provided it stops short of the point of becoming "damnable." The art of knowing when to stop is an important one, of which few lawyers are masters in their arguments or speeches. It is bad to practice massage on the same spot until it is sore, or to talk a man to sleep. When one goes visiting he ought always to return home just when his host is eagerly urging him to stay longer, and not wait until he is reconciled to have him go, or until, as Gerrit Smith once did in the case of a tedious visitor, pray the blessing of God "on our guest who is this day to take his departure." Let it be thus with our editorials-let us stop just when our readers call for more.

With due deference to those who do not understand a joke, I do not for my own part object to a little humor now and then in a law journal. If a case on a trial is really funny, it does not seem undignified to report it or refer to it in a sympathetic vein. As no really great advocate ever lived who was destitute of humor, so it seems to me that the ideal journalist may lawfully possess and cultivate this trait. Herein it seems that the majority of the bar are of this opinion, for while every legal journalist has at some time been blamed for some of his serious views, I have yet to hear of one who has ever been found fault with for his relaxation in the humorous. So it is in the courts-the bar and the spectators never applaud any utterance of his honor unless it is one supposed to be jocose, and the feeblest essay of this sort, especially in England, is sure to bring down the house." A serious legal principle may sometimes be better taught, and a serious matter of legal right or policy be better advocated by an ounce of humorous good sense than by a pound of unexceptionable dullness.

Even an occasional departure from the strict lines of legal comment may sometimes be indulged, especiaily in the lawyer's vacation, and in the direction of matters of general interest in respect to which all cultivated lawyers are apt to inquire.

cupying the post of critic and umpire; looking on the strifes of the forum with keen interest, but with a feeling of half-amusement at the zeal and cock-sureness of the combatants, none of whom can see when he is wrong nor why he is beaten; not even subject, like the judge, to the appeals of rhetoric, passion or personal magnetism; with not a cent of pecuniary interest; sitting in his sanctum in quiet and composure, studying without confusion or haste, viewing the subject in the cold light of reason;- by virtue of all these conditions, other things being equal, he is the most impartial of legal observers, and his opinion ought to be the most respectable. Bear in mind, I am speaking of the ideal, which probably has never been attained, but toward which every journalist of the law should strive if he would deserve respect and demonstrate a reason for his being. This impartiality is especially essential in one point of great importance to the lawyers, and that is the matter of book reviews. Busy lawyers have no time to scrutinize the books pressed upon them by eager and rival publishers, and it is an extremely useful office to give an intelligent, discriminating and impartial opinion of a new book. A difficult one, too, for no book is ever so good as to be faultless, and any is rarely so bad as not to have some peculiar merit. A very celebrated and unrivalled legal author, to be sure, puts into one of his extraordinary prefaces the assertion that there is no such thing as an honest review of a law-book advertised for pay in the columns of the reviewing journal-an unjust expression, and very ungenerous and ungracious in one who has received so much laudation and free advertising from reviewers with whom he has not always advertised. And one who can so efficiently advertise himself ought not to feel in any need of the favorable notice of reviewers.

There are certain other qualities essential to the ideal legal journalist, which, like impartiality, are not common to, and indeed would be ruinous to the editor of a party organ. I do not refer to such minor matters as patience and courtesy, but of the weightier matters of tolerance and independence, fearlessness and candor.

Some legal journalists seem to entertain a prejudice against what they call "high literary art," as not "practical." High literary art "never hurt an advocate, a judge nor a legal journalist. On the contrary it is a distinct form of power. An aspiration toward it is not unworthy intrinsically, and at least it shows the effort of the writer to give his readers the best of which he is capable. The blade is none the worse for being highly polished, and the axe is none the worse for having a handle free from knots and slivers. It the journalist is capable of giving pleasure while he imparts instruction, he is not to be sneered at because of the attempt. If he is not so capable, he would better let it alone and stick to the rudely "practical.".policy and morals, if he expects to exercise any influ

For my own part I deem it quite as essential, as a token of respect to my readers, to couch what I have to say in as good a style as is possible to me, as to wear a clean shirt (as well as have "clean hands") when I go into court.

It is quite essential that the legal journalist should be, or rather should have been, a practical and experienced lawyer. Otherwise he knows nothing of the needs of the profession, and is destitute of the power of selection, which is one of the editor's most indispensable attributes. To be able to distinguish and eliminate that which is elementary or trite or chimerical or illogical is a positive talent without which no one can usefully sit in the editorial chair. At the same time, it would seem that the legal journalist would better not be in active practice, for thus he will natu rally be more unbiased and disinterested, and be more apt to be accredited with that impartiality, the reputed possession of which is entirely indispensable to his usefulness and success. The ideal legal journalist is one who, having practiced and knowing the law, is free from professional influences and excitements; oc

The law-editor should strive to be a teacher, an apostle and a prophet. He should have his own opinions, and should not derive them from a canvass of a few favorite judges or practitioners, nor from shrewd guesses at what will best please his readers. It is best for him to take counsel mainly of himself. His studies are much more apt to lead him right than any influence derived from the opinions of others less disinterested in matters of technical law, and on subjects of legal

ence, he must be the voice and not the echo. Frequently he will find himself the voice of one crying in the wilderness, but the world admires honest earnestness, enthusiasm, even fanaticism, so-called, and sooner or later it makes its way. The law-editor must not mind the feeling of lonesomeness.

"He's a slave that dares not be
In the right with two or three."

Aye, or all alone. The man who tries to please
everybody, whether he is on the bench or in the office
of a legal editor, or who endeavors to go through life
without making an enemy, is a poor object for con-
templation. The surgeon who does not hurt you does
not heal you. The law-editor who never offends auy-
body nor loses a subscriber is not faithful to the duties
which he pretends to have assumed. He should re-
member the words of the best of books and the wisest
of men, "Woe unto you when all men shall speak well
of you, for so did their fathers to the false prophets."
He must be fearless, afraid neither of the bench nor
of the bar, nor of himself nor of his own shadow. A

and confiscate their goods, because the fathers did so, and because a change would be apt to cause unpleas antness between our wives and ourselves. Such contend that it is impolitic to write down the fundamental principles of the common law, because our fathers did not write them, and because to write them down would render them inelastic-an example for ouce of a radical sort of conservatism which adheres to the ancient because it is easily subject to alteration. Is ours the only walk of human life in which there is to be no progress?-a mere treadmill round which does not advance the toiler a whit and but serves as punishment? We do not so judge medicine nor religion nor science nor the mechanical arts. We are continually bragging of the "progress of the nineteenth century," but although that century has been marked by some very radical and useful alterations in the laws, yet in the four hundredth year from the discovery of this new

law journal is no post for a timid man. Addressing himself to the most fearless body of men, who at the same time have a wholesome respect for the opinions of others, he may very safely emulate their courage. The judges cannot commit him for his comments on themselves. The bar cannot hurt him except by ceasing to listen to him. And that is not very apt to occur, for they generally are curious to see what he will say next. The courage to denounce oppression by the bench, on the one hand, and to defend it against popular and undeserved clamor on the other; the courage to vindicate the bar against the silly but vociferous assaults of the newspapers, and the less-outspoken but deep-seated prejudices of the masses here, and to rebuke them for short-comings and wrong-doing and dereliction or excess of duty there, is a trait which lawyers every where will respect when they recognize that its exercise proceeds not from malice, envy or rivalry, but from a conscientious desire to promote jus-world by that progressive genius, Columbus, they are tice and uphold the honor and enhance the usefulness of the legal profession. Nothing is more admirable in legal journalism than the boldness with which the London law journals comment on the conduct of the judges. In the country where one would least expect to find it, it is not uncommon to read such rebukes of the bench and such caustic criticism as very few American journals of the same class would have the courage to utter. And within a few days the same journals have administered cutting rebukes to the great leaders of the London bar for their abuse of cross-examination. "Faithful are the wounds of a friend," and sweet the healing of his commending words, and the wisest friend is not always the most indulgent.

Our ideal law journalist must be candid. He must be willing to hear reason, and keep his mind receptive to conviction, even if the result is to convict him of wrong or mistake. Not a grudging candor, like that of the man who said nobody was more open to conviction than himself, but he would like to see the man who could convince him"; but the frank, manly eager candor of a gentleman and a just man, anxious to prove his worthiness to occupy the post of umpire and critic which he has assumed. He should not be a mere advocate, chosen and expected to make the best showing of which one side is susceptible, but a judge selfbound to know no side but the right one, and if he commits an error to hasten to grant a new trial on his own motion. He should not be afraid to change his mind. The man who never changed his mind is the man who has never learned any thing, and who goes to his grave no wiser than he was in his cradle. Journalism in law should take warning of the Bourbons, who never learned any thing and never forgot any thing. A change of mind in legal opinion is no more to be deprecated than a "change of heart" in a repent ant sinner. I imagine that the donkey and the pig are the true type of the man who thinks it a virtue never to change his mind. The legal journalist need not be afraid nor ashamed to reverse his opinions when the common-law judges set him the example every day.

The ideal law-journalist should be a progressive man. Ours is a conservative profession, and speaking within bounds, properly so, for it is of the intrinsic nature of law that it should be fixed and stable. But it should first be demonstrated that it is right. There is noth

ing admirable in the durability of bad or absurd laws,
nor in the conservation of wrong or folly. The theo-
retical value of the common law is its adaptability to
changed conditions, but the dominant trait of com-
mon lawyers is the averseness to change. In the opin-
ion of such, a crying evil is better borne than subjected
to the risk of experimental change, if they can "cry
back" to Coke for it. This is what Professor Bigelow
aptly calls "
mediævalism in law." Such argue, for
example, that it is best to continue to enslave our wives

still disfigured by some of the same barbarisms, crudities, absurdities and inconsistencies which characterized them in the year 1492 in England. It is outside my text and beyond my purpose to speak of them any further, but it may be allowed me to say that if there is such a thing as the "car" of legal progress, it will never "roll on" much if we preposterously hitch our horses to the rear of it, although their heads may point to the front. The legal journalist should be neither a backing or baulky nor a runaway horse. He should neither retrograde nor stand still, nor rashly or hastily advance, but should move steadily and gravely and safely toward the ever-receding goal of legal perfection.

Trusting that it has thus been shown that the legal journalist has a proper and useful office, and may exert a beneficial influence upon his brethren, the lawmaking bodies and the public, it only remains to indicate that this office, although less brilliant, less honored and less liberally remunerated than the office of judge or of advocate, is not destitute of peculiar compensations grateful to the man who has a taste for legal literature. He has two things for which he ought to feel devoutly thankful: first, that he is not a political editor, condemned to skip and caper at the crack of the party whip, and advocate measures or means from which at times his conscience or his reason must revolt; second, that he has the unique privilege of addressing the most learned, the most critical, and the most sensible class of newspaper readers, with whom nonsense or cant or demagoguism will not find acceptance, and whose watchfulness and exactions keep him always on his mettle, and bound to do his best. Not that his lot is free from petty annoyances and perplexities. The manly character of his readers shields him generally from anonymous attacks. In an editorial experience of twenty years, I have received but one anonymous letter of blame. With open and honest dissent there is no fault to be found. In fact it is rather cheering, for it assures one that he has been read. And so the self-appointed umpire will not complain, if like the arbiter of the ball-field, he occasionally receives the whacks of both sides upon his intervening scouce. He may also take an innocent pride in finding his words and opinions occasionally reverberated from distant continents and the isles of the sea, sometimes, to be sure, without "credit," but often improved by the echo. But most precious of all, he will cherish those private assurances, which he may receive from distant strangers, of agreement, respect and gratitude, sometimes not unmingled with a regard approaching affection, which he files away tenderly bound with red

tape.

Sam Slick said "there's a good deal of human natur' in mankind in gineral." So there is among lawyers. They are subject to the same weaknesses and passions

INJUNCTION - DAMAGES.

NEW YORK COURT OF APPEALS, DEC. 15, 1891
LYNCH V. METROPOLITAN EL. RY. Co.

In an action to restrain the future maintenance of an ele-
vated railroad and to recover damages for its mainte-
nance in the past, the defendant is not entitled to a jury
trial of the claim for damages under the provision of the
New York Constitution that "trial by jury in all cases in
which it has heretofore been used shall remain inviolate,"
since the cause of action is an equitable one, and a court
of equity may award money damages which are inciden-
tal to the relief by injunction.

writer's address. A southern reader of a journal of APPEAL from Superior Court of New York city,

Samuel Blythe Rogers, for appellants.

Charles Gibson Bennett, for respondent.

GRAY, J. This action was brought to restrain the maintenance and operation of the defendants' roads in front of the plaintiff's premises, and the prayer for such a judgment included also a demand for the amount of loss and damage which might be ascertained to have been already sustained by the plaintiff. The complaint sets out the title and ownership of the plaintiff, and his rights in and to the street in front of his premises, the construction of the elevated railroad and the operation of trains over it, and the annoying results therefrom, the illegal and unauthorized nature of the trespass upon the plaintiff's premises and easements and the failure of the defendants to acquire or to make compensation therefor, the injuries sustained, and that they will be constant and continuous, and finally that, to prevent a multiplicity of suits, to protect against irreparable damages and to afford complete relief, the plaintiff is compelled to seek the equitable interference of the court. When the action came on for trial the defendants' counsel moved for a

of Williams v. Railroad Co., 16 N. Y. 97, the opinion was delivered by Judge Samuel Selden. That was a suit in equity, brought to restrain the defendant from using the street with their railway, and to recover damages for past use. The conclusion arrived at, as expressed in the opinion, was that "it follows that the defendants in constructing their road * * * were guilty of an unwarrantable intrusion and trespass upon plaintiff's property, and that he is entitled to relief. Although he had a remedy at law for the trespass, yet as the trespass was of a continuous nature he had a right to come into a court of equity and to in voke its restraining power, to prevent a multiplicity of suits, and can of course recover his damages as incidental to this equitable relief. There may be doubt as to his right to recover in this suit the damages upon the lots which have been sold, because as to those lots there was no occasion to ask any equitable relief, and to permit the damages to be assessed in this suit in effect deprives the defendants of the right to have them was but one cause of action stated in this complaint, assessed by a jury. But as this question has not been and that was the claim for relief against the continued raised, it is unnecessary to consider it." There are trespass upon the complainant's properties. The de- two things to be noted in that opinion. In the first mand for past damages, included in the prayer for place the damages already sustained were deemed

within the power of a court of equity to award as an incident of its jurisdiction over the action. This idea is in fact emphasized by the suggestion as to the lots which had been sold, because it is clear that the court regarded its right to award the damages as a matter connected with or dependent upon the ground for granting any equitable relief; that is to say, as to the property to be protected by the decree of the court against the defendants' acts, the damages caused to it could be assessed by the court; but as to that portion withdrawn by the sale it might be doubtful, because not the subject of or entitled to the equitable relief. It is very obvious that the court had in mind the question as to the right of trial by jury. In the second place it may be noted that the opinion speaks of the assessing of the damages. This definition of an assessment of the damages seems to me to put the action of the court in line with just what courts of equity have always done in cases over which they have gained jurisdiction; that is to say, they proceed to inquire directly or by reference or otherwise as to the damages sustained, and assess them accordingly. When later the same case entitled as Henderson, et al., after a new trial came up again (78 N. Y. 423), the opinion of the court was delivered by Judge Danforth, who again upheld the plaintiff's right to invoke the equitable power of the court, and held that he could of course recover his damages as incidental to this equitable relief," and he stated it to be "an elementary principle" that "when a court assumes jurisdiction in order to prevent a multiplicity of suits it will proceed to give full relief both for the tortious act and the resulting damages." The opinion was carefully written and based upon the authority of many cases. Recently again in the case of Shepard v. Railroad Co., 117 N. Y. 442, it was said of these actions that they were necessarily "on the equity side of the court, as the main relief sought was the injunction against the defendants," and that in them the complainants could "recover the damages they have sustained as incidental to the granting of the equitable relief." This view as stated in that opinion was expressly based upon the Williams and Henderson Cases, and upon the supposed equitable principles governing such actions. The Shepard Case somewhat conspicuously illustrates the powers a court of equity may arrogate to itself with the object of completely determining and quieting the questions before it when it has once acquired jurisdiction of the action. It follows in that respect a rule long established by authority. It is true that in these cases the right to demand a jury trial as to past damages was not precisely or in terms stated as the proposition advanced, but that, as it seems to me, would be a very narrow evasion of the effect of the opinions delivered. They did consider the nature of such actions, and deliberately declared the power of the court in equity, as an incident of the main relief of injunction, to assess the damages sustained. In Carpenter v. Osborn, 102 N. Y. 552, the court, in an action to set aside certain conveyances as fraudulent, granted the equitable relief prayed for, and in addition decreed the judgment a lien upon the land for some unpaid installments of interest, to the payment of which the defendant had obligated himself in a certain agreement. Chief Justice Ruger delivered the opinion of this court in affirmance of the judgment, and said: "This principle has been applied in many cases in awarding judgment for pecuniary damages, even where the party had an adequate remedy at law, if the damages were connected with a transaction over which the courts had jurisdiction for any purpose, although for the purpose of collecting damages merely they would not have had jurisdiction." In support of the principle declared by him, the learned judge cited Pom. Eq. Jur., § 181, and various cases.

I think some confusion of thought concerning the constitutional guaranty of a trial by jury may arise in a misapprehension as to its proper application. That provision relates to the trial of issues of fact in civil and criminal proceedings in the courts, as it was held by the chancellor in the case of Beekman v. Railroad, 3 Paige, 45. Where the trial of a civil proceeding presents for determination a question of fact the right of trial by jury is proper, and can be invoked. But an action brought to restrain the commission of trespasses, which are continuous in their nature, is necessarily in equity, and the court interferes to prevent multiplicity of suits, and grants equitable relief by way of an injunction. The question presented for determination in such an action is one of law, whether upon the facts to be established upon the trial the plaintiff is entitled to such relief. Upon the proofs, showing the nature of the trespasses and the consequent injury to the complainant's property, the court decides the question of plaintiff's right to an injunction. It does not seem to me that it can be said that any issue of fact as to damage remains. That was necessarily decided in the action, and all that remains is to fix the amount, and I do not think the constitutional provision was aimed at such a proceeding. As defined by the chancellor in the case above referred to, it seems difficult to rationally give it an application to what is simply an assessment of the damages. I may extract, and may appositely quote here, a remark of Judge Andrews in his opinion in Cogswell v. Railroad Co., 105 N. Y. 319: "We think," he says, "it is a reasonable rule, and one in consonance with the authorities, that where a plaintiff brings an action for both legal and equitable relief, in respect to the same cause of action, the case presented is not one of right triable by jury under the Constitution." The case was one wherein the plaintiff's complaint demanded judgment for damages and an abatement of a nuisance, and also for an injunction against its continuance. The learned judge's opinion is upon the question of whether such an action was one for a nuisance, under section 968 of the Code, which must be tried by jury, unless waived or referred, and he held that it differed from Hudson v. Caryl, 44 N. Y. 553, which was a common-law action, in that equitable relief by way of injunction was asked, and not simply the relief obtainable by writ of nuisance, for damages and an abatement. His remark upon the right to a jury trial in equitable actions is not out of place however here. To carry this discussion backward, and to a time anterior to decisions of this court, we find warrant in the opinions then held by our own and the English Chancery Courts for holding that a trial by jury was not usual in cases where equity had acquired jurisdiction, and that the court would administer all the relief which the facts warranted, including the assessment and awarding of compensation for injury sustained. In Watson v. Hunter, 5 Johns. Ch. 169, the bill was filed to enjoin the cutting of timber and to restrain the removal of that which bad already been cut. Chancellor Kent confined the relief of injunction to the timber standing, and refused it as to the removal of the cut timber, on the ground that it would be an application to an "incidental remedy." He said that "the practice of granting injunctions in cases of waste is to prevent or stay the future commission of waste, and the remedy for waste already committed is merely incidental to the jurisdiction in the other case, assumed to prevent multiplicity of suits, and to save the party the necessity of resorting to trover at law." The chancellor's exposition of the principle upon which equity acts in cases of waste obviously is as applicable to cases of trespass. If the action at law in trover was deemed unnecessary for the personal property already converted in that case, it seems unnecessary in such an action as this, in