BY JUSTICE CHARLES W. PARKER.

[1] Fourth of July Address at the Church of Saint

Mary's-by-the-Sea, Northeast Harbor, Maine. Published

herein by request of the Editor of the Law Journal.

See "Editorial Notes."

The exercises of to-day are a revival, temporary perhaps, but still a

revival, of the good old custom of celebrating the anniversary of the

Declaration of Independence by public meetings, with prayer and song,

the reading of the Declaration, and a patriotic address. It was a good

custom, though it tended to foster some erroneous ideas, particularly

that England as a nation was blameworthy in Revolutionary times, rather

than the political machinations of George III, the politician king. But

it was a good custom for all that, and it is regrettable that it gave

place to noise and fireworks.

In the more recent years the date has been significant of other great

crises in our history than that of Revolutionary times. That was, of

course, the greatest of all, and never to be forgotten, as it marks the

definite transition of thirteen colonies into thirteen States, organized

for war purposes as a nation. There had been over a year of war,

beginning with the skirmish at Lexington and the British retreat,

followed quickly by Ticonderoga, Bunker Hill, and the investment of

Boston. During the fall and winter there were the episodes of the

burning of Portland; the capture of Montreal (later relinquished); the

capture of Norfolk in December; Arnold's heartbreaking expedition to

Quebec through Maine forests in the dead of winter; the battle of

Moore's Creek, N. C., early in 1776, called the "Southern Lexington,"

and, to crown all, the evacuation of Boston. These events and their

concomitants, say the historians, made inevitable the Declaration of

Independence, though the struggle began only as one for greater colonial

self-government and modification of the taxing system. It was our first

"birth of Freedom," which has been re-born more than once since.

I said the date marked other great crises in our history, and take time

to mention two of them, both in the memory of living men. The first, and

the greater, was in the midst of our Civil War, when the news of the

twin victories of Gettysburg and Vicksburg flashed over the land. Dark

days were still to come, and men were still discouraged; the war was to

be proclaimed a failure by a great political party, but the power of the

Rebellion was broken, and, after July 4, 1863, the setbacks to the cause

of nationality were but temporary and comparatively insignificant. A

second great crisis was safely passed.

The third great Independence Day, great for what it brought to others

than ourselves, was thirty-five years later, when the tremendous news

came that the Spanish squadron, practically all remaining efficient of

Spain's navy, had been destroyed off Santiago. That day marked the

downfall of Spanish power on this continent, and the liberation of

oppressed peoples in both hemispheres; the culmination of a righteous

war against a civilized and honorable foe, whose principal shortcoming

was a hopelessly antiquated point of view and inability to deal

intelligently with modern conditions.

These great anniversaries all marked the definite passing of crises; the

present one rather falls within a protracted period of crisis than marks

the passing of one. If we were to celebrate the anniversary of the

greatest crisis of recent times, I should name July 18th, 1918, when, as

most of those here will remember, the glad peals of the bell above us

sounded the news that the great allied offensive had opened. Of this

more in a few minutes.

But July 4 as a date does not even mark the signing of the peace treaty.

It is suggestive, however, of two things to be borne in mind at this

time: the genius of our country as a lover of liberty and fair play, and

the relation of that genius concretely to the problems of the recent

past, and the present, and the immediate future.

The announcement of such a subject gives me pause, for it is one for

mature consideration and careful discussion by the best of statesmen.

But there are some considerations, rather obvious perhaps, but still

worthy of inclusion at this time, which I should like to present.

I mentioned a moment ago our love of liberty and fair play. With these

goes a constitutional tendency to mind our own business, let other

people's business alone, and to avoid interference until convinced of

its necessity. Until 1914 we felt secure on our own continent, gave no

offense and sustained none. Fearing no war, we deemed preparation a

waste of money and time; we were not disposed to pay expensive insurance

premiums when our house was too far removed from others to be in danger

of conflagration; against internal incendiarism we thought ourselves

guarded. The warnings of Manila Bay in 1898 and Venezuela a few years

later made no impression. Confident of our ultimate resources, we

assumed no one would attack to court ultimate defeat; and above all,

fair-minded ourselves, we were utterly incredulous of unfair-mindedness

in others. Wise and farseeing men gave warning from time to time, but

the impressions were momentary.

And so, when in 1914 the assassination at Serajevo was quickly followed

by an impossible ultimatum, and this in a very few days developed into a

general European war, while our minds and souls revolted at a great

injustice, our continental habit of thought resisted the suggestion that

we should interfere to right that wrong. We did not see far enough;

there were those who did; and I heard two wise men, summer residents

here, agree in this very town in August, 1914, that this nation should

take part, and at once. But public opinion did not run in that channel;

nor was it led into it by our chosen rulers. These also were

shortsighted, however their vision may have been clarified subsequently.

We were told that a people should be neutral in thought as well as in

deed; and so we stood by and watched Belgium, a neutral country, ravaged

and pillaged; France invaded and destroyed; Serbia depopulated; Russia

crushed. A great crisis like the battle of the Marne stirred men's

souls, but without bringing home to us as a nation the ultimate danger

to our liberty. The consummate outrage of the "Lusitania" made an

impression never effaced, but the rising indignation of the country was

met with the caution that "a man may be too proud to fight," and this

crisis passed over also.

But the great giant was stirring in his sleep. Trumpet calls came from

men high in public esteem, among whom it is sufficient now to mention

Roosevelt and Leonard Wood. "Preparedness" was their reveille. Our young

men heard it, and in 1916 at Plattsburgh, and I think elsewhere, sprang

up the training camps. The colleges offered their facilities; and

although in the fall of 1916 there was still, as in 1860 and 1861, a

large proportion of "peace-at-any-price" men, so large in 1916 as to

permit the election of a President on the party slogan "He kept us out

of war," the time was fast growing ripe. Infatuated Germany, confident

of victory in Europe and of later victory on this continent, or risking

all on the submarine issue, went a step too far, and the giant woke up.

Woke up,--yes; but about as helpless as Gulliver on the Island of

Lilliput. The "man mountain" was tied fast with the cords of

unpreparedness, red tape, departmental inefficiency, official jealousy

and hostile intrigue. As in 1812, in 1847, in 1861 and in 1898, there

was little or nothing ready; all had to be created. The lowering of the

thunder-cloud had been unheeded. We had some destroyers and battleships

and cruisers; these were sent at once where most needed. But to our

shame, be it said, we had no trained men except the little regular army;

no great guns; no appreciable number of field pieces; no machine guns;

no small arms even, although our .30 cal. Springfield rifle is justly

pronounced the best small arm in the world. I have shot it and know it

well. They cost at that time about fifteen dollars apiece. A million of

them would have cost 15 million dollars, a sum which in these days makes

us laugh at its insignificance; it is one-half of one per cent. of our

first Liberty loan. We had not even the special tools to make barrels

for these small arms in quantity, and actually had to use English tools

to make English type rifles, greatly inferior to our own, to get any at

all for our men. The other day I saw it announced with pride in the

newspapers that our rifle had won in competition over all others; but we

did not have them when wanted, and probably have not made them yet. We

had no field pieces to use abroad, and our artillery was equipped with

the French .75. A few naval guns were landed and mounted toward the

termination of hostilities. The aeroplane scandal is known of all men.

And it was a year after we declared war before we entered Europe in

force, and equipped then with English rifles and French field guns; and

our men were transported to Europe mainly on British ships.

But in this trying period several things stand out clear and bright, and

as inspirations for the future. Two are psychological: the spirit of

Americans of alien descent, and the participation of our great

educational institutions; one, official as well as psychological, the

selective service draft. The patriotism of the native American of the

old stock goes, of course, without saying.

The true ring of our heterogeneous population of foreign extraction was

to many a joyful surprise. That so many who had never seemed to

amalgamate with our customs, were largely uneducated, and did not even

speak our language, should respond so willingly and gladly to the call

to the colors, was a source of some amazement. Not being in their

confidence or intimacy, many of us little realized their loyalty: which

reminds me of an Italian bootblack who in conversation told me that he

wished to travel. I spoke of the beauties of Naples and Sorrento and

that neighborhood, and was rather abashed when he said: "Yes, but I

would rather see my own country first." I hope that lesson will always

be fresh in memory.

The same spirit of Americanism marked all nationalities, not excepting

the German. The lists of draft registrants from, let us say, the east

side of Manhattan Borough, reminded one of the Epistle for Whitsunday:

"Parthians, and Medes, and Elamites, and the dwellers in Mesopotamia,

and in Judæa, and Cappadocia, in Pontus, and Asia, Phrygia, and

Pamphylia, in Egypt, and in the parts of Libya about Cyrene, Jews and

proselytes, Cretes and Arabians," all heard, and, with the deep

realization of newly liberated peoples, showed themselves proud to

answer the call.

A recent war or Liberty loan poster is most suggestive. You read on it a

list of men's names, mostly unpronounceable, and suggestive, in the

language of the same Scripture just quoted, "of every nation under

heaven," and this is summed up in the phrase, "Americans all." Truly, a

fitting tribute to our adopted citizenry, equal in loyalty, bravery, and

self-sacrifice to the best of the old Americans. Among them, as just

noted, the German names stand out boldly. They are so numerous, in fact,

as to attract less notice in this country than they deserve; let us hope

that they will be noticed and taken to heart in the misguided country

where such names originated. I would that our American army, made up in

large part of such men, could occupy Germany for a time as it formally

occupied Cuba, for its own good, and give a much needed object lesson in

the theory and practice of free institutions.

These men, as I have said, were largely uneducated. I turn now for a

moment to those in our great seats of learning, and to the heads and

faculties and trustees of those institutions. Their stand was doubtless

one to be expected, but is still worthy of remark. That the best blood

in England suffered the most losses I think is conceded. That would have

been the case with us if the war had broken on us as it did on Great

Britain. As it was, our boys courted the posts of danger--aviation;

submarine chasers; balloon observation, and so on. Some left college to

enter the service; others stayed at college awhile, but in order to

train and perfect themselves in the art of war. The colleges themselves

became military schools; the dormitories barracks. For a short time some

anxious mothers held back, and it is little wonder that they did. But it

was not for long, and soon the woman who could wear a pin, with one,

two, or more stars in it on her bosom, gloried in it, while she who wore

a star of gold, in all her grief still cherished the solemn pride, as

Lincoln called it, of having laid so costly a sacrifice upon the altar

of her country. Whether the son was a student or ploughboy, a bootblack

or factory hand, or the son of a millionaire, the feeling was the same.

In fact, there was a tendency at first among the people at large to

suspect the well-to-do and moneyed classes of holding back their sons.

This soon wore off; and one of the most inspiring as well as instructive

sights I ever saw was on this very island; the parade of war mothers on

the Bar Harbor fair grounds; women in all walks of life, some with gold

stars on their badges.

College presidents who encouraged the entry of students into military

service came in for adverse criticism, but that soon passed, and now

that college, the largest percentage of whose students and graduates

went into the service, points with the greatest pride to its record in

that respect.

I think, however, that the greatest achievement of the war, and the one

that makes most for the future safety of our country, is the success of

the selective service draft. All the books ever written, all the

lectures ever delivered, attacking the pacifistic tendencies of our

people, fail to accomplish anything of consequence in comparison with

that achievement. Whether our people have undergone a great psychologic

change I know not. It is certain that at no time previously had they

submitted willingly to be drawn into service. For a century and a

quarter militia and volunteers were the basis of the armed power on

land. During the Civil War drafting meant riots. During all our prior

history bounties for enlistment were an accepted fact.

Some of us may have looked into General Upton's great book called the

"Military Policy of the United States." Until recently it was withheld,

for some reason, from general publication. It is the basis of a later

work by another author, "The Military Unpreparedness of the United

States," which appeared about 1916. Both exhibit in startling fashion

the fundamental evils of volunteering and bounties. But not until the

stress of this great war did the old theories give way. We had a real

man as Provost Marshal General, and his name is Enoch H. Crowder, and my

own University (Princeton) and others as well, honored themselves

recently by conferring the LL.D. degree on him. I care not whether he

evolved the draft machinery himself or whether it was suggested by

others. Probably it was a result of both processes; at least he knew a

good thing when he saw it, and, like other large men, was unconcerned

about whose idea it was. Here was the problem: several million men of

age 21 to 31 to be listed, with particulars about them; those available

for military service to be selected; from these, a certain number to be

drawn by lot. The system used in the Civil War was hopelessly

inadequate; army officers could not be spared to supervise the lists;

how were the names to be obtained? How recorded? How drawn?

The origin of the fundamental plan was told me by General Crowder

himself on the day when he received his Princeton degree. He said that

he was in his office racking his brain for a method of registry that

would not take a year to operate, when a Congressman came in, and to him

he told his difficulties. The interview terminated much like that of

Alice in Wonderland and the Caterpillar, who told her how to change her

height as it crawled off through the herbage. As the anonymous

Congressman was going out through the door, he said over his shoulder:

"If they can elect a President in one day, they can register in one

day." Let us thank God that the General had good ears, and excellent

communication between them and an active brain. "Elect in one day"--48

States; each with so many counties; each county having so many

municipalities; each municipality so many election districts; civil, not

military, officers for all of them; officers known to and knowing the

people; Governors; mayors, election boards. _Why not_? Here is the

machinery ready made, and at hand! All that is needed is to get it

going. Forty-eight Governors responded enthusiastically; all forty-eight

kept the great secret ready to pass it on to local officials; the result

we all know.

Two other things were needed; the willingness of those that were of

draft age to come and say so; and the confidence of the public in a fair

drawing. The latter was secured by the use of master numbers applicable

to every district; the former came naturally as a result of the system

itself. Every man of draft age became qualifiedly a volunteer, and

marched to the polling place, saying: "Here I am when wanted." To this

the abolition of bounties and substitutes, the curses of the old system,

largely contributed.

These are three of the great things for which we should give thanks on

this Fourth of July: the solidarity of Americanism; the leadership of

our Universities, and a practical and popularly acceptable method, now a

precedent for all time, of calling up the man power of the nation. A

fourth is the resultant of them all: a great army of young men (as has

been said many times), future leaders in political life, keenly alive to

the real freedom of our American system and determined to uphold it and

to stand no nonsense about it. But for the consciousness of our

possessing this element, and but for our faith in it, we might well look

with most anxious foreboding at many troublesome and dangerous questions

now uppermost in our national life.

For in the midst of triumph sounds the note of anxiety--many discordant

notes in fact. Will the treaty finally be ratified? Will peace last?

Will the Germans respect their promises and fulfill them? Or will they,

already talking again of a scrap of paper, straightway begin to prepare

for a fresh coup twenty-five years or so hence? Must the peace-loving

peoples of the world still apply themselves to that most distasteful of

all tasks, the invention and manufacture and practice of means of

destroying life and property in war? And what about internal affairs?

Are individual enterprise and talent to be smothered by rule? Is the

Constitution of the United States a worn-out old one-horse shay, ready

to drop to pieces all at once? Is the Senate a back number? Is the

peaceful rule by majority to be exchanged for Bolshevik dictatorship? Is

our transportation industry to be ruined by taxes and rate control at

one end and cost of labor at the other? Should we take an active part in

the affairs of the Eastern hemisphere, and invite European and Asiatic

powers to help regulate our continent; in short should the national

policy called the Monroe Doctrine be abolished?

These and many similar questions are pressing for solution. They are not

mere fancies; they are not partisan issues, though many stentorian

shouters proclaim them such; they are live and vital questions which

must be solved and will be solved, doubtless at great cost in treasure

and perhaps at some cost in blood. That they will be rightly solved in

the end I have no doubt. Nothing is settled, said someone, I forget who,

until it is settled right. It is for you and me and all of us to bear in

mind that our work is only half done: that our sacrifices and labors and

efforts during this great war that is just closed, I hope forever, are

but the beginning, and that we owe it to our country and our children to

do what we can to encourage sanity, deliberation and temperance of

thought, speech and action in all classes of the people.

Mild as that sounds, it is a stupendous task to perform. There rarely

was a time when unthinking people were not more inclined to listen to a

demagogue rather than a statesman; and few people think at all; still

fewer think straight. It is a rebellious people, saying "Prophesy not

unto us right things, speak unto us smooth things, prophesy deceits." It

is a time of epithets rather than of logic, of lying epigrams rather

than solid truths. All the wealthy, it seems, are corrupt; all money in

large amounts is tainted; even the scales of justice are accused of

falsity. Ebullitions of this kind often indicate an undercurrent little

suspected.

I realize that I am saying little or nothing that is new, and I have no

new methods or theories to offer for meeting the situation. One thing is

certain; before we can teach other people to think clearly, we must be

able to think clearly ourselves; to formulate and make others realize

the real issues; to perceive the fallacy or confusion in the opposing

line of thought, and point it out without offense. It is a maxim among

lawyers that a case well stated is half argued, and nothing can be more

to the point at this time. We still have real statesmen; let us listen

to them with attention and take care not to hurry too much in deciding.

Impulse leads to irretrievable error much oftener than does

deliberation. Sober second thought is usually the better.

But, notwithstanding this anxiety, let us rejoice in the great victory

of Liberty over autocracy and militarism. As we look back over the last

five years we see many a vision; some dreadful nightmares, others with

the seeming of the good God taking direct part in the affairs of men.

The rape of Belgium, the miracle of the Marne, the tedious deadlock in

the trenches, the ghastly failure at Gallipoli, the collapse of Rumania,

the tragedy of Russia, the debacle in Italy, the heroism of Ypres and

Passchendaele and Verdun; then the ever present dark shadow of the

submarine; the agonized cry of exhausted England and France for men,

men, men, as one offensive broke towards Calais, another towards Amiens,

another straight for Paris by way of Chateau Thierry, while our brave

boys seemed to be training interminably; the halting of the Hun at

Belleau Wood and Chateau Thierry; the crouch of the American wildcats

for their spring; until, as men's hearts seemed to fail them, and the

cry went up, "How long, O Lord, how long?" the little bell of St.

Mary's-by-the-Sea rang as it had never rung before. Peal after peal:

some good news: what is it? "The Allies have attacked; the front between

Soissons and Chateau Thierry is all crumpled up: the Germans cannot hold

the salient."

Smash after smash: it is our turn now; in Flanders, in Picardy, in

Champagne, in Lorraine: by Britain, by France, by America, singly,

doubly, and all together; each day a new victory headlined; the military

lines approaching the French boundary; the thumbtacks moved each day on

the war maps; St. Mihiel salient wiped out; Rheims freed of bombardment;

Argonne Wood, our present day battle of the wilderness, takes time and

its awful toll of human lives, but yields, for the first time in

history, to an attack by American troops; Grand Pré and open country

beyond. Forward again, until a great railroad line is cut, and Sedan,

the catastrophe of 1870, becomes the final triumph of 1918. How we

watched the telegraphic bulletins! How we studied the maps! Until, after

one false report of an armistice, the real armistice came, and our

peace-loving people, joint victors in the greatest war of all time,

turned into a horde of lunatics.

What a day it was, that eleventh of November! I was in Boston to attend

the wedding of a nephew, a Colonel of Artillery, who had commanded his

regiment at Cantigny and had later been ordered to this country in

connection with organization and training of troops. The guests had to

walk, as no vehicle could thread the crowd. Late editions of the papers

contained the armistice terms in full, and, as our somewhat numerous

family was gathered for five o'clock tea, one member was deputed to read

the terms aloud, and there were attentive listeners. After he had

finished, no one spoke for a moment; and then a voice said, "That seems

to cover the ground."

Truly we have much to thank God for, this Fourth of July. We have left

undone some things that we ought to have done, and we have done some

things that we ought not to have done; but I cannot say now that there

is no health in us. Once again we have had a new birth of freedom; once

again we highly resolve that our dead shall not have died in vain; once

again we resolve, and I think that we have shown by deeds our

determination, that "government of the people, by the people, and for

the people shall not perish from the earth."

AMERICAN STEEL FOUNDRIES v. TRI-CITY TRADES COUNCIL.

(U. S. Supreme Court, Dec. 5, 1921).

_Strikes--Picketing--The Clayton Act--Circumstances to

Be Considered in Injunction Case_.

[NOTE--The following case on picketing is so important, being the latest

and a final decision of the highest Court in the United States on a

matter which has been treated differently by various Courts, that we

reproduce the opinion here, as published in the "New York

Times."--EDITOR].

TAFT, Ch. Justice: This is a picketing case. Only two men in the employ

of the Foundries had responded to the calling of the strike by the

Tri-City Council. They were picketers, were defendants, and were

enjoined. Only one of them was a member of a union of that council. The

case involves, as to them, the application of Section 20 of the Clayton

Act, of which the provisions material here are those which forbid an

injunction in behalf of an employer against, first, persuading others by

peaceful means to cease employment and labor; second, attending at any

place where such person or persons may lawfully be for the purpose of

peacefully obtaining or communicating information; third, peaceably

assembling in a lawful manner and for lawful purposes.

The Act emphasizes the words "peaceable" and "lawful" throughout the

phrases which were used. We do not think that these declarations

introduced any new principle into the equity jurisprudence of the

Federal Courts. They are merely declaratory of what was the best

practice always.

Congress thought it wise to stabilize this rule of action and to render

it uniform. Its object was to reconcile the rights of the employer in

his business and in the access of his employés to his place of business

without intimidation or obstruction, on the one hand, and the right of

the employés, recent or expectant, to use peaceable and lawful means to

induce prudent principles and would-be employés to join their ranks, on

the other.

If, in their attempts at persuasion or communication, those of the labor

side adopt methods which, however, lawful in their announced purpose,

inevitably lead to intimidation and obstruction, then it is the Court's

duty--and the terms of Section 20 do not modify this--so to limit what

the propagandists do as to time, manner and place as to prevent

infractions of the law and violations of the right of the employés and

of the employers for whom they wish to work.

In going to and from work, men have a right to as free passage without

obstruction as the streets afford, consistent with the right of others

to enjoy the same privilege. We are a social people and the accosting by

one of another in an inoffensive way and offer by the one to communicate

and discuss information with a view to influencing the other's action,

are not regarded as aggression, or a violation of that other's right.

If, however, the offer is declined, as it may rightfully be, then

persistence, importunity, and following do become unjustifiable

annoyance and obstruction which is likely soon to savor of intimidation.

The nearer this is to the place of business, the greater the

interference with the business and especially with the property right of

access of the employer. Such an attempted discussion attracts the

curious, or, it may be, interested bystanders. They increase the

obstruction as well as the aspect of intimidation which the situation

quickly assumes.

In the present case, under the conditions which the evidence discloses,

all information tendered, all arguments advanced and all persuasion used

were intimidation--they could not be otherwise.

It is idle to talk of peaceful communication in such a place and under

such conditions. The numbers of the pickets in the groups constituted

intimidation. The name "picket" indicated a militant purpose,

inconsistent with peaceful persuasion. The employés were made to run the

gauntlet. When one or more assaults or disturbances ensued, they

characterized the whole campaign, which became effective because of its

intimidating character, in spite of the admonitions given by the leaders

to their followers as to lawful methods to be pursued, however sincere.

Our conclusion is that picketing thus instituted is unlawful and cannot

be peaceable, and may be properly enjoined by the specific term of

"picketing" because its meaning is clearly understood in the sphere of

the controversy by those who are parties to it. We are supported in that

view by many well-reasoned authorities, although there has been

contrarity of view. A restraining order against picketing by that name

will advise earnest advocates of labor's cause that the law does not

look with favor on an enforced discussion of the merits of the issue

between individuals who wish to work and groups of those who do not,

under conditions which subject the individuals who wish to work to a

severe test of their nerves and physical strength and courage.

But while this is so, we must have every regard for the Congressional

intention manifested in the Act to the principle of existing law which

declares that ex-employés and others properly acting with them shall

have an opportunity, so far as is consistent with peace and law, to

observe who are still working for the employer, to communicate with them

and to persuade them to join the ranks of his opponents in a lawful,

economic struggle.

Regarding as primary the rights of the employés to work for whom they

will, and to go freely to and from their place of labor, and keeping in

mind the right of the employer incident to his property and business to

free access of such employés, what can be done to reconcile the

conflicting interests?

Each case must turn on its own circumstances. It is a case for the

flexible, remedial power of a Court of equity which may try one mode of

restraint, and if it fails or proves to be too drastic, may change it.

McGANN CO. v. LABRECQUE CO.

(Essex Circuit Court, Jan., 1922).

_Action of Trespass--Lease and Sale of Property--Limitation

of Term--Jurisdiction of District Court_.

Case of Joseph F. McCann, trading as The McGann Company, against

La Brecque Company. Action at law. Trespass.

Mr. Milton M. Ungur for Plaintiff.

Messrs. Burnett, Sorg, Murray & Duncan for Defendant.

(CONCLUSIONS).

DUNGAN, J.: This is an action of trespass brought by the plaintiff

against the defendant for the wrongful removal of plaintiff's goods from

the defendant's premises under the following conditions:

P. Ballentine & Sons, a corporation, demised the premises in question to

defendant by lease dated August 1st, 1917, for a term commencing

November 1st, 1916, and terminating April 30th, 1926. The lease

provided:

"It is further understood and agreed between the parties hereto that a

sale of the property by the party of the first part shall terminate this

lease upon six months' written notice to the party of the second part;

and, in lieu of compensation, it is hereby agreed that the rent shall be

waived during the six months notice to vacate."

By deed dated October 15, 1918, proved October 30, 1918, and recorded

October 31, 1918, P. Ballentine & Sons conveyed the premises in question

by warranty deed to the plaintiff, subject to the above tenancy. By

endorsement dated April 30, 1918, made upon the lease, P. Ballentine &

Sons assigned said lease and all of the rights of the lessor thereunder,

to the plaintiff.

October 30, 1918, there was served personally upon defendant a notice,

dated on that day, signed by both the grantor and the grantee in the

deed last mentioned, as follows:

"You will please take notice that the premises leased by you from P.

Ballentine & Sons by written lease dated the first day of August, 1917,

have this day been sold to LaBrecque Company, Inc., and notice of the

cancellation of your said lease is hereby given you pursuant to that

clause of your lease reading as follows: 'It is further understood and

agreed between the parties hereto that a sale of the property by the

party of the first part shall terminate this lease upon six months'

written notice to the party of the second part, and in lieu of

compensation it is hereby agreed that the rent shall be waived during

the six months' notice to vacate.'"

The defendant did not remove from said premises at the expiration of six

months and the statutory demand for delivery of possession was

personally served on defendant. After the expiration of said period, he

refused to vacate the premises, and thereupon the defendant here

instituted and prosecuted summary proceedings in the Second District

Court of the City of Newark, in which Court judgment for possession of

the premises was rendered May 23, 1919, and the removal of plaintiffs,

being the alleged act of trespass for which this suit is brought, was,

by virtue of the order of removal, made by that Court upon said

judgment.

There is no contention that there was any irregularity in the

proceedings of that Court, if the Court has jurisdiction; but the

plaintiff here insists that the provisions of the lease above quoted

constituted a condition, or covenant, and not a limitation of the term,

and that consequently the District Court did not have jurisdiction.

The parties hereto have entered into a stipulation to submit this suit

to the Court for judgment upon the complaint, answer and reply, which

correctly sets forth the facts as above stated, and adds:

"If the Court is of the opinion that the plaintiff is entitled to

recover, judgment is to be rendered in favor of the plaintiff and

against the defendant, and there is to be an assessment of the damages

by a jury drawn for that purpose, reserving however all questions of law

as to the measure of damages; and, if the Court is of the opinion that

the plaintiff is not entitled to recover, judgment shall be entered in

favor of the defendant as if said cause had been tried and a verdict in

favor of the defendant had been rendered"; both parties reserving the

right to appeal from the judgment to be entered.

It is admitted on behalf of the plaintiff that, if the said provision of

the lease constituted limitation of McGann's terms, then the District

Court had jurisdiction and the plaintiff cannot recover in this suit.

The jurisdiction of the District Court in such cases is confined in its

application to the instant case, to "When any such person shall hold

over and continue in possession ... after the expiration of his ...

term," etc. Admittedly the decision of this case rests upon whether or

not the sale of the premises and the notice given by the lessor and

LaBrecque Company to the plaintiff ended the term of the McGann Company.

If it did--if this was a limitation of the plaintiff's term,--the

jurisdiction of the District Court was complete.

The case of Quidort v. Bullitt, 60 N. J. L. 119, is very much in point.

In that case it appeared by the affidavit filed with the Justice that

the defendants, in May, 1885, leased to the prosecutor a seaside cottage

at Cape May for five years, which lease was extended for two successful

periods. The lease contained the following provision: "Lessors are to

have the privilege of terminating the lease at any time upon giving six

months' notice of their intention to do so, prior to the first day of

July or any year during the lease.". On October 19, 1895, the defendants

caused to be served on the prosecutor a written notice, which, after

reciting the terms of the lease stated:

"We have determined to avail ourselves of the privilege of terminating

the lease. We now give you notice of the exercise of our privilege and

of our intention to terminate the said lease on the first day of May,

1896, and demand that you surrender us possession of the leased premises

at that time, in accordance with the provisions contained in the lease.

This right to terminate the lease is exercised in accordance with the

lease and the several extensions thereof. We shall expect you to deliver

to us, on the first day of May, 1896, the cottage and bath houses

mentioned in the said lease, and also the articles mentioned and set out

in the inventory annexed thereto."

The tenant refused to deliver possession and, on the 6th day of May,

1896, instituted proceedings before the Justice, which were the subject

of review by certiorari in that case.

It is insisted on behalf of the plaintiff that whether or not the quoted

provision of the lease and the giving of the notice constituted a mere

condition or covenant or was a limitation, was not decided in that case;

but, while it is not expressly so stated, it seems to me a decision of

that question was absolutely essential to a decision of the case. Chief

Justice Gummere, in delivering the opinion of the Supreme Court (page

120) said:

"The question for determination is whether the Justice had jurisdiction

of the cause; if he had jurisdiction, then the writ in this case should

be dismissed, but, if he had not, then the proceedings before him should

be set aside."

Again on page 122 he said:

It is alleged by the prosecutor that the facts above recited did not

bring the case within the jurisdiction of the Justice for the following

reasons: 1. That the privilege of terminating the lease was not a term,

condition or limitation of the original lease, but a special privilege,

reserved to the lessors, of ending the original term."

Thus it is plain that the precise question in issue in this case was

before the Court, and that it was necessary for the Court, in order to

reach the decision it did, to decide that the quoted provision would

constitute a limitation upon the term fixed by the original lease.

The case of Miller v. Levi, 44 N. Y. 490, is also applicable to this

case. In that case Miller demised to Levi, reserving the right to sell

the demised premises and to limit Levi's term thereon to the expiration

of sixty days after notice of sale. The sale and notice specified in the

lease was made. It was insisted that the Justice had no jurisdiction of

the summary proceedings, because this can only be resorted to where the

term of the lease of the lessee "has expired by lapse of time," which it

was said was not the fact in that case. The Court said:

"Immediately upon sale by Miller and notice thereof to the tenant the

limitation attached to the estate of the latter, without further act on

the part of Miller. There then arose a limitation of his term, to wit,

its expiration on the first of May following. The act itself, in the

lease contemplated, to wit, a sale without notice, created the

expiration. Nothing further was necessary.... The 'term' of the lease

must therefore be taken to have 'expired' on the first of May, 1864."

I think, therefore, that when the leased property was sold, and the

notice of sale given to McGann on October 30th, 1918, the term of McGann

under the terms of the lease expired six months thereafter; that the

sale and notice constituted a limitation of his term; that the Second

District Court of the City of Newark, before which proceedings to remove

McGann were instituted May 2nd, 1919, had jurisdiction to hear and

determine the matter before it; and that, therefore, the defendant is

not guilty of the trespass alleged against him.

Judgment is given, therefore, against the plaintiff and in favor of the

defendant.

* * * * *

One hunting on Sunday, in violation of statute, is held to be answerable

for injuries accidentally inflicted upon a bystander by the voluntary

discharge of his gun, in the Vermont case of White v. Levarn, 108 Atl.

564, annotated in 11 A.L.R. 1219, on violation of Sunday law as ground

for civil action for damages.

* * * * *

The keeping of high explosives in a public highway in a populous

community, without guard or signal, to the terror, alarm, and great

danger of the citizens, is held to be a common nuisance, indictable at

common law, in Kentucky Glycerine Co. v. Com. 188 Ky. 820, 224 S. W.

360, annotated in 11 A.L.R. 715.

* * * * *

False swearing by a witness is held to be such an obstruction of justice

as to constitute a direct contempt of court, in Riley v. Wallace, 188

Ky. 471, 222 S. W. 1085, annotated in 11 A.L.R. 337.

* * * * *

A petition filed against a partnership by one partner alone must, under

section 5a of the Bankruptcy Act and General Order No. 8, conform to the

requirements of an involuntary petition and must, therefore, allege

insolvency and that an act of bankruptcy was committed by the

partnership. Matter of Ollinger & Perry. 47 Am. B. R. 203.

* * * * *

A parent who takes a deed from his child soon after it reaches majority

and while it is living under his roof is held to have the burden of

clearing the transaction of every suspicion, and establishing its

fairness and good faith, in the Arkansas case of Shackleford v.

Shackleford, 223, S. W. 561, annotated in 11 A.L.R. 730.

* * * * *

Giving a broker the "exclusive sale" of a parcel of real estate is held

not to preclude the owner from selling to one whom he had reason to

believe had not been procured by the broker, in Roberts v. Harrington,

168 Wis. 217, 169 N. W. 603, annotated in 10 A.L.R. 810, on whether an

ordinary broker's contract excludes right of sale by owner.

The New Jersey Law Journal, January, 1922 Vol. XLV. No. 1. Jan., 1922 · 第 7 / 25 题