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THE GREEN BAG

NOTES OF THE MOST IMPORTANT RECENT CASES COMPILED BY THE EDITORS OF THE NATIONAL REPORTER

SYSTEM

AND

ANNOTATED

BY

SPECIALISTS IN THE SEVERAL SUBJECTS (Copies of the pamphlet Reportere containing full reports of any of these decisions may be secured from the West Publishing Company, St. Paul, Minnesota, at as cents each. In ordering, the title of the desired case should be given as well as the citation of volume and page of the Reporter in which it is printed.) CONTEMPT. (Punishment.) Ky. —The amount for which a person in contempt of court may be fined is considered in French v. Common wealth, 97 S. W. 427. A jury had found defen dant, a party to an action, guilty of criminal con tempt, arising from his having corruptly, and with intent to obstruct the administration of justice, procured, by bribes and threats, witnesses for the adverse party, who had been summoned to testify in the action, to leave the state pending the action, and had fined him $5,000. This fine, it was con tended, was excessive, and violated section 17 of the Bill of Rights, declaring that excessive fines shall not be imposed. However, the court did not consider the fine excessive in view of the testimony before it. " If, as asserted by counsel," the court says. " the fine is the largest ever imposed by a jury in this state for a contempt, doubtless it is because no other jury has ever had to deal with so aggravated a case of its class." The contention that the fine was excessive within the Bill of Rights, the court disposes of by saying: " We have in this state no statute defining contempt. There is a statute limiting the power of the court as to the infliction of punishment for contempt, but, if in the opinion of the court the contempt is one de manding greater punishment than lies in its power to inflict, it may have a jury to hear the truth of the matter, and leave it to them to inflict such pun ishment as they may deem commensurate with the offense. As in any other case of trial by jury, their verdict will not be disturbed unless flagrantly against the evidence, or in the result of passion or prejudice." CONTRACTS. (Portraits — Right of Privacy.) Wis. — The right of an artist who has been gives a commission to paint a portrait to paint a dupli cate on his own accord was questioned in the recent case of Klug v. Sheriffs, 109 N. W. Rep., 656. The court reviews at length the authorities regarding the right of privacy, but comes to the conclusion that the case at bar turns not upon the right of privacy but upon contract relations. Plaintiff had been commissioned to paint a portrait of defen dant's deceased wife. This he did, and then painted

a second portrait without being requested to do so. By doing this, the court held that plaintiff had violated the implied contract to use the photo graphs furnished by defendant only for the pur pose for which they were furnished, so that de fendant, though he received the second portait and refused to return it to the artist, was not liable for its value. This case applies to peculiar facts, the prevailing doctrine that a plaintiff shall not recover on quasicontract principles against a protesting defendant where the plaintiff is shown to have violated delib erately the express contract in reference to the trans action. That majority view receives its ordinary application where a plaintiff has wilfully aban doned the express contract after part performance and yet seeks to recover on a quantum meruit. The cases refusing such recovery are collected in 15 Am. & Engl. Ency. of Law, 2d ed. 1087 and in the supplement to that work, Vol. 3, pp. 520-1. Malbon v. Birney, 11 Wise. 107, denied plaintiff relief in such a case and shows that Klug v. Sheriffs is in accord with the court's previous attitude; for to deny a recovery in Malbon v. Birney where all that the plaintiff actually sues for was done in compli ance with the contract and to allow a recovery in Klug v. Sheriffs where all that the plaintiff actually sues for was done in breach of the contract would be absurd. But Klug v. Sheriffs seems indefensible as a quasi-contract decision. It is believed that Britton v. Turner, 6 N. H. 481, and its respectable following (the cases are collected in 15 Am. & Engl. Ency. of Law, 2d ed. 1089 and in the supplement to that work, Vol. 3, p. 521 ) are more in accord with eter nal justice than the majority cases above cited, and that even in the extreme state of facts disclosed by Klug v. Sheriffs the plaintiff should recover. It should be remembered that in Klug v. Sheriffs the court put to one side the claim of a right of privacy as such and dealt with the case as if plaintiff had simply violated a provision implied in fact in the express contract. Upon that theory it would seem as if the defendant ought in conscience to pay to plaintiff the value of his enrichment at the expense