Will, 23 Iowa, 354; Dewey v. Dewey, 1 Metc. 349; Barnes v. Barnes, 66 Me. 286; Rose v. Allen, 1 Cold. 23; Jenkins's Will, 43 Wis. 610; Weld v. Sweeney, 85 Ill. 50; Otterson v. Hofford, 7 Vr. 120.

JOHN H. STEWART.

CONSTITUTIONAL LAW-WAIVER IN CRIMIN AL TRIAL.

STATE v. KAUFMAN.

Supreme Court of Iowa, September, 1879.

1. RIGHT OF TRIAL BY JURY-WAIVER OF FULL JURY. A prisoner, on his trial, may, with the consent of the State and court, waive the benefit of the constitutional provision that "the right of trial by jury shall remain inviolate" by consenting to be tried by a jury of less than twelve.

2. WHETHER A PRISONER MAY, with the consent of the State and court, waive a trial by jury altogether, quære.

Appeal from Iowa District Court.

The defendant was indicted for uttering and publishing a forged promissory note with intent to defraud. Upon the trial one of the jurors "being ill, with the consent of the defendant said juror was discharged, and with the consent of the defendant the trial, before eleven jurors, was resumed and concluded by the order of the court." There was a verdict of guilty. A motion was filed in arrest of judgment, and for a new trial, on the ground that no legal judgment could be rendered on such a verdict. Both motions were overruled and judgment pronounced. The defendant appeals.

Hedges & Alverson and J. W. Slater, for appellant; Attorney General McJunkin, for the State.

SEEVERS, J., delivered the opinion of the court: 1. It is provided by statute that "the jnry consists of twelve men accepted and sworn to try the issue. All qualified electors of the State

are competent jurors in their respective counties." Code, §§ 227, 4,397.

Both these statutory provisions have equal force. If one can be waived, so may the other. It was said in State v. Groom, 10 Iowa, 308: "If the defendant knew at the time the jury was sworn that any of them were not qualified to act as jurors, he Would have waived his right to object thereafter." This decision was made under the Code of 1851. But sections 1,630 and 2,971 thereof are precisely the same as sections 227 and 4,397 of the Code. That a defendant in a criminal action by silence may waive the benefit of a statutory provision was clearly recognized. There are several other decisions which recognize the same principle. Hughes v. State, 4 Iowa, 554; State v. Ostrander, 18 Iowa, 435; State v. Reid, 20 Iowa, 413, and State v. Felter, 35 Iowa, 67. It must therefore be regarded as the settled doctrine in this State that a defendant in a criminal action, with the consent of the State and court, may waive a statute enacted for his benefit.

* * *

2. The Constitution provides that "the right of trial by jury shall remain inviolate but no person shall be deprived of life, liberty or property without due process of law." Article 1, § 9, Code, 770.

That the jury contemplated by the forgoing provision should consist of twelve competent persons, will be conceded. The question for determination is, whether a defendant in a criminal action, with the consent of the State and conrt, can waive the foregoing constitutional provision and is bound thereby. The first impression would be, we think, that a constitutional provision could be waived as well as a statute. Both in this respect have equal force, and were enacted for the benefit and protecof persons charged with crime. If one can be waived, why not the other? A conviction can only be legally obtained in a criminal action upon competent evidence; yet, if the defendant fails at the proper time to object to such as is incompetent, he cannot afterwards do so. He has a constitutional right to a speedy trial, and yet he may waive this provision by obtaining a continuance. A plea of guilty ordinarily dispenses with a jury trial, and it is thereby waived. This, it seems to us, effectually destroys the force of the thought thatthe State (the public) have an interest in the preservation of the lives and the liberties of the citizens, and will not allow them to be taken away without due process of law." The same thought is otherwise expressed by Blackstone, vol. 4, 189, that "the king has an interest in the preservation of all his subjects." It matter not whether the defendant is in fact guilty, the plea of guilty is just as effectual as if such was the case. Reasons other than the fact that he is guilty may induce a defendant to so plead, and thereby the State may be deprived of the services of the citizen, and yet the State never actively interferes in such case, and the right of the defendant to so plead has never been doubted. He must be permitted to judge for himself in this respect. So in the case at bar. The defendant may have consented to be tried by eleven jurors because his witnesses were there present and he might not be able to get them again, or that it was best he should be tried by the jury as thus constituted. Why should he not be permitted to do so? Why hamper him in this respect? Why restrain his liberty or right to do as he believed to be for his interests? Whatever rule is adopted affects not only the defendant, but all others similarly situated, no matter how much they desire to avail themselves of the right to do what the defendant desires to repudiate. We are unwilling to establish such a rule. It may be said that if one juror may be dispensed with, so may all but one, or that such trial may be waived altogether and the trial had by the court. This does not necessarily follow.

It will be time enough to determine such questions when they arise. Certain it is that the right to dispense with one or more jurors cannot be exercised without the consent of the court and State, and it may safely, we think, be left to them as to when or to what extent it may be exercised. We, however, may remark, without committing our

selves thereto, that it is difficult to see why a defendant may not, with the consent of the court and State, elect to be tried by the court. Should such become the established rule, many changes of venue based on the prejudice of the inhabitants of the county against the defendant might be obviated. The authorities are not in accord on the question under discussion. The foregoing views are sustained by Com. v. Dailey, 12 Cush. 80; Murphy v. Com., 1 Met. (Ky.) 365; Tyra v. Com., 2 Met. (Ky.) 1. The crime charged in these cases was a misdemeanor, but in the first case this fact possessed no significance. The ruling is based on principles applicable to all criminal actions. We are unable to see how it is possible to draw a distinction in this respect between misdemeanors and felonies, because the Constitution does not recognize any such distinction. The contrary conclusion was reached in Cancemi v. People, 18 N. Y. 128; Allen v. State, 54 Ind. 461, and Bell v. State, 44 Ala. 393. In neither of these cases was the question largely considered. Substantially they all seem based on the thought that "it would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the Constitution and law establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and we think ought not to be tolerated." Cancemi v. People, before cited. This would have been much more convincing and satisfactory if we had been informed why it would be "highly dangerous" and should "not be tolerated," or at least something which had a tendency in that direction. For if it be true, as stated, it certainly would not be difficult to give a satisfactory reason in support of the strong language used.

In Bullard v. State, 38 Tex. 504, the verdict was rendered by thirteen jurors. It was set aside; but it does not appear whether or not the defendant had any knowledge, until after verdict, that there was that number of jurors. In Williams v. State, 12 Ohio St. 622, a jury trial was waived, and the defendants found guilty by the court. On appeal the attorney general submitted to a reversal, on the ground that a jury trial could not be waived. The case was disposed of by the court in a single line, by saying such was the opinion of the court. It is evident the case was not very elaborately considered. The following cases hold that a trial by jury cannot be waived, and the same take place before the court. Bond v. State, 17 Ark. 290; People v. Smith, 9 Mich. 193; League v. State, 36 Md. 259.

oral testimony of the witnesses in court." A conviction followed, which was held to be right, and that the constitutional provision was a personal right, and in no manner affected the jurisdiction of the court, and that it might be waived. This decision, in principle, is identical with the case at bar. If one constitutional provision may be waived, why not another? The one is not more binding or obligatory than the othe. Both are equally important.

No exceptions were taken to the instructions, but in the motion for a new trial it was objected that the verdict was not supported by the evidence. If the jury believed the witness, Collins—and they must have done so-the conviction is undoubtedly right. Both the district court and jury have passed upon the sufficiency of the evidence, and the story told by Collins is not so improbable as to justify us in disbelieving him. Certain objections were made on the trial to the admission of evidence. These are not in argument of counsel, but, as is our duty, we have examined them, and failed to find them, or any of them, well taken. Affirmed.

INJUNCTIONS TO RESTRAIN LIBELS.

"The publication of a libel is a crime; and I have no jurisdiction to prevent the commission of crimes; excepting, of course, such cases as belong to the protection of infants, where a dealing with an infant may amount to a crime-an exception arising from that peculiar jurisdiction of this court." This was the language of Lord Chancellor Eldon in 1818 in the wellknown case of Gee v. Pritchard, 2 Swanst. 413, and it may be of interest to our readers to examine the subsequent decisions on the point.

Lord Eldon there laid down that he had no jurisdiction to grant an injunction to restrain the publication of a libel, the precise question before him being as to the right of publication of private letters. In the cases of Martin v. Wright, 6 Sim. 297, Seeley v. Fisher, 11 Sim. 581, and Clark v. Freeman, 11 Beav. 112, the same limitation to their jurisdiction was recognized by Sir Lancelot Shadwell, Lord Cottenham, and Lord Langdale, and although the dictum of Lord Eldon in Gee v. Pritchard does not appear to have been cited on any of those occasions, the same principle was laid down in much the same language by each of these three eminent judges.

In Martin v. Wright the question was as to a celebrated picture by the plaintiff, which the defendant had copied on a larger scale and exhibited as a diorama, advertising it as "Mr. Martin's grand picture of Belshazzar's Feast." The plaintiff sought an injunction to restrain him from so doing, but Vice-Chancellor Shadwell, after deciding that the statutes specially applicable to the case would not justify him in granting an injunction until the right had been established at law, went on to say that, "with respect to the defendant representing his copy as Martin's picture, it must be either better or worse; if it is better, Martin has the benefit of it; if worse, then the misrepresention is only a sort of libel, and this court will not prevent the publication of a libel." In Seeley v. Fisher the plaintiff had published a fifth edition of Mr. Scott's Commentary on the Bible after the author's death, while the defendants were publishers of a later edition, copied from the fourth, the copyright in which had expired; and in bringing out their edition the defend

ants accompanied it with an advertisement which contained disparaging remarks on the plaintiff's edition. Lord Cottenham, dissolving an injunction which had been granted by the Vice-Chancellor on the ground that the defendants had represented their publication to be the plaintiff's, said that, "although it was alleged that any additional or other matter which was contained in any edition subsequent to the fourth was spurious and of no value, that allegation, if untrue, was no subject for an injunction, although it might be the subject of an action, as being a libel on, or disparagement of, the plaintiff's edition." So in the muchdiscussed case of Clark v. Freeman, Lord Langdale, refusing an injunction at the suit of the distinguished physician, Sir James Clark, to restrain a druggist from selling pills under the title of "Sir James Clarke's Consumption Pills," did so because, as he said, "I think the granting the injunction in this case would imply that the court has jurisdiction to stay the publication of a libel, and I cannot think it has."

The principle on which an injunction could not be granted to restrain the publication of a libel was discussed at some length in the House of Lords in a Scotch appeal, Fleming v. Newton, 1 H. L. C. 363, in which the respondent's name had been placed on the register of protests for non-acceptance and non-payment of bills of exchange and promissory notes, and an interdict had been granted by the Court of Session to restrain, so far as his name was concerned, the publication of a copy of the register. The appeal there was, indeed, one from a Scotch decision, but the argument proceeded on a comparison of the circumstances with a similar case in English law, and Lord Cottenham, in delivering judgment, in which he reversed the decision of the Court of Session, treated the matter in a general way. "If it were necessary," said the Lord Chancellor," to lay down a rule respecting the jurisdiction which has been exercised in this cause by the Court of Session in granting an interdict against the publication of libels, this cause would be one of the highest importance, and, in the present state of information submitted to this House, of the greatest difficulty; for it is impossible to read the observations of the learned judges in the court below without seeing that there is much want of precision in their observations upon the subject. But being, as I am, of opinion that the general question is not necessarily involved in the consideration of this appeal, I think it expedient, under the circumstances, to avoid giving any opinion upon that general question. I cannot, however, avoid expressing an earnest hope that, if this question should arise and require a decision in the Court of Session, and no distinct rule should be found already to exist upon the subject, the consequences of any rule to be established for the, first time will be most carefully considered before such a rule is laid down; and particularly that it may be considered how the exercise of such a jurisdiction can be reconciled with the trial of matters of libel and defamation by juries under the 53 Geo. 3, c. 42, or, indeed, with the liberty of the press. That act appoints a jury as the proper tribunal for trial of injuries to the person by libel or defamation; and the liberty of the press consists in the unrestricted right of publishing, subject to the responsibilities attached to the publication of libels, public or private. But if the publication is to be anticipated and prevented by the intervention of the Court of Session, the jurisdiction over libels is taken from the jury, and the right of unrestricted publication is destroyed." In the opinion of Lord Cottenham, then, the principle that to authorize a court of equity to take the matter into its own hands and grant an injunction in a case of libel would be to encroach upon the absolute right of a defendant, in such a case

to trial by jury, as well as to interfere with the liberty of the press, is the principle upon which the jurisdiction of the court is limited in this respect.

But while the bare question of the power to grant an injunction in cases of libel is thus decided, alike on principle and authority, in the negative, there are classes of cases in which the court will exercise jurisdiction which are not easily distinguishable from the above. While urging that no injunction could be granted in England in such a case as Fleming v. Newton, "an injunction is granted," said Sir Fitzroy Kelly, in his argument for the appellant in that case, "to prevent an interference with property. The wellknown case in which an injunction was issued to prevent the publication of certain private letters-Gee v. Pritchard-was one in which the publication was sought to be prevented, on the ground that it was an interference with property." And in Clark v. Freeman, it was apparently not without some hesitation that Lord Langdale decided that there was no such right of property involved as to entitle the plaintiff to his remedy; while the present Lord Chancellor, in Maxwell v. Hogg, 15 W. R. 467, L. R. 2 Ch. 307, has intimated that in his opinion there was such a sufficient right of property in a man's own name as would have Justified Lord Langdale in deciding the other way. This observation has been the subject of unfavorable remark. So, again, where M. Kossuth manufactured, for circulation in Hungary, notes signed by himself in the name of the Hungarian nation, an injunction was granted; but on the ground of the injury in point of property to the subjects of the Emperor of Austria. Emperor of Austria v. Day, 9 W. R. 712, 2 De G. F. & J. 217. While admitting that the court had no jurisdietion to restrain a libel, as such, "I consider," said Lord Chancellor Campbell, "that this court has jurisdiction by injunction to protect property from an act threatened which, if completed, would give a right of action," and Lord Justice Turner, in expressing his assent, observed, "I agree that the jurisdiction of this court in a case of this nature rests upon injury to property actual or prospective, and that this court has no jurisdiction to prevent the commission of acts which are merely criminal or merely illegal, and do not affect any rights of property."

There are other cases in which unauthorized statements have been restrained by injunction when they tended to produce injury to person or property. Of these cases a conspicuous example is Routh v. Webster, 10 Beav. 561, where Lord Langdale restrained the provisional directors of a joint stock company, called "The Economic Conveyance Company," from publishing a person's name in a prospectus, as being a trustee of the company, without his authority. The liability in which the plaintiff might be involved by the conduct of the defendants, was the ground on which the judgment was based, and the injunction was granted notwithstanding the promises of the defendants not to repeat their misrepresentations. "I think it was because there was an interference with property," observed Sir R. Malins, speaking of this case, in Springhead Spinning Co. v. Riley, 16 W. R. 1138, L. R. 6 Eq. 551, "that Lord Langdale did grant an injunction against the directors of a joint stock company publishing the name of the plaintiff as a director without his authority, and he put it on the ground that to allow his name to be used would throw a liability on him which, in other words, would affect his property." In Bullock v. Chapman, 2 De G. & Sm. 211, Vice-Chancellor Knight Bruce declined, on an interlocutory application, to restrain a banking company from returning the plaintiff's name to the stamp office as a shareholder in the company, but the judge's language does not seem to imply doubt of the jurisdiction on the particular ground now in question. One great reason for not

granting it was that no serious mischief was clearly established. The case of Springhead Spinning Co. v. Riley was a somewhat peculiar one, and resulted in Vice-Chancellor Malins overruling a demurrer to a suit for an injunction to restrain the officers of a trade union from giving notice to workmen not to enter the plain. tiff's service, by which course of conduct the plaintiff was injured, and the value of his property diminished. The Vice-Chancellor distinctly admitted that the acts complained of amounted to a crime at common law. Again, in Dixon v. Holden, 17 W. R. 482, L. R. 7 Eq. 488, the same Vice-Chancellor granted an injunction to restrain the publication of a notice to the effect that the plaintiff was a partner in a certain firm which was bankrupt. The plaintiff there was, however, a large merchant. In a recent Scotch case, Reid v. Sibbald, reported in Vol. 18 of the Journal of Jurisprudence, p. 392, an interdict was granted, in the Sheriff Court of Linlithgowshire, to restrain a trader from signing a name simulated from that of a sheriff's officer to notices which he had begun to issue to his customers requiring them to settle their accounts, and making absurd threats in quasi-legal language. The sheriff substitute appears to have considered that he had jurisdiction merely on the ground that the petitioner (the sheriff's officer) might be brought into discredit and contempt, and interfered with in the discharge of his duties, by the proceeding complained of.

Though there may be cases in which the court will interfere by injunction to restrain injury to property, even though the act of injury involves a libel, it is now established that it will not restrain wrongful acts which amount to a libel, and nothing else. The line is narrow, and in some cases in which the decision has been approved, notably that of Dixon v. Holden, language has been employed which has failed to obtain similar confirmation. In the last-mentioned case, it was laid down that the court had jurisdiction to restrain the publication of any document tending to the destruction of property, whether consisting of money or of professional reputation by which property was acquired; but Vice-Chancellor Wickens, in Mulkern v. Ward, L. R. 13 Eq. 619, questioned this dictum, and declined to interfere with the freedom of the press by restraining the publication of observations on the plaintiff's building society and bank of deposit, stated by the plaintiffs to be libellous; and in Prudential Assurance Co. v. Knott, 23 W. R. 249, L. R. 10 Ch. 142, Lord Chancellor Cairns and the Lord Justices expressly disavowed the principle asserted. The question there was as to statements alleged to be injurious to an insurance company, and, an injunction having been refused by Vice-Chancellor Hall, the matter came before the full Court of Appeal in Chancery, who confirmed his decision. Their reasons are very clearly stated by the Lord Chancellor, who says: "Now the comments and expressions in this pamphlet either do amount to a libel upon the company, or they do not. If they do not amount to a libel, and are, therefore, innocuous and justifiable in the eye of a court of common law, I am at a loss to understand upon what principle the court of chancery could possibly interfere as a censor morum, or critic, to restrain the publication of statements or expressions which would be held justifiable in a court of common law. If, on the other hand, these comments do amount to a libel, then, as I have always understood, it is clearly settled that the court of chancery has no jurisdiction to restrain the publication merely because it is a libel. There are publications which the court of chancery will restrain, and those publications, as to which there is a foundation for the jurisdiction of the court of chancery to restrain them, will not be restrained the less because they happen also to be libellous." In addition to this case there are two other decisions of the Lords Justices of Appeal in Chancery, in which the same doctrine has been laid

down: Browne v. Freeman, Weekly Notes, 1873, p. 178, where it was held, affirming the decision of Lord Selborne at the Rolls, that the statements complained of, assuming them to be false would, at the utmost, amount merely to slander, for which the person injured might recover damages, but which the court would not interfere to restrain; and Fisher & Co. v. Appollinaris Co., 23 W. R. 460, L. R. 10 ch. 297, where a demurrer was allowed to a bill by a person who had infringed the defendant's trade-mark, and had given a written letter of apology, to restrain the defendants from publishing their letter in advertisements, Lord Justice James remarking that the publication could hardly be a libel, but that, even if it was, there was abundance of authority that the court had no jurisdiction to restrain the publication of a libel merely because it was a libel.

There was, then, no jurisdiction in the old Court of Chancery, before the Judicature Acts, to restrain the publication of a libel unless the act committed was of such a nature that the court had a separate and distinct ground for interference, in which case it would not decline to exert its authority merely because the act also partook of the nature of a libel. And it may be worth while to notice that this principle has been recognized and acted upon in India, Shepherd v. Trustees of the Port of Bombay, Ind. L. R. 1 Bomb. 132, where Prudential Assurance Company v. Knott was cited and followed.

The real question is whether the Judicature Acts have enlarged the jurisdiction of the courts thereby constituted, so as to empower them to grant an injunetion in a case which before those Acts must necessarily have been submitted to a jury.

The provision in accordance with which this point has to be decided is section 25, sub-section 8, of the act of 1873, which enacts that "A mandamus or an injunction may be granted, or a receiver appointed, by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the court shall think just; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the court shall think fit, whether the person against whom such injunction is sought, is or is not in possession under any claim of title or otherwise, or (if out of possession) does, or does not, claim the right to do the act sought to be restrained under any color of title, and whether the estates claimed by both or by either of the parties are legal or equitable."

In Thorley's Cattle Food Company v. Massam, L. R. 6 Ch. D. 582, upon a motion to restrain the issue of an advertisement containing false representations calculated to injure the plaintiff's trade, the question was discussed whether the section did or did not operate to set aside the decision in Prudential Assurance Company v. Knott. Vice-Chancellor Malins thought that it did. He said that he certainly read the enactment as controlling the decision in that case, and that, upon the proper construction of the section, wherever the court saw that an injunction ought to be granted, it might be granted. However, he declined to grant the injunction in the case in question, preferring not to interfere upon the interlocutory application.

It appears, however, that this opinion has not been established. It was referred to in the subsequent cases of Saxby v. Esterbrook, 27 W. R. 188, L. R. 3 C. P. D. 339, and Day v. Brownrigg, 27 W. R. 217, L. R. 10 Ch. D. 294. In the former case Lord Coleridge and Mr. Justice Lindley granted an injunction to restrain the issue of statements as to a patent which had been found

to be libellous by a jury, but not by virtue of the section of the Judicature Act, of which Lord Coleridge said he must confess he did not appreciate its application to the matter. Day v. Brownrigg was the "Ashford Lodge" case, in which the defendant called his house by the name by which that of the plaintiff had been known, and, after the Court of Appeal had rescinded on general grounds the injunction which had been granted, Lord Justice James said that he "thought it right to add that the power given to the court by section 25, sub-section 8, of the Judicature Act, 1873, to grant an injunction in all cases in which it should appear to the court to be 'just or convenient' to do so, did not in the least alter the principles on which the court should act"; and the Master of the Rolls pointed out that the statute required the thing done to be "just," as well as "convenient." It appears, therefore, from these dicta that the section must be taken not to extend in this direction the powers previously possessed by the court. Reference may also be made to Ward v. Drat, L. J. Notes of Cases, 1878, p. 67, where, on a motion to restrain the defendant from sending demands for the payment of rent, as being libellous, Mr. Justice Fry held the same way.

But while there is thus no power in the court to grant an injunction in any case in which the Court of Chancery would have declined to exercise jurisdiction before the Judicature Acts, there may be cases in which an injunction may be granted without interfering with the principles then adopted and followed.

In Saxby v. Easterbrook, before referred to, the defendants had published statements with reference to the plaintiff's patent rights which were found by the jury at the trial before Lord Coleridge to be libellous, and on the case coming before the Divisional Court a perpetual injunction was granted, in confirmation of one which had been granted by Lord Coleridge at nisi prius. "Libel or no libel," says Lord Coleridge, "since Fox's Act, is of all questions peculiarly one for a jury; and I can well understand a court of equity declining to interfere to restrain the publication of that which has not been found by the jury to be libellous. Here, however, the jury have found the matter complained of to be libellous, and it is connected with the property of the plaintiff, and calculated to do material injury to it. It is that which is sought to be restrained, and upon principle it appears to me to be a proper thing to do. My brother Lindley, who is more conversant with these matters than I am, informs me that all the cases where the courts of equity have refused to interfere were cases where the application was made before verdict. Here the jury have found the publications to be libellous, and they are eminently calculated to injure the plaintiff's property in the patent rights which are assailed. I am unable to see any reason why the injunction prayed should not be granted; certainly the cases cited do not supply that reason." And Mr. Justice Lindley, expressing his concurrence in the decision, observes, "I am not aware of any case in equity which is precisely in point. The principle upon which the courts of equity have acted in declining to restrain the publication of matter alleged to be libellous is that the question of libel or no libel is pre-eminently for a jury. But when a jury have found the matter complained of to be libellous, and that it affects property, I see no principle by which the court ought to be precluded from saying that the repetition of the libel shall be restrained. The only reason I can suggest for not granting it clearly does not exist here; and I think it would be much to be regretted if we felt ourselves compelled to refuse the order."

And in Hinrichs v. Berndes, a case not fully reported, see L. J. Notes of Cases, 1878, p. 11, the Master of the Rolls, while refusing a motion for an injunction to restrain the publication of certain libellous state

ments, appears to have been of opinion that if a plaintiff in an action for libel had obtained a verdict, and the libel were repeated, damages might be given at the hearing for the past libel, and at the same time an injunction might be granted to restrain its continuance in the future. It may well be that, while in the interests of the liberty of the press, and of the public who profit by it, there is no jurisdiction in the courts to grant injunctions to restrain the publication of statements which they deem to be libellous in such a manner as to withdraw the case from the decision of a jury, there is nothing to prevent them from restraining the repetition of libels which have been found to be so by a jury, and which have therefore been condemned by the tribunal to which it properly belongs to prevent liberty from degenerating into license.

In the case of Brook v. Evans, 8 W. R. 688, a motion was made by the defendants in a trade-mark case to restrain the plaintiffs from circulating an unfair report of the proceedings on motion for injunction in the suit, on the ground that such report was calculated to interfere with the due trial of the action at law, to await which the motion for injunction had been ordered to stand over. The motion was refused by Vice-Chancellor Stuart, and on appeal, on the ground that the course of justice was not likely to be obstructed; the Vice-Chancellor stating that there was no doubt the court would not permit its proceedings or any publication of its proceedings to be made the vehicle of a libel, and it would punish as for a contempt those who made any such publication. The court would also punish as for a contempt any publication of its proceedings which tended to prepossess the public mind or to obstruct the course of justice. Lord Justice Turner said that there was no doubt that the court had power to grant an injunction in cases of that description, and that every court had the power of preventing the publication of its proceedings pending litigation. It seems, however, that, in the event of a publication really calculated to produce substantial injustice, the more usual course would be that indicated by the Vice-Chancellor, of punishing such a proceeding as a contempt of court.

In the American case of Wolfe v.Burke, 56 N. Y., 115, before the New York Court of Appeals, a somewhat bold attempt was made by a firm, who had begun to manufacture spirits under a name very similar to that used by a pre-existing company, to turn the tables upon their rivals by obtaining an injunction to restrain the latter from issuing circulars in which they stated that the plaintiffs were infringing their rights, and threatened proceedings against those who sold the plaintiffs' article, as well as against the plaintiffs them selves; and an injunction was actually granted by the Supreme Court to restrain the defendants "from interfering with the plaintiffs' business by threats, cir culars, or suits or injunctions, in this State or elsewhere," on the ground that the action was one to restrain the repetition of acts akin to a continuous slander upon the plaintiffs' title. The Court of Appeals, however, dissolved the injunction, holding that the plaintiffs were not injured in any such sense as entitled them to invoke the equitable powers of the court. It does not appear probable that the English courts would consider such a case to be one in which they should exercise jurisdiction, or which they should regard with any degree of favor.-[ Solicitor's Journal.