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maintaining actions on promises before the to the claims of the creditors of such pertime arrives for their performance. They have ! son, in the same manner as other property been followed by some of the American courts. / which can not be reached by an execution at In Butis v. Thompson, 42 N. Y. 246, they | law."3 A trust fund created by another perwere apparently followed; but in Freer v. | son for the benefit of the debtor is inalienable, Denton, 61 N. Y. 492, a majority of the court and can not be reached by a creditor's bill in of commissioners hesitated, and'it may be re advance; that is, before the installments fall garded as an open question in that state. In due; nor until they pass to an assignee under Dugan v. Anderson, 36 Md. 567, the question | the insolvent laws." The object of the statute was discussed, but not decided. In Massa last quoted is said to be to prevent the accumchusetts they have been rejected, and the ulation of the surplus interest or income not soundness of the principle upon which they wanted for the support of the cestui que trust, rest questioned. Daniels v. Newton, 114

where no valid direction for such accumulation Mass. 530. See, also, as to the determina has been given, by making such surplus liable tion of contracts of insurance by refusal to

to the claims of his creditors.6 Accordingly, receive premiums: McKee v. Phænix Ins.

where an express trust is created to receive Co., 28 Mo. 383; Howland v. Continental Ins.

the interest or income of trust property, and Co., 121 Mass. 499; McAllister v. N. E. Mut.

to apply it-o the use of a person, from time to

time, the surplus, beyond what is necessary Co., 101 Mass, 558; Haynes v. American

for his support and maintenance, may be Popular Ins. Co., 69 N. Y. 435 ; Cohen v.

reached by a creditor's bill against him, after New York Mut. Life Ius. Co., 50 N. Y. 610.

such interest or income has become due.? In determining what is necessary for a debtor's

education and support, under the foregoing EXECUTIONS AGAINST TRUST FUNDS AND statute, it is immaterial whether or not the ANNUITIES.

debtor is in good health or able to earn a liveThere are statutes, regulating proceedings in

lihood.8 Nor can the motive of the person aid of executions at law, which provide that creating the trust be enquired into by credfunds held in trust for the debtor, where the itors of the cestui que trust; since, if the trust trust bas been created by, or the fund has is good, the fund which they are seeking to subproceeded from, some person other than the ject belongs, not to their debtor, but to the perdebtor, shall not be subject to their operation.1 son creating the trust, or his heirs, or residuary As where a devise is made to a trustee of a | legalees.' But in determining what the cestui sum certain, to be invested, and the interest ! que trust needs for his support, it is conceded collected semi-annually, and paid over to a that a person brought up in idle and dissolute female as long as she shall remain unmarried.2 habits, who has never learned how to take care New York, while having a similar statute (as of himself or his property, will need more than shown in the note below), has another which one who has been decently raised; and credprovides that, “where a trust is created to itors must learn not to trust such a person. 10 receive the rents and profits of lands, and no The foregoing statute of New York was devalid direction for accumulation is given, the signed to put at rest a question which, prior surplus of such rents and profits, beyond the to its adoption, remained unsettled in that sum which may be necessary for the education and support of the person for whose benefit the

(3.) 1 R. S. N. Y., p. 729, $ 57.

(4.) Hawley v. Jaines, 16 Wend. 118, 165. trust is created, shall be liable, in equity,

(5.) Clute v. Bool, 18 Paige, 82.

(6.) Clute v. Bool, supra. per Walworth Chan. This (1.) N. J. Act of April 12, 1864, R. S. N. J., 1874, p.

view of the statute was doubted by Wright, J., in 29, $ 24. The words of this statute important in this

Campbell v. Foster, 35 N. Y. 361; but the question was connection are: “Where the trust has been created by,

passed over; but the rule seems to have been thought or the fund held in trust has proceeded from him"2

sound by Hogeboom, J., in Graff v. Bonnett, 31 N. Y. -that is, from the debtor. New York has a similar

14. To the same effect, see Degraw v. Clason, 11 Paige, statute, the language being: “Except where such

140, 141; Bramhall v. Ferris, 14 N. Y. 41. trust has been created by, or the fund so held in trust

(7.) Ibid. Sillick v. Mason, 2 Barb. Chan. 79. bas proceeded from some person other than the de- j (8.) Chute v. Bool, supra. fendant himself.” 2 R. S. 174, $ 28.

(9.) Ibid. (2.) Frazier v. Barnum, 19 N. J. Eq. 318.

(10.) Sillick v. Mason, supra; Walworth, Chan.


state ;11 but it gave rise to a line of decisions beneficiary in trusts of land.” Campbell v. not always uniform, and sometimes confus- | Foster, 35 N. Y. 372.14 ing. But the cases appear to unite upon one By a statute of Illinois it is provided that, test by which to determine whether, under it, ' “ Whenever an execution shall have been isa fund held in trust for a debtor may be sub- sued against the property of a defendant, ou jected to the satisfaction of the demands of a judgment at law or equity, and shall have his creditors, namely, the test of alienability. | been returned unsatisfied, in whole or in part, If the interest is alienable by the debtor—that the party suing out such execution may file a is, if it is of such a nature that he can sell or bill in chancery against such defendant, and dispose of it, or control it as he pleases, then any other person, to compel the discovery of it is such an interest as will be accessable to the any property or thing in action, belonging to the claims of creditors. It will pass to his as defendant, and of any property, money or signee in bankruptcy, and can be reached | thing in action, due him, or held in trust for by a proceeding in equity. But if it is an him, and to prevent the transfer of any such interest which the cestui que trust, the debtor, property, money, or thing in action, or the is inhibited from aliening, then the contrary payment or delivery thereof to the defendant, result will follow.12 In New York this ques except when such trust has, in good faith, tion was governed by the following statute: been created by, or the fund so held in trust “No person beneficially interested in a trust, has proceeded from, some person other than for the receipt of the rents and profits of land, the defendant himself. The court shall have can assign, or in any manner dispose of such power to compel such discovery, and to preinterest; but the rights and interest of any vent such transfer, payment or delivery, and person, for whose benefit the payment of a to decree satisfaction of the sum remaining sum in gross is created, are assignable.13 Un due on such judgment, out of any personal der another provision of the Revised Statutes property, money or things in action, belongof thatstate, 14 it is held that the former stat ing to the defendant, or held in trust for him, utory rule is equally applicable to a trust grow with the exception above stated, wbich shall ing out of personal property. In Graff v. Bon be discovered by the proceedings in chancery, nett, 31 N. Y. 13, it is said by Hogeboom, whether the same were originally liable to be J.: “I am aware that Mr. Justice Cowen, taken in execution at law or not. Provided in Kane v. Gott, 24 Wend. 641, and Assist that no answer made to any bill filed under ant Vice-Chancellor Sandford, in Grant v. this and the preceding section shall be read Van Schoonhover, 1 Sandf. Ch. 336, have con in evidence against the defendant on the trial tended for the contrary doctrine, in arguments of any indictment for fraud charged in the of much ingenuity and force; but I think the bill."15 In Michigan: “Whenever an execugreat preponderance of authority is in the op tion against the property of a defendant shall posite direction, and that the rule has been have been issued on a judgment at law, and recognized and acted upon for so long a peri- | shall have been returned unsatisfied, in whole od, and with such general acquiescence, that it or in part, the party suing out such execution has become a law of property, and ought not may tile a bill in chancery against such deto be invaded.” This case (Graff v. Bon fendant, and any other person, to compel the nett) is regarded as settling “the mooted discovery of any property, or things in action, question of statutory construction, making ap belonging to the defendant, or beld in trust plicable to trusts of personalty the provision for him, and to prevent the transfer of any prohibiting alienation of the interest of the such property, money or things in action, or

the payment or delivery thereof to the defend

ant, except where such trust has been created - (11.) Bramhall v. Ferris, 14 N. Y. 45; Campbell v. by, or the fund so held in trust bas proceeded Foster, 35 N. Y. 365. See Hadden v. Spader, 20 Johns. 554: Donavan v. Fiok, Hopk. 59; Pettel v. Chandler, 8 Wend. 621.

(14.) See, also, the following cases, supporting the (13.) Gratf v. Bonnett ,31 N. Y. 9; Campbell v. Fos. | same view: Hallett v. Thompson, 6 Paige, 583; Gott ter, 37 N. Y. 370, 371; Hawley v. James, 16 Wend. 118, v. Cook, 7 Paige, 531; Clute v. Bool, 8 Puige, 83; Howe 165.

v. Van Schack, 7 Paige, 222; Degran v. Clason, 11 Paige, (13.) 1 R. S. 730, $ 63.

135. (14.) 1 R. 8. 773, $$ 1, 2.

(15.) Rev. Stat. Ill., 1877, chap. 22, § 49.

ant. 16

from, some person other than the defend. | Board of Health are authorized to determine

ex cathedra the methods of medical treatment.

The question is simply whether such false and (16.) Compiled Laws, Mich., 1871, Vol. 2, p. 1534, § damaging charges as have a necessary tendency to 24.

ruin the reputation and business of a medical man, may be made without responsibility to legal re

dress, simply because he happens to be a city NEWSPAPER-LIBEL- PUBLIC OFFICERS-1

physician. PRIVILEGE.

It is not and cannot be claimed that there is any privilege in journalism wbich would excuse a

newspaper when any other publication of libels FOSTER v. SCRIPPS.

would not be excused. Whatever functions the

journalist performs are assumed and laid down at Supreme Court of Michigan.-October Term, 1878. his will, and performed under the same responsi

bility attaching to all other persons. The greater Hon. J. V. CAMPBELL,Chief Justice.

extent of circulation makes his libels more d::mag" ISAAC MARSTON,

ing, and imposes special duties as to care to preB. F. GRAVES," } Associate Justices.

| vent the risk of such mischief, proportioned to the « T. M. COOLEY, )

peril. But whatever may be the measure of dam

ages, there is no difference in liability to suit. 1. LIBEL-NEWSPAPER NOT PRIVILEGED.-A pewg Allowing the most liberal rule as to the liability paper is never exempt from linbility where other pub of persons in public employment to criticism for lications of libel would not be excused.

their conduct in which the public are interested, 2. ATTACKS ON PUBLIC OFFICERS. - Persons in there certainly has never been any rule which public employment are subject to the fullest criticism subjected persons public or private to be falsely . for their conduct in wbich the public is interested, but

traduced. The nearest approach to this license is are not to be falsely traduced.

where the person vilified presents himself before 3. Non-ELECTIVE OFFICER-ONLY COMPLAINT TO

the body of the public as a candidate for an elecPROPER AUTHORITIES PRIVILKGED.-Where an offi

tive office, or addresses the public in open public cer is not elected by the public but appointed by the

meetings for public purposes. But even in such municipal government, e. g., a city or district physician, no libel against him is privileged except a bona

cases we shall not find support for any doctrine fide representation made without malice to the proper

which will subject himn without remedy to every authority complaining on reasonable grounds.

species of malevolent attack. 4. LIBEL AGAINST CITY PHYSICIAN.-A newspaper But where a person occupies an office like that article charging a city physician with causing the death of a city or district physician, not elected by the of a patient by introducing scarlet fever into his system public, but appointed by the council, we have during vaccination, is libelous and not privileged.

found no authority, and we think there is no rea

son, for holding any libel privileged except a bona This was an action of libel, brought against the fide representation made without malice to the proprietor of the Detroit Evening News, for pub proper authority, complaining on reasonable lishing in that paper an article charging plaintiff grounds. The case of Purcell v. Sowles, 1 C. P. D. with causing the death of an infant child, by in 781, affirmed on appeal, 2 C. P. D. 215, is a case troducing scarlet fever into its system during the as nearly like the present one as is often found; operation of vaccination, which operation was and, while the court of appeal-on this point difalleged to have been performed by the use of the fering from the lower court-held the office of pubtrochar. The case was tried in the superior court lic physician gave the public an interest in having of Detroit, and there the utterance was held to be it properly filled, it was held no discussion or pubprivileged becanse plaintiff was a city physician. I lication was privileged of facts charged against him,

CAMPBELL, C.J., after stating the facts of the except when made in the course of a lawful procase, said:

ceeding against him. That the article, if not privileged, was li. The good sense of such a rule can hardly be belous is beyond question. The authorities on the doubted. Every man's reputation is as sacred as non-actionable character of spoken words have his property. He can not complain when the truth no necessary bearing on the character of written is told. But he can always complain of falsehoods, or printed libels. The doctrine is elementary that which are not told in an honest attempt to make written articles which in any way tend to bring him responsible to a proper tribunal, or in some ridicule, contempt, or censure on a person are other performance of duty. The publication in libelous, and are actionable unless true or priv such cases puts him in a direct way of having the ileged. This article not only traced the death of truth established, and the wrong can not actually one person and the sickness of another to plaintiff, | be done without furnishing its antidote. but laid the blaine on his willful misconduct upon If a medical officer is charged in the public press sordid motives. It was not claimed on the trial, with professional misconduct, the immediate and and the plea disclaims the truth of the principal necessary effect is to destroy confidence in him, charge that the trochar was used-whether its use and prevent him from gaining a livelihood by his was or was not improper.

profession. The readers of the paper have no We are, therefore, not required to discuss the means of investigation, and may never have. The somewhat extraordinary proposition that the city | charge may never reach an investigation, and he may have no means of compelling one. If he is after the local option law has gone into effect in that obliged to put up with such a wrong, the conse locality, in consequence of a popular vote, and such Ilquence will be monstrous. The law can not recog


censes are void. nize any such immunity from responsibility, nor 2.ON THE TRIAL OF A PROSECUTION FOR VIOLAcan the rights of individuals be so trifled with.

TING THE LOCAL OPTION LAW, it is competent to The case of Dickson v. Hilliard, L. R.9 Ex.Ch. prove that a majority of the legal voters voting on the

question whether liquors shall be sold in any city, 79, sums up the cases of privileges very neatly and

town or district did not vote against such sale: but it briefly. In that case, without contemplating any |

is not competent to prove by parol evidence that the petition, or any other method of examining into requisite number of notices were not posted, or that the facts, two days after an election, the agent of they were not posted the length of time before the one of the candillates sent to an agent of the election that the act required. other a document charging plaintiff with bribery. i 3. WHEN AN ORDER DIRECTING THE ELECTION TO This was held not privileged; and the court, in de | BE HELD AND A CERTIFICATE OF THE RESULT ARE ciding the point, mentioned the various decisions

| PRODUCED and found in substantial compliance with of privileged communications outside of those

the requirements of the act, the “local option law" is

prima facie in force in the city, town or district to which which were never questioned, and puts them in

| the order and certificate relates, and the only question three classes. The first includes such cases as Har

open for inquiry is whether a majority of the legal votes rison v. Bush, 5 El. & B. 344, where a bona fide at cast in said election were cast against the sale; and on tempt was made to have a magistrate removed this issue the burden is on the defendant. from office by appealing to a person in authority, 4. WHEN THE LOCAL OPTION LAW TAKES EFFECT It was claimed that the application should have | in a given locality, it becomes operative as a whole been made to the Chancellor instead of to a Secre | and suspends pro tanto all inconsistent laws relating tary of State, but held that, as the Queen herself was

to the same subject, and any one violating that law the acting power, a communication made to either

must be prosecuted and punished under its provisions .officer was in effect made to her, and privileged if

and not under the provisions of the general laws. made in good faith to redress a grievance.

The second class included communications like APPEAL from Meade Criminal Court: those made by military officers to courts of inquiry, D. R. Murray for appellant; Attorney-Genera or to the proper authority, to aid in the prosecu

Moss for appellee. tion of such inquiry. Dawkins v. Lord Rokeby, L.

COFER, J., delivered the opinion of the court: R. 8 Q. B, 255, affirmed, 7 H. L. 744; 2 Cent. L.

The appellant was indicted in the Meade crimJ. 491, was such a case.

inal court in December, 1876, for the offense of The third class included those cases in which in

keeping a tippling-house “in said county." The formation was given by one who was under a legal

indictment was in the usual forin, and did not al. or moral duty to give it to another who had a right

lege at what particular place in the county the alto ask it. The most familiar instance of this is in

leged offense was committed. The Commonwealth the answering inquiries concerning servants.

introduced evidence establishing a prima facie But, as it was very well pointed out, there was no

case, and the appellant read in evidence a license right to make untrue and injurious statements con

granted to him by the Meade county court, licensing cerning others, when they are not made to persons

him to keep a tavern at his house in Garnettsville,in having the right and power to investigate, and in

said county, with the privilege of retailing liqnor an honest attempt to invoke said investigation or

therein, covering the time embraced by the indictanswer such inquiry.

ment and evidence for the prosecution. The ComIn our opinion the libel in the present case was

monwealth then put in evidence, from the ordernot privileged, and the plaintiff was improperly

book of the county court, a certificate of the deprived of his remedy.

county judge, county clerk and sheriff of The judgment must be reversed with costs, and

Meade county, certifying that “at an eleca new trial granted.

tion held in District No. 5, Garnettsville, in said Marston and Graves, JJ., concurred.

county, on Saturday, the first day of May, 1876, Cooley, J., concurred upon the facts of this

being a general election, and the sense of the particular case.

qualitied voters of said district being taken on the question, 'Are you in favor of the sale of spiritu.

ous, vinous or malt liquors, in this district?' upon " LOCAL OPTION " LAW— PROSECUTION due comparison and addition, the vote stood thus: DEFENSE.

For, 116 votes; against, 158 votes." The appel

lant then introduced and read the order of the YOUNG V. COMMONWEALTH.

county court ordering the election to be held,

and offered to prove that only four notices of Court of Appeals of Kentucky, September, Term, the election had been posted in the district, and 1878.

that they were not so posted as much as twenty days Hon. WM. LINDSAY, Chief Justice.

bcfore the day of the election. To this evidence " W. S. PRYOR,

the commonwealth objected, and the objection

was sustained. J. M. ELLIOTT,

The court instructed the jury in substance-that 1. COUNTY COURTS HAVE NO POWER TO GRANT | the license read to them afforded the defendant no LICENSES TO KETAIL LIQUORS in any given locality protection, and that if he had, between the 20th of

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November and the 20th of December, 1876, sold cate are void if the requirements of the act wero spirituous liquors or wine, or a mixture of either, not strictly pursued in all matters relating to the in a house in Garnettsville, to be drunk in the election, and, as it is provided that the certificate house where sold, or on premises adjacent thereto, when entered on the order-book of the county or sold and the same was drunk in the house where court is prima facie evidence, it is competent to sold, or on adjacent premises, they should find him introduce parol evidence on the trial of prosecuguilty-if he so sold as often as twice-of keeping tions for violating the act to show that its provisa tippling-house, and if he sold but once, of re ions were not complied with, and that it therefore tailing merely. The jury returned a verdict of never went into effect in consequence of the vote. keeping a tippling-house, and the court rendered The only facts required to be certified by the exjudgment thereon for $60, the fine prescribed by amining board are that an election was held to the General Statutes for that offense. From that take the sense of the qualified voters of the disjudgment this appeal is prosecuted.

trict, town or city, upon the question whether or The act of the Assembly generally called the “Lo not spirituous, vinous or malt liquors should be cal Option Law" (Bullitt & Feland's Statutes, 1 sold therein, and that the majority of the legal 946), provides in sections 1, 2, 3 and 4 for the hold votes cast were against such sale. As those are ing of elections in cities, towns and civil districts the only facts required to be certified, they are the on the order of the county court, made pursuant only facts of which the certificate is any evidence to the petition of not less than twenty legal voters at all. of such city, town or district, for the purpose of It would, therefore, be competent to prove that taking the sense of the legal voters thereof upon the certificate is untrue in either or both of these the proposition whether or not spirituous, vinous respects, but it is not competent to prove by parol or malt liquors shall be sold therein; and section evidence that the requisite number of notices were 5 provides that if it shall be found that a majority not posted, or that they were not posted the length of the legal votes cast at the election provided for of time before the election that the act requires. in the preceding section were given against the No provision is made for any inquiry into these sale of spirituous, vinous or malt liquors, it shall questions. And when an order of the county court be the duty of the examining board to certify that directing the election to be held, and a certificate fact, which certificate shall be delivered to the of the result, are produced and found in substancounty clerk, and by him safely kept until the next tial compliance with the requirements of the act, regular term of the county court, at which time the local option law" is prima facie in force in the county judge shall have the same spread on the district, town or city to which the order and the order book of his court, and said entry of the certificate relate, and the only question open for certificate in the order book, or a certificate in the inquiry is whether a majority of the legal votes order book or a certified copy thereof, shall be cast in said election, that is for and against the salo prima facie evidence in all prosecutions under of liquors, were cast against such sale. On this said act. Section 6 provides that after the entry | issue the burden is on the defendant. of the certificate of the examining board, as a nove But we are of the cpinion that in localities where provided for, in the order book of the county the act goes into effect, it becomes operative as a court, it shall be uplawful for any person to sell

whole, and suspends pro tanto all inconsistent laws any spirituous, vinous or malt liquors in said dis- | relating to the same subject. Being in force in trict, town or city to any person, and any person Precinct No. 5, in Meade county, it at the same who sells any such liquors in said district, town or time deprived the appellant of the protection his city shall, upon conviction, be fined the sum of not | license would otherwise have given him, and reless than twenty-five dollars nor more than one lieved hinn from liability to the penalty denounced hundred dollars for each offense.

by the statute relating to taverns and tippling The appellant contends that, inasmuch as the houses. If he has violated the local option law, general law empowers the county court to graut he should have been prosecuted and punished untavern licenses with the privilege of retailing liq-1 der its provisions, and consequently had a right to uors, and the local option law” does not declare have the fine against him fixed by the jury at not that no such license shall be granted after it goes less than $25 nor more than $100, instead of having into effect in any given locality, a license granted it fixed by the court at $60, as prescribed by the after that event is valid until reversed or annulled general law. by a direct procecding. The act declares that af Moreover, as under the indictment in this case ter the certificate of the board of examiners is en the Commonwealth could have proved the tered on the order book of the county court, it keeping of a tippling-house in any part of Meade shall be unlawful for any person to sell liquors in county, we think the appellant could not be legally the district, town or city to which the certificate convicted under it of an offense which he could applies. This language is plain and needs no con only have committed in precinct No. 7. struction. That which the law denounces as un An indictmeut under the act siould charge the lawful cannot be made lawful by a license granted defendant with the offense of selling spirituous, by an order of the county court. Such an order is vinous and malt liquors without a license therefor, void and cannot afford protection against the pen and contain a statement of the acts done by hiin alties denounced by law against those guilty of the which constitute the offense, and of the place forbidden act.

where the acts were done, as in civil district No. It is also contended that the election and certifi- '5, in Meade county, and that the defendant had no

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