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CASES OF INTEREST
Brief Notes of Recent Decisions
TABLET IN MEMORY OF CHARLES M. MASON
The seventeen years of service
Mr. Chief Justice Ellis delivered the opinion of the court, in which he sternly disapproved of the instruction complained of in
"We consider that instruction to the jury to be so full of potential evil, so replete with inimical error, as practically, to the extent of the judge's influence on account of his position, to be a denial of the defendant's constitutional right to be represented by counsel.
"The general denunciation by the trial court of lawyers as an evil and as a class, whose members see their activities at the bar of justice to further their clients' interests, and who by reason thereof are not likely (liable' was the word used) to remember all the little details of the testimony that might affect their clients, was in effect to disparage the efforts of the defendants' counsel in the present case, to strip their advocacy of whatever benefit to the defendants might flow from the
Lawyers in Colonial Days
Connecticut's statute of 1698 classed lawyers with drunkards and keepers of bawdy houses, and later that Province limited their number to eleven. Rhode Island forbade them being elected to the House of Deputies. In Vermont they were denounced as "banditti." By 1768 Massachusetts had only twenty-five lawyers.
"The charge rested upon a fallacious assumption which is refuted by the history of our excellent government, the experience of the courts, the oath of the attorney, and the elemental principle which constitutes the justification for the existence of the lawyer class, as aids and not hindrances to the functioning of courts of justice. Kloss et al. v. State of Florida, 116 S 39 (Fla.).
Habeas Corpus-Release from Commitment after Acquittal on Ground of Insanity. The verdict of acquittal on the ground of insanity is prima facie evidence of the inmate's insanity, and the presumption of insanity thereafter continues; and, in order to obtain his release from such hospital, by writ of habeas corpus, the inmate has the burden of removing that presumption and of establishing with reasonable certainty his sanity. Ex parte Remus, 162 NE 740 (Oh.).
Electricity-Duty of Company to Telephone Employees. Electric company maintaining its wires on pole jointly used by itself and telephone company was charged with same duty toward telephone company's employees as toward its own employees, and employees of telephone company owed to electric company the duty of exercising due care for their own safety. Arnold v. Ohio Gas & Electric Co., 162 NE 765 (Oh.).
A FOOLISH JURY
of the school in
er at the ceremony. He told how Mr. Mason had, with Richard D. Currier, president of the school, founded the institution in September, 1908. Mr. Mason took up his duties as dean two years later, and served until his death, May 21, 1927.
The memorial fund campaign was launched by the student council January 12, 1928. Its objectives were two-fold: First, to establish a revolving loan fund to be placed at the disposal of deserving needy students as loans; second, to secure the bronze bas
George S. Harris, who succeeded Mr. Mason as dean, presided at the ceremony, and introduced City Clerk Egan, who was president of the student council when the memorial was planned. Mr. Egan made the speech of presentation, and Mr. Currier the speech of acceptance.
The ceremony of the unveiling of Mr. Mason, Charles B. Mason, was performed by the elder son a student at the school.
More than 150 specially invited guests attended the ceremony, with more than 250 present at the informal reception an hour later for all donors, graduates and friends of the school.
After law school or office study, commencement of prac
three trustees, two of whom represent the alumni and one the law school faculty.
The tablet was executed by Edmond T. Quinn of New York, painter and sculptor, who has done considerable work in this field, including the busts of Chancellor Kent and Edwin Booth in the hall of fame at New York University; the World War Memorial at New Rochelle, N. Y.; the bust of Poe Edgar Allan at Poe Park, N. Y.; the figures on the battle monument at Kings Mountain, S. C., and many others. He is a member of the National Sculpture Society, the Architectural League of America, the New Society of Artists, the National Academy of Design and the National Institute of Arts and
A "CRIMINAL LAWYER"
An ex-prisoner who posed as a lawyer has recently caused embarrassment at Vienna. The criminal called himself Dr. Joseph Löwenstein, and has played the role of counsel for the defence on many occasions. He was so successful, indeed, in getting his clients off, and acquired such a reputation, that he had as much business as he could attend to. Löwen
commencement of practice, a measure of success; after success, what? Consult no less a lawyer than Rufus Choate. In 1843, at the age of 40, he was about at the height of his career. Not many will feel sympathy That year he wrote: "I have with the Paris jurors that have adopted the plan of taking a volrecently refused to convict a murderer because it was beyond their ume, the last volume of Massaprovince to determine his punish-chusetts Reports, and making a ment. That the prisoner had full brief of an argument on stein had the audacity to practice killed a young woman was not every question in every case, exdisputed. He offered as an ex- amining all the authorities, findcuse that he was drunk. They found him "not guilty," and explained they did so because unwilling to leave passing of sentence to a judge. The man was accordingly discharged.
ing others, and carefully compos-
in the very court where he had once been sentenced as a swindler. Suspicion being aroused, he was sent for. The presiding judge asked him to present his credentials. He had none, and was obliged to admit his imposture.
Home Phone Number.
Business Address. ..
Business Phone Number.
B. P. L. S. 1-29
"The three main requisites of a lawyer are learning, diligence, and integrity; but the greatest of these is integrity." In re Duncan, 64 S. C. 482, 42 S. E. 433. Answers to Questions Submitted to the Committee on Professional Ethics of the New York County Lawyers' Association
[EDITOR'S NOTE: The entire series of questions on professional ethics submitted to the Committee with its answers thereto will be printed by installments. In most of the states applicants for admission to the Bar are examined in legal ethics; in all of them such applicants should be familiar with the ethical principles governing professional conduct.]
133. Question: In the opinion ferentiation of his name that acof the Committee is it improper complishes this result will relieve for the Judge of a Court of gen- the situation of its objectionable eral jurisdiction to engage or as- features. sist in the business of selling or offering for sale corporate stocks, bonds or other securties, or to permit his name to be used for such purpose; or to engage in the organization, promotion or financing of a corporation?
Answer: In the opinion of the Committee, the practices tend to detract from public confidence in the judicial office, and should be disapproved.
134. Question: A lawyer_admitted to all the State and Federal Courts of Pennsylvania, but not admitted to the Bar in New York, has clients in New York. At times it is necessary to interview those clients and other people in New York, Occasionally papers must be drawn in New York. All the work done in New York relates entirely to Pennsylvania matters and no matters except those which involve Pennsylvania law are handled. Under the circumstances it is convenient for the Pennsylvania lawyer to have the New York headquarters in the office of a New York lawyer.
(a) Would it be unethical for the Pennsylvania lawyer to have his name painted on the door of the office of the New York lawer, in whose office he makes his New York headquarters?
135. Question: In the opinion of the Committee is it professionally proper for the attorneys of a public service corporation, or members of its law department, to advise their client to establish, and themselves to assist in enforcing, a rule for observance by its employees that no information shall be given by any employee to any inquirer respecting any report of any accident, made by any employee, nor of its circumstances; nor of any witnesses thereof or of their whereabouts; nor to disclose any information whatsoever concerning any of these facts, all unless and until a release of all responsibility or liability therefor shall first be executed and delivered to the corporation.
(a) notwithstanding such information is sought for the purposes of establishing the facts in the trial of pending litigation to which such corporation is not a party and in which they are relevant and material, and essential for the proper administration of the law; and
(b) notwithstanding the information is sought by the service of a subpoena duces tecum served upon the employee in charge of the records containing the information; and
(c) notwithstanding the fact that the plaintiff in such litigation by independent effort had interviewed eye-witnesses in the employ of such corporation and subsequently merely required of the corporation the addresses to which such witnesses had removed, so that they could be subpoenaed for the trial?
mation not so required by law to be given. Therefore, in the opinion of the Committee, the lawyer may in the case submitted not advise his client to disobey a subpœna, but may advise his client to protect itself against litigation in giving such voluntary information.
136. Question: A is a mercantile agency which furnishes to merchants for a consideration, on its letter-head, collection letters. The letter-head bears the name of A and, inconspicously, the name of B, attorney. The letter states that unless the account is paid, it will be turned over to B. B takes such claims for collection at prevailing rates. B retains all collection fees, divides with nobody and pays nothing either for securing the business or for having his name on letter-head of A.
Is B's name on letter-head of A proper? Is statement in letter, that unless paid, claim will be turned over to B for collection, proper?
Answer: In answer to Question No. 47 VIII (d) this Committee expressed the opinion that there was no impropriety in a lawyer permitting a collection agency doing a general collecting business, to print upon its stationery or advertisements, "A., B., Attorney," or "A. B., Counsel." The Committee is now advised that the Committee of this association on the Unlawful Practice of the Law, which has been dealing for a long time with the subject of collection agencies and their relations to members of the Bar, has announced certain positions as fundamental to a solution of the difficult questions that have emerged in this connection; viz., (a) There shall be no solicitation of business either by lawyers directly or in behalf of lawyers by organized agencies of any kind. (b) There shall be no division of fees between laymen and lawyers. (c) Lawyers' services shall not be "hawked about" by laymen. (d) Neither corporations nor laymen shall be permitted to practice law. In order to avoid any conflict between the deliverance of two Committees of the same association, in answer to the foregoing question, this Committee calling attention to its answer No. 47 VIII (d) and to Clause (c) above quoted, is of the opinion that the practice disclosed by the first question is objectionable in that the stationery is sold, distributed to and used by others than the collection agency for whom A is counsel or attorney.
(b) If his name painted on the door without explanation or qualiication would be unethical, would t still be unethical if some brief qualification were painted in conection with the name; e. g., Tom Smith, Philadelphia"? (c) Would it be unethical for a New York lawyer and a Pennsylania lawyer to have a cominon tter-head indicating that one was Answer: In the opinion of the New York and the other a Committee, the lawyer's relation Pennsylvania lawyer and that the to the Court requires him to abwork of either State is handled stain from advising any client to y the man admitted to practice disregard a subpoena or other that State? process of a Court, or the requireAnswer: In the opinion of the ments of any statute as to reports Committee, the essential consider- or statements to be filed or given ion is that both the sign on the by such client. But, in the opinion The exploitation of the lawyer's or and the letter-head should of the Committee, a corporation is services by the mercantile agency, clude the inference that the under no greater obligation than a being in the opinion of this Comennsylvania lawyer is a member natural person, voluntarily to dis-mittee improper, it disapproves the the New York Bar. Any dif- close to a private inquirer infor- use of the statement in the letter.
137. Question: A is a domestic corporation engaged in furnishing mercantile reports to subscribing members, who pay an annual subscription fee and receive in return there for reports containing credit information which aid them in extending credit. A also handles claims for adjustment with its subscribers only, and does not solicit collections nor receive any collections from any one other than its subscribing members. It maintains the policy that the adjustment department is open only for the accommodation of its members.
The adjustment department of A attempts through its employees to collect accounts by personal calls and, after such calls are made, a report with the result is forwarded to A's subscribers.
In the event that it is found that the only way A's claim can be collected is by instituting a suit, then the subscriber is notified to such effect. Thereupon if suit is requested by the subscriber, A then requests the subscriber to assign his claim to X, who is an employee and officer of A, for the purpose of instituting suit. The said X now desires to retain the undersigned as his attorney, agreeing to pay the undersigned a stipulated amount for services, and X further agrees to advance the undersigned the necessary disbursements for suit.
The correspondence and conferences of the undersigned are to be with X only, and the undersigned has knowledge that X is connected with the A company as officer and employee as hereinbefore mentioned.
Query "A": Is there anything unethical about the undersigned accepting such retainer from X?
Query "B": Under the aforesaid circumstances would the undersigned be in any way acting contrary to the statute with respect to corporations practicing law?
Answer: In the opinion of the Committee, both queries involve considerations peculiarly within the province of our sister Committee on the Unlawful Practice of the Law, to which this inquirer is respectfully referred.
But whether or not the arrangement of the corporation's business described in the question constitutes the unlawful practice of the. law, it should not, in the opinion of this Committee, be approved, because if such practice is pursued as the regular course of business by a mercantile agency, it involves transactions between a lawyer and an officer of a corporation, which would, in the opinion of this Committee, be improper as between the lawyer and the corporation itself.
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(1) M was owner of two restrictions ran for twenty-five
After obtaining said deed, V
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M thereupon filed a bill to set aside the deed to V, his deed to the Mortgage Co., and the mortgage held by C, and in said suit M established that the alleged deed from her to V was a forgery, since the signature, if written by her, was procured by trickery. That fact being established, the court below held that the deed to the mortgage company was merely a mortgage, but that the company was entitled to a lien on the property for the amount of its disbursements; and that the mortgage held by C was valid. M appealed. How should the case be decided? Give your reasons. (See "Mortgages," 41 C. J. sections 155, 476.)
(2) L, the plaintiff, owned a lot in Hazelhurst, addition to Washington, in the District of Columbia, which subdivision was platted in 1908, and all deeds contained restrictions to establish a strictly residential district, which
Plaintiff brought suit to enjoin tion; injunction was issued, and the erection of the service stadefendant appealed. How should the suit be decided? Give your reasons. (See "Deeds," 18 C. J.
(3) The defendant company was owner of a building leased to various tenants, among them some of its subsidiary companies and one K, its general agent. Part of said building was used for manufacturing and part for offices. The entrance to the building was over cement steps leading to a hallway located between the manufacturing portion of the building and the part occupied by offices, and steps and hallway were used in common by tenants and their employees in going to and from their respective rooms. The steps were uncovered, and the slope of the roof was toward the steps. Under the eaves, above the steps, was an open gutter which had a tendency to fill and freeze in winter, and throw dripping water on the top step, where it froze, forming a coating of ice. The slope of the roof at that point increased the tendency of the water to drip to the steps. It was frequently
necessary in winter to shovel and
no written lease
stated. How should the case be
(4) March 4, 1905, F owned a tract of land with a frame dwelling thereon. In 1907 he purchased an adjoining tract which was unimproved, and in 1908, while the owner of both, he improved the property by the erection of another house, which was put upon the second tract except 61⁄2 inches which was on the first tract. March 10, 1921, he and his wife conveyed the first tract to one N, and in July, 1923, N sold to B. October, 1923, F and his wife conveyed to S, by metes and bounds, a tract of land of which the second tract was a part, and S in May, 1925, conveyed the second tract to T. B then brought suit in ejectment against T, contending that no easement was created because F at the time of the building of the second house was owner of both tracts, and that a man cannot have an easement in his own land which he could convey to a purchaser. How should the case be decided? Give your reasons. (See "Adjoining Landowners," 1 C. J. section 18; "Easements," 19 C. J. section 104.)
(5) S, by a proper instrument vested in himself and his second wife, Ella, certain real estate by the entirety, under a verbal agreement that each should make a will so that the estate would, at the death of the survivor of them, vest in his four children, three of whom were the second wife's children. Thereafter S and his wife entered into a written agreement setting forth the previous oral agreement, and stating that S had made a will devising all his real and personal estate in trust for the use and enjoyment of his wife during her life, and at her death to the four children; the agreement then provided that in event of Ella's sur viving her husband she would abide by the provisions of the will and would transfer and convey by deed, or by her will devise, all of the real estate so received
by her from her husband equally
to the four children. The will dispose of the particular real es
referred to made no attempt to
tate held as tenants by the entirety.
S died in 1918, and the following year Ella commenced the erection of an apartment house upon part of the property formerly held by herself and her husband by the entirety and entered into a contract with the City Trust Company by which a corporation was organized, to which Ella was to convey the real estate in question, to enable it to execute a trust to secure certain agreed sums to be advanced by the Trust Company. Said conveyance was made and the money advanced. The buildings could not be completed for the amounts advanced by the trust company, and the company threatened to sell the real estate to satisfy its claims for money advanced. The four children then brought suit to enjoin the trust company from sale, and to determine the rights of the parties, contending that the trust agreements made by S and Ella vested in the children the title to the property then held by the entirety. Ella contended that it was merely an agreement to will to the four children what, if any, remained at the death of the survivor, and as survivor she was absolute owner of the property theretofore held by the entirety. Who should prevail? Give your reasons. (See "Husband and Wife." 30 C. J. section 105: "Wills," 40 Cyc. pp. 1066-1068.)
THE LAW STUDENT'S DIGEST
"Nothing like a little judicious levity."-R. L. Stevenson.
Evidence Judicial Notice solute necessary of social life. Cigarettes. "The Court will take It is the hog and hominy, the judicial notice of the fact that bacon and beans of morality, pubcigarettes are wholly noxious and lic and private. It is the exact deleterious to health; that their virtue, being mathematical in its use is always harmful; and there- nature. Mercy, pity, charity, fore they possess no virtue, but gratitude, generosity, magnanimiare inherently bad and bad only." ty, etc., are the liberal virtues. Austin v. State, 101 Tenn. 563, They flourish partly on voluntary 48 S. W. Rep. 305, 70 Am. St. concessions made by the exact Rep. 703. virtue, but they have no right to extort from it any unwilling concession. They can only supplicate or persuade. A man cannot give in charity or from pity, hospitality, or magnanimity, the smallest part of what is necessary to enable him to satisfy the demands of justice." Lyons v. Planters' L., etc., Bank, 86 Ga. 485, 12 S. E. Rep. 882.
Attorney and Client-Seat in Legislature Not a Misdemeanor. Const. Wyo., art. 3, section 8, which provides that "no senator or representative shall, during the term for which he was elected, be appointed to any civil office under the state,' does not make the holding of a seat in the legislature a misdemeanor such as will disbar an otherwise reputable attorney from the practice of his profession during his incumbency of the office." Ross v. State, 8 Wyo. 351, 57 Pac. Rep. 924.
Physicians and Surgeons
tion of Women. The statute for
THE LAW LIBRARY
[EDITOR'S NOTE: The extract below is from Professor Albert Lévitt's book, "How to Study Law."]
The law library is the workshop of the law student and the law practitioner. The student should put in as many hours a day as he can in the law library. There he will find his materials for study, the answers to problems presented by lectures, textbooks and cases. The law library contains the constantly accumulating new material; the new texts, the new statutes, the new decisions. The student should keep in constant touch with this new material. Knowing where to find what you want is half the work of finding it. The following method of getting familiar with the law library is suggested.
1. Explore the library. Go through all the rooms and see what is in each room. Examine all the bookshelves. Note what the arrangement is. Observe where you can find the textbooks, the reports, the encyclopedias, the dictionaries, the digests. The best arrangement is the alphabetical one in each class of books. That is the usual one found in good law libraries. Sometimes, however, a different arrangement will be used. Find out what the arrangement is in your law library. It will save considerable time and effort for you when both are most in need of conservation.
2. Handle the books. Get the feel of them. Ruffle through the pages. Read table of contents. Look at the indexes. Get on friendly terms with the volumes. Don't let them be strangers to you. Here you may be absolutely certain that familiarity will never breed contempt. Note the names of the court reporters who reported the cases and the names of the publishers of the volumes. Learn whether the volume of reports is an official one or not. Observe whether the volume of statutes at which you are glancing is annotated or not, and whether it is the officially recognized volume of statutes. If you are looking at a textbook note how old it is, who the author is, what edition is in your hands and whether the book was published at home or abroad. It pays to know what kind of material is easily accessible and immediately at hand. Get your information by actual and visual observation.
paying her debts, or, if he re-lishment of Relation. "It is comuses, in being sued and compelled pay." Platner v. Patchin, 19 mon knowledge that one of the Wis. 333. first things an attorney does when a client seeks to secure his professional services is to establish the relation of attorney and client. All understand how this is ac-ingly carry out the system described in this little book of complished." In re Smith, 108 Fed. Rep. 39.
Health Cleanliness. "That he free use of water, especially uring the summer months, tends wards the healthful condition of he body by reason of the inreased cleanliness occasioned by ich use, there can be no reasonble doubt." Health Dept., etc., -Rector, etc., of Trinity Church, 45 N. Y. 32, 39 N. E. Rep. 833, 5 Am. St. Rep. 579.
Churches-Duty to Pay. If my debt ought to be paid, it is me contracted for the health of uls-for pious ministration and ly services. If any class of btors ought to pay as a matter moral as well as legal duty, e good people of a Christian urch are that class. . . . Some the virtues are in the nature of oral luxuries, but this is an ab