ing around in the newspapers, originating, we be lieve, in Chicago, and holding that it is not slander ous to call a man a " lobster." Undoubtedly it would be held not slanderous, at least in the South, to describe a man as " half horse, half alligator "; indeed, that hybrid nature has often been assumed with pride by certain robust persons. In Richmond v. Loeb, 19 R. I. 120, part of the charge made was that the plaintiff was a " lying dog," but also that he was a " swindler." In Blake v. Smith, 19 R. I. 476, it was held not slanderous to charge a woman with being "a damned bitch." But it will not answer to call a man (in print) a swine (Solverson v. Peterson, 64 Wis. 198; 54 Am. Rep, 607); nor to charge a woman with saying that her mother acted like a cat (Stewart v. Swift S. Co. 76, Ga. 280; 2 Am. St, Rep. 40).
Ent1cement of Infants. —-The Queen's Bench has very recently gone beyond all boundaries here tofore set in England as to tenderness toward in fants. In Harold v. Watney, 2 Q. B. 320, the defendant was the owner of a fence abutting on a highway. The plaintiff, four years old, in the high way, saw some boys on the other side, playing on a ground where boys were accustomed to play, and put one foot on the fence and was about to put the other on, when being rotten it fell on him and injured him. A nonsuit was set aside. Great dependence was placed on Lynch v. Nurdin, the famous case of the horse and cart left unattended in the street. That however was a case of positive allurement in the public highway, Jewson v. Gatti, 2 Times L. R. 381, 441, was also cited. That was the case of an area off the public highway, separated therefrom by an insufficient railing. Scene-painting was going on in a cellar off the area. A child leaned on the rail to see the painting, the rail gave way, and she was injured. This was held a case of positive allurement by means of the painting. In the principal case, little was said of allurement, but the rotten fence was pronounced a nuisance, and it was held that the passers had a right to rely on it and to lean against it. The decision may be right on this ground, but it can hardly be sustained on the ground of the two other cases, for the defendant could not reasonably be held to foresee that boys at play on his premises would entice infants to climb his fence.
Mandamus to Governor. — In People v. Mor ton, 156 N. Y. 136; 41 L. R. A. 231, the New York Court of Appeals held that mandamus will not issue to compel the performance of an act by the
Governor of a State. The State courts have not been unaminous on this subject. Holding that his ministerial action may be thus compelled are the courts of Alabama, California, Kansas, Montana, North Carolina, Ohio, Maryland, Minnesota. To the contrary, Michigan, Florida, Georgia, Illinois, Iowa, Louisiana, Maine, Missouri, New Jersey, Rhode Island, Tennessee, and the United States Supreme Court. O'Brien, J., dissented in the prin cipal case, observing : — "Nor can I admit for a moment that the judicial power of this State is so feeble as to be unable to reach with its process, in the enforcement of its lawful judgments and decrees, every citizen within its territory, from the governor to the humblest workman, and one as well as the other. The notion that the rights of a citizen cannot be declared and enforced against a ministerial board of which the ex ecutive happens to be a member, because he may call out the military and naval forces of the State to resist the judg ment of the court, is too trivial for serious considerat1on. It is the duty of the court to declare what the law is, with out fear or favor, and let consequences take care of them selves. Courts cannot with any self-respect frame their judgments upon the view that some power may refuse to submit to the mandate of the law or may resist it. The sheriff has the power of the county behind him, and the mayor of a great city the police force, but no one ever sup posed that their power to resist a mandamus was any rea son for refusing it to a party otherwise entitled to it. A legal principle resting on the assumption that the executive will refuse to obey the courts, must necessarily be unsound. It implies a want of that freedom of action on the part of the judiciary which is always necessary for its efficiency. If the courts may be deterred from deciding what the law is in such cases, upon some remote possibility that the execu tive power will resist the execution of the judgment, it would follow that a mandamus should never go against anyone possessing the physical or political power to resist its commands, but should be confined to those who are too weak to defy it. Such vague or imaginary fears have no proper place in the discussion of questions upon which legal rights depend. I doubt very much that this State ever had an executive that would agree with my brethren with respect to this immunity from judicial authority, and it is to be hoped that itnever will have. The proposition that there is or may be one man in the State so far above his fellow citizens that the courts cannot reach him, in a case like this, where there is no discretion, sounds very much like a voice from the middle ages, or the decree of the Roman senate in its declining days, when it declared the Emperor above the laws." If O'Brien, J., keeps on dissenting in this robust and disagreeable fashion, it may become necessary to banish him to the Supreme Court of the United States, as was done with Mr. Justice Peckham for the same reason. Dissenters do no harm in that court, for nobody expects it to be unanimous.
