In Thorley Cattle Food Co. v. Mason, 6 Ch. D. 582, V. C. Malins sought to distinguish Prud. Ass. Co. v. Knott, 9 Ch. 384, and contended that a clause in the judicature act gave a court of equity the desired jurisdiction.

He, however refused the injunction and the case went to the court of appeals, a division of the supreme court of judicature and the decision was there rendered (14 Ch. D. 764) in favor of the jurisdiction.

This decision was followed in Thomas v. Williams, 14 Ch. D. 864, and in Hayward v. Hayward, 34 Ch. Div. 198, and the law as stated in these cases can be taken as the established rule in England, when the petition presents a clear case of libel.

In this country there has been some conflict of decision with the weight of authority decidedly against granting the injunction. The injunction was denied by the Supreme Court of Massachusetts, in Boston Diatite Co. v. Florence Mufg. Co. 114 Mass. 69, and in Whitehead v. Kitson, 119 Mass. 484, on practically the same grounds as those stated in the early English decisions. The court of appeals of the Empire in Brandeth v. Lance. 8 Paige, 23, says, "this bill presents the simple case of an application to the court of chancery to restrain the publication of a pamplet which purports to be a literary work, undoubtedly a tale of fiction, on the ground that it is intended as a libel upon the complainant." "This court cannot assume jurisdiction of the case presented by the complainant's bill or any other case of like nature without infringing upon the liberty of the press and attempting to exercise a power of preventive justice which the legislature has decided cannot be safely intrusted to any judical tribunal consistent with the principles of free government." In Mauger v Dick, 55 How. par. 132, it is said, "the jurisdiction of a court of equity does not extend to false representation as to the character or quality of plaintiff's property, or to his title thereto when it involves no breach of trust or contract, nor does it extend to cases of libel or slander."

Yet, it is interesting to note that courts of appeal of the

same state that delivered the opinions above referred to, restrained, by an injunction, some public spirited citizen from placing a bust of a Mrs. Schuyler at the World's Fair as illustrative of the typical philanthropist and restrained a newspaper from publishing the picture of a law student in.a popularity contest with an actor on the ground that such acts would invade the rights of privacy of these individuals and their surviving relations.

Thus we have the following legal anomaly existing by force of the decisions of that state; a newspaper cannot give to its readers a respectful description of a person; an association cannot place the bust of a noted individual in a museum or park and be free from the danger of an injunction from a court of equity. But if the article is only made libelous in its nature, the bust or stature so carved as to amount to a caricature, the perpetrators of the outrage will be free from the restraining influence of the "strong right arm of a court of chancery."

In Singer Sew. Mach. Co. v. Dom. Mach. Co., 49 Ga. 70, and in Kidd v. Hovey, 28 Fed. Rep. 773, the jurisdiction was denied. Ass. Co. of Amer. v. Boogher, 3 Mo. App. 173 is the first case to de found in the Missouri decisions on this question, and it is an interesting contribution to the literature on the subject, in that the insolvency of Boogher the libeler, constitutes one of the grounds relied upon by the plaintiff to impress upon by the court the inadequacy of the relief in a court of law and the consequent necessity of an injunction.

The jurisdiction was denied on authority and on the further grounds that the constitution of the state grants to every person the right to "freely speak, write or print on any subject being responsible for the abuse of that liberty." The court considered that this responsibility for the abuse of the right here secured amounted only to a liability for a judgment in a suit for damages and not to a liability to be restrained by an injunction from a court of equity.

In regard to the question raised by the insolvency of the defendant, the court says: "If the insolvency of the defend.

ant should induce us to grant the injunction the freedom to write and speak which is secured by the constitution of Missouri to all its citizens will be enjoyed by a man able to respond in damages to a civil action and denied to one who has no property liable to execution." A position which is literally true if the insolvency of the libeler was the only ground relied upon in support of the injunction.

In Flint v. Hutchison Smoke Burner Co., 110 Mo. 492, the Supreme Court in a decision written by Judge Black, follows the decision of the court of appeals in the case last referred to. This case was exhaustively briefed and argued and the opinion of Judge Black establishes the rule in this state against the exercise of the jurisdiction. The injunction could, however, be granted with consistency if the petition set forth a clear case of libel.

In regard to the point that such a restraining order is prohibited by the constitution of the state Judge Black says: "We live under a written constitution which declares that the right of trial by jury shall remain inviolate, and the question of libel or no libel, slander or no slander is one for a jury to determine." The same point was raised by virtue of Fox's libel act in objection to the jurisdiction in the later English decisions, but the supreme court of judicature answered it by saying that whenever the petition presented a clear case of libel no injustice was done to the defendant by granting the injunction, as a trial judge would be bound to take the question of libel or no libel from a jury in a suit for damages.

State of Missouri v. Walburga Uhrig et al., 14 M. A. 413, is another Missouri decision in which the extent of equity jurisdiction was brought into question by an attempt on the part of the circuit attorney, of the city of St. Louis to procure an injunction against the keeping of an unlicensed dramshop.. The court refused the injunction because it was brought by the state instead of a private individual. Though they say obiter that a court of equity cannot enjoin the commission of crimes and consequently cannot enjoin the publication of a libel. Exactly the opposite position was taken by the Supreme Court of Kansas in State v. Crawford, 28 Kas 76.

Emack v. Kane, 34 Fed. Rep. 46; Bell v. Singer Sewing Machine Co., 65 Ga. 452; Meyer v. Devries, 64 Md. 532; Chase v. Tuttle, 27 Fed. Rep. 110, are the leading American decisions in favor of the jurisdiction. In these cases it is contended that a libel is a tort which invades the rights of property whether directed against persons or property and where such torts would work irreparable damage an injunction will lie. There is an interesting moral in the decision in Bell v. Singer Sew. Mach. Co., 65 Ga. 452, in which case a decision was rendered exactly contrary to that in 49 Ga. 70, and the former decision is not even referred to by the "learned court," in its opinion or mentioned in the "exhaustive briefs" of the attorneys.

Thus we find existing in this country in the majority of our state courts and in most of the federal districts a rule of law which owes its inception largely to historical prejudices. On this foundation has grown a mass of decisions, and new reasons have been looked for and invented to support the position contended for.

Yet it is submitted that a rule founded in error has no reason for continued existence. As said at the beginning of this paper, certainty is the basis of law and the value of precedent cannot be regarded too highly. Yet every right enjoyed by the people should have the protection of an adequate remedy and the right to speak and write freely should not amount to a right to libel indiscriminately.

In these days of active and immense business transactions, when the principal questions that occupy the attention of the bench and bar are whether this shipment of goods belongs to you or to me, whether the title to this piece of real estate can be broken or sustained, questions involving only the sanctity of the home and the protection of private reputation may seem of little importance or consequence. The existence of sensational, irresponsible, libelous and venal newspapers necessitates that the people should have a more effective protection against "the liberty to speak and write freely" than that secured by the right to an uncollectible judgment in a court of law. Advancing civilization, with the increased complex

ity and intensity of life that it brings, gives rise, in many instances, to a demand for new rights and new remedies. The existence of a rule cannot be defended when the reason therefor no longer exists or is found to have arisen from historical prejudices and misconceptions.

The law, the most conservative of sciences, the lawyers, the most conservative of scientists, are both likely to become a retarding and hindering influence unless they respond to the advances in other departments of human activity and thought. Every department of our social and commercial life is sensitive to the effect of interference with every other, and the use of preventive remedies is of more importance to the individual and society to-day than it has ever been before.

Attacks upon private property in many instances can have no adequate redress or protection except in the restraining power of a court of equity. Wrongs that invade the peace and quiet of the home, or libel the reputation of the individual, property rights of the highest value, can in but few instances be righted by a judgment for damages. That system of law that prevents the commission of wrongs, is nearer the moral idea of justice than one that seeks to redress injuries by a financial remuneration.

H. S. HADLEY.