justly welcome criticism if fairly made, although severe. Indeed, one main duty of the press is to closely watch public affairs and public men, and criticise without fear or favor.

I may be pardoned for stopping here to say, that I think the most conspicuous examples in the press of to-day of criticism without libel are the legal periodicals. Without mentioning papers nearer home, take the Central Law Jonrnal, of St. Louis, for instance. It has criticised my own opinions freely, and sometimes severely; so of almost every judge whose opinions it has published or noticed, and yet I do not remember a single instance in which it ever dropped from the dignity of a critique to the baseness of a libel. Such a paper helps those whom it criticises, and honors the profession in which it toils.

Now what remedies does the law afford for libel, and what can be done to check such wrongs? Where a libel touches property, the law, both in theory and practice, furnishes adequate redress. Slander of title, libel destroying a business man's financial standing, invoke actions in which ample redress may be given, and in which, as a matter of fact, juries and judges generally award sufficient compensation. But when libel touches character, it is unfortunately true that generally no adequate redress is obtainable, and of all libels those affecting character are the meanest, most dangerous and reprehensible.

'He who steals my purse, steals trash,

But he that filches from me my good name,
Robs me of that which not enriches him,
And makes me poor indeed.'

There are two remedies given by the law; one a criminal prosecution, and the other a civil action for damages. The former is seldom resorted to, because conviction is difficult. In a jury of twelve, almost always is found one or more friendly to the libeler, or who, having little or no character to lose, think an attack on character no crime. Experience shows that only in the more aggravated cases can a criminal conviction for libel be obtained.

clare the fact, and accompany the declaration with the further statement that he has suffered nothing thereby. This action on the part of jurors results from two causes: First, an indifference as to libel and character; and, second, a fear that they themselves may be the objects of insinuations and attacks for which no adequate rèdress is furnished.

To obviate this difficulty, this has been suggested-a suggestion which can be made operative only through legislative action-and that is, that upon every verdict for plaintiff in a civil action for libel, it shall be the duty of the court to add a penalty of $500 or $1,000, to enter into and become a part of the judgment, unless the jury shall find affirmatively that the libel was published in good faith and after reasonable inquiry. This, of course, will relieve those who inadvertently and without any malice gave circulation to a libel; those who, after making careful examination were led to believe that the charges they made were true, and will only make those smart, who either wantonly or carelessly publish un truths about their neighbors.

Some such provisions as this would doubless check libel; for the libeler generally feels only in his pocket, and when he is sure that a libel will be expensive, he will be cautious with his pen. This is designed only to make the practical execution of the law of libel more effective, and to that end is worthy of thought, for a law should be not only in theory, but also in administration, a terror to evil doers. I believe in the virtue and value of punishment; it is wholesome for the individual and beneficial to society. The tintinnabulation of your mother's slipper on that part of the body in which the spinal column has, in the language of the railroad men, its "terminal facilities," may not have been music for the present, but was sweet song for the future. It was punishment for wrong done-inducement to coming right; and so I believe in the value of a provision which tends to make the executive of any law directed against wrongdoing operative

and forceful.

But, after all, it is a common truth that no law is stronger than the sentiment behind it. Especially is that true in a free country, where the

the great duty of every man is to strive to create a public sentiment which will always and everywhere denounce a libeler as a criminal against society. To that end our profession, the chosen exponents and administrators of the law, have special duties. We should see to it that no libel or slander finds a home in the forum. And here I may be permitted to say that I think our profession is grossly delinquent. How often do we hear from the lips of counsel, pleading the freedom of the forum as their defense, the most atrocious slanders upon opposing clients and witnesses. Insult, calumny and abuse are the only weapons which some lawyers seem able to wield. How can we expect juries to place a high value upon charac

ter, or think libels grievous wrongs, when, while they sit in the jury box, they hear calumny and slander pouring from the lips of counsel unchecked by the court, and are told that that is one of the privileges of the court room. I need not say to the better lawyers that such language from the lips of the counsel seldom helps, but almost invariably prejudices their cases, in the minds of the court and jury. I only insist, now, that our profession owes it to society, owes it to the common good, to see that a radical reform in this respect is accomplished in the court room.

Again, as citizens, and in common with all other citizens, we owe the duty of striving to purify and strengthen public sentiment in this respect. A noble life always makes the community in which it is cast the better. It is the function of character to uplift character, and if we would help stop the circulation of untruths, we ourselves in all things must be truthful. He whose lips never utter aught but the truth fills the air in which he moves with its sweet aroma, and they who breathe that air are themselves inspired by it to truthful

ness.

Let us all, therefore, be ever loyal to truth, believing that in so doing we are doing the best we can to stay the lips of the slanderer in the sure words of the poet:

"Truth crushed to earth shall rise again:
The eternal years of God are her's.'"

NOTES OF RECENT DECISIONS.

HUSBAND AND WIFE-CONVEYANCE BY WIFE IN FRAUD OF HER HUSBAND'S MARITAL RIGHTS. -In marriage as in other contracts, it sometimes happens that fraud is practiced by one of the parties on the other, who is deprived of some material advantage which he or she had a good right to expect from the union. Usually it is the husband who under the influence of other parties, interested in his succession, by secret conveyances, made before the marriage, defeats the reasonable expectations of the wife. Occasionally, however, the position of the parties is reversed, and the bride is not the victim but the despoiler. Such a case was recently adjudicated in Kansas.

A widow, upon the eve of her second marriage, executed a deed by which she conveyed to her children by her first marriage, her whole estate. The marriage took place, and the husband, upon learning the facts, filed a bill to have the deed of the wife to her chil

1 Green v. Green, Pacific Reporter Vol. X No. 2 p. 156.

dren, and their deeds to a purchaser with notice, set aside for fraud on his marital rights. There was a demurrer to the bill which was sustained by the trial court, and upon appeal the Supreme Court (Horton, J.) said: "On the part of the defendant it is claimed that the sole question for our consideration is whether a voluntary conveyance of all her real estate, executed by a woman on the eve of her marriage, without the knowledge and consent of her intended husband, is fraudulent as to his marital rights. If this were the only question in the case we might, perhaps, repeat what is said in Butler v. Butler,2 that it may be doubted whether it is the law in Kansas to day, that such a conveyance is fraudulent." The facts, however, stated in the bill and admitted by the demurrer, were that the widow had induced the plaintiff, who seems to have been a trifle lukewarm and reluctant, to marry her, by the representation that her farm would afford the means of supporting her and him as long as they both should live, that he was a cripple and the prospect of an assured support was an important consideration with him. It further appeared that the wife used the money of her husband to pay off a mortgage on the farm and subsequently deserted him.

Under these circumstances the court found no difficulty in reaching the conclusion that there was a verbal antenuptial contract between the parties which was grossly violated by the wife, and upon that and other considerations, reversed the judgment of the district court, and remanded the cause with directions to overrule the demurrer.

There is no doubt of the perfect accuracy of this decision, but the court, as it seems to us, treat the question too cautiously and tread gingerly as upon doubtful and unsteady ground. There is abundant authority for the opinion that even in the absence of a specific ante-nuptial contract relating to the pecuniary affairs of the respective parties, a fraud of this character will vitiate the instrument in which it is perpetrated. Lord Thurlow held, that a conveyance made by a woman in the course of a treaty of marriage without notice to the husband is a fraud upon him, against which equity will relieve. "The law"

2 21 Kans. 525.

3 Strathmore v. Bowes, 1 Ves. Jr. 22.

says Lord Thurlow, "conveys the marital rights to the husband, because it charges him with all the burthens, which are the consideration which he pays for them; therefore it is a right upon which fraud may be committed.'

A later English ruling is the case of England v. Downs, in which the following language is held by the court: "If a woman entitled to property, enters into a treaty of marriage, and during the treaty represents to her intended husband that she is so entitled, that upon the marriage he will become entitled jure mariti, and if, during the same treaty she clandestinely conveys away the property, in such manner as to defeat his marital right and to secure to herself the separate use of it, and and the concealment continues until the marriage takes place; there can be no doubt but that a fraud is thus practiced on the husband and he is entitled to relief."

In these rulings it will be observed the gravamen of the bride's offence is the concealment and consequent fraud upon the legal marital right of the husband, not upon those secured by any antecedent ante-nuptial contract verbal or written, for though the word "treaty" is somewhat grandiosely used by the learned judges, reference to the cases will show that there was in neither, anything more formal or solemn than an ordinary engagement to marry.

To come nearer home, the Supreme Court of Indiana says: "It is a settled rule that a voluntary conveyance by a woman on the eve of her marriage, of property which her intended husband knew her to own, made without his knowledge, is void as against him because in derogation of his marital rights and just expectctions." 5

6

In a late Alabama case the court set aside a mortgage of the homestead of the husband executed by him on the eve of his marriage because it secretly defeated not only the wife's constitutional and statutory right to a homestead, but infringed her contingent right to dower. On this latter point the court says: "During coverture dower may be, strictly speaking, an estate in lands. It may be, rather a mere expectancy-a capacity to take if the wife survives; and after the death of the husband, until assignment, the right

4 2 Beav. 525, (1840).

Freeman v. Hartzman, 45 Ind. 57.

may lie in action. It is, nevertheless, a valuable right, which, though inchoate, cannot be defeated by any act or alienation of the husband. The wife has capacity to release, and, as a condition of the release, may require a consideration moving solely to herself." There are like decisions in other States; in Tennessee the court holds with Lord Thurlow, that although the conveyance of a woman upon the eve of her marriage, is prima facie good, it will be set aside if affected by fraud,' And the whole matter seems to resolve itself into a question of fraud in fact, irrespective of any anti-nuptial contract, verbal or written. The rules which control the interests of the bride and bridegroom in the estates of each other are identical. She has an expectancy of due support from him, and in the event of survivorship of dower in his lands, together with the advantage of statutory homestead during the coverture. These are not technical legal rights of course before the marriage, but are matters of so much importance to the welfare and happiness of a woman about to enter into the married state, that the law protects them as fully as if they were, at least against all fraudulent attempts to render them nugatory. The husband upon his marriage undertakes grave responsibilities, and, sentiment to the contrary Lotwithstanding, has a right to look to his wife's fortune as an important and perfectly appropriate auxiliary. And the law protects him in this view also. To each of these parties it grants its protection against the other, and from each it requires the most spotless good faith.

LIFE INSURANCE-UNTRUE ANSWERS THAT WILL VITIATE A POLICY BUT NOT PRECLUDE RECOVERY BACK OF PREMIUM.-In a recent case in Ohio, it is held that where an answer by the applicant is untrue in point of fact, but made under a misapprehension of the purport and effect of the question, caused by the mis-statements of the insurer's agent, the policy is void ab initio, but the applicant is entitled to recover back the premium which he had paid to the insurer. The question

6 Kelly v. McGrath, 70 Ala. 75 (1881).

7 Hall v. Carmichael, 8 Baxt. 211.

8 Conn. Mut. etc. Co. v. Pyle, S. C. Ohio, Jan. 26, 1886; Ins. Law Jour., Vol. XV. p. 261.

was, whether the applicant had ever been refused insurance by another company, and the answer was "no." In fact, he had applied to the agent of another company, who had declined the risk, there being "something the matter with his pulse." As it did not appear that the application had been forwarded to, and passed upon by, the first company, the agent of the second company told him that he could safely answer "no" to the question.

The court held that the application and the policy together form the contract; that a false answer, innocent or otherwise, to material question, avoids the poliey ab initio. And it may be added, that when a policy of insurance declares that "the statements made in the application shall be part and parcel of the policy, such statements become warranties and must be true, whether material or not." 10

The rule is, therefore, that where there is any untrue answer made to a material question, the policy is void from the beginning, and equally so if the question is immaterial, but made a warranty by the terms of the policy. And as to the return of the premium, the rule is that if any risk has attached the premium shall not be returned. But if the policy is void ab initio, and there has been no fraud, the premium must be returned."

9 Clark v. Man. Ins. Co., 2 Woodb. & M. 472; Fiesmuth v. Agawam etc. Co., 10 Cush. 587.

10 Foot v. Aetna Ins. Co., 61 N. Y, 571; see also, Cooperative Life Asso. etc., v. Leflore, 53 Miss. 1; Jeffres v. Life Ins. Co., 22 Wall 47; Aetna etc. Co. v. France, 91 U. S. 510; Union Mut. L. Ins. Co. v. McMillen, 24 Ohio St. 67; Ins. Co. v. Bernard, 33 Ohio 459.

11 Lyrie v. Fletcher, Cowp. 666, 668; Delavigne v. Fletcher, 1 Johns. Cases, 310; Anderson v. Thornton, 8 Exch. 425.

POWERS OF BANK DIRECTORS.

THEIR POWERS GENERALLY CONSIDERED.

Status.-The directors of a bank are at once the legislative and judicial officers thereof. They are the general managers of its affairs, as agents for and in the place of the stock-holders, and more than any others, may be said to stand for the corporation.1

1 Dana v. Bank of United States, 5 W. & S. 247.

Powers generally stated.-In the most general terms, the directors ordinarily have power to do all things coming within the range of the bank's business, or which the company could do, unless restrained by its fundamental law or by-laws.2

But beyond such limits the directors cannot go and bind the bank, even though they may have so formerly acted in similar transactions.3

Powers limited by Express Provision.-As indicated, their powers may be defined or limited by the fundamental regulations of the bank, and when the charter commits the general power to make by-laws to the stockholders at large, they may by its exercise limit the power of the directors."

If their powers be specifically defined in the charter, they will be thereby limited," but on the other hand, if by such instrument the management of the concerns of the bank be committed to them, they alone have such power, and may exercise it independent of the control of the corporate body.7

8

Powers Prescribed must be Taken Notice of.. The powers prescribed in the organic law of the corporation must be taken notice of by persons dealing with the bank; and in some of the cases it has been held to be incumbent on one dealing with the bank, to take notice of the provisions of its by-laws respecting the powers of its officers."

But it would seem that where it does not contravene a provision of the organic law of the corporation, or other law of the land, an act of the board of directors which would

2 Bank of Middlebury v. Rutland etc.R. Co., 30 Vt.. 159. See also Bank of Middlebury v. Edgerton, 30 Vt.. 182; Burrill v. Nahant Bank, 2 Mete. 163; Northampton Bank v. Smith, 2 Cow. 579; Minor v. Mechanic's Bank of Alexandria, 1 Pet. 46.

3 Salem Bank v. Gloucester Bank, 17 Mass. 1. Also consult State v. Commercial Bank of Manchester, 6. Sm. & M. 237; Wyman v. Hallowell & Augusta Bank, 14 Mass. 58.

4 Fleckner v. Bank of United States, 8 Wheat. 338. 5 Bank of Kentucky v. Schuylkill Bank, 1 Pars. Sel.. Cas. 180; State v. Bank of Louisiana, 6 La. 745; Salem Bank v. Gloucester Bank, 17 Mass. 29.

6 Fleckner v. Bank of United States, 8 Wheat. 338. 7 Bank of United States v. Dandridge, 12 Wheat. 113. 8 Bank of Augusta v. Earle, 13 Pet. 587.

9 Wild v. Bank of Passamaquoddy, 3 Mason 505;. State v. Commercial Bank, 6 S. & M. 218; North River Bank v. Aymor, 3 Hill 262; Mechanic's Bank v. N. Y. etc. R. Co., 13 N. Y. 599; Salem Bank v. Gloucester Bank, 17 Mass. 1. But see Seneca Co. Bank v. Lamb,. 26 Barb. 595.

otherwise not be binding, may be given such effect by either the express or implied ratification of the corporation.10

THEIR POWERS SPECIFICALLY CONSIDERED.

With the above general statement of the powers of bank directors, their powers will now be specifically considered in the light of the adjudged cases.

Power to make Discounts and fix Conditions. -The directors of a bank (and usually they alone) have power to make discounts and fix any condition which may be proper in loaning money."1

Power to assign the Paper and other Property of the Bank.-The directors may assign or transfer the commercial paper of the bank.12 Indeed it is held that they may assign any securities belonging to the corporation, and in the exercise of this power authorize one of their number, or the president, to so assign.13 And especially may this be done where they have been authorized thereunto by vote of the stockholders. 14

They do not exercise a delegated authority

in the sense of the rule which forbids an agent, without express authority so to do, to delegate his authority. 15

Power to Borrow. -The directors may borrow money or obtain discounts for the use of the bank,16 and may authorize the president and cashier thereto.17

Power to Execute Mortgage.-So they may give security for money borrowed, or other debt of the bank, by a mortgage of its real

called for the transaction of the ordinary business of the bank. 19

The power may be delegated to a less number than the whole; 20 and where a mortgage is executed by a minority of the directors, the authority of the board will be presumed. 21 The giving of a mortgage to a depositor to secure repayment of his deposits, does not violate a provision that the directors shall not increase the indebtedness of the bank without consent of the stockholders.22

Power to Receive Notice.-Notice to the board of directors is notice to the bank; 23 and notice to one board is notice to all sub

sequent boards.24

But notice to a director, or knowledge obtained by him, while not officially engaged in the business of the bank, will not generally, nnless communicated to the board, affect the bank, 25 though where it is communicated, it will have such effect.26 And it has been held that where a director officially acts in respect of a matter concerning which he has received notice, as where he acts for the bank in discounting a note of the fraudulent or illegal inception of which he had knowledge, it will be of binding effect on the bank. 27

The qualification that notice to a director, to be notice to the bank, must be while he is acting officially for the bank, or in respect of a matter concerning which he subsequently acts officially, unless where such notice is communicated to the bank, exempts the bank from liability for the knowledge of a director himself dealing with the bank, and even where the director in the course of such deal

10 Bank of Columbia v. Patterson, 7 Cranch 299; Union Bank of Maryland v. Ridgely, 1 Harr. & G. 392; Barrington v. The Bank of Washington, 14 S. & R. 421; Alabama Bank v. Chester, 6 Humph. 458; Planter's Bank v. Sharp, 12 Miss. (Smed & M.) 75; Augusta Bank v. Hamblet, 35 Me. 491.

11 Bank of United States v. Dunn, 6 Pet. 51; Bank Commissioners v. Bank of Buffalo, 6 Paige, 497; Bank of Pennsylvania v. Reed, 1 W. & S. 101.

12 Stevens v. Hill, 29 Me. 133.

13 Northampton Bank v. Pepoon, 11 Mass. 288; Bank Commissioners v. Bank of Brest, 1 Harr. Ch. 106; Lester v. Webb, 1 Allen 34; Merrick v. Trustees, 8 Gill. 59. 14 Merrick v. Trustees etc., 8 Gill. 59.

15 Burrill v. Nahant Bank, 2 Metc. 163; Wellsburg

Bank v. Kimberlands, 16 W. Va. 555.

16 Keyser v. Hitz, 2 Mackey (D. C.) 513.

17 Ridgeway v. Farmer's Rank, 12 Serg. & R. 256; Leavitt v. Yates, 1 Edw. 134.

18 Burrill v. Nahant Bank, 2 Mete. 163. And see Leggett v. New Jersey Banking Co., 1 N. J. Eq. 541.

19 Savings Bank v. Davis, 8 Conn. 191.

20 Burrill v. Nahant Bank, 2 Metc. 163; Western Bank v. Gilstrap, 45 Mo. 419; Commissioners v. Bank of Buffalo, 6 Paige, 497.

21 Miller v. Chance, 3 Edw. 399.

22 Ahl v. Rhoads, 84 Pa. St. 319.

23 Lyman v. United States Bank, 12 How. 225. 24 Mechanic's Bank v. Seton, 1 Pet. 299, 309.

25 Custer v. Tompkins Co. Bank, 9 Pa. St. 27; Bank of United States v. Davis, 2 Hill 452; Farmer's & Citizen's Bank v. Payne, 25 Conn. 444; Terrell v. Branch Bank at Mobile, 12 Ala. 502; Loomis v. Eagle Bank, 1 Disney 285.

26 Bank of Pittsburg v. Whitehead, 10 Watts, 397. 27 Nat. Security Bank v. Cushman, 121 Mass. 490. 28 Washington Bank v. Lewis, 22 Pick. 24. In re Marseilles Ex. R. Co., 7 Ch. App. Cas. 161; Bank of Hightstown v. Christopher, 40 N. J. Law 435; Seneca Co. Bank v. Neass, 5 Denio, 339-337; Bank v. Harrison, 10 Fed. Rep. 251. See, however, Bank of U. S. v. Davis, 2 Hill 451; Union Bank v. Campion, 4 Humph, 394.