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16. The amendment is evidently intended to apply to Cassody, of Janesville, as associate justice in place of title 3, though no title is mentioned.

Judge Cole thus promoted. Judge Cole has held the Chapter 517 of the Laws of 1880 amends section 20, office of associate justice for about twenty-five years. chapter 9, title 14, part 1 of the Revised Statutes. Previous to accepting that position he served a term There is no title 14 to that chapter, as it ends with as a Representative in Congress. — The Georgia Legistitle 13, but the editor of Banks & Brothers' compila- lature have promoted Judge Jackson to be Chief Justion has, for some reason best known to himself, taken tice of the Supreme Court, and elected Judge Crawseveral statutes relating to the United States deposit ford associate justice in place of Judge Bleckley, refund, consolidated them and called them part 14 of the signed. For the vacancy caused by Judge Jackson's Revised Statutes. The section the Legislature in- promotion, there is a dead-lock among seven canditended to ameud is section 18 of chapter 150 of the dates.- - Mr. Seymour D. Thompson has been elected Laws of 1837.

a judge of the St. Louis Court of Appeals by a majority No man has any business in the Legislature of this of 3,800. This does not look much like a failure of tho State unless he knows enough about statute law to electivo system, despite Judge Thompson's own views avoid such gross blunders. As most of the acts men- of the subject. tioned herein and by your correspondent, Mr. Hopkins, must have come before the committees on the judi

In the English Court of Appeals, after remarks by ciary of the two houses, I think it would be no more

the Lord Chancellor on the death of Lord Justico Thethan fair for you to publish the names of the members

siger, Sir Henry James, Attorney-General, made the of those committees. They are as follows: Senate

following address, the members of the bar meanwhile Robertson, Williams, Mills, Pitts, Winslow, Fowler, standing: "My Lords, I hope you will forgive me if I Astor. Assembly Terry, Congdon, Brennan, Potts,

take this opportunity, the first which has been offered Travis, Mitchell, Roberts, McCarthy, Steele, Rhodes,

to me, and therefore I take it, of speaking a few words Russell.

R.

rather to those around me than to your Lordships. It

was the wish of the late Lord Justice that I should do NEW YORK COURT OF APPEALS DECISIONS. When his end was coming near – very near – he

claimed the attention of ono who stood by him, and IE following decisions were handed down Friday, exacted a promise that a message should be taken from Nov. 19, 1880:

him in that to him supreme moment to those who had Judgment affirmed with costs— Baker v. Walsh ; been his comrades, and he begged that it should be Shepard v. New York and Oswego Midland Railroad

told to them that ho had never forgotten, and even in Company. - Judgment of General Term, so far as it

that moment did not forget, the kindness and considaffirms that of Special Term, affirmed, and order of General Term reversing in part the judgment of Spe- eration which he had received from them, and he cial Term, reversed, and judgment of Special Term hoped and trusted that in return he would not be foraffirmed, with costs to the defendant - Avery v. The gotten by them. My Lords, that message I now gire, Empire Woollen Company.

and although tho words seem to come from afar, and

no reply can be sent to them, still it may be some satNOTES.

isfaction to those who so sadly mourn to know that

'men will come and men will go' before he will be HE Virginia Law Journal for November has a lead

forgotten by us, or his character and conduct cease to ing article by Judge William Archer Cocke, of

be regarded as an example to us all. My Lords, I pray Florida, on Distinctions under the Constitution of

your forgiveness for having delivered this message: the United States between law and equity, and the

but my apology consists in the hope that words so commingling of legal and equitable remedies in the States ing from such a man will tend to forge stronger a bond where Codes exist; also another, by James Lyons, Sr.,

of importance to tho public - the bond which binds on Information as to commission of offenses. - The

the Bench and Bar together." Criminal Law Magazine, for November, has a leading article by Dr. Wharton, on Conflict of Criminal Laws; Not long ago a judge of the Quarter Sessions of the case of Com. v. Petroff, on bribery of public oficer Lancaster, U. S., summarily expelled from the bar of and effect of prisoner's testimony, with note; and the his court two attorneys, upon grounds of some novelty. case of Jones v. Queen, on discharge of jury without | The attorneys were the editors of the Lancaster Intelverdict, with note. In the former case, Pearson, J., ligencer, in which newspaper a libellous article had at Dauphin quarter sessions, Pennsylvania, uttered been published, reflecting upon the judicial conduct of the following extraordinary language to the jury: tho learned judge. It did not appear that the attorneys “We have the evidence of a person who comes forward had been at all guilty of misconduct in their profesand testifies in his own cause. We must take that sional capacity. We are therefore not surprised that with a good deal of scrutiny, if not jealousy and sus- the ALBANY LAW JOURNAL "urged pretty stoutly" picion. Such evidence must be carefully weighed, and that the judge had exceeded his authority. From a when it comes in conflict with an honest man, we gen- recent number of that journal we learn that the Pennerally give very little weight to it.” The prisoner was sylvania Supremo Court has restored the attorneys to convicted, but we guess he will get a new trial. The their privileges, and expressed tho opinion that a libel price of the Magazine is to be reduced from $6 to $5. does not amount to a breach of professional duty un

The American Law Register, for October, contains less it has been designed to acquiro an influence over the continuation of the paper on Expert testimony the judge in tho exercise of his judicial functions by and the microscopic examination of blood; the case of the instrumentality of popular prejudice. Our conFritz v. Hobson, on obstruction of highway for build- temporary suggests very properly that the attorneys ing purposes, with note by Edmund II. Bennett; the should make a public apology to the judge for the pubcase of Queen v. Orton (the Tichborne claimant), on

lication which they did not undertake to justify. By cumulative sentences, with note by Hugh Weight- solicitor off the roll for an indictable offenso involving

the law in force in this country the court will strike man, in which the annotator distinguishes and defends

much criminality, where the offense has reference to a the Tweed case in this State, on the ground of the pres- proceeding in court, and is clearly made out (Stephens ervation of the right of peremptory challenges.

v. Hill, 10 M. & W. 28); but a mere verdict against him in an action for libel is not of itself a sutlicient ground

for striking the solicitor off the roll. 2 Dowl. 110. The Governor of Wisconsin has appointed Orsamus

Even when the solicitor has been struck off, the punishCole Chief Justice of the Supreme Court in place of ment is by no means in all cases to be considered a Chief Justice Ryan, deceased, and has appointed J. B. perpetual disability:-London Law Times.

THER

The Albany. Law Journal.

Williams, being a citizen of this State, could not have maintained the action; therefore his assignee cannot. But this a suit founded on contract? Like Lord Eldon, we doubt."

ALBANY, DECEMBER 4, 1880.

JUDGE

We thought we had heard of every conceivable CURRENT TOPICS.

excuse for shirking jury-duty, but a new one has UDGE WALLACE, of the Federal Circuit Court

recently been invented in the city of New York. for the Northern District of New York, has pro; belonged to the Reformed Presbyterian Church, the

A juror asked to be excused on the ground that he nounced an important decision in respect to National

creed of which, he said, maintains that it is wrong banks, in National Albany Exchange Bank v. Hills.

to do any legal business under the present ConstituThis was a suit to restrain the receiver of taxes and

tion of the United States, since it does not mention the city marshal of Albany from collecting the tax

God, or acknowledge Him as the "author of nafor 1879, against the bank, under the act of 1866,

tional existence and the source of all power and on the ground that it is unconstitutional. This

authority in civil government, and Jesus Christ as the act, it will be remembered, was pronounced invalid

ruler of nations and the Bible as the foundation of as to National banks, by the Federal Supreme Court,

law and the supreme rule for the conduct of nain People ex rel. Williams v. Weaver, 100 U. S. 539;

tions.” The juror argued that as jurors are execuS. C., Browne's Nat. Bk. Cas. 57, in so far as it per

tive officers created by the Constitution, he could mits the debtor to deduct the amount of his debts

not conscientiously serve on that account. But the from the valuation of all his personal property, in

court, taking a different view of the matter, cruelly cluding moneyed capital, except bank shares, inas

compelled the scrupulous man to serve. Wendell much as it thus taxes shares in National banks at a

Phillips, after preparing for the bar, declined to folgreater rate than other moneyed capital. Judge

low the profession, it is said, because of the requireWallace now holds that the act is totally void and

ment of an oath to support the Federal Constituunconstitutional as to the National bank shares, and

tion. His objection, however, was more radical conferred no authority to make any assessment upon

than the pious juror's, for he denounced the Constithem, and is not simply erroneous with respect to

tution as “a covenant with death and league with the omission of the right to make the deduction for

hell." But we should think the juror might be satdebts. This question was not before the Federal

isfied with the Declaration of Independence, which Supreme Court in the Weaver case, that decision

recognizes God, the Creator, the Supreme Judge, and simply holding that the debtor is entitled to a de

expresses a “firm reliance on the protection of Diduction from the assessment, to the amount of his

vine Providence,” in the act of separation from the debts. The Court of Appeals of this State, Do

mother-country. Really, a resort to the time-honored lan v. People, 36 N. Y. 59, had decided that the act

excuses of deafness, inability to sit for any great of 1866 was peculiar, independent of, and designed length of time, or a wife about to be confined, as a substitute for the general system of taxation,

would appear more respectable than this pious preas to bank capital, and consequently it must stand

text of honoring God by shirking duty to man. or fall upon its own provisions, and the Federal Supreme Court having declared it invalid in this par

Mr. Richard Grant White has recently written in ticular it must go down altogether. This decision, of course, relates only to the tax of the year in

support of the pleasant and comfortable theory that

a common-school education is an incentive to crime. question, as the Legislature last winter enacted that

Or if that is putting it too strongly, we will say, he the deduction should be allowed. We give the

believes that education, instead of suppressing opinion in full in another column.

crime, seems favorable to its increase. He supports

this theory, we believe, by a comparison of the staThe same judge has also decided the case of Stan- tistics of crime at the North and at the South. It ley v. Supervisors, which grew out of the same sub- will be generally conceded, we suppose, that educaject. Mr. Williams, the relator in Williams v. Wea- tion is more diffused at the North than at the South, ver, having paid under protest the tax thus unjustly and considering the difference in population, we laid on his bank stock, assigned his claim for re- believe crime is more general at the South than at covery to Stanley, a citizen of Chicago, who there- the North. This is true at least of crimes of vioupon brought this suit in the Federal Circuit Court. lence, and among the superior classes. Our statisJudge Wallace now dismisses the suit, on the ground tics of Texas criminal law some months ago showed that this is not a Federal question, and that court this. But to treat the subject fairly, it must be conhas no jurisdiction. This is founded on the act of ceded that there is an appalling amount, if not a Congress of March 3, 1875, providing that no Cir- decided increase, of violent crimes at the North. In cuit Court shall have cognizance of any suit founded two days, about a week ago, the telegraph on contract, in favor of an assignee, unless a suit brought us the news of no less than thirteen murmight have been prosecuted in such court to recover ders. To “pay off an old grudge,” at Maysville, thereon if no assignment had been made, except in Kentucky, one man stabbed and killed another; a cases of paper negotiable by the law merchant. Mr. railroad employee, discharged from work, shot and

VOL. 22.- No. 23.

year of

killed the foreman, at Columbia, Tennessee; a man judges to confine themselves to the discharge of in a saloon in Carbonville, Ohio, playfully said he their legitimate duties, and prohibit them from dewould shoot another with a pipe, and was immedi- voting any of their time to committee business. ately shot dead; a farmer at Napanee, Ontario, was We call the attention of members-elect of the genfound dead in his house with his head split open, it eral assembly to this matter and trust that it will is thought by his wife; in an altercation at New- receive proper consideration. We know that many burgh, New York, one man shot another and killed members of the bar regard the performances of comhim; a railroad workman in New York quarrelled mittee work by the judges with disfavor, but are with another about some trivial matter, and settled delicate about making a move to reform the abuse, the dispute by plunging a knife to the heart of his which is already of large proportions and is concomrade; a man at Cumberland, Rhode Island, shot stantly growing. If the lawyers do not wish to and killed another who paid some attention to his take hold of the matter, let the laymen come to the wife; a man at Kankakee, Illinois, poisoned two front and try their hand at it.” The judges of children; a cavalryman at St. Louis killed a woman; course ought to devote their time to the public busithe body of a seaman was found at Portsmouth, N. ness, but it is probable that they have meager salaH., with indications of foul play; a man at Hobo- ries, and being obliged to come down from the ken kicked his wife to death; a man at Pittsburgh bench in old age, are under a constant temptation was killed by a blow on the head received from some to earn all they can while in office. A pension person unknown. Only three of this batch occurred would obviate this evil. at the South. There are 19 persons now in jail at Chicago, for murder. Since writing the above we

It is now judicially decided that an Indian and a read of two more murders, one in Maryland and one

negro look so much alike that persons of ordinary in Kentucky. The 8th Texas Court of Appeals Re

discrimination cannot tell them apart by a casual ports come to the front pretty well with 29 murder

glance. This is the doctrine of Leidersdorf v. Flint, cases — very few hangings, however, the jury having a discretion as to punishment. And yet the

Wisconsin Supreme Court, Nov. 10, 1880, 7 Northw. gallows was never so busy as now. Every Friday Rep. 252. The action was brought to restrain the brings its horrid catalogue of hangings. Justice infringement of a trade-mark upon smoking-tobacco,

put up in packages of a certain form, in paper wrapseems vainly toiling after the law-breakers. Has this state of facts any dependence on the

pers of a particular color and mark, stamped “Nig

ger-hair smoking-tobacco.” The most marked feaperihelions upon which we are entering ? Have

ture of the label is a representation of a negro's the planets indeed cast an evil eye upon us ? That

head surmounted by a copious crop of wool, and New York juror would better look at these facts, and waive his scruples, and if God is not in our

having a large ring depending from the nose and

another from the ear. Constitution, try to put Him into our administration

The defendant imitated the of criminal justice. We cannot believe the “devil

label, putting on the head of an Indian, with a ring is dead,” yet, notwithstanding, the victim in one of

in his ear but none in his nose, and stamping the the Texas cases was Olenick.

packages Big Indian.” Fac similes of both labels were annexed to the complaint. It was held, on

demurrer, that the dissimilarity was not so marked The attention of the public in Connecticut is be- as to make it apparent that no one could be deing called to the subject of prohibiting judges from ceived, and the demurrer was overruled. sitting as referees, or “committees," as the term is in that State. This is a step which was taken in this State a number of years ago. It is said in Con

NOTES OF CASES. necticut, that the courts are burdened with business, that the judicial salaries are not inadequate, and

'N Brooks v. Cook, Michigan Supreme Court, Nov. that the expense of this system of trial is very 10, 1880, 7 Northw. Rep. 216, it was held that great. An exchange says: It is claimed that the under the Civil Damage Act, the person to whom courts are so burdened with business as to render liquor is sold, and who is injured by intoxication it impossible for suitors to obtain a speedy trial, and therefrom, cannot maintain an action therefor, as an for a number of years there has been a strong press- “other person." In this case the injury was the ure to have the number of judges increased, many loss of money by the plaintiff's having his pocket leading members of the bar advocating an increase picked while he was intoxicated. The court obas a necessity. We are not prepared to say that an served: “Is the person to whom the liquor is sold, increase of the number of judges would not be etc., and who in consequence sustains an injury, one necessary even if the present judges confined their of the persons for whose benefit the statute is attention entirely to their legitimate duties. Still, passed ? So far as the statute attempts any enumerbefore increasing the judicial expenses of the State, ation of persons who may sue, they all stand in which are already large, we think it would be a some one of the domestic relations to the person to good idea to put a stop to the practice of allowing whom the liquor is sold, given or furnished. To judges to try as committees cases which they ought that extent the statute unquestionably contemplates to try in their ordinary judicial capacity.” “It is that there shall be three persons concerned: the high time that a law was passed which will compel person selling, giving or furnishing, the person re

66

ceiving and causing an injury, and the person in- 3 Cai. 61, Kent, C. J., dissenting; Allard v. Smith, jured. But there might be other cases equally mer- 2 Metc. (Ky.) 297; People v. Barker, 3 Wheel. Cr. Cas. itorious with these (see English v. Beard, 51 Ind. 19; Harvey v. Rickett, 15 Johns. 88; Roberts v. Failis, 489; Bodge v. Hughes, 53 N. H. 614); and there- 1 Cowp. 338; Grinnell v. Phillips, 1 Mass. 541; Warfore after enumerating wife, child, parent, guard- ner v. Robinson, 1 Root, 194; Wilson v. Berryman, 5 ian and husband, the statute extends the right of Cal. 44. The contrary was held in Cowperthwaite v. action to other persons injured. Does it intend Jones, 2 Dall. 55. But such figuring for a verdict among the other persons who may sue, to include does not vitiate the verdict unless there was a posithe person himself whose intoxication causes or is tive agreement to abide the result. Thompson's case, the occasion or reason of the injury? Doubtless the 8 Gratt. 637; Dana v. Tucker, 4 Johns. 488. In statute might have extended its benefits to the in- Turner v. Tuolumne Water Co., 25 Cal. 397, such a toxicated person, but if such were the intent it is verdict was held not to be a chance verdict within surprising that it was not distinctly and unequivo- the statute, but was said, obiter, to be vicious, within cally expressed. It was as easy to designate the the above authorities. The verdict, however, was party himself as it was his wife, child, guardian, not set aside. Notwithstanding the agreement to etc. Moreover the man himself may generally be abide the result of such figuring, if a different versupposed to be injured in some degree by intoxica- dict is adopted, it will not be void. Thompson's tion, so that his case would furnish the most fre- case, supra; Bailey v. Beck, 21 Kans. 462. quent occasion for a suit if he should see fit to resort to legal proceedings. It would be very re

The ruling of Judge Osborn, of the New York markable that a statute in enumerating the persons Supreme Court, in the case of People v. Briggs, that who should share in its benefits should omit to name

a wife is not a competent witness against her husthe very one who would most often be entitled to

band in a criminal proceeding (ante, 361), is susits aid. But it is a sensible and well-understood

tained by a recent decision of the Mississippi Surule of construction, that when after an enumera

preme Court, in Byrd v. State, 57 Miss. 243. The tion the statute employs some general term to em

Mississippi statute is very similar to ours; its lanbrace other cases, the other cases must be under

guage is: “Husband and wife may be witnesses for stood to be cases of the same general character, sort

each other in all criminal cases, but they shall not or kind with those named. Hawkins v. Great West

be required to testify against each other, as witern Ry. Co., 17 Mich. 57; McDade v. People, 29 id.

nesses for the prosecution.” In civil cases, the 50, and cases cited. Apply this rule here, and the

statute makes them witnesses for each other. The party intoxicated is excluded. The persons enumer

court said: “The learned judge who presided in the ated are persons who stand to him in special rela

court below held that under this section the wife tions, and it is therefore to be assumed that “any may be a voluntary witness for the prosecution, other person who may sue must also stand to him

against the husband's consent. We are constrained in some special relation so as to be injured by his in

to differ from him in the construction he has placed toxication or by the sale, etc., to him. A creditor

on this statute. The statute is in derogation of a might perhaps stand in that relation under some

very ancient and well-established rule of the comcircumstances, or a contractor, or servant, or the

mon law, based, as we have above seen, in great master of a vessel, or a traveller passing him in the part, upon grave reasons of public policy, having street, and so on. But he could not stand in any reference to the preservation of the happiness of such relation to himself, and therefore cannot be parties joined together in the marital relation.” understood as embraced in the terms, 'wife, child,

“The rule of the common law excluded them as parent, guardian, husband or other person,' injured witnesses both for and against each other, in crimiin person, property or means of support by himself, nal as well as civil cases." “If the Legislature had or by reason of his intoxication, or by the sale, etc., of intended to make them witnesses against as well as intoxicating drinks to himself. The statute evi

for each other, it would have been an easy matter dently contemplates three parties — seller, receiver

to express that intent in unmistakable language. and injured party — in all cases." This seems a

No reason is perceived why the Legislature should novel case.

not have done so, if indeed they had that intent;

nor is it easy to give a satisfactory reason why the In Werner v. Edmiston, 24 Kans. 147, the verdict Legislature should make them witnesses against was ascertained and determined solely by adding each other in criminal cases, when it is undoubted the sums named by the respective jurors, and divid- that they are restricted in civil cases to being witing the sum total by twelve. This was not done for nesses for each other. The whole force of the implipurposes of consultation, but by distinct agreement cation, that the Legislature intended to allow one to that the result of these arithmetical processes should be a voluntary witness against the other in criminal be the amount of the verdict, and it was immediately cases, arises from the use of the words, but they at the close of the calculation so written out and shall not be required to testify against each other, returned. This was held error, sufficient to compel as witnesses for the prosecution,' following immedia new trial. Such a verdict was also set aside as a ately after the provision allowing them to be witchance verdict, in Goodman v. Cody, 1 Wash. 329. nesses for each other, and as a part of the same The same doctrine was held in Smith v. Cheetham, sentence. We regard this as rather an over-cau

A

tious insertion, to prevent an apprehended construc

LEGAL DEFINITIONS OF COMMON WORDS. tion of the preceding words, than as engrafting a new and independent provision upon the statute,

V. which would be the case if it allowed the examination of one against the other, in case the party LAW weekly journal is a newspaper. Kerr v. offered as a witness did not object. But if we are

Hitt, 75 Ill. 51, was a, case where the legality to construe this language to mean that the Legisla

of a notice under the Burnt Records Act, so called, ture thought that by the common law husband and

published in the Chicago Legal News, was called in wife might be required to testify against each other

question, on the ground that it was not a newspaper, when they were allowed to testify in behalf of each

it being devoted principally to the law and not other; and to infer that this provision was inserted

claiming to be a newspaper. The court held that to prevent the operation of such a rule without the

such a paper was a newspaper within the meaning of consent of the party offered as a witness, it does

the statute, and laid down the following definition not follow that we are to construe this provision as

of a newspaper within the statute for the publicamaking this erroneously-supposed rule of the com

tion of legal notices. A paper that, while it may mon law a part of the statutes of the State. An

be devoted principally to the dissemination of legal enactment of the Legislature based on an evident

intelligence, makes reference to passing events, conmisconception of what the law is will not have the

tains advertisements, brief notices of legislative effect, per se, of changing the law so as to make it accord with the misconception.”

bodies, personal and political items of interest to the general reader, as well as the legal profession,

will be within the statute in question, although its In GrangersIns. Co. v. Brown, 57 Miss. 308, a circulation is confined to lawyers and business men, life insurance company defended an action on a pol- as a class. The court said: “Thus it will be seen icy, on the ground that the insured had falsely war- it comes substantially at least within the definition ranted that he had never received any serious per- given by lexicographers of a 'newspaper.' It is sonal injury, whereas his skull had been fractured none the less a 'newspaper' because its chief object in boyhood, and had been healed by trephining. is the publication of legal news. Many newspapers To prove this, they proposed to disinter his body, published in this and other countries are devoted after the suit had been pending eighteen months, chiefly to special interests, such as religious and poon the sole testimony of his physician that the de- litical newspapers, others devoted exclusively to litceased had told him that he had been told of such erature, that contain advertisements, news items, an accident and operation. The counsel for the personal and political, brief notices of matters of plaintiff argued: “It is complained that the court special public concern, and reference to proceedings refused, on the showing made, to violate the sanc- of legislative and other public bodies. So it is tity of a private cemetery. The proposition is re- with this journal. Besides legal it contains other volting. To break the signet of the grave, and items of news, not only connected with the bench take from its resting-place the sacred property of and bar, but others of a general interest. It is that relatives to gratify the corporation's mercenary curi-class of journal that will circulate among lawyers, osity, would be worse than Shylock's demand. Is real estate and other business men, for it contains it reserved for this age and this court to decide that information in regard to sales of real estate, whether the dead may be taken from their sepulchres, in- under judicial process or under powers." spected, and presented in their awful silent help- In Kellogg v. Carrico, 47 Mo. 157, it was held that lessness to the public gaze ? A more horrible a journal devoted to the dissemination of legal inthought can scarcely be conceived." The court telligence is a newspaper, and that publication in it said: “We are not prepared to say that in a proper imparted notice of sale under a trust deed. The case the court, in the interests of justice, should court said: “The Legal Record and Advertiser was not compel the exhuming and examination of a printed in St. Louis in the form of a newspaper, dead body which is under the control of the plaint- and was issued to its subscribers daily except Suniff, if there is strong reason to believe that without days, when the publication was omitted. It was such examination a fraud is likely to be accom- devoted to the dissemination of general legal intelplished, and the defendant has exhausted every ligence, and engaged extensively in legal advertisother method known to the law of exposing it. We ing, including the publication of notices of sales are prepared to say, however, that such an order under deeds of trust, and sales on execution and all should be made only upon a strong showing to that judicial sales. It was a law and advertising joureffect. It would be a proceeding repugnant to the nal, and so, in a limited sense at least, a newspaper; best feelings of our nature, and likely to be in many for whether a newspaper or not is a question that cases so abhorrent to the sensibilities of the surviv- cannot be determined by a consideration alone of ing relatives, that they would prefer an abandon- the kind of intelligence it disseminated. It is not ment of the suit to a compliance with the order. the particular kind of intelligence published that Without undertaking to define with accuracy what constitutes one publication a newspaper rather than circumstances would justify the making of such an another. Newspapers are devoted to the disseminaorder, we think that a case calling for it was not tion of intelligence on a great variety of subjects, shown in this instance."

such as politics, commerce, temperance, religion, and

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