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3. The charters of the railroad corporations under the Constitution of Wisconsin "may be altered or repealed by the legislature at any time after their passage.” In legal effect, therefore, there was incorporated, in all the numerous grants under which the North-western Railway Company now claim its rights of franchise and property in this State, the foregoing condition contained in the constitution. It became a part, by operation of law, of every contract or mortgage made by the company, or by any of its numerous predecessors, under which it claims. The share and bond holders took their stock or their securities subject to this paramount condition, and of which they, in law, had notice. If the corporation, by making a contract or deed of trust on its property, could clothe its creditors with an absolute, unchangeable right, it would enable the corporation, by its own act, to abrogate one of the provisions of the fundamental law of the state.
4. This principle is not changed by authority from the legislature of the state to a corporation to consolidate with a corporation of another state. The corporation of this state is still subject to the Constitution of Wisconsin, and there is no power anywhere to remove it beyond the reach of its authority.
5. As to the rates for the transit of persons and property exclusively within the limitations of this state, the legislature had the right to alter the terms of the charter of the North-western Railway Company; and the fact that such alteration might affect the value of its property or franchises cannot touch the question of power in the legislature. The repeal of its franchises would have well-nigh destroyed the value of its tangible property; and while the latter, as such, could not be taken, still its essential value for use on the railroad would be gone.
6. The facts that grants of land were made by Congress to the state cannot change the rights of the corporations or of the creditors. If the state has not performed the trust, it must answer to the United States.
7. The act of the 11th of March, 1874, while not interfering with the rates of freight on property transported entirely through the state to and from other states, includes within its terms property and persons transported on railroads from other states into Wisconsin, and from Wisconsin into other states. This act either establishes or authorizes the railroad commissioners to establish fixed rates of freight and fare on such persons and property. The case of “State Freight Tax” reported in 15th Wallace, p. 232, decides that this last-described traffic constitutes" commerce between the several states,” and that the regulation thereof belongs exclusively to Congress. It becomes, therefore, a very grave question whether it is competent for the state arbitrarily to fix certain rates for the transportation of persons and property of this inter-state commerce, as the right to lower rates implies also the right to raise them. There may be serious doubts whether this can be done. This point was not fully argued by the counsel, and scarcely at all by the counsel of the defendants; and, under the circumstances, we do not at present feel warranted, on this ground alone, to order the issue of an injunction. If desired by the plaintiffs, it may be further considered at a future time, either on demarrer to the bill or in such other form as may fairly present the question for our consideration.
Suggestions to the State. In view of the decision just rendered, we trust it will not be considered out of the line of our duty to make a suggestion concerning this litigation to the counsel for the defence. It is manifest that the questions involved are grave ones, and that the court of last resort will ultimately have to pass upon them. It is equally manifest that a speedy decision, in which all parties are vitally interested, cannot be obtained unless there is harmony of action on the part of both the complainants and
defendants. In the mean time, and while this litigation is in progress, would it not be better for the defendants, as far as lies in their power, to have prosecutions for penalties suspended? These prosecutions are not required to settle rights. They are attended with great expense, and, if enforced while an effort is making in good faith to test the validity of this legislation, must cause serious irritation, and cannot be, as it seems to us, productive of any good results.
ENGLAND. DR. KENEALY. — This unfortunate barrister must either be almost insane or really convinced of his client's innocence ; for on no other theory can we explain the persistency with which he perseveres in a course which can only ruin him, without in the least helping the impostor whom he defended with so much plack and so little discretion. The Benchers of Gray's Inn have, on default, adjudged him to be the editor of the Englishman, and have expelled him from their society. His expulsion from the bar must certainly follow, unless he abandons his present line of conduct. We cannot help feeling more sympathy with him than perhaps he deserves ; for he and his client certainly experienced treatment at the hands of the Chief Justice and his associates which, however richly deserved, was certainly unbecoming the bench, and we are tempted to say outrageous. Had the Chief Justice punished him for contempt of court, or refused to allow him to proceed with his case, we should have considered it well done ; but the counsel's behavior should not, with the bench at least, weigh against the client. Dr. Kenealy evidently feels that he has been greatly wronged, and, smarting under it, has lost his discretion, as well as his case.
MISNOMER. Kinnersley v. Knott, 7 C. B. 980, 18 L. J. C. P. 281, has long been quoted as a solemn adjudication on questions of misnomers in pleadings ; but now that the ancient strictness in pleading, even at common law, is no longer insisted upon, the most valuable portion of that case must be regarded to be that portion of it which does not appear in the reports, but which has been furnished us through the courtesy of Professor Ordronaux, State Commissioner in Lunacy.
In this case the plaintiff, as indorser of a bill of exchange of £65 108., brought an action against the defendant, as the acceptor, and declared against him by the name of “ John M. Knott," being that by which he had signed the note, but without stating in the declaration that the defendants had so signed it. To this declaration the defendant demurred specially, and assigned as the ground of his demurrer that the declaration had not properly set forth his Christian name, nor assigned any reason, under the statute 3d and 4th Wm. IV., c. 42, for not doing so.
Mr. Sergeant Talfourd, on behalf of the defendant, said their lordships were often told that a case rested on a word, but here it rested on a letter only. It was his duty to contend, both upon principle and precedent, that this was a good ground of demurrer. The court had decided that the letter “I,” being a vowel, and capable of pronunciation, might be taken to be a Christian name ; but they had at the same time intimated that such would not be the case with a consonant, which, as it could not be sounded alone, would
be deemed to be not a name, but an initial letter only. Now, in this case, “M” was plainly an initial letter, for it could not be pronounced by itself. Standing by itself, therefore, it meant nothing. He was sure a very eminent authoress (Miss Edgeworth), whose loss they had recently to lament, was of opinion that all the letters of the alphabet, by the mode in which they were explained, were rendered little more (to use judicial language) than a “ mockery, a delusion, and a snare,' that A, B, C, D, &c., meant A, B, C, D, &c., and nothing more ; but even if it would avail him, he feared his friend could not rely upon such authority.
T'he Lord Chief-Justice. You say the “M” means nothing, then let it mean nothing. Would a scratch be demurrable?
Mr. Sergeant Talfourd. I say that “M,” by itself, cannot be pronounced, and means nothing ; but here it does mean something, which something ought to have been stated or explained under the statute. Suppose a person of the name of John Robbins, the court would surely hold a declaration bad which described him by the word John and figure of the red-breast? In like manner the court would hold this declaration bad, because it either put a sign for one of the defendant's names, or described it by the initial letter. A consonant by itself was a mere sound, without meaning. The letter H, indeed, by the custom of London and some other places, was no sound at all [laughter], though elsewhere it often protruded itself on all occasions. [Renewed laughter.]
Mr. Justice Maule. I had a policeman before me as a witness the other day, who told me he belonged to the “ hen” division, and it was not until at some farther stage in the cause that I discovered it was not a division designated by the name of a bird, but by “N,” the alphabetical letter. [Great laughter.]
Mr. Sergeant Talfourd. Then having, I hope, convinced the court that “ M,” by itself, cannot be a name, and means nothing, I submit it must be understood as an initial, and therefore that it ought to have been so stated.
Mr. Justice Maule. Pleadings are in writing ; therefore the law presumes that the court can read and know its letters. Vowels may be names ; and in Sully's Memoirs a Monsieur D’O. is spoken of ; but consonants canpot be names alone, as they require, in pronunciation, the aid of vowels.
Mr. F. Robinson, on behalf of the plaintiff, said he did not deny the right of every Englishman to be called by every name given him at his baptism ; but he submitted that, before he claimed to be privileged on that account, he must show that his privilege has been invaded. Here it was assumed throughout that the 66 M” in the name “ John M. Knott " was an initial letter ; but he believed there were instances in which persons had been christened in this remarkable
way in this country. He was told there was lately a bank director who was christened “Edmund R. Robinson ;” but, were it otherwise in this country, did it follow that in no other country Jew, Turk, or heathen might not use such names? If, however, it were an initial letter, why did not his friend apply to have the right name substituted ? If it were a misdescription, it was pleadable in abatement. Such a name might originate from an error of the clergyman at the christening.
The Lord Chief Justice. In the upper circles of society it is customary to hand in the name in writing, which prevents mistake.
Mr. Justice Maule. The practice of the circles with which I am conversant was, and I believe is, to give the name verbally. There was, however, a gentleman, the sheriff of one of the counties I went through on circuit, Mr. John Wanley Sawbridge Erle Drax, whose name was probably handed in. [Laughter.]
Mr. Robinson. There are as many Scotch and French names, such as M'Donald, M'Taggart, D'Harcourt, D'Horsey : how are such names to be set out in the pleadings? Suppose, again, a man's name were the name of a river, as X?
Mr. Justice Maule. But that is not spelt so : it is idemper idem, X for ex. Beer, I believe, is sometimes called X, but not water. [Laughter.]
Mr. Robinson. There are some of our names which are precisely those of letters, as Gee, Jay, Kay, &c.
Mr. Justice Maule. But here it is not sonans, only consonans, and they cannot be sounded without other letters.
Mr. Robinson. Their lordships should remember the existence of a publication called the Fonetic Nuz, and unless they meant to give a “heavy blow and great discouragement” to that rising science, he hoped they would not decide against his client. (Laughter.] But he had seriously to submit that, by demurring to this declaration, the defendant admitted, according to legal principles, that his name was that which was stated in the declaration.
Mr. Justice Creswell referred to and distinguished this case from the case of Roberts v. Moon, in 5 Term Reports, where a plea in abatement of misnomer, beginning “and the said Richard, sued by the name of Robert," was held bad.
Mr. Justice Maule suggested that, as £65 108. depended upon the question, it would be better for the plaintiff to amend.
Mr. Robinson declined to do so, and contended no case could be cited directly in support of the demurrer, and, therefore, that the court should decide in favor of the plaintiff.
Mr. Sergeant Talfourd having briefly replied,
The Lord Chief Justice. The various stages in the argument in this case have been already discussed and decided. The courts have decided that they will not assume that a consonant letter expresses a name, but they will assume it expresses an initial only ; and they further decided that the insertion of an initial letter instead of a name is a ground of demurrer, and is not merely irregularity. In the case of Nash v. Collier, this court decided that a demurrer to the declaration which describes the defendant's name as William Henry W. Collier was not frivolous, and gave a strong intimation, which the plaintiff had the good sense to attend to, that he ought to amend his declaration. That decision was acted upon by the Court of Exchequer in the subsequent case of Miller v. Hayes ; and, as it appears to me the case is precisely similar to the present, I think we must decide in favor of the demurrer.
The other judges concurring, -
VERDICT. - The celebrated verdict of “not guilty, but don't do it again," has been rivalled, if not surpassed, by the finding of a jury the other day at
the Nottingham assizes. The case was an indictment for obtaining money under false pretences, the prisoner, William Cowlenshaw, being charged with falsely pretending that he was a certified schoolmaster. It was proved that he had answered in person an advertisement for a certified schoolmaster for certain schools at Bingham ; that he had stated his name to be Woodward, and said that he had been trained at Saltley, and had passed ninety-six scholars.
In order to have done this, he must have been a certified schoolmaster. He subsequently sent a copy of testimonials, which turned out to be false. He was then engaged as a schoolmaster until March, was paid sums of money amounting to about £24, and entered into an agreement for a permanent schoolmastership at £60 per annum, with half the government grant and a house and garden. After communication with the education department, it turned out that the name of Samuel Woodward, assumed by the prisoner, was that of a schoolmaster since dead, under whom he had served as an assistant. The case having been summed up to them, the jury, after consideration, said, “We find he has done wrong, but we recommend him to mercy.” The judge wished to know whether they found the prisoner guilty or not guilty : and the jury were understood to say that they found him “not guilty, but recommended him to mercy.”
This verdict was, it appears, received with “some laughter ;” and his lordship having explained to the jury that a recommendation to mercy was an unnecessary appendage to an acquittal, they retired from the court to consider this explanation. In an incredibly short time they had mastered it, and returned into court with a verdict of not guilty. — Pall Mall Gazette.
PROFESSIONAL Duty. — The manner in which the English courts keep the members of their bar in the straight and narrow path is aptly illustrated by what befell a solicitor the other day, as it is related by a leading English journal. If our own courts would be as strict in watching the meinbers of their bar, the standard of the profession in this country would be greatly raised. 66 A motion was made before the Master of the Rolls to strike Mr. Greenhill off the rolls, on the ground that he had made alterations in an affidavit after it had been sworn. Mr. Greenhill's counsel admitted that he had done wrong, but as it was not done from any corrupt motive, but through excessive zeal for his client, it was hoped the court would not inflict a severe punishment. The Master of the Rolls said Mr. Greenhill was a solicitor of twenty years' standing, and therefore what he had done could not be attributed to want of experience. Although it was a case of excess of zeal, it could not be passed over. The court could not help feeling that Mr. Greenhill had no corrupt motive in making the alteration, but it was made in support of the affirmative of the main issue raised between his client and another party. That was a serious matter ; and although he (the Master of the Rolls) did not intend to strike Mr. Greenhill off the roll, yet, for the purpose of marking clearly his disapproval of Mr. Greenhill's conduct, he would order that he should be suspended from practising as a solicitor for six months, and that he should pay the costs of this motion."