RECENT LEGAL LITERATURE.

PLEADINGS, PARTIES AND FORMS, under the Code, Adapted to the Statutes of Ohio, in force, July, 1881, with full Authorities from all States using a Code, and Decisions from the Common Law Practice. By Clement Bates. In two volumes. Cincinnati, 1881: Robert Clarke & Co.

We believe that books of practice are always welcome to the profession, if honestly and carefully prepared. The work before us is based upon the Practice Act in force in Ohio in July, 1881. and the plan pursued by the author is to reprint the section of the statute applicable, and illustrate the rule established by a discussion in the form of notes, supported by abundant citations of authority from all the States in which a Code is in force. We have heretofore exprssed our disapprobation of the plan of constructing a text-book upon a topic, by reprinting a portion of the statutes applicable to the subject in hand and appending to each section citations of authority in the form of notes, as being illogical and inadequate to the treatment of the law of any given subject. 13 Cent. L. J. 220. This objection, however, does seem to be applicable in its full force to that collection of the statutes commonly termed the Code, though for own part we prefer to bestow the labor of study upon treatise of the character of the volumes of Pomeroy and of Bliss, rather than upon a mere collection of citations applicable to respective sections of the statute. The work in question, however, should not be judged by the standard of a treatise. It is professedly no more than a digest, from which, in the language of the preface, "discussion has been, as far as possible, banished; the region of conjecture avoided; and the author's personal opinion suppressed." Limited to the functions, then, of a digest and book of forms, the utility of this work is unquestionable. The work upon it has been accurately and honestly done, and in every part seems to be carefully condensed. The forms which are scattered through the work under the appropriate divisions of the statute will be found particularly valuable to the young practitioner.

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Though the work is framed upon the provisions of the Ohio Code, still, because of the great similarity of procedure in the Code States, it will be found practically useful in many other States and territories.

BRADWELL'S REPORTS. Reports of the Decisions of the Appellate Courts of the State of Illinois. By James B. Bradwell. Vols. 9 & 10. Chicago, 1882: Chicago Legal News Company.

There is no series of reports in the country, the issue of the volumes of which follow as closely

upon the heels of the court's decision as is the case with the volumes before us. Mr. Bradwell has fully grasped the idea that it is an important function of a volume of reports not merely to preserve adjudications for the use of after generations, but to give them to the contemporary professional reader at the earliest date. The failure in this respect of many reporters is a shortcoming which many legal journals whose only, or chief, pabulum, consists of reports of cases, can view with a philosophy born of a substantial interest. Under any other system Othello's occupation would, to a great extent, be gone. Inasmuch, however, as reports of cases form but a small part of the varied feast which we offer our readers, we are in a position to form an impartial opinion, and can not forbear the reflection that a little exertion and united effort on the part of the bar to have the issue of the reports follow closely upon the rendition of the judgments, would save time and money and greatly lighten professional labor.

NOTES.

-Hon. Stephen Longfellow, of Maine, when any objection or qualification was made by the court to a point he was pressing upon its attention, being too courteous to question or oppose the judge, would escape by this formula: "But there is this distinction, may it please your Honor," which distinction, when it came to be stated, was often so thin that its existence could only be discerned by the learned gentleman himself. This little mannerism was observed by his friends in the profession, one of whom composed and passed round this epitaph: "Here lies Stephen Longfellow, LL.D. Born, etc. Died, etc. With this distinction, That such a man can never die." The epitaph reached the Bench, and Mr. Longfellow, who not long afterwards, on an argument, was met by a question from the judge: "But may it please your Honor, there is this dis-" "Out with it, brother Longfellow," said Judge Story, with a good humored smile. But it would not come. The epitaph records the death of the distinction.

-The Woman's Journal tells a funny story of Belva Lockwood, the female lawyer of Washington. A witty fellow was once her opposing counsel, and when he desired to refer to the Hon. Belva, was perplexed. He couldn't say "my brother," as he did when speaking of the lawyers who wore trowsers. He didn't like to say "my sister," out of respect to that expression. He sent a smile over the room by referring to Belva as "my sister-in-law," but she certainly looked daggers at him.

ST. LOUIS, JULY 21, 1882.

CURRENT TOPICS.

A recent article by James L. High, Esq., in the American Law Review, entitled "What shall be done with the Reports?" has again aroused the discussion of the remedies for the evils entailed by the accumulation of the enormous number of volumes of precedents. The statistics collected by Mr. High are worthy of contemplation. In the edition of his Reporters in 1845, Mr. Wallace gives the entire number of reports, English and American, as sixteen hundred and eight-then considered an extraordinarily large number--and plaintively adds: "But dum loquimur, alas! the bookseller's boy opens the door, with an armful of new volumes, most of them from the Western States-the west of the western-where the sturdy stroke of the woodman must yet be resounding in the tribunals of justice." On April 1, 1882, in the figures of Mr. High, the aggregate number of volumes of reported decisions printed in the English language are 5,232, of which more than half, viz., 2,944, are American, State and Federal.

The remedies suggested for this state of affairs, which, with its attendant evils, is but too familiar to the profession, are: 1. The exclusion from the reports of all decisions except those of courts of final resort. 2. Leaving it within the discretion of the court to determine what opinions are to be printed. 3. The reduction of the amount of space devoted to the argument of counsel. 4. Removing the temptation of the reporter to unduly swell the number and size of the volumes, by depriving him of all pecuniary interest in them. For his fifth remedy, Mr. High says, by way of letting long-winded judges down easily: "Finally, the judges themselves should be reminded that the rapid accumulation of reports is, in a large measure, due to their own prolixity in the writing of opinions of undue length. The time for learned and elaborate essays, in the form of judicial opinions,

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with exhaustive reviews of all the thorities from the year books down, has Vol. 15-No. 3.

Hair splitting distinctions and exercises in dialectics should no longer find place in the literature of the law."

These suggestions, with one exception, meet with our heartiest concurrence. We do not believe that the best method of determining what cases are to be published is to leave it to the discretion of the judges. We believe that in those instances where this practice has been pursued, it has been found that, though immeasurably superior to the plan of printing everything that comes from the judicial hopper irrespective of the amount of chaff mingled with the occasional grains of wheat, it falls a long way short of giving complete satisfaction to anybody, even to the judges themselves, for it entails upon them considerable additional labor; and the dissatisfaction frequently produced among the members of the bar by the exercise of this discretion must be anything but pleasant. It does not follow either as a matter of course that the judges are the best possible persons to determine which of their opinions are of really substantial value to the profession as precedents. While judges are human it will sometimes be difficult for one to realize that an opinion over which he has spent days and nights of labor, is, after all, but a re-hash of the same doctrines, as lucidly and precisely expressed in a former adjudication. It will naturally occur, too, that the judges will get into the habit of deferring to each other in a matter so nearly personal in its nature, and, insensibly, what was originally intended to be the joint resolution of the whole bench that a certain opinion should be printed will, within time, come to be substantially only the resolution of the judge who delivered it, and who, in the nature of things, will give himself the benefit of any doubt which may arise; and consequently, many stale and trifling opinions will creep into the reports. It were much better, it seems to us, that the determination of what should and should not be

printed, were placed in the hands of a committee of the bar, not so large as to be unwieldy, and composed of men of experience, wide learning and general practice, who should determine what proportion of the court's labors was worthy of preservation in the printed reports. Similar to this, we believe, is the plan in operation in England and in Canada,

CONDUCT PUNISHABLE AS CON

TEMPT OF COURT.

The power to punish for contempt of court has been exercised in such a variety of instances as to almost defy classification; but in modern times it has become less arbitrary in its extent, and the limits set to its use present points of ever increasing interest.

Contempt in general has been well defined as a wilful disregard or disobedience of a public authority. Courts of justice have an inherent power to punish all persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings.2 This power is as ancient as any other part of the common law,3 and is necessarily implied from the nature of a court of justice, as essential to the exercise of all other powers. It is not every case of disobedience of the orders of a court, or apparent defiance of its authority, however, which constitutes a contempt. Thus there is no contempt where the matter required is beyond the jurisdiction of the Court. So the court should not punish for contempt where the order disregarded is doubtful in scope or validity.6 This principle has recently been invoked in contempt proceedings in a Federal court, to justify a marshal for disobeying an injunction order of dubious import, of which he had no previous notice, and which referred to a judgment without date, and of different amount from that recited in his execution.7

It has further been laid down that proceedings to punish for contempt will not be initiated or pursued where there is another

11 Bouv. Dict. 352.

2 Ibid. For other definitions shewing the scope and nature of contempt of court, see Rex v. Clements. 4 B. & Ald. 233; 4 Blackstone, 285; 3 Atk. 469, per Hardwicke, L. C.; 20 Am. L. Reg. 81, 82; Anderson v. Dunn, 6 Wheat. 204.

3 Rex v. Almon, 5 Burr, 2686.

4 United States v. Hudson, 7 Cr. 32; Resp. v. Oswald, 1 Dall. 329; People v. Turner, 1 Cal. 153; United States v. New Bedford Bridge Co., 1 Wood. & M. 401.

5 Sparks v. Martin, Vent. 1; People v. Sturdevant,5 Seld. 263; In re Morton, 10 Mich. 208; People v. O'Neil, 47 Cal. 109; 20 Am. L. Reg. 145, and cases reviewed.

6 State v. Wheeling Bridge Co., 18 How. 421; Weeks v. Smith, 3 Abb. Pr. 211. So where proceedings had been hasty and unreasonable, United States v. Stanwood, 13 Int. Rev. Rec. 77.

7 In re Carey, 10 Fed. Rep. 622, decided March 7, 1882, by the District Court. S. D. N. Y.

available remedy, as by indictment; 8 where the party charged is unable to comply with the order of the court, and has not voluntarily created such disability;9 or where the order disobeyed has been suspended by a stay of proceedings; 10 or where the party is no longer subject to the control of the court, as where the officer to whom a writ of mandamus is directed has resigned; 11 or an attempt is made to enforce it against an officer's successor.12 Furthermore, it has been recently ruled that a party can not be adjudged guilty of a contempt, and confined in a jail as a punishment therefor, for any disobedience of a judgment or order, where by law an execution can be issued for the purpose of enforcing the judgment or order which has been disobeyed.13 The effect of innocence of intention as depriving acts of their contemptuous character, has been the subject of much controversy, especially with regard to the violation of injunctions. It has sometimes been regarded as a valid excuse. 14 But the gener al tendency is to regard ignorance or good faith as immaterial; 15 and even advice of counsel as not a justification, but at most a mitigation. 16 So as to offensive language, it has been laid down that a disclaimer of intentional disrespect or desire to embarrass the administration of justice is no excuse, where the contrary would appear on a fair interpretation of the language used.17 The current

9 Galland v. Galland, 44 Cal. 478. See to the same effect Myers v. Trimble, 3 E. D. Smith, 612; Adams v. Haskell, 6 Cal. 316; Ex parte Cohen, 6 Cal. 318; Matter of Watson, 3 Lans. 208; Ex parte Thurmond, 1 Bailey (So. Car.) 605. But compare Ex parte Cohn, 55 Cal. 193.

10 Ex parte Thatcher, 2 Gil. 167.

11 United States v. Justices of Lauderdale, 10 Fed. Rep. 460; s. C., 13 Reporter, 422: 14 Cent. L. J. 210, (Circuit Court, W. T. Tenn.,January 27, 1882). 12 Ex parte Tinkum, 54 Cal. 401.

13 Baker v. Baker, 23 Hun, 356. See also Haines v. Haines, 35 Mich. 138.

14 See the recent case of Strobridge v. Lindsay (U. S. Circuit Ct., W. D. Pa., March 28, 1881,) 11 Reporter, 734, where the injunction was against the infringment of a coffee mill patent. So where a police officer has re-arrested a discharged prisoner in good faith under the instructions of the police commission. Matter of Fitton, 16 How. Pr. 303.

ers.

15 State v. Simmons, 1 Ark. 265; People v. Few, 2 Johns. 290; Matter of Moore, 63 N. C. 397. See also Wartman v. Wartman, Taney, 362; Re Woolley, 11 Bush. 95.

16 Columbia W.P. v. Columbia, 4 Rich. (N. S.) 388; and see People v. Compton, 1 Duer. 512.

17 People v. Wilson, 64 Ill. 195. See to the same ef

view has been reiterated in a case recently decided by the Supreme Court of North Carolina.18 That tribunal declared that if it be ascertained, in a proceeding for contempt, that a judicial mandate is wilfully and intentionally disregarded, the penalty is incurred, whether an indignity to the court or contempt of its authority was the motive or not. the case before the court, the defendant was held guilty of contempt in disobeying an order restraining him from carrying on the business which, with his good will, he sold to the plaintiff under an agreement to discontinue it himself.

In

The most direct cases of contempt concern conduct toward judicial officers. By the common law every court has, while engaged in the performance of its lawful functions,, as an incident to its judicial character, the authority to preserve order, decency and silence, without which no court could vindicate or support the laws intrusted to its administration. 19 The fundamental character of this authority is reiterated in the decisions in various forms. Thus we find it remarked that one general principle, incidental to all courts, as well inferior as superior, was a power to commit for contempt, either by word or deed, offered in the presence of the court; and that this power was not against Magna Charta, or the law of the land, but formed a part of the common law. 20

An attempted classification of contempts, which has been properly criticised but has the support of many authorities, draws a distinction between direct contempts and those which are constructive or consequential. The former class is stated to comprise those which are committed in the presence of the court, or by disobedience of its orders or process. It covers contempts which openly insult or resist the powers of the court or the persons of the judges, even when the latter are not in court.21 The second division is said to embrace those which are not of such a positive and direct character, but plainly tend to cre

fect Re Woolley, 11 Bush. 95, 110, citing People v. Freer, 1 Caines, 484. For fuller discussion see 20 Am L. Reg. 481.

18 Baker v. Gordon, 14 Cent. L. J., 237.

19 People v. Turner, 1 Cal. 153. See also to same effect, Resp. v. Oswald 1 Dall. 329.

20 Lining v. Bentham, 2 Bay (So. Car.) 1.

21 Charlton's Case, 2 Myl. & Cr. 316; Commonwealth v. Dandridge. 2 Va. Cases, 408. See 20 Am. L. Reg. 147.

ate a universal disregard of the authority of the courts.22 Illustrations of the former class are afforded by abusive language to the judge, or violation of an injunction; of the latter, by improper publications reflecting on the court or the parties.23 The distinction is stated to be important, because of the resulting difference in the proof required of the contempt. But the real distinction as to procedure seems to be between contempt committed in the immediate view and presence of the court, and those not so committed. 25 In the former, the offender may be instantly apprehended and punished without any further examination or proof. But in the latter, which consist of matters arising at a distance, and of which the court can not have a perfect acquaintance, or take judicial knowledge, the proceeding must be in a different way, and the party accused is entitled to be heard in his defense.26 But the force, even of this distinction is largely lost by regarding acts as done in the constructive presence of the court. Thus it is laid down that all acts calculated to impede, embarrass or obstruct courts of justice, should be considered done in presence of the court, and this is applied to contemptuous acts of officers of the court committed elsewhere than directly in its presence.27

In regard to the scope of the phase of the offense which is directed against those occupying judicial positions, it has been declared that every insult offered to a judge in the exercise of the duties of his office is a contempt. 28 But a judge should bear in mind that he is engaged, not so much in vindicating his own character, as in promoting the respect due to the administration of the laws; and this consideration should induce him to receive as satisfactory any reasonable apology for an offender's conduct. 29 The contempt

22 4 Blk. 283.

23 Hummel's Case, 9 Watts. 521; Watson v. Citizen's Sav. Bank, 3 So. Car. 164.

24 Contempts in the presence of the court by violence. insulting language, etc., are sometimes termed criminal contempts. Andriscoggin, etc. R. Co. v. Andriscoggin R. Co., 49 Me. 400.

25 4 Blackst. Comm., 286; People v. Turner, 1 Cal.

155.

26 Ibid.

27 Desty's Crim. Law, sec. 73a; 10 Fed. Rep. 629, citing Stuart v. People, 4 Ill. 395, and People v. Wilson, 64 Ill. 195, the latter being the case of an abusive publication made in another city by an attorney. 28 Charlton's Case, 2 Myl. & Cr. 316. 29 People v. Turner, 1 Cal. 153.

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toward the judge on the part of an attorney or party to a proceeding, may consist of abusive language, 30 uttered either in court, 31 or out of it; 32 contained in a letter addressed to the judge,33 or in a petition signed by the party and filed with the clerk of the court,34 or in printed publications.35 But it is not a contempt of the court to which the document is presented to read an affidavit for a change of venue sought on account of prejudice in the mind of the judge. The power to punish for contempt does not, however, as has been declared, arise from the mere exercise of judicial functions. Hence it is not possessed by a city recorder, in cases of contempt in facie curiæ; nor by a commissioner in bankruptcy;38 nor by a commisssoner appointed by Congress.33 So a judge out of court can not punish as for a contempt a disobedience of an order made by him in a statutory proceeding, in the absence of express authority therefor. 40 Where a judge improperly makes a commitment for contempt, he is sometimes sued for false imprisonment. But the courts have not favored the civil liability of judges for adjudging a party in contempt, any more than for other judicial acts, for which they are not held liable in damages, even when the acts are in excess of their jurisdiction and are alleged to have been done corruptly and maliciously. 41 Yet there are cases where the

30 Redman v. State, 28 Ind. 205. 31 Lining v. Bentham, 2 Bay 1.

32 Commonwealth v. Dandridge, 2 Va. Cas. 408. As by making speeches abusing the Lord Chief Justice of England, Reg. v. Onslow, 2 Cox Cr. C. 359; Tichborne Case, 370, 371.

33 Re Pryor, 18 Kan. 72.

34 Brown v. Brown, 4 Ind. 627.

35 People v. Wilson, 64 I. 195; In the matter of Moore, 63 N. C. 397; Ex parte Greevy, 4 W. N. C. (Pa.) 308. See also Ex parte Biggs, 64 N. C. 202; Ex parte Simmons, 8 W. N. C. 296; 9 Id. 145; 20 Am. L. Reg, 83.

36 Ex parte Curtis, 3 Minn. 374.

37 Matter of Kerrigan, 33 N. J. 344.

38 Rex v. Faulkner, 2 Mon. & Aye. Cases in bankruptcy 332, 339.

39 Ex parte Dall, 7 Phila. 595.

40 People v. Brennan, 45 Barb. 344. See also Hilton v. Patterson, 10 Abb. Pr. 245; 29 Am. L. Reg. 218, citing foregoing cases. If the order is made while sitting at chambers, it must first be made a rule of court. Ibid.

41 Lining v. Bentham, 2 Bay (S. C.), 1; Picket v. Wallace, 7 Pac. C. L. J. 117. The latter case was decided by the California Supreme Court on Feb. 11, 1881, and relies on Bradley v. Fisher, 13 Wall. 335. But there are various remedies aside from impeachent against the abuse, by a judge of his power to

judges may themselves be liable for contempt. Thus at common law there was a wide restraint exercised over inferior judges and magistrates, by proceedings for contempt, where these officers acted without jurisdiction or in disobedience to the authority or orders of higher courts. 42

Not only any disrespect to the judge sitting in court, but any breach of order, decency or decorum by any one present, or any assault made in view of the court, is a contempt, and punishable summarily.43 Violence or threats to a judge, justice or officer of a court, or to a juror, witness or party litigant, in respect of any act or proceeding in a court, is a contempt.44 Among notable illustrations given of these propositions, is the instance where, after the judges had vacated the bench for a recess, defendant approached the Chief Justice, used abusive and vituperative language toward him, and made a violent assault on him.45 So, according to recent surveys of the subject, it is a flagrant contempt to call another a liar in the court room, or to strike a defendant in the lobby of the court, after the trial is over,48 or to threaten vengeance against the witnesses within the precincts of the court-room,49 or to. muster a body of militia so near a court as to disturb its deliberations. 50

47

Again, contempt may be committed by infringing the immunity given to parties and

punish for contempt. Thus if a judicial officer is about to exceed his jurisdiction by trying for a contempt without legal power to do so, the party threatened may stay the proceeding by prohibition; if he actually adjudges one guilty of contempt without jurisdiction, his judgment may be annulled by certiorari; and if the judgment imposes an imprisonment, the prisoner may be discharged on habeas corpus. Heurstal v. Muir, 7 Pac. C. L. J. 22, Cal. Supreme Ct., Oct. 19, 1880.

42 20 Am. L. Reg. 86, 87; People v. Judges, 2 Caines 97; Swift v. State, 63 Ind. 81; Pearson v. Pearson, 3 Scam. 489; People v. Turner, 1 Cal. 188; People v. Judges of Winchester, 2 Johns. Cas. 118; Conrow v. Schloss, 55 Pa. St. 28; People v. Judges of Washington Co., 2 Caines, 97; Ex parte Carnochan, Charlton (Ga.), 315; State v. Hunt, Coxe, 287; Patchin v. Mayor of Brooklyn, 13 Wend. 664; State v. Smith, 9 Iowa, 334.

43 Desty's Cr. L., sec. 73 a, and cases cited.
44 Ibid.

45 State v. Garland, 25 La. Ann. 532.
46 20 Am. L. Reg. 84; 10 Fed. Rep. 629.

47 United States v. Emerson, 4 Cranch. C. C. 188. 48 Rex v. Wigley, 32 E. C. L. Rep. 415.

49 United States v. Carter, 3 Cr. C. C. 423. So, threatening the prosecutor of another person with danger of his life: Rex v. Carroll, 1 Wilson, 75.

50 State v. Coulter, Wright, 421; State v. Goff, Id. 78.