libel is out of the question; for, although few crimes are more conducive to breaches of the peace, and the disturbance of the public tranquility generally than the publication of criminal libels, I believe there is no instance .on record where this crime was ever prevented by the common law remedy. From the nature of the case it would be obviously impracticable. The true reason lies deeper; it is that the application of the injunction to cases of this character, would affect the freedom of the press-the freedom to publish whatever a person should deem fit to publish, subject to civil or criminal responsibility for abuse of that liberty. It is a question for a jury to decide whether or not that liberty has been abused not a question as to whether it may be abused to be determined by one man sitting as Chancellor and exercising a censorship as to what should or should not be published.

3. That equity will in certain cases enjoin acts which threaten property rights even if such acts may also be proceeded against criminally.

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The only cases (exclusive of nuisances) that can be cited under this head as yet are those of conspiracies to injure trade or stop traffic; those of malicious mischief in the destruction of railroad property, endangering life, and incidentally those of breaches of peace; those enforcing obedience to penal statutes enacted for the regulation of railroads; and those preventing a threatened contempt of court." But how far those cases might lead if followed to their legitimate conclusions is a question. Clearly the property test is not an infallible one. On that theory the courts might be perfectly justified in enjoining arson or burglary-for these acts are certainly destructive of property; they might enjoin a man from committing any act of malicious mischief, as maliciously and wantonly killing another's horse or dog; or they might even enjoin a threatened assault and battery. It is certain, however, that courts of equity have never enjoined crimes of this nature; and if they were asked to do so, the answer would probably be in the words of Lord Elden in Gee v. Pritchard: "This act is a crime; and I have no jurisdiction to prevent the commission of crimes." But if the broad doctrine laid down in Springhead Spin

1 Attorney General v. Ry. Cos., ante. U. S. v. Debs, ante.

'Kitcat v. Sharp, 52 L. J. Ch. Div. 134; Semble, Arthur v. Oakes, ante.

ning Co. v. Riley,' is followed-and it has never been overruledthere seems to be practically no limit to the jurisdiction which the Chancellor might, consistently with that rule, assume. Under color of protecting property he can enjoin such crimes as in equity and good conscience he thinks ought to be enjoined, and can refuse injunctions in those cases which he regards differently, assigning as a reason that he has no jurisdiction over crimes, a state of affairs recalling that ancient and oft-quoted observation of Lord Selden in regard to equity varying as the length of the Chancellor's foot.

In other words, the necessary use of the injunction in some of these cases which have arisen from the exigencies of modern conditions, has made such inroads upon the broad, oft-stated doctrine that "equity has no jurisdiction over crimes," that it stands on no nigher plane today than many of the so-called "legal fictions" which have been a reproach to the administration of justice in the courts of the common law.

To illustrate how a court of equity may see property rights when it chooses: In 1868 the English Court of Appeal affirmed a decree ́enjoining Louis Kossuth and a firm of London lithographers from printing a quantity of paper notes to be used as money for the purpose of organizing and prosecuting a rebellion against the then existing Hungarian government. The injunction was issued under color of protecting the property rights of the Emperor of Austria and King of Hungary, on the theory that the printing of the notes would lessen the value of the regular circulating medium in those countries; and the plates, together with the notes that had already been printed were ordered to be delivered up and destroyed. The result was that the rebellion was blocked, -a result of much more importance to the complainant than the preservation of his currency from depreciation.' Again: In a recent Georgia case the Supreme Court of that state affirmed a decree enjoining a criminal prosecution on the ground that such prosecution was injurious to 1 Ante, page

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2 Emperor of Austria v. Day, 3 De G. F. & J. 217. This is not strictly a case of enjoining a crime, but it is mentioned to show how the courts will apparently go out of their way to find property reasons to support an injunction.

Atlanta v. Gas Co., 71 Ga. 106.

the proprietary interests of the defendant; and yet the authorities had before been unanimous (with the notable exception of York v. Pilkington,)' in the opinion that equity has no jurisdiction to restrain proceedings on an indictment.'

What, then, is the limit to the use of the injunction against criminal acts?

It is evident that no strict rule precluding the interference of equity in all criminal cases can be maintained. It is equally clear that the "property test" is not a test of any practicable value since under it almost any crime might be included, and almost unlimited latitude is left to the Chancellor. There is a natural limit to its use, and, except in cases of libel, the tendency of the courts today seems to be (by the devices of enlarging the definition of public nuisance and of protecting remote property rights), toward an extension of its use to that natural limit. That limit is reached only when the remedy by injunction ceases to be effectual.

After all, what substantial reason can be given for maintaining any arbitrary limitation upon the use of the injunction in criminal cases where the remedy at law is inadequate? Its use does not abridge the constitutional right of trial by jury; the crime and the contempt are two different things and the punishment for the one is independent of the punishment of the other.3 In the present unsettled state of the law upon this subject, no argument based on the doctrine of stare decisis can be maintained against it. Equity must, in its nature, be expansive, capable of administering new and suitable remedies to meet the changing needs of society. It was for this purpose of supplementing the deficiencies of the common

12 Atkyns, 302.

Kerr v. Preston, 6 Ch. Div. 463; Saull v. Browne, L. R. 10 Ch. App. 64. See also 18 Am. Law Rev. 599.

3 “The jurisdiction of the courts of equity, and by implication their right to punish for contempt are established by the constitution equally with the right of trial by jury, and so long as there is no attempt to extend jurisdiction over subjects not properly cognizable in equity, there can be no ground for the objection that the right of the jury trial has been taken away. The same act may constitute a contempt, and a crime. But the contempt is one thing and the crime another, and the punishment for one is not a duplication of the punishment of the other. The contempt can be tried and punished only by the court, while the charge of crime can be tried only by a jury." Woods, J., in U. S. v. Debs, 64 Fed. Rep. 724.

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law in new and special cases and modifying its vigor, that the King first delegated to the chancellor his judicial prerogative, and his great seal and jurisdiction in equity arose. It is, says Justice Story, because of the impossibility to foresee the exigencies of society which may require their aid and assistance to protect rights and redress wrongs, that courts of equity "constantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such (special) injunctions shall be granted or withheld." Says Ricks, J., in Toledo, etc., R. R. v. Penn. Co.: "It is said that the orders issued in this case are without precedent. Every just order or rule known to equity was born of some emergency to meet new conditions, and was therefore in its time without a precedent. If based on sound principles, and beneficent results follow their enforcement affording necessary relief to the one party without imposing illegal burdens on the other, new remedies and unprecedented orders are not unwelcome aids to the chancellor to meet the varying needs for relief. Justice Brewer, sitting in the Circuit Court for Nebraska, said: ‘I believe most thoroughly that the powers of the court of equity are as vast, and its processes and procedure as elastic, as all the changing emergencies of increasingly complex business relations and the protection of rights can demand ""

Mr.

If the doctrines of the recent cases are followed to their legitimate conclusions, it would certainly seem that very little will remain between the courts and the natural limit to the use of the injunction. And as courts of equity have, in cases where their interference by injunction seemed the only remedy which could reach the desired end, assumed new jurisdiction-as where they first overstepped the boundary and enjoined indictable nuisances— it seems probable that they will ultimately "decline to lay down any rule which shall limit their power and discretion" in any case (always excepting libels), where the remedy of injunction would be effectual, and the demands of justice and public safety require its issuance. CARL S. ANDREWS.

THE SURVIVING PARTNER IN ILLINOIS.

In Galbraith v. Tracy, 38 N. E. 937, the Supreme Court of Illinois lays down the doctrine that the surviving partner in a firm is a trustee for the representatives of a deceased partner. The court says: "There is a conflict in the authorities upon this point, but in this State the law is as stated, Nelson v. Hayner, 66 Ill. 487.”

It is true, as the court says, that there is a conflict in the authorities, but inasmuch as the House of Lords and the United States Supreme Court hold that a surviving partner is not a trustee, it may be of interest to see how far the Illinois cases have departed from the established doctrine. The position of a surviving partner according to the highest authorities, is this: he is not a trustee, but takes the absolute title to all the property of the partnership. Knox v. Gye, L. R. 5 H. L. 656; Bush v. Clark, 127 Mass. 111. In the case of personal property, including both choses in possession and choses in action, the surviving partner takes by virtue of the jus accrescendi. In the case of real property, the legal title is governed by the strict laws of descent, but the equitable title rests in the surviving partner, in so far, at least, as is necessary for the settlement of the partnership affairs, though the land was held in the name of the deceased. Instead, therefore, of the surviving partner being a trustee for the representatives of the deceased, as held by the Illinois Supreme Court, the United States Supreme Court holds the surviving partner a cestui que trust, and the heirs of the deceased partner trustees for the survivor; so that the deed of the survivor will convey the equitable title to partnership real estate to the purchaser. Shanks v. Klein, 104 U. S. 18. The mistaken idea that the surviving partner is a trustee has arisen, as pointed out by Lord Westbury, in Knox v. Gye, supra, from the fact that the representatives of the deceased partner can compel the survivor to account to them in equity, and from the idea more or less prevalent, even among lawyers, that every equitable obligation involves either a case of fraud or a case of trust. As auxiliary to its jurisdiction to compel an account, a court of equity can use