NOTES OF CASES.

N Daniels v. Keokuk Water- Works, Iowa Supreme Court, October, 1993, 16 Rep. 650, it was held that city water-works should not be enjoined from using their machinery, whereby the plaintiffs' premises were subjected to smoke, soot, etc., there being no allegation of detriment to health nor of destruction of property, but only of “ damage, detriment, inconvenience and annoyance." The court said: "In Richards' Appeal, 57 Penn. St. 105, a case in some respects much like the one at bar, an injunction was refused on the grounds that the manufacture of iron was lawful, and its production essential. The court said: Especially should the injunction be refused if it be very certain that a greater injury would ensue by enjoining than would a refusal to * * Hence the chancellor will conenjoin. * sider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court and jury.' See also Rhodes v. Dunbar, 57 Penn. St. 274; Goodall v. Crofton, 33 Ohio St. 271; S. C., 31 Am. Rep. 535; Gilbert v. Showerman, 23 Mich. 448; Louisville Coffin Co. v. Warren, 78 Ky. 400; Green v. Lake, 54 Miss. 540; S.C., 28 Am. Rep. 378; Simpson v. Justice, 8 Ired. Eq. 115; Hyatt v. Myers, 73 N. C. 232. In the foregoing cases the nuisance was created by manufacturing companies organized wholly for pecuniary profit, and the public benefit was purely incidental, and such as arises from the establishment of all enterprises of that character. While there is no doubt the defendant was organized with a view of proving a pecuniary benefit to the stockholders, yet this was not the only purpose of its organization. The benefit to the public that is to the citizens of Keokuk — is immediate and direct. If the defendant is enjoined, even for a time, the result might be disastrous; for the water supplied by it is the only efficient means of extinguishing conflagrations at the command of the city or its citizens. Besides this, a daily and hourly supply of water used for many purposes would be cut off. We think it may be safely assumed the rule in equity is that where the damages sustained can be admeasured and compensated, equity will not interfere where the public benefit greatly outweighs private and individual inconvenience. Coe v. Manuf. Co., 37 N. H. 254; Porter v. Witham, 17 Me. 292. The right of every person to pure air must be conceded, but where persons choose to reside in cities and towns which have or should have sufficient means of extinguishing conflagrations, and an abundant supply of water for many other purposes, they must be regarded as willing to surrender a portion of their rights for the attainment of so desirable an end. The works of the defendant are properly located. In no respect is the construction faulty. The injury caused the plaintiffs is not irreparable. Their inconvenience and annoyance must yield to the public good in so far as the interposition of equity is concerned. There is no ground of equitable interference because of

In Cumming v. Cumming, Massachusetts Supreme Court, September, 1883, Mass. Law Rep., November 22, 1883, the following question was stated by the court: Whether a married woman, who had committed adultery and confessed it to her husband and been expressly forgiven by him, and who had lived with him for six years thereafter, is debarred from maintaining a libel for a divorce on the ground of his adultery committed after such a period of cohabitation. The court answered this in the negative, observing: "There is no statute upon this subject in this Commonwealth and no binding authority by way of precedent; and the question is therefore a new one here. * * * The effect of cohabitation as a condonation may be supposed to be less stringent upon a wife than a husband, for the reason that she may be more under marital authority, sub potestate, and more destitute of advice and assistance. And it has accordingly been considered that the force of condonation, as a bar to proceedings for a divorce, varies according to the circumstances. Beeby v. Beeby, 1 Hagg. 789. In the case before us, the condonation was on the part of the husband, and nothing appears in the offer of proof to show that there was any thing to mislead him in any way, or any misapprehension on his part, or any thing to prevent him from leaving his wife at once upon the discovery of her offense, or that there has been any subsequent misconduct on her part, or violation of the implied condition upon which a condonation rests. It is further to be observed that recrimination, as a bar to a divorce, is not limited to a charge of the same nature as that alleged in the libel. Handy v. Handy, 124 Mass. 394, and cases cited; Drummond v. Drummond, 2 Am. & Tr. 269. The whole doctrine of condonation goes upon the ground that there is in law no such thing as an unpardonable offense against the marriage relation. Even adultery is not universally found to be unpardonable in actual experience, and it should not be deemed to be so in law. It is an offense which may, at the option of the injured party, serve as the ground for a divorce; or it may be overlooked and forgiven. The course to be pursued is a matter to be determined when the facts become known. The question then presents itself. The opportunity is afforded for a separation, for an escape from the marriage relation with its duties and burdens and indignities, and it may be its oppressions and cruelties; and there is also the chance, the possibility, of some degree of comfort and happiness from a united family and of various advantages springing from a continued reunion. Various motives may prompt the injured party to endure the sense of wrong and to condone the offense. But whatever the motive, if one who is under no stress of circumstances, but is free to act in either way, and who has a full understanding of all the facts, deliberately and freely elects to condone the offense and to take the

real or supposed advantages which are expected to arise therefrom, it is better to hold, as a general rule, that the day for legal complaint has passed, and that the mouth of the injured party ought thereafter to be sealed as to that particular offense, unless a similar offense is repeated in the future. To hold otherwise would operate to some extent as an encouragement or license to the condoning party to commit offenses against the marriage relation, and would also tend to give a constant sense of inequality between the parties in respect to their legal rights. All condonation is in a sense conditional; that is, there is an implied condition that the same offense shall not be repeated. It is not however attended with the further condition that the offender shall be disqualified from thereafter alleging any ground of complaint for subsequent misconduct against the condoning party. No such inequality should be established by an arbitrary rule of law applicable to all cases. the law."

Condonation restores equality before

In Handy v. Collins, 60 Md. 229, it was held that an executor is not entitled to commissions on bonds due from a third person to the testator, and by the latter specifically bequeathed to the executor. The court said: "It seems then that the allowance to the executrix of commissions on the face amount of these Barbour bonds is not authorized by any provision of the testamentary law, as construed by the decisions of this court. If the exigencies of the estate had required their collection in order to pay creditors, or general pecuniary legacies, it would have been her duty to have brought suits upon them, if the debtor had resided in this State, and her bond would have been responsible for the faithful performance of that duty, as well as for the safekeeping and proper disbursement of the money collected. In that case she would have been entitled to commissions, but only upon the amount actually collected and received by her, though that amount might have been but a small part of the sum due by the debtor. Where there is a specific legacy of a personal chattel the case is different. The chattel has a market value, is the subject of appraisement, is required to be appraised, and properly forms part of the inventory of the estate, upon the amount of which the law expressly declares commissions shall be allowed. Moreover, the executor's bond is responsible for the safe custody of the chattel until he gives his assent to the legacy and passes it over to the legatee. Bonds and obligations of the United States, and of the several States, as well as of corporations, municipal or private, which are payable to bearer, and pass by delivery, and have a market value, are also properly appraised and go into the inventory. The same thing may be said of shares of stock in banks and other corporations, but a bond or note for the payment of money, given by an individual to the testator, is simply a debt, in respect to which the duties of the executor, as already shown, are specially defined by distinct provision of

the testamentary law. Such debt has no market value, is not the subject of appraisement, and constitutes no part of the inventory. But upon money received by the executor, or collected by him from such debts he is entitled to commissions, as was decided in the case of McKim v. Duncan, 4 Gill, 72. Money thus received or collected is placed on the same footing, with respect to commissions, as money in bank or in the possession of the deceased at the time of his death, or as money received by an administrator for lands sold by the deceased and conveyed to the administrator after his death, which he is required to return as a separate debt due the estate of the decedent. Code, article 93, § 226. * But where there is a specific bequest of such individual bond or note, the sole duty of an executor in regard to it, where the money due upon it is not needed for other exigencies of the estate, is to give his assent to the legacy and deliver the instrument to the legatee. By such assent and delivery the legatee is vested with the right to sue upon the obligation in his own name. A bequest by the obligee, of a single bill, is an inchoate transfer of the bill in writing by the person authorized to make it, and when that transfer is perfected by the assent of the executor, there is a complete assignment of the same under section 1, article 9 of the Code. Kent v. Somerville, 7 G. & J. 265. Here there was not only a specific bequest of such bonds, but it was made to the executrix herself. There is nothing in the law, nor in any decision construing it, which justifies the allowance to her of commissions on the amount represented by these bonds, and it follows there was error in that part of the court's order which overrules the first exception to the account." Two judges dissented.

In Levy v. Laclede Bank, United States Circuit Court, E. D. Missouri, September 20, 1883, 18 Fed. Rep. 193, it was held that a check is not a bill of exchange, within the meaning of the first section of the removal act of 1875, where the maker and payee are citizens of the same State. The court said: "This presents the question whether the case is within the exception mentioned in the first section as expressed in the language, except in cases of promissory notes negotiable by the law-merchant, and bills of exchange.' If a suit is founded upon a promissory note negotiable by the law-merchant, or upon a bill of exchange, then the suit may be brought by the assignee without reference to the citizenship of the assignor; but if it is upon any other contract the jurisdiction depends upon the citizenship of the assignor. Is this then a bill of exchange? There is no claim that it is a promissory note. That is a question upon which there has been some difference of opinion among the courts, but it has been before the Supreme Court of the United States, and that court has held that there is, in a number of particulars, a distinction between an ordinary bank check and a bill of exchange. I read from the case of Merchants' Bank v. State Bank, 10

Wall. 647. 'Bank checks are not inland bills of exchange, but have many of the properties of such commercial paper; and many of the rules of the law-merchant are alike applicable to both. Each is for a specific sum payable in money. In both cases there is a drawer, a drawee and a payee. Without acceptance, no action can be maintained by the holder upon either against the drawer. The chief points of difference are that a check is always drawn on a bank or a banker. No days of grace are allowed. The drawer is not discharged by the laches of the holder in presentment for payment, unless he can show that he has sustained some injury by the default. It is not due until payment is demanded, and the statute of limitations runs only from that time. It is by its face the appropriation of so much money of the drawer in the hands of the drawee to the payment of an admitted liability of the drawer. It is not necessary that the drawer of the bill should have funds in the hands of the drawee. A check in such case would be a fraud.' We have always been disposed to construe the removal act with some degree of strictness. It is an act defining and conferring jurisdiction upon the court, and questions of doubt, where they concern the jurisdiction of the court, in my opinion are to be generally resolved against the jurisdiction of the Federal court, and in favor of that of the State court, because there can be no question as to the jurisdiction of the State tribunal, and a judgment there, as a matter of course, would be valid; while if we should err with regard to our jurisdiction, the consequences might be very serious. Therefore we hold that the words 'bill of exchange' in the removal act mean what is meant by that phrase in commercial law and at common law, and that a bank check is not a bill of exchange."

In Trussell v. Scarlett, United States Circuit Court, Maryland, November, 1882, 18 Fed. Rep. 214, it' was held that when a mercantile agency makes a communication to one of its subscribers, who has an interest in knowing it, concerning the financial condition of another person, in good faith, and under circumstances of reasonable caution as to its being confidential, it is a privileged communication, and an action for libel cannot be founded upon it, even though the information given thereby was not true in fact, and though the words themselves are libellous. The court said: "If a merchant having an interest in knowing the financial standing of another merchant, whom he proposes to deal with, goes to another, and asks him with regard to that person's financial standing, and he honestly answers him what he knows about the person inquired of, even if it should turn out to be false, I think it is a privileged communication, upon which an action cannot be founded, even though the words themselves are libelous. If he says, 'I have looked into his affairs, I have informed myself with regard to them for my own benefit, and I believe him to be insolvent,' I do not think that such a communica

tion, if made in good faith, is one upon which an action can be founded. The doctrine of the case of White v. Nichols, 3 How. 266, it seems to me, has been again and again held to cover communications made between merchants with regard to the standing of traders, where the party making the inquiry had an interest, and where the party answering the inquiry answered it in good faith. It is conceded in this case that the plaintiff cannot show any want of good faith, and the only question that remains open is whether that doctrine is applicable to a person in the situation of the defendant in this case. It was held in Beardsley v. Tappan, 5 Blatchf. 497, that it was not. That was a case décided some years ago, at a time when companies or corporations, formed for the purpose of collecting information for the benefit of merchants, were very little known. It has never been sanctioned in any higher court; the contrary has been decided in the highest courts of New York and other States, and the contrary was also held in a well-considered opinion by Judge Caldwell, in the Circuit Court of the United States for the Eastern District of Arkansas, (Erber v. Dun, 12 Fed. Rep. 526,) covering the facts of this case. If it is permissible for one merchant to inquire of another for his own benefit as to the standing of another merchant, I cannot see how any distinction can be made where one expends money and another receives money for the information, and makes it his business to get the information." To the same effect Sunderlin v. Bradstreet, 46 N. Y. 188; S. C., 7 Am. Rep. 322; State v. Lonsdale, 48 Wis. 348.

ATTORNEY-AT-LAW-ACTION OF SLANDER
FOR WORDS SPOKEN ON TRIAL.
ENGLISH COURT OF APPEAL, JULY 3, 1883,
49 L. T. REP. (N. S.) 253.

MUNSTER V. LAMB.

No action lies against a counsel or advocate for words spoken with reference to and in the course of a judicial inquiry in which he is engaged as counsel or advocate, even if such words are spoken maliciously and without reasonable and probable cause, and are irrelevant to any issue or question forming the subject of inquiry.

ACTION of slander. The plaintiff alleged that in

March, 1881, his dwelling-house was broken into, and William Hill and Ellen Hill, his wife, were tried before the recorder of Brighton on the charge of committing the said offense, and William Hill was convicted, and Ellen Hill was acquited on the ground that she had acted under the influence of her busband; that on the 9th of June, 1881, Ellen Hill was charged at the Brighton Petty Sessions with having unlawfully administered soporific drugs to the plaintiff's servants; that the defendant then falsely and maliciously spoke and published of the plaintiff the words: "He has put her (meaning Ellen Hill's) sister into a convent to shut her mouth (meaning thereby that the plaintiff had caused a sister of Ellen Hill to be placed in a convent against her will, and in order to prevent her from giving evidence at her sister's trial, or from disclosing that the plaintiff had been guilty of a cri.ninal offense, as he the defendant meant that the fact was); that the hearing of the

nary course of a trial are privileged, if they are relevant to the issue. The words used by Lord Coleridge in the written judgment delivered by him in Seaman v. Netherclift, 34 L. T. Rep. (N. S.) 878; 1 C. P. Div. 540, show this clearly: "It has never yet," he says, "been decided that counsel would not be subject to an action for words spoken during the conduct of a case, if the words were irrelevant,mala fide,and spoken with express malice; all which qualities in the words, it is to be observed, are and must be questions of proof and for the jury." The learned judge was therefore wrong in nonsuiting the plaintiff in this case. Wherever the privilege of counsel has been directly before the court, it has always been laid down that the words of counsel to be privileged must be relevant to the issue, and wherever any judicial expressions are to be found to the contrary, they are mere obiter dicta. Witnesses are privileged altogether because if they swear falsely, they are liable to a prosecution for perjury, Henderson v. Broomhead, 4 H. & N. 561; 28 L. J. 360, Ex.), and there is no analogy between their cases and that of counsel.

In Dawkins v. Lord Rokeby,ubi sup., there is nothing in favor of the absolute privilege of counsel except the dictum of Kelly, C. B., which has been quoted. Again in Flint v. Pike, 4 B. & C. 473, the question of the privilege of counsel came in as a sidewind, and the case is not an authority. The law on the subject was clearly laid down as early as the case of Brook v. Montugue, Cro. Jac. 90, from which it appears that an advocate is privileged to the extent of the instructions given him by his client, so far as they are "pertinent to the matter in question." Hodgson v. Scarlett, 1 B. & A. 232, is the next authority of importance, and from the beginning to the end of that case, the relevancy of the words used is the only point argued. Bayley, J., says: "It is pertinent to the cause for counsel to comment both on the facts proved, and on those which he might expect to be proved," i. e., might expect from his instructions. He has no right to invent something scandalous, as the defendant did in this case, and say that it is his opinion. At the end of Holroyd, J.'s judgment in Hodgson v. Scarlett we find it laid down, that "if it be proved that they were not spoken bona fide, or express malice be shown, then they may be actionable; at least our judgment does not decide that they would not be so." That question ought to have been submitted to the jury in this case. In Needham v. Dowling, 15 L. J. 9, C. P.; Higginson v. O'Flaherty, 4 Ir. C. L. Rep. 125; Revis v. Smith, 18 C. B. 126; 25 L. J. 195, C. P.; Kennedy v. Hilliard, 10 Ir. C. L. Rep. 195, and Mackay v. Ford, 5 H. & N. 792; 29 L. J. 404, Ex., the same doctrine is laid down, and in no case in which the question of the privilege of counsel has arisen has the decision turned on any other point but that of the relevancy of the words used, so that the law as laid down by Lord Coleridge, C. J., in Seaman v. Netherclift, ubi sup., is the only statement of the law which could have been made consistently with an unbroken stream of authority. If it were obvious that the words were relevant, the judge would, as in other cases, withdraw the case from the jury. In this case the words used were not obviously relevant, and the question ought therefore to have been submitted to the jury.

MATHEW, J. This was an action brought by Mr. Munster against Mr. Lamb, a solicitor, to recover damages for certain defamatory expressions said to have been used by Mr. Lamb in the course of his defense of one Ellen Hill, against whom criminal proceedings had been instituted by Mr. Munster. The case came on for trial before my brother Williams, and at the conclusion of the plaintiff's case his lordship was of opinion that there was no case to be submitted to the jury, and nonsuited the plaintiff. A rule nisi was

subsequently obtained calling upon the defendant to show cause why this nonsuit should not be set aside, and we have now to decide whether the rule is to be made absolute or not. The circumstances which gave rise to the action were these. Early in the year 1881 the plaintiff's house was broken into, and the woman, Ellen Hill, and her husband were prosecuted by Mr. Munster for breaking into the house. At the trial the male prisoner pleaded guilty, and the woman was acquitted. Shortly afterward another prosecution was commenced by Mr. Munster against the woman, for having in the year 1878, with a view to facilitating the commission of a burglary in his house, administered narcotics to the other servants. The charge made by Mr. Munster came on for hearing before the magistrates at Brighton, on the 7th of June, 1881, and on that occasion it seems sufficient for our present purposes to say the charge then made broke down, and upon that an application was made on behalf of the prosecution for a remand in order that fresh evidence might be obtained. In resisting this application Mr. Lamb made use of the expression which is the subject of the first charge in this action. In pointing out the danger to his client of an adjournment being granted, he stated that her sister had already been shut up by the prosecutor in a convent in order to shut her mouth. This absurd remark does not seem to have been noticed by the presiding magistrate; but with this it is unnecessary to deal, because Mr. Waddy, in the course of the argument, very properly abandoned this charge. It is questionable whether the statement is defamatory, and if it were, it would appear to be within the probable instructions of an advocate, and therefore within his privilege and protected from action. But the application for a remand was successful, and the prisoner was brought up again on the 17th of June, and further evidence was offered in support of the charge. A Miss Cartwright was called, and with respect to her evidence, it is only necessary to say that she proved that at the time of the offense charged there were several young persons resident in the house, although it is only fair to say that it was proved also that at that time Mr. Munster was not a resident there. Miss Cartwright also gave evidence in support of the suggestion that the prisoner at the time administered a narcotic to her and to the other servants in the house. The magistrates were then asked to commit the prisoner for trial, and it became the duty of Mr. Lamb to resist the application, and in the course of his address to the magistrate, he made use of the expression which is the subject of the second charge in the statement of claim. He thought that it was his duty to account for the presence of narcotics in the house, and he suggested that they were kept there by Mr. Munster himself for some immoral and criminal purpose, and these words are the real ground of this action. Mr. Gore, who argued the case for the defendant with great ability, did not attempt to excuse the expressions used by the defendant. It was impossible to do so. In a superior court they would have led to a sharp reprimand from the presiding judge. The magistrates to whom they were addressed do not seem to have noticed them, probably because they thought them so revolting that it would be best to disregard them and pass them over in silence. But the learned counsel for the defendant, while not disputing the impropriety of the defendant's conduct, at the same time insisted that his words were protected from being made the subject of action by reason of his privilege as an advocate. He argued that the language of an advocate, however unbecoming or ill-advised, is not actionable so long as he speaks in good faith and in the discharge of what he honestly considers to be his duty toward his client. He relied upon the decisions on this point from Rex v. Skinner,