"No one can fail to notice the growing eagerness of some papers to pander to the public taste for sensational news. The law is probably strong enough to protect the reputation of individuals, as was shown by the large damages which a jury gave against a newspaper a few days ago in a case of libel. It remains to be proved, however, whether the law is strong enough to prevent interference with the due course of justice; and that will be shown when the conviction recorded in the recent case of Rex v. Tibbits and Windust comes before the Court for the Consideration of Crown Cases Reserved."

"to

The defendants in this case were charged with conspiring to pervert the course of justice by the publication of items of news concerning certain accused persons whose alleged crimes had excited great public interest. Before trial, the paper which these defendants represented, by the pen of one who was known as the "crime investigator," published particulars of the past life and career of the persons accused calculated to prejudice the public against them. "It is difficult," resumes our contemporary, imagine anything more calculated to interfere with the proper trial of a prisoner than such a course. The men who are to try him as jurors of course read the papers. They are ordinary members of society, very often of imperfect education, and probably liable to be considerably influenced by what they read. It is well known with what scrupulous care the English law keeps from the knowledge of a jury dark facts in the life of a prisoner which are not connected with the charge actually being tried. It does not seem tolerable that a newspaper should be

allowed to publish to the jury and the world matter which would not be admissible in evidence at the trial, and which tends to prejudice the minds of readers against the accused."

These words are refreshing to those of us in this country who have grown so accustomed to speak of the liberty of the press and right of free speech as if they had no limit. In fact, it would seem that in this connection some of our lawmakers have gone too far in shielding the public press in their utterances, especially respecting criminal and judicial proceedings. For instance, in Pennsylvania the statutes provide that no publication out of court respecting the conduct of the court or any of its officers, or parties in any cause pending, shall expose the party to summary punishment, and the only remedy of the person aggrieved is by indictment or action at law. Of late years, however, public sentiment has changed, and recent cases show an increasing tendency to punish in a summary manner, as for contempt, all attempts to influence judicial proceedings on the part of the public press. The rule is firmly established in England that while proceedings are pending it is contempt of court to publish anything in reference to the parties to, or the subject-matter of, a pending litigation, which tends to excite prejudice against those parties or their litigation. Tichborne v. Tichborne, 39 L. J. Ch. 398. This was also the rule at common law, and unless changed by statute might be enforced in any State where the common law prevails, and where the judges showed enough independence of newspaper influence to protect the rights of litigants and maintain the dignity of their own tribunals. How often newspapers of a certain class, to fill space or pander to pander to a low public appetite, will seize upon the character of some alleged criminal and from the fertile brain of some "crime investigator," will spin a web of circumstances which, in addition to all the past facts of the man's life which it has been able to procure either by direct evidence or by hearsay, presents a picture so lurid and attractive to the mind of the undiscriminating public as to easily prejudice it against the one so charged with crime. In extenuation of their course in this regard these journals will insist that the widest publicity of the supposed

criminal's life and character are rightfully demanded by the people, and that the more evidence that can be gathered about him by the activity of press representatives and "crime investigators," whether relevant or irrelevant, whether competent or incompetent, whether hearsay or direct, assists rather than prejudices the minds of jurors in arriving at a just verdict. In this they display ignorance of the fact that the rules of evidence now applied by the courts to safeguard the interests of all parties to any pending litigation and bring to the consideration of the jury only the best and most trustworthy evidence in every case are not merely the techuical and arbitrary exactions of the court, but, on the contrary, are the expression of Anglo-Saxon common sense and experience of over a thousand years. The trial of Capt. Dreyfus gave the world an illustration of the awful results of newspaper evidence and interference and of indiscriminate and unreliable testimony. We want none of it. Newspapers in this country can and should be compelled to keep silent about what they may know or have heard in regard to any parties engaged in litigation or charged with crime that may tend to prejudice the minds of the jury in favor of one side or the other. Summary punishment, as for contempt, should meet every infraction of this rule. To this attitude the courts of this country are rapidly coming as they begin to realize that unless such interference on the part of the press is checked in its incipiency. their own authority and the rights of litigants will be at the mercy of editors and "crime investigators." In Nebraska, for instance, it was held that the constitutional guaranty of the freedom of the press is not involved in a proceeding against a newspaper for contempt, in attempting, by threats or other form of intimidation, to control judicial action in a pending action. State v. Rosewater (Neb. 1900), 83 N. W. Rep. 353. In the same State and in the same year the court was called upon again to hold that a newspaper corporation, which deliberately seeks to influence judicial action by the publication of articles threatening the judges with public odium and reprobation in case they decide a pending cause in a particular way, is guilty of contempt. State v. Bee Publishing Co. (Neb. 1900), 83 N. W. Rep. 204. The courts

of Massachusetts seem to take even firmer attitude against all interference on the part of the press, and in the recent case of Telegram Newspaper Co. v. Commonwealth (Mass. 1899), 52 N. E. Rep. 445, the court holds that where a corporation engaged in the publication of a newspaper publishes an article concerning a pending trial in the place where the trial is had, which is calculated to prejudice the jury and prevent a fair trial, it is guilty of a criminal contempt, though there was no criminal intent in the publication of such article. The same court further held that it was not necessary that matter published in a newspaper during the trial of a case calculated to prevent a fair trial, should be shown to have been read by members of the jury, in order that the publisher should be guilty of contempt; but it is sufficient that it was published and circulated in the place where the trial was had and might have been read. These decisions are certainly in the right direction, and it is to be hoped that they evidence a wholesome tendency on the part of the courts to maintain the sanctity of their own tribunals and absolutely prohibit any interference or suggestion from outside sources.

NOTES OF IMPORTANT DECISIONS.

BANKS AND BANKING-DEPOSIT IN NAME OF ANOTHER. Quite an unusual question recently arose in the case of Greene v. Bank of Camas Prairie (Idaho), 64 Pac. Rep. 888, where it was held that where, by the terms of a contract of deposit in the name of the daughter of the depositor, with the agreement that he (the depositor) may draw such deposit on checks signed by him, and he does draw the money so deposited on checks so signed, the daughter cannot hold the bank for the money so deposited and drawn out. The record shows that during the lifetime of A. D. Greene, the father of appellant, he deposited with the respondent bank $285, in the name of his daughter, Aileen Greene, with the further agreement that the money would be paid out on checks drawn by him, that is, on checks signed "Aileen Greene, per A. D. Greene." The money was deposited, and in course of time paid out pursuant to the agreement. The court said: "The evidence clearly shows that said money was not deposited to the credit of appellant for her use and benefit, but was deposited for the use and benefit of her father. Appellant knew nothing of said deposit until after her father's death, and after he had drawn all of it. She was not a party or a privy to the deposit, and it was made with

the distinct agreement that it might be drawn out by the father. The appellant's contention is that, as the deposit was made in her name, it became hers; but reason, justice, and authority are against her. In Davis v. Bank, 53 Mich. 163, 18 N. W. Rep. 629, it is held as follows: 'A depositor contracting with a bank for the care of his money can control his funds until he has disposed of them, no matter in what name the account is kept, so long as it is understood to be his account, and has not been put beyond his control by some act that he cannot revoke.""

CORPORATIONS-RIGHT OF STOCKHOLDERS TO COMBINE TO CONTROL THE CORPORATION.— One of the most interesting questions in law today is the right of majority stockholders to control the corporation. The earlier rule set very little check upon them, but the tendency of the present time is in favor of recognizing the rights of minority stockholders, and placing the latter in the position of cestuis que trust as regards their relation to the majority stockholders who are in control of the affairs of the corporation. An important phase of this question arose in the case of Withers v. Edwards (Tex.), 62 S. W. Rep. 795. The parties, who were president and teller and large stockholders in a bank, agreed that plaintiff should endeavor to secure the co-operation of other stockholders or control of sufficient stock to secure the election of a board of directors satisfactory to them, and who would continue them in their respective offices, and the expense of securing such control should be shared equally by them. After plaintiff had incurred expense, and secured control of stock which, added to theirs, was sufficient for their purpose, defendant defeated the plan by selling his stock. Held, that the agreement was illegal, because it involved the election of the parties to lucrative positions in the corporation; hence plaintiff was not entitled to recover the expense so incurred. The court said:

"The serious question arises from the contention of appellee that the contract was illegal, as against public policy, because the agreement, in part, was that appellant and appellee should retain their respective offices of president and teller in the bank. It is legal for a majority of the stockholders to combine and control the election of the board of directors and management of the corporation. But a contract in regard to elections in private corporations is not legal if it provides that a lucrative corporate position shall be given to one or more of the parties to the contract.' 2 Cook, Corp. § 622, and notes; Gage v. Fisher (N. Dak.), 65 N. W. Rep. 809, 31 L. R. A. 563; Guernsey v. Cook, 120 Mass. 501; Woodruff v. Wentworth, 133 Mass. 309; West v. Camden, 135 U. S. 507, 10 Sup. Ct. Rep. 838, 34 L. Ed. 254; Noel v. Drake, 28 Kan. 265; 2 Beach, Cont. par. 1524; Dickson v. Baker (Minn.), 77 N. W. Rep. 820; Cone's Exrs. v. Russell (N. J. Ch.), 21 Atl. Rep. 847; Harris v. Scott (N. H.), 32 Atl. Rep. 770. While the petition does not specifically al

lege that the position of president and teller were lucrative, yet we think the presumption should prevail that the parties, under the agreement, were to be remunerated for such services as they might perform if installed in such positions. At least, in the absence of a contrary stipulation, the law implies that reasonable compensation would be paid. This part of the contract being illegal, the contract is not enforceable in the courts."

CONSTITUTIONALITY

OF MECHANICS' LIEN LAWS.-It seems that there will always be some who will never be satisfied that statutes giving to mechanics and material-men a special lien on the land and buildings, where their services or material is used, are not an infringement on the constitutional rights of the property owner. Especially is this so when the facts of the case arrange themselves as they appeared recently in the case of Barrett v. Millikan (Ind.), 60 N. E. Rep. 310. In that case A, the owner of a lot, made a contract with B for the repair of a building thereon. B contracted with C to furnish certain material which was used in making the repairs. C filed notice of a mechanic's lien. In the meantime, and before the filing of C's notice, and without any knowledge of the latter's claim, A paid B, the original contractor, in full. C brings an action against A to enforce his lien under the statutes which A in his answer claims to be unconstitutional on the following grounds: 1. The act authorizes the appropriation of the property of the landowner without due process of law. 2. It impairs the obligation of contract, in that it interpolates provisions for liens for third parties, with whom the owner of the real estate has no contractual relation. 3. It grants to one class of citizens rights not granted to all other citizens and is therefore class legislation.

This case represents a peculiar hardship and seeming injustice that often arises under the administration of mechanics' lien statutes and which often lead attorneys, as well as laymen, to attack their constitutionality. The court in this case holds that a statute giving contractors, subcontractors, material-men and laborers a lien on buildings for which they have furnished material or labor, is not unconstitutional, as depriving the land owner of property without due process of law, since he makes his contract with full knowledge of the obligations imposed on him by statute, and hence binds his property by his own voluntary act. The court shows that while in a few instances the constitutionality of similar statutes had been denied in some jurisdictions, their validity had been generally recognized, citing the following authorities: Donahy v. Clapp, 12 Cush. 440; Phil. Mech. Liens, §§ 65, 79; Laird v. Moonan, 32 Minn. 358, 20 N. W. Rep. 354; O'Neil v. St. Olaf's School, 26 Minn. 329, 4 N. W. Rep. 47; White v. Miller, 18 Pa. 52; Deardorff v. Ever hartt, 74 Mo. 37; Spofford v. True, 33 Me. 291, 5. Am. Dec. 62; Jones, Liens, §§ 1304, 1306. The judgment in Jones v. Hotel Co. (C. C. S. D. Ohio), 79 Fed. 477, often relied upon as establish

ing a different rule, was overruled by the circuit court of appeals. 86 Fed. Rep. 370, 30 C. C. A. 108. After proving beyond a peradventure that there was no valid grounds for questioning the constitutionality of such statutes, the court takes up the alleged hardship and injustice sometimes resulting from their enforcement. "The objections taken to the statute in the brief of counsel for appellants," says the court in a well-reasoned opinion, "seem to rest upon the supposed hardships and inconveniences which may result from it, rather than upon constitutional grounds. A very conclusive answer to these criticisms is furnished by the decision in Colter v. Frese, 45 Ind. 96, in which the court, by Worden, J., says: Many arguments have been pressed upon our consideration in respect to this point, as well as upon the question whether a lien can be acquired on account of work done for or materials furnished to a contractor, and not the owner. The most of them are based upon the real or supposed hardships of the law, as we construe it, in this: that in many cases it subjects the owner to the liability of making double payment for the same work or materials, and prevents him from making contracts for the erection of buildings and the furnishing of materials therefor, to be paid for otherwise than in money, and other similar inconveniences. These arguments might have much force if addressed to the legislature, whose province is to make the law, but can have little weight against the clear and unequivocal terms of a statute, when addressed to a court whose province is to determine what the law is, and not what it ought to be. * Its object is to secure to the mechanic, laborer, or material-man compensation for his work or materials. It prevents the owners of real estate from securing to themselves, without compensation, the benefit of the labor and materials of others by means of low contracts with irresponsible or perhaps dishonest contractors. The inconveniences of the law do not seem to us to be insuperable. The owner may withhold from the contractor for the period of sixty days after the completion of the work enough to protect the property from liens for work or materials. If full payment is made at the end of that time, it is, perhaps, quite as prompt as payments are usually made."

* *

CRIMINAL EVIDENCE-TESTIMONY AND CONFESSIONS BEFORE THE GRAND JURY.-There is a strong tendency to relax the general rule of the common law that proceedings and testimony before the grand jury are to be kept strictly secret. Many exceptions have been made-one of which is clearly set forth in the case of Wisdom v. State (Tex. App.), 61 S. W. Rep. 926, where it was held that admissions or confessions of accused, made before the grand jury, after being warned, in regard to the crime charged, are competent evidence against him on the trial. Davidson, P. J., in writing the opinion uses this language:

"The admissions or confessions of appellant, made before the grand jury, after being warned, in regard to the burglary charged in the indictment, were introduced in evidence. He reserved an exception, and assigns error. The ruling of the court is correct. Thomas v. State, 35 Tex. Cr. Rep. 178, 32 S. W. Rep. 771; Jones v. State, 33 Tex. C. Rep. 7, 23 S. W. Rep. 793; Paris v. State, 35 Tex. Cr. Rep. 82, 31 S. W. Rep. 855; Thompson v. State, 19 Tex. App. 593; Nicks v. State, 40 Tex. Cr. Rep. 1, 48 S. W. Rep. 186. It is claimed that these authorities are in contravention of Gutgesell v. State (Tex. Cr. App.), 43 S. W. Rep. 1016. That case seems to indicate that testimony before a grand jury can be used for two purposes only: First, where perjury is assigned upon evidence adduced before the grand jury; and, second, where witnesses testifying before the court made different statements before the grand jury in regard to the same matter,-in other words, for impeachment purposes."

After making the statement that the Gutgesell case was not correct in limiting the right to use the testimony before the grand jury for the purposes just indicated, the court gives the following splendid review of the authorities:

There are other instances in which such testimony can be used. Where an attack is made upon an indictment by reason of the fact that some person other than those authorized were present before the grand jury when the indictment was considered, the secrecy hanging around the grand jury can be unveiled, and testimony introduced showing that fact. Rothschild v. State, 7 Tex. App. 519; Stuart v. State, 35 Tex. Cr. Rep. 440, 34 S. W. Rep. 118; Sims v. State (Tex. Cr. App.) 45 S. W. Rep. 705. So the question may be investigated as to whether the grand jury is a full and complete grand jury. Drake v. State, 25 Tex. App. 293, 7 S. W. Rep. 868; Jackson v. State, 25 Tex. App. 314, 7 S. W. Rep. 872; Smith v. State, 19 Tex. App. 95; Watts v. State, 22 Tex. App. 572, 3 S. W. Rep. 769; Woods v. State, 26 Tex. App. 490, 10 S. W. Rep. 108; Trevinio v. State, 27 Tex. App. 372, 11 S. W. Rep. 447; Mays v. State, 28 Tex. App. 485, 13 S. W. Rep. 787. Neither the rule of secrecy nor the oath of secrecy which grand jurors are required to take prevents the public or an individual from proving by one or more of the grand jurors in a court of justice what passed before the grand jury, where, after the purpose of secrecy has been affected, it becomes necessary to the attainment of justice and the vindication of truth and right, in a judicial tribunal, that the conduct and testimony of prosecutors and witnesses shall be inquired into.' 17 Am. & Eng. Ency. Law (2d Ed.), p. 1294; Jenkins v. State, 35 Fla. 737, 18 South. Rep. 182; Hinshaw v. State, 147 Ind. 334, 47 N. E. Rep. 157; State v. Buskirk, 59 Ind. 384; Burdick v. Hunt, 43 Ind. 381; Shattuck v. State, 11 Ind. 475; Burnham v. Hatfield, 5 Blackf. 21; Hunter v. Randall, 69 Me. 183; State v. Benner, 64 Me. 267; Sands v. Robison, 12 Smedes & M. 704; State v.

Broughton, 29 N. Car. 96, 45 Am. Dec. 507; State v. Moran, 15 Oreg. 262, 14 Pac. Rep. 419; Jones v. Turpin, 6 Heisk. 181; U. S. v. Kirkwood, 5 Utah, 123, 13 Pac. Rep. 234. And the refusal of a grand juror to testify is contempt. Ex parte Schmidt, 71 Cal. 212, 12 Pac. 55. Nor can witnesses before a grand jury invoke the rule of secrecy, after the hearing before that body has been terminated; nor can witnesses rely upon such rule in criminal proceedings against them, or where it is sought subsequently to impeach their credibility as witnesses, or to take advantages of admissions made by them. People v. Northey, 77 Cal. 618, 19 Pac. Rep. 865, 20 Pac. Rep. 129; People v. Kelley, 47 Cal. 125, 126; People v. Young, 31 Cal. 564; State v. Broughton, 45 Am. Dec. 507; U. S. v. Kirkwood, 5 Utah, 123, 13 Pac. Rep. 234; People v. Reggel, 8 Utah, 21, 28 Pac. Rep. 955. So it is held that testimony given by a witness before the grand jury can be used to refresh his memory on the trial of the case. Spangler v. State (Tex. Cr. App.), 55 S. W. Rep. 326. Where a person is being tried for crime, a confession voluntarily made by him before a grand jury may be proved by members of that body, and it has been held in civil actions a grand juror may testify to admissions made by a person against his interests before the grand jury. In support of the proposition that grand jurors may testify as to a defendant's confession, see Sikes v. Dunbar, 2 Selw. N. P. (13th Ed.) 1015. This case was decided by Lord Kenyon, and was cited in State v. Broughton, 29 N. Car. 96, being reported in 45 Am. Dec. 507. See, also, U. S. v. Porter, 2 Cranch, C. C. 60, 27 Fed. Cas. 595 (No. 16,072); U. S. v. Charles, 2 Cranch, C. C. 76, Fed. Cas. No. 14,786; Hinshaw v. State, 147 Ind. 344, 47 N. E. Rep. 157; State v. Broughton, 45 Am. Dec. 507, and the cases above cited in 5 Utah, 13 Pac. Rep., and 8 Utah, 28 Pac. Rep. As to the use of admissions made before the grand jury in civil cases, see 5 Blackf. 21; Kirk v. Garrett, 84 Md. 383, 35 Atl. Rep. 1089; 17 Am. & Eng. Ency. Law, p. 1296, and notes 3-6.

PENAL STATUTES-LIMITATION-STOCKHOLDERS' LIABILITY.-The distinction to be observed between penal statutes running in favor of the state and statutes which create a liability in favor of private individuals, in the nature of a penalty, is clearly explained by the Supreme Court of Rhode Island in the case of Kilton v. Providence Tool Co., 48 Atl. Rep. 1039. The exact holding of the court was that the section of the General Laws of Rhode Island, allowing twenty years for bringing an action on a specialty, and not the section allowing one year for bringing suits founded on any penal statute, is the statute of limitations applicable to an action for the enforcement of the individual liability of stockholders for the debts of the corporation; since the action, though of a penal character, is not an action to enforce a penalty, within the meaning of the words "penal statute" as used in chapter 288. The court said:

"It is argued, that the liability imposed is penal, and hence that the action or suit brought against the stockholder must be begun within one year from the time it accrues. But the statute of limitations which these defendants refer to has no application to 'civil actions,' strictly so called. Section 8 of chapter 288, which is referred to, is as follows: All suits or prosecutions founded upon any penal statute, which are wholly or in part for the use of the prosecutor, shall be brought within one year, and all other suits and prosecutions on such statute within two years after the commission of the offense, unless otherwise provided.' That the effect of this statute (making stockholders liable for the debts of the corporation) is to impose a penalty upon the stockholder for the default of the corporation may be admitted (Sayles v. Bates, 15 R. I. 34, 25 Atl. Rep. 497; Wing v. Slater, 19 R. I. 597, 35 Atl. Rep. 302, 33 L. R. A. 566; Bank v. Farnum, 20 R. I. 466, 40 Atl. Rep. 341); but this does not bring it within the meaning of the words 'penal statutes,' as used in chapter 288. The statute referred to in Bank v. Bliss, 35 N.Y. 412, fixed at six years the limitation of time wtihin which an action upon a liability created by statute, other than a penalty or forfeiture,' might be commenced, and three years as the limit within which an action upon a statute for a penalty or forfeiture, where action is given to the party aggrieved,' might be commenced. The court held that the action before them, which was against trustees of a corporation for not rendering returns, was to recover a penalty given by statute, and the latter statute of limitation applied. The supreme court commission of Ohio arrived at exactly the opposite conclusion in regard to the statute of that state, which was in the same words. Hawkins v. Furnace Co., 40 Ohio St. 507. In Pattersonv. Thompson,86 Fed. Rep. 85, the statute of limitations of Oregon is not given. But we infer from the argument of the court that it resembles the New York statute rather than our own. The case was also against the directors of a corporation for declaring dividends when the corporation was insolvent. In Attrill v. Huntington, 70 Md. 191, 16 Atl. Rep. 651, 2 L. R. A. 779, the court refused to enforce a statute of the state of New York providing that corporation officers who make false returns shall be liable to pay the debts of the company, on the ground that the statute was penal. The dissenting opinion of Stone, J., discriminates between statutes which impose penalties by way of compensation to private individuals, and criminal statutes imposing penalties to be recovered on behalf of the state, but which may be shared, when recovered, between the state and the informer. The former statutes, he shows, may be enforced in a foreign jurisdiction, while the latter cannot. The Supreme Court of the United States, where this case was taken on writ of error, reversed the decision of the court, and approved the minority opinion. 146 U. S. 657, 13 Sup. Ct. Rep. 224, 36 L. Ed. 1123.