Page:The Green Bag (1889–1914), Volume 09.pdf/160

 Rh V. Parrington opened in the affirmative, and Messrs. B. Townsheml and S. D. Cole took the negative side. The following members also spoke : Messrs. Senhouse, Brown, Chapman, Lemon, Hadaway, and Brandling. The chair man having summed up the debate and reviewed the law on the point, put the question to the meeting, when it was decided by a majority of six that Mrs. Sprightley had a right of action against Mr. Kodak; but on a further motion being put as to whether she could recover damages from him, it was unanimously decided that she could not."

This would seem to be hard on the lady; she had a right to sue but not to recover! But it is probably explainable on the theory that on the first question the tribunal sat as a court, on the second, as.a jury. It reminds us of that decision, in the New York Court of Appeals, that a wife had at common law right of action for the seduction of her husband by another woman, but that she could not maintain the action without joining her husband as plaintiff, because the damages belonged to him alone, and therefore the right was barren (in two senses).

NOTES OP CASESANIMAL DEFAMATION. — There is a good deal of amusement in the law-books on the subject of defa mation by likening one to a dumb beast. The latest authority on this point is to the effect that it is not necessarily libellous to call a man a hog. (There ¡s a considerable class who esteem it no libel to call Shakespeare, Bacon.) Much depends on the context, for it may often appear that the charge was made only in a Pickwickian sense. In Urban v. Helmick, de cided by the Supreme Court of Washington in July, 1896 (44 Рас. R. 747), it appeared that a publica tion referring to plaintiffs, who were hotel keepers, was as follows : " In some localities there are hogs, called 'business men,' that want it all. I believe in buying at home, and building up our own trade and town as much as possible; as the more business we do, the more money there is circulated at home." It was held that the meaning attributed to the word "hogs " by the article itself did not render the publi cation libelous per se. But in Wisconsin, it has been actionable to call a man a hog. (Solverson v. Peter son, 64 Wis. 198; 54 Am. Rep. 607.) The exact charge there was that the plaintiff was "an enormous svvine, which lives on lame horses," t. e., the carrion of lame horses. The Court quite varmly said : "How could a man be lower, meaner, or more filthy than to have the character, habits and ways of a swine?" "The plaintiff is compared with this low and filthy animal to indicate that he has fallen to the very low est degree of human degradation, morally, intellectu ally, and physically. It was supposed that the prod igal had fallen to the very lowest condition, when he

135

became the associate of swine, and lived upon the same food." No wonder that the plaintiff bristled up! It will not answer to call one's neighbor " a frozen snake" (Hoare v. Silverlock, 12 Q. B. 624), for that plainly refers to the fable about ingratitude. " An itchy old toad " is quite objectionable (Vellers v. Mousley, 2 Wils. 403). So of " skunk" (Massuere v. Dickens, 70 Wis. 83 [although phrased in Latin]; Pledger v. State,; nor to compare a lawyer to a bull or a goose (Baker v. Morfue, i Sid. 327). Nor to charge that a woman had been bitten by a cat and thereafter acted like one, mewing and posing to catch mice, etc. (Stewart v. Swift, 76 Ga. 280); nor to call an editor "a mouse most magnanimous, "or "avermin small " (Child v. Horner, 30 Mass. 510); nor to call one " a black sheep" (McGregor v. Greg ory, il M. &W. 287; Barnet ». Allen, 3 H. & N. 38 i); nor to call a schoolmistress a " dirty slut" (Wil son v. Runyon, Wright, 651); nor a man " a thiev ing son of a bitch" (Reynolds v. Ross, 42 Ind. 387); nor " a thieving puppy" (Pierson 7/. Steorbz, Morris [Iowa], 136); nor a broker a "lame duck" (Morris v. Langdale, 2 B. &P. 284); ñora detective officer in'making an arrest, "a big brute" (O'Shaughnessy, v. Morning journ. Ass'n, 71 Hun. 47); nor an insurance company a " wild-cat company " (Delaware etc. Ins. Co. v. Croasdale, 6 Hourt. 181), nor a "scalper" a " whelp" (Mauget v. O'Neill, 51 Mo. App. 35)On the other hand, in old England it was safe to call a justice " a logger-headed, a slouch-headed, and bursen-bellied hound " (i Keb. 629), or an inn keeper a " caterpillar" (Vin. Abr. " Act for Words," U. a. 34). And so, in the celebrated case of Tom Fenn's beer, it was held not actionable to say, that if the defendant should give his mare a peck of malt, and let her drink water, she would produce naturally as good beer as his. (Kenn г/. Dixe, i Rolle, Abr. 58.) In modern America it has been held not actionable to call a woman " a bitch " (Shrinck v. Kollman, 50 Ind. 336; K. v. H. 20 Wis. 239), " although a very coarse and ruffianly expression," yet not equivalent to " prostitute." In the celebrated Mezzaracase (2 С. Н. Recorder, 113) it was held libellous for an artist to append asses' ears to a portrait of a legal gentleman who sat to him and would not pay for the work.

RESTRAINT OF MARRIAGE. — Is it the policy of the common law to look with disfavor on the remar riage of widows? Such would seem to be the inference from Herd v. Catron (Tennessee Supreme Court, 37 S. W. Rep. 550), in which it was held that a condition in a will, that if testator's widowed daughter