were executed and deposited, she had a direct pecuniary interest, not only in securing Danforth's pardon, but, in case that was refused, and the case was reversed and remanded for another trial, in securing his acquittal. From most criminal acts there arises a civil liability, and the person injured is often the prosecuting witness. If the prosecuting witness and defendant can stipulate for the deposit of promissory notes or other property,by the defendant, to be delivered to the prosecuting witness in settlement of the civil liability in case the defendant escapes conviction, and not otherwise, and the courts will enforce such stipulations, it appears to us that such would become a favorite arrangement upon the part of the injured person to enforce the discharge of the civil liability, and upon the part of the defendant to defeat the administration of criminal justice. In this case it is true that there had already been a conviction, and it was hoped that a pardon would be secured; but the possibility of a failure to secure the pardon, and of a reversal by the Supreme Court, and another trial below, we think must have been contemplated by Danforth, and constituted a part of his motive in executing and depositing the notes."

To two incidents which have occurred across the water during the past month, we are constrained to give more than a passing notice. In the one we see the fellowship which prevails among the members of the English bar, and the esteem which a judge may feel for the good opinion of those who appear before him in court. In the English Court of Appeal, after remarks by the Lord Chancellor on the death of Lord Justice Thesiger, Sir Henry James, Attorney General, made the following address, the members of the bar meanwhile standing: "My lords, I hope you will forgive me if I take this opportunity, the first which has been offered to me, and therefore I take it, of speaking a few words rather to those around me than to your lordships. It was the wish of the late lord justice that I should do so. When his end was coming near- very near- he claimed the attention of one who stood by him, and exacted a promise that

a message should be taken from him in that, to him, supreme moment, to those who had been his comrades, and he begged that it should be told to them that he had never forgotten, and even in that moment did not forget, the kindness and consideration which he had received from them, and he hoped and trusted that in return he would not be forgotten by them. My lords, that message I now give, and although the words seem to come from afar, and no reply can be sent to them, still it may be some satisfaction to those who so sadly mourn to know that 'men will come and men will go' before he will be forgotten by us, or his character and conduct cease to be regarded as an example to us all. My lords, I pray your forgiveness for having delivered this message; but my apology consists in the hope that words so coming from such a man will tend to forge stronger a bond of importance to the public-the bond which binds the bench and bar together.

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The other incident illustrates the stern rigor of the law, which makes culprits tremble, and helps to render life and property more secure. We recommend this scene to the advocates of corporal punishment in this country. We cannot help thinking that it makes a strong argument in their favor. The scene occurred at the criminal assizes in London a few weeks ago, where one Henry Perry had been convicted of robbery with violence. Mr Justice Stephen, in passing sentence, addressed the prisoner as follows: Henry Perry, you stand convicted of one of the worst offenses I have had the misfortune to try. Everything has been said that could be said for you, with the view to the propriety of proper pleading, and you have no one to blame but yourself for the position in which you find yourself. You obviously, beyond all possibility of doubt or question, wickedly premeditated, the outrage which, for a young man in a respectable position, and, I suppose, a decent education, is almost unparalleled. It is perfectly clear to me, and to every one who heard what Lewis stated, that your distinct intention was to stupefy that person by the use of some narcotic, and then to rob him; and, when disappointed in the wicked expectation, and not being able to do that, you did, to the utmost of your force, use a stick with sufficient violence to make him insensible; and it is impossible for me to doubt that you did attempt to drag him to the door of the carriage and throw him out upon the line, whether you intended to cause his death or not. It may be that you had not formed a deliberate premeditated intention to murder him; but it is only too obvious that when you did commit this terrible crime, and were thinking how you could avoid the consequences, you tried to throw him out of the carriage, in order that no being might find out that anything had taken place between you and him. I am willing to believe that your character has been a good one; but in this sense, like other criminals, you have had a good character until you have been found out. In the act of which you have been found guilty you pose as the most cowardly, most brutal wretch that ever stood in the dock, and the sentence upon you must correspond with the severity of the crime you have committed; for I have a duty to perform, and the sentence of the court upon you is that you receive first, thirty lashes with the instrument called the "cat" (the prisoner up to this point had exhibited an apparently calm demeanor, but here burst into tears), in order that, coward as you are, you may feel somewhat of the pain which you inflicted, and, afterwards, that you be kept in penal servitude for twenty years." The prisoner, n hearing the sentence, gave a scream, and was then removed from the dock.

NOTES.

-The late Chief Justice Cockburn was a little man, low of stature, meagre, with a head through which you might fancy mind visible as light is through a lamp; a bright, keen face, and a nose strangely like a pen. His voice was greater than, considering his stature, seemed to be rightfully his: and he used it magnificently. The story runs that when he attempted to affect the decision of an eminent judge of pre-eminently the unrhetorical class, by artistic modulations of his superb voice, the judge remarked: “Do you think, Mr. Cockburn, that you will affect my mind by sinking your voice a quarter of an octave?"

-A press telegram of the 8th inst. says: Since the opening of the present term, the Supreme Court of the United States has made unusually rapid progress. The court is this term seventeen cases ahead of its last year's record. Should the present rate of progress be maintained for the next two weeks, as it seems likely to be, cases will be called before the Christmas holidays which would not ordinarily be reached earlier than the last of January or first of February. There is no probability that any of the justices of the court will retire from the bench at present. It is understood that Justices Strong and Swayne are both desirous of giving up their situations as soon as they can do so without leaving the court in a crippled condition, but the announcement of any particular date for their retirement is premature. It is more than probable they will retain their seats on the bench until the end of the present term.

-The Law Times of the 13th ult. says: "The charge of assault at the Lambeth Police Court, which raised the question as to the right of a theatrical manager to demand fees for taking care of hats, etc, has been dismissed. In thus deciding in favor of the defendant, Mr. Ellison merely followed the ruling of Wood v. Leadbitter, 13 M. & W. 838, in the year 1845. The facts there were rather stronger; for, instead of the complainant having gone to Astley's with an order, the plaintiff had paid his guinea for a seat in the grand stand at Doncaster races. When there, for some reason or other, he was ordered to leave by the steward, Lord Eglintoun, and not doing so he was removed. But, upon his bringing an action, the court decided against him upon the ground that the right to come and remain for a certain time upon the land of another, can be granted only by deed, and a parol license to do so, though money be paid for it, is revocable at any time and without paying back the money. The other case to which the magistrate referred was that of Taylor v. Waters, 7 Taunt. 374, where it was held by the court in 1816 that a bencficial license to be exercised upon land may be granted without deed and without writing. There the license was in the form of a silver ticket, giving the right of admission to a certain theater for twenty-one years, and it was decided that, having been granted for valuable consideration and acted upon, it could not be countermanded. But this ruling Was much questioned, and, indeed, overruled by the court in the case of Wood v. Leadbitter some thirty years later, and, in following this authority, it is hard to see how the magistrate could hold otherwise than he did. He was, however, willing to grant a case, and there will thus, probably, be an appeal upon a point of much importance; for it is obvious that the legal question applies equally to tickets that have been paid for as well as to orders that have not, and involves the whole matter of a manager's powers of dealing with an audience who have purchased the right to seats in his theater.

The Central Law Journal.

ST. LOUIS, DECEMBER 17, 1880.

ESTOPPEL IN ATTACHMENT SUITS.

below referred to, though antedating the last edition of Mr. Drake's excellent work on the Law of Attachment, were not noticed therein; nor would it seem that the attention of that painstaking writer was ever called to this subject.

In Cocke v. Kuykendall, decided in 1866, the plaintiff, to sustain the truth of the alle

3

In the recent case of Roach v. Brannon,1gations on which the attachment was issued, considerable space is given by the Supreme Court of Mississippi to a discussion of the interesting question, whether an attachment of a debtor's property will be justified by verbal declarations of the debtor, to the effect that he has done or is about to do an act which is by statute made a ground for attachment. It was a case in which, under the provisions of the Mississippi statutes (which change the rule formerly in force in that State), the defendant, by a plea in abatement, contested the truth of the allegations of the affidavit on which the attachment had issued. If the plaintiff failed to prove in such a case the truth of those allegations, the attachment would fail and the property would be released therefrom. The question whether the defendant was estopped by his own declarations to deny the truth of the allegations on which the attachment was issued, was not presented by the proof in that case. Still this question was discussed by the court, in order to remove the misapprehension of counsel as to the effect and bearing of earlier cases in which the question was directly decided. It had been supposed by counsel who argued Roach v. Brannon, that those earlier cases took notice of the belief or opinion under which the plaintiff had made his affidavit and sued out his attachment. The court explained that neither the belief of the plaintiffs, nor the grounds of that belief, furnished any test of the correctness of the proceeding, but that the true principle of the earlier cases referred to was that of an estoppel upon the debtor in the attachment, based upon his own unequivocal declarations. This point of practice in attachment cases merits more than a passing notice, because of its novelty. It does not appear to have yet entered into consideration in the adjudications of other courts. The decisions in Cocke v. Kuykendall and Morgan v. Nunes,

proved and relied on declarations made by
the defendant; and the verdict of a jury, sup-
porting the plea in abatement in disregard of
that evidence, was set aside by the appellate
court, which said: "The affidavit was found-
ed upon facts, fully justifying it, derived
from the defendant. It does not lie in his
mouth to say that his statements made to the
plaintiff, and upon the truth of which plaint-
iff relied, and had a right to rely, were all
false, and therefore plaintiff's attachment
was wrongfully sued out." In Morgan v.
Nunes, decided in 1877, the same doctrine
was applied to uphold a verdict of a jury on
plea in abatement to an attachment, the court
briefly saying: "If in suing out the writ, he
[plaintiff's agent] acted on the statement of
Morgan, and the jury so believed, the case
comes within the principle of Cocke v. Kuy-
kendall, and the verdict should be upheld."
In Roach v. Brannon, at the October term,
1879, the doctrine was, for the reasons above
mentioned, stated in extenso. Said Chal-
mers, J.: "There may be cases in which the
defendant will not be allowed to controvert
the facts charged in the affidavit, by reason
of his own previous conduct and declarations:
but this does not affect the general principle
that the issue to be tried is the truth of the
averments contained in the affidavit. It is
simply the application of the familiar doc-
trine of estoppel, by which the defendant is
precluded from showing
precluded from showing the truth, be-
cause, by his previous.
previous assertion of a
falsehood, he has induced the plaintiff to in-
stitute a suit which will result in serious in-
jury to him if decided to be unfounded.
Thus, if a debtor has placed on record a vol-
untary conveyance of his property, or avowed
his intention to do so, and a creditor believ-
ing the conveyance to be genuine, or the as-

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sertion to be sincere, has acted in suing out an attachment, in good faith, upon the belief thereby engendered, the debtor will not be allowed to say that the conveyance was a jest, or the assertion a piece of pleasantry. This is the doctrine illustrated in Cocke v. Kuykendall. The language used in that case is incorrect when it is said that 'the issue to be tried and determined by the jury is, whether the said attachment was wrongfully sued out, and not whether the facts stated in the affidavit were actually true or false.' A more exact method of conveying the correct idea would be to say, that the plaintiff must establish the truth of the facts averred in the affidavit, unless the conduct of the defendant has been such as to preclude him from showing their falsity. It should be borne in mind that this estoppel will not arise because of erroneous and unfounded inferences, which the plaintiffs may have drawn from the defendant's conduct, nor unless they have really acted upon the faith of that conduct, and upon the belief engendered and honestly entertained therefrom. The language or conduct must have been such as warranted the charges contained in the affidavit, the affiant must have believed them to be true, and that belief must have been caused by the acts or declarations of the debtor. Under such circumstances only will the defendant be precluded from showing the truth of the matter, and the plaintiff be relieved from establishing the existence of the facts charged by him."

This very full explanation of the doctrine. of the law on this subject has been by some regarded as obiter dictum, inasmuch as the proof did not present the precise question for adjudication. However this may be, it is certain that if there may be grades of obiter dicta, this is of more than ordinary value-so close does it verge upon actual adjudication-by reason of the fact that the necessities of Roach v. Brannon, called for a clear explication of the points decided in Cocke v. Kuykendall, and Morgan v. Nunes. For his lucid and careful statement of the doctrine, its principles, its extent and its limitations, Judge Chalmers is entitled to the thanks of bench and bar, who will no doubt accord to it the value justly attaching to all correct statements of legal principles, when

made by one who has studied and mastered the subject of which he speaks.

Wrompelmeir v. Moses 4 does not, it is conceived, furnish any authority to the contrary. The declarations of the defendant, unexplained, would probably have sufficed to sustain the attachment, under the ruling in the Mississippi cases; and, indeed, there is an intimation in the opinion of the court that the point was considered. But the explanation of his declarations made by the defendant dispelled the supposition that they alone might work an estoppel. This, considered in connection with the extent of defendant's assets, including real property, as shown by the proof, sufficed to defeat the attachment which had been based on a supposed removal of his property from the State.

Doubtless the facts of such cases as Cocke v. Kuykendall and Morgan v. Nunes, furnish fair opportunities for a just and correct application of the doctrine of estoppel by conduct. The plaintiff in an attachment suit, where a plea in abatement of the attachment has been interposed, failing to sustain the allegations of his affidavit, must suffer a judgment that his attachment was wrongfully sued out, and will be himself estopped to deny this last-mentioned proposition when sued for damages by the attachment defendant. May the latter then mislead his creditor by his declarations, and disprove afterward the truth of those declarations, in order by means thereof to gain to himself a just claim for damages against the creditor? This was

xactly what was done at nisi prius in Cocke v. Kuykendall; for in Mississippi, if the attachment be dismissed on plea in abatement, a jury may be impaneled in the same suit to assess the defendant's damages by the wrongful issuance of the attachment. It was such a verdict in that case, which the appellate court set aside, as being contrary to manifest justice under the well-settled doctrines of estoppel. Though in other jurisdictions a remedy so summary might not be in vogue, yet the same result could be eached in the slow er processes of an action on the case or a suit on the attachment bond. To prevent the plaintiff in any such suit from binding his attaching creditor injuriously by

43 Baxt. (Tenn.) 467.

the result of an attachment suit instituted under such circumstances, manifest justice and the mutuality which enters into all estoppels dictate that the attachment defendant shall be himself estopped to deny the truth of his own declarations.

LIBELS TOUCHING PERSONS IN THEIR

CALLING.

A charge of libel, which was heard a few days ago at the Cowbridge Petty Sessions, touched to some extent upon the distinction which is recognized at law between a libel on a person in his trade, profession, or calling, and a mere slander of title, and cases analogous to slander of title. The rule is, that an indictment or criminal information lies wherever the libel is actionable without laying special damage, or wherever an action would lie without special damage, if the words were spoken only and not written. Thus it is said, if words are published of a man which render him ridiculous or hold him np to hatred or contempt, or which impute to him the commission of a crime punishable by imprisonment without the option of a fine, or a want of qualification or skill in his trade, or which may impair or hurt his trade, an indictment or criminal information will lie against the publishers of the libel. On the other hand, a mere imputation upon the quality of the goods of a tradesman, if made bona fide, is not actionable. Thus it is important to note the distinction made between imputations upon goods sold and imputations upon the seller of those goods in the way of his trade. Accordingly, the principle has been thus s ated: "Every one has a right to the fruits of his industry, and, by a fair reputation and character in this particular, to the means of making his industry fruitful. At common law, therefore, an action lies for words which slander a man in his trade or defame him in an honest calling. And if actions lie for mere words of this description, a fortiori they may be maintained when the words are rendered more extensively and permanently mischievous by writing." Folkard, Libel. p. 168, 4th ed. The writer then goes on to point out the important distinction that, whilst an action on the case only is given for words affecting a man in his profession or trade, an indictment or an information will lie for the same slander when written, owing to its tendency to provoke a breach of the peace.

The libel complained of in the case to which we reter (Reg. on the prosecution of Jenkins v. James), contained an imputation upon the complainant's goods; but it contained more than that, for it contained a direct allusion to the prosecutor as a brewer of beer which had the effect of medicine and a purge. In Reg. v. Yates, 12 Cox C. C. 233, the prisoner was committed on a charge of libel. The indictment charged that the prisoner printed and published a libel of and concerning B, the prosecutor, according to the tenor and ef

fect following, viz.: "B, meaning the prosecutor, game and rabbit destroyer, and his wife, the seller of the same in country and town." The indictment was quashed, because, as it stood, it was not inconsistent with an allegation that the prosecutor killed his own game. Where, however, a person in publishing an account of his own goods, compares them with those of another, describing them as superior, but not making any false misrepresentation as to the quality and character of the latter, no right of action arises, although special damage is alleged. Young v. Macrae, 3 B. & S. 264. Chief Justice Cockburn was very far from saying that, if a trader maliciously and falsely to his own knowledge published matter disparaging an article manufactured or sold by another, there would not be an actionable libel if special damage followed. The court held, in Ingram v. Lawrence, 6 Bing. N. C. 212, that an action could be maintained in respect of a statement in a newspaper that a ship of the plaintiff's was unseaworthy, and that Jews had bought her to take out convicts, without proof of actual malice or special damage. "To say of a shipowner," said Mr. Justice Coltman, "that he has sold his ship to carry convicts when she was in a condition in which she must be expected to go to the bottom, is as bad as saying of a wine merchant that his wine is poisoned, or of a tea dealer that his tea is made green by drying it on copper," all of which charges are gross libels on the personal character of the person libelled.

It was argued in Western Counties Manure Company v. Lawes Chemical Manure Company, 43 L. J. Ex., 171, that a reflection on a tradesman's goods merely, and not on him personally, is not in any case actionable; but the court held otherwise. Lord Holt remarked, in Cropp v. Tilney, 3 Salk. 226, that scandalous matter is not necessary to make a libel, for it is enough if the defendant induce an ill-opinion he had of the plaintiff, or make him contemptible or ridiculous. In the subsequent case of Bradley v. Methuen (quoted Folkard, p. 154), Lord Hardwicke said: "The present case is not for words in which the rule is different; for some words may be actionable or prosecuted by way of indictment, which would not be so if spoken only; for the crime in a libel does not arise merely from the scandal, but from the tendency which it has to occasion a breach of the peace by making the scandal more public and lasting, and spreading it abroad, which was determined in this court in the case of King v. Griffin."

We need not, however, pursue this branch of the subject. The cases quoted sufficiently indicate that a difference is made between cases that reflect upon a tradesman's goods merely, and those that reflect upon him in his trade, or "touch him in his trade." Of course it must appear that the defamation does touch the plaintiff's trade, otherwise the reason of the rule is not applicable. Thus, to say of a painter that he is a poor hand at making a coat, or of a tailor that he never made a boot that fitted, or of a lawyer that he is an execrable musician, is obviously not action

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