Page:The Green Bag (1889–1914), Volume 02.pdf/242

Rh Further down in the syllabus is a more striking instance of this manner of constructing a head-note: —

"5. [Omitting the catchwords]. Directors and officers of a corporation occupy a position of trust, and must act in the utmost good faith. They will not be allowed to deal with the corporate funds and property for their private gain.

"6. They cannot deal with themselves and for the corporation at the same time, and must account for profits made by the use of the com pany's assets and for moneys made by a breach of trust."

These two paragraphs are drawn from the following passage in the opinion of the court:—

"Directors and officers of corporations occupy a position of trust, and must act in the utmost good faith. They will not be allowed to deal with the corporate funds and property for their private gain. They have no right to deal with themselves and for the corporation at the same time, and they must account for the profits made by the use of the company's assets, and for moneys made by a breach of trust."

There are cases, however, where the opinion of the court sums up the question decided in language so apt that the reporter cannot surpass it or safely depart from it. In such a case it is proper for him to state the decision in the language of the opinion. The vice lies, not in doing this, but in collecting into separate propositions in the head-note the principles of law appealed to in argument by the judge who writes the opinion, which in general are principles which every lawyer understands and which no one disputes. Jurisprudence is not advanced by the continuous repetition of these general principles. It is not necessary to repeat in a head-note such a proposition as that at common law the real estate descends to the heirs and the personalty goes to the next of kin.

An apt instance of a proper use by the reporter of the language of the court in stat ing the question decided is found in the case of Attorney-General v. Tudor Ice Co. The head-note of this case in the " American Reports " is as follows : —

"An information in equity, by the attorney-general, cannot be maintained against a private trading corporation, where the acts complained of are not shown to have injured or endangered any rights of the public, or of any individual or other corporation, and where the only objection to them is that they are not authorized by its act of incorporation, and are therefore against public policy."

This is really an apt summation of what the court decides, as stated in the concluding paragraph of the opinion, delivered by Mr. Justice Gray, as follows : —

"If there are any cases to which this form of remedy is appropriate, that of a private trading corporation, whose proceedings are not shown to have injured or endangered any public or private rights, and are objected to solely upon the ground that they are not authorized by its act of incorporation, and are therefore against public policy, is not one of them."

This summation of what the court really decides, as recast by the reporter in his head-note, seems to leave nothing to be stated. But a reporter of the sort whose work I venture to criticise would have made a syllabus of six or eight paragraphs, consisting entirely of the propositions stated by the learned justice in his argument. Such a syllabus would have buried the real point in judgment, and would have been scarcely better than no syllabus at all.

There is another kind of head-note, not so bad as the one here criticised, but, I venture to say, very bad, though in the opinion of many it is constructed on the proper and only ad missible principle. It is the English form of stating a collection of facts and then telling the reader what the court "held." In