LEGAL ETHICS Answers to Questions Submitted to the Committee on Professionl 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.] 39. Question: In an action which, among other things, involved the validity of a real property corporation mortgage in which plaintiff had an interest, a motion for a receiver of the property was made by plaintiff and in opposition the attorney and president of the corporation submitted his affidavit, wherein he stated that he, in behalf of the company, had offered to pay plaintiff the interest due him on his share of the mortgage if plaintiff would sign a suitable paper protecting the company against any loss attending such payment, and that such offer was still open to plaintiff. Was not this sworn state- as an attempt to deceive the Answer: In the opinion of 41. Question: An action is started in a County Court of this state to recover damages Subsequently plaintiff asked resulting from personal insaid attorney and president to juries sustained by the alleged keep his promise and pay the negligence of defendant, the interest, proffering to sign any plaintiff being represented by such reasonable paper as he attorney A. While this action might exact. Whereupon said is still pending, the plaintiff, attorney and president declined through another attorney, B, to pay such interest until he commences an action in a Mucould determine whether or not nicipal Court of the City of the company had some counter- New York for the same cause claim against plaintiff which of action. It does not appear could be set up against the in- that attorney B has been interest, and asserted that if he formed by his client (the plaindetermined there was such tiff) of the other action pendcounterclaim then such interesting in the County Court, but would not be paid. Was not such refusal to fulfil such offer and promise improper and unprofessional? Does not such offer and refusal amount to a deception of the Court? Answer: The Committee does not consider that it is unprofessional to withdraw an unaccepted offer, nor does it consider that its withdrawal, as stated, was a deception. the defendant interposes a demurrer to the action in the Municipal Court on the ground that there is another action pending. This demurrer is opposed by attorney B and is overruled on the ground that the defense of another action pending can only be raised by answer. Attorney B collects $10.00 costs allowed by the Municipal Court on the overruling of the demurrer, and the de40. Question: Within twen- fendant subsequently serves a ty days after defendant had answer raising the served his answer, plaintiff point of the action pending in moved for judgment on the the County Court, and the case pleadings and the motion was is set for trial. On the trial submitted on written briefs, day neither the plaintiff nor and the Court took the same attorney B appears in the MuBefore nicipal Court, and the case is dismissed on defendant's mo verified under consideration. the Court had decided the motion, defendant served his tion. amended answer and on the last day for such service notified the Court of such action and claimed that his amended answer superseded the pending undecided motion, and the Court, so holding, declined to decide the motion. 1. Do the above facts indicate improper conduct on the part of attorney B? 2. Should attorney B ascertain from the plaintiff the fact that another action for the same cause was then pending? Subsequently plaintiff moved If he did not so ascertain, was to amend his complaint, and in he negligent in not doing so? opposition to that motion de- Answer: In the opinion of fendant's attorney submitted the Committee, the question his affidavit wherein he said: | discloses no impropriety upon "He (plaintiff) also omitted the part of attorney B, and no to advise the court in his affi- fact upon which negligence davit that upon the pleading he can be imputed to him is statnow seeks to amend he success- ed. It would have been proper fully moved for judgment on professional courtesy to notify the pleadings before Justice his adversary of his intention over four months to default, and to consent to ago." discontinue, with his client's as Right of Lawyer to Control the Incidents of the Trial As to incidental matters pending the trial, not affecting the merits of the cause, or working substantial prejudice to the rights of the client, such as forcing the opposite lawyer to trial when he is under affliction or bereavement; forcing the trial on a particular day to the injury of the opposite lawyer when no harm will result from a trial at a different time; agreeing to an extension of time for signing a bill of exceptions, cross interrogatories and the like, the lawyer must be allowed to judge. In such matters no client has a right to demand that his counsel shall be illiberal, or that he do anything therein repugnant to his own sense of honor and propriety. Taking Technical Advantage of Opposite Counsel; Agreements with Him A lawyer should not ignore known customs or practice of the Bar or of a particular Court, even when the law permits, without giving timely notice to the opposing counsel. As far as possible, important agreements, affecting the rights of clients, should be reduced to writing; but it is dishonorable to avoid performance of an agreement fairly made because it is not reduced to writing, as required by rules of Court. Professional Advocacy Other Than Before Court A lawyer openly, and in his true character, may render professional services before legislative or other bodies, regarding proposed legislation and in advocacy of claims before departments of government, upon the same principles of ethics which justify his appearance before the Courts; but it is unprofessional for a lawyer so engaged to conceal his attorneyship, or to employ secret personal solicitations, or to use means other than those addressed to the reason and understanding to influence action. [From the Code of Ethics adopted by the American Bar Association in 1908] sent; but his failure to do so profession associated in the was not professional miscon- employment as a lawyer. Any duct. other division would appear to ticing attorney in this state. B ing professional employment, 42. Question: A is a prac- be a mere payment for securis a member of the Bar of a which is to be condemned. western state, but has moved If in the question proto New York City. B's busi- pounded, the employment of B ness in New York City is look- is by clients to whom he asing after his own investments. sumes responsibility by reason In the course of B's business of his office as a lawyer in the a considerable amount of legal western state, we should work comes to him, which he sider the division improper per cannot handle because he is not se, though it is still possible a member of the Bar of this that section 274 of the Penal state, and he desires to turn Law might condemn it. over all such legal matters to A for attention, upon condition that A will give B a portion of the fees received in such matters. Is it the opinion of your Committee that it would be unprofessional for A to make such an agreement with B? Answer: The Committee is of the opinion that any division of fees by a lawyer should be based upon a sharing of professional responsibility or of legal services, and no such division should be made except with a member of the legal con November 15, 1923 43. Question: About twen ty years ago A was convicte of a felony. After serving about eight years of his sen tence, he was pardoned and re stored to full civil rights. Im mediately after his pardon h set up in business and has con tinued in that business at the same address, for about ter years. He is peaceful, respect able and well thought of. Re cently he was compelled to bring two suits against B, both involving questions of fact B's counsel knew of A's con viction, his pardon, his restora tion to full civil rights and his subsequent clean private and successful business life. Yet on the occasion of each tria (one before a jury), B's coun sel interrogated A concerning his conviction of a crime, the time sentence imposed, the served, the charge, and ever made certain details of or consequences of the crime a part of his questions. Do you consider this conduct and these questions of B's counsel proper and ethical? Answer: The Committee considers that wanton, unnecessary or unreasonable inquiry or comment respecting the discreditable past history of a witness or party, is unethical and improper professional conduct; it cannot, however, assume to say that such inquiry or comment, whether admissible or not under the law of evidence, was, in the case suggested, wanton, unnecessary or unreasonable. Bar Examinations (Continued from page 13) teachers of law and boards of bar examiners." - Professor, Brooklyn Law School of St. Lawrence University, Brooklyn, N. Y. "The questions should be based largely on general principles rather than specific facts of the law."-Professor, Michigan. "I have often thought that the student labors under a tremendous hardship in which the elements of high pressure, physical discomfort, and perhaps the bad temper of the conductor of the examination, are important elements. Το answer correctly under high pressure a series of questions which perchance have been drawn with some thought of tripping up the student, would test those who have had years of experience and practice. In On the other hand, the ques- my own examinations I have tion seems to mean that the constantly tried to keep out employment is not the result any catch questions, seeking of the western lawyer's prac- to ascertain what the student tice for clients in his own state, has learned of principles, but rather the creation of em- rather than his ability to make ployment as a lawyer in New a quick answer. York by reason of the western neath all of his study lies the For underman's activity as a business proposition that it is the prinman in New York. If this in- ciples of law which the stuterpretation be correct, would consider the division im- that the mere memory of the we dent should comprehend, and proper; it might even be a vio- statements of text-book writlation of section 274 of the ers or studied and analyzed Penal Law, under some cir- cases cannot alone be of great cumstances which we do not avail."-Professor, Illinois. assume to construe. (Continued page 15, col. 1) ember 15, 1925 THE LAW STUDENT ing CASES OF INTEREST Brief Notes of Recent Decisions Answering your letter "A lawyer who can advise this. The rigorous withholdof books and other ore specifically, I think that a client as to what he believes sources of information from questions which demand the law to be and can give a at examinations knowledge of 'specific facts reason for such belief, is a students aw' are seldom as good as safe adviser, for he can al- seems to me to be the result se which call for general ways find and verify his no- of a stupid misconception of purpose of examinanciples and their applica- tion of the law. If he can't the The latter is the kind give a reason, he is incapable tions."-Professor, John MarTaxation-"Manufacturing Industry." A canning corporaquestion of which I make of finding the law. A student, shall Law School, Illinois. tion operating a factory for canning of corn, beans, peas, and most use in my work in therefore, who can give a rea"Although the ability to succotash is a "manufacturing industry" within the meaning of Je law school. Questions on son for his answer founded use law books is a fundaa statute authorizing the county commissioners to exempt tools eral principles are fair to on the correct principle of mental requisite of a lawyer, and machinery of manufacturing industries from taxation. The candidate, because they law, is a safer and better ap- it hardly seems practicable court said: "It is difficult to say in the abstract what is and sally give him an opportun- plicant for the bar than one to incorporate into the exto manifest what knowl- who correctly amination the actual use of what is not a manufacturing industry. What might be a manufacturing industry when defined or construed in connecWith two ge he has, while the more without reasons. I favor grad- law library. a hundred men being exam- tion with a statute exempting tools, machines, engines, etc., pecific question may be the ing on the intelligence shown aly question upon the sub- in the answers."-Professor, ined, it would be difficult to from taxation, might not be so held when considered in condevise scheme whereby nection with a statute having a different object or purpose." that he is unable to anwer. I once heard a candi"There is not the slightest they could show by actual Com'rs. of Carroll County v. B. F. Shriver Co., 126 Atl. 71, 72 doubt in my mind but that a use their ability with the (Md.). The purpose of student should be given credit authorities. for the reasoning of an an ate of fine mind, at a public val examination, asked the question, 'Can a director of a ?' He corporation act by proxy? g which I could almost see is think-tank working, and No ightly answered 'No.' ther question was asked him. in the confusion and emharrassment of the situation e had answered 'Yes,' his exmination would have been a ilure, and very unjustly so." Judge, Supreme Court of Colorado, Colorado. What Rules Should Govern Grading? can answer Nebraska. clusion has been reached, pro- York. a such a test can be substan ex Wills-Testamentary Capacity of Infants. "Testaments of resitated a few seconds, dur- swer, although a wrong con- tially accomplished by prac- chattels might, at Common Law, and by the laws of this State, tical questions on the amination, as by giving a set be made by infants of the age of fourteen, if males, and twelve, of facts as they might come if females. This was the English rule until the Statute of I. from a client and asking the Victoria, by which the testamentary power of infants is abolstudent to state exactly how ished. It is the rule here still. This, by way of illustration, he would find the law to we will designate as the morning dawn of reason, or the break "We are decidedly of the cover the case, or by having of day of the mind, in legal contemplation. It continues to the student suppose he had unfold and expand until it culminates to the meridian blaze of opinion that, in considering a a given sum of money with noon, when no suspicion is entertained of the competency and answer, credit which to acquire a law li- freedom to act of the testator. It then begins to go down student's should be given for the rea-brary, the price of law books until its disk disappears beneath the horizon. Still, there is the soning therein, even though a wrong conclusion is reached, averaging a stated amount, mellow glow of twilight, by which the testator is enabled to and asking him what books comprehend the contents of his will-the nature of the estate inasmuch as so many legal he would buy and why he he is conveying to his family connexion-their relative situaquestions are debatable." tion to him-the terms upon which he stands with them-his Professor, Tennessee. own situation, and the circumstances which surround him. These and like objects, although seen by the testator as through a glass dimly, by reason of the infirmity of age, or other causes, would choose them."- Pro- By all means credit should be given for the reasoning of "Reasoning should receive he students. In some cases credit although the conclusion is impossible to state be wrong. The general prina wrong conclusion, in view of ciple, and the trend of mind gests a possible test to be are still contemplated, not by the flashy, fitful and evanescent whether a student has reached the frequent reversals of nisi prius decisions by appellate ribunals, these later opinions being frequently either affrmed or reversed by the ghest tribunal by a divided court."-Bar Examiner, District of Columbia. of the applicant as to whether "Your last question sug glare of the aurora borealis; but the steady, though subdued light and illumination of the 'glorious king of day,' although disrobed of his gorgeous and dazzling beams. The animus testandi, the soul of a will, animates the form of the instrument which he has executed." Terry v. Buffington, 11 Ga. 337, given to applicants in which Insurrection and Sedition-Criminal Syndicalism Act Con "It has, I believe, been the that credit should be given ber of applicants would not stitutional "Sabotage" Defined. Sections 1 and 2 of the Crimuniversal practice of the bar for the reasoning of the an- be prohibitive of research. inal Syndicalism Act are not unconstitutional as vague, or wrong As a practical matter it could conclusion has been reached." hardly be done in this state as failing to fix an ascertainable standard of guilt. The court or a state of its size, where said: "It is claimed the provisions of the statute do not fix -Professor, Ohio. several hundred applicants an ascertainable standard of guilt and are not adequate to intake the bar examination form persons, accused of violation thereof, of the nature and each time. It would be very cause of accusation against them. It is said in support of this doubtful if facilities could that the term 'sabotage' is subject to a variety of innocent be afforded in any such quan- meanings, and the term 'violence' is not necessarily limited to tities as would be necessary to physical or criminal violence. The naiveté of this should make enable the student to look up a communist smile. One need read but little to discover what the question during the day of the terms sabotage and violence mean with reference to industhe bar examination, and if trial or political agenda advocated by radicals. The term the questions were mailed sabotage is so well understood by communists as to be emahead to the student and the ployed in the theses and resolutions adopted at the third world answer prepared, it leaves the congress of the Communist International without any explanadoor open to their returning tion to exclude possible innocent meaning. Dictionaries have am informed that they do provided I could be assured work as original which is not explained the meaning of sabotage for many years. Sabotage original at all. My conclusion "I like the 'possible test' "Further, I believe that some which you suggest. I have credit should be given for repeatedly said to my colreasoning, provided it is logi- leagues that I should like to cal, even though a wrong con- put my examination in the clusion has been reached." hands of my students at least Professor, New York City. "We have always found the bar examiners to be broadminded and reasonable, and I two months before the end of the year and give them the in regard to this question is workers threw their sabots, or wooden shoes, into machinery. credit for analysis of facts and In this state that is the broad general policy of the Supreme Court, which has full control of the matter, and of the board of law examiners, as instructed by the court. Trick questions are not encouraged, and are seldom given. The percentage of failures in this state, therefore, is comparatively small, and those who do fail upon one examination generally deserve to fail, or, if they do not deserve to fail, by further examinations show their qualifications and are admitted. ing the fitness of students for admission to the bar would be to give them the same test Our general policy is to that is required when clients come to them for advice as to keep out those who, upon exlegal matters, that is, that amination, disclose that they they should be given a state- are not properly prepared. ment of facts, not unreasonab- both generally and as to legal ly complicated, such as would knowledge, and not qualified be presented by a client, and to become fair lawyers. As turned loose in a library to our board of examiners now work out the solution. The conduct their examinations, objections to this system as we are fairly well satisfied the only method of examina- with the system. It is very tion which occur to me are likely, however, that it could be improved by adopting at least a part of the system you require to conduct an exami- suggest. Judge of Supreme Court, Washington. these: (1) The great time it would on nation in that way. As a rule applicants are required to attend at some place for examination other than the places of their residence and are considerable expense. The ordinary stay of about three days as it is in this state is something of a burden upon the applicants after paying their traveling expenses and fro. to (2) Another objection would be that there might be| considerable conference and mutual aid practiced by applicants, notwithstanding being placed upon their honor, because of the great ambition to make the required percentage and be admitted to practice. It would seem to me that this system could be applied moderately and part of the system generally in vogue of quizzing by written and oral queries be retained and part of the examination given as suggested. [See editorial, p. 2, col. 1.]. Of course the qualifications for admission to practice law should be high, and they are in my opinion sufficiently high now in most of the states. The object of examinations for admission is not to ascertain whether applicants are fully qualified and thoroughly competent to practice law, for many lawyers of long practice are that. The object should be broadly to ascertain whether they have a fair knowledge of both the law, and general intelligence to qualify them to enter upon the practice, and to ascertain whether their minds are suffi "You ask whether it would be a good test of the real lawyer-like qualities of an applicant for admission to the bar if he could be given a statement of facts, not unreasuch as sonably difficult, would be presented to him by a client, and turned loose in a library to work out the solution, and you ask what would I think of incorporating such a test in an examination. My answer to the first have often considered putting question is that it would. I such a test into my examination of law students in the the applicant is not. The main objection, however, is the burden on the examiner in passing on the papers. No! one who has never done it can appreciate it. The five members of our law committee had to give, so they report, two weeks each of their time to examine the papers of eighty-three applicants in say twenty subjects. What must be the task in New York, Massachusetts, or the Philippines? We have just increased our committee to nine to relieve this condition. The plan suggested would amount to requiring a brief from each applicant, the fair and efficient examination of which would be almost as hard as the same work by a judge or opposing counsel. Vermont Research Test (Continued from page 4) Atlantic Reporter American Digest System Lawyers Reports. Annotated American Law Reports, Annotated. State concisely the principle of law controlling the questio and append a citation, by volume and page or section, each of the works specified above where the law of question is treated. JUDGE BUTTON'S REPORT Charles I. Button, Attorney at Law October 10, 1925. I have tried in all sets of R. S. Dowst, Esquire, LL.B., pared, to give one questions which I have pre- 272 Flatbush Extension, stating facts, as you suggest, or two, Brooklyn, New York. with opportunity to comment, Dear Mr. Dowst: and also to ask one or two The Vermont bar examination in pleading was given Tues questions calculated to call day, October 6, in the latter section of the afternoon. Be out the general legal informa- cause this examination was prepared under the auspices tion and reasoning power of The Law Student by Donald J. Kiser, Associate Editor o the student by giving him Corpus Juris, and others, I am pleased to make a somewha freedom to state his opinions. detailed report of this examination. I have only to say further Dr. Kiser stated that the examination was considered b what every that it is unfair and ineffec- class, who found no fault with the examination but expresse teacher knows, him a rather easy one. I inquired of some members of th tive to put, in examination, a the obvious truth that they would have preferred to hav question based on a complicated or an unusual or examinations the same day, they were considerably fagged very taken it in the early forenoon, as having taken three othe peculiar state of facts. The when they reached it. facts should be always ordinary and illustrative of a principle of the branch of law in hand.". Associate Justice of Supreme Court of Colorado, Colorado. News of the Schools Notre Dame, Ind. in the faculty this year. There No changes have been made are five full-time professors. given. Regular courses are being en school in which I have been Upon the second question, I doubt, have doubted, and so have never tried it. One objection is that the temptation would be great to substitute the ideas and reasoning, if not the language, of some experienced lawyer, for those of the candidate. Unless the were exceedingly simple, the work could hardly with fairness be done in one day, so there could be no restriction or oversight. case The objection is of less force in a law school examination, where the student is known to the examiners, than in a bar examination, where University of Missouri Columbia, Mo. Professor K. C. Sears is on leave this year. He is teaching Evidence and Agency at the Yale Law School. Mr. R. L. Howard, who received his law degree at Missouri in 1925, is taking part of Mr. Sears' work. With the exception of one member of the class who fin ished in a little over one hour, the other members of the class began on the examination at 3:40 p. m. and took a little over two hours to finish it, without reference to the library research work. This I arranged with the class to take up at 7:30 p. m. in the State Library. Eight memberof the class appeared that evening, the other two arranging to do their work elsewhere. At 8:45 I asked the class to cease work on the research, as I feared that otherwise they would not be prepared for the remaining eight examinations they had to take. * * Of the class of ten only Miss of Burlington had Miss received a complete academic and law school preparation * is a graduate of the University of Vermon cum laude and Phi Beta Kappa, also, of Boston University Law School. Two members of the class had graduated from Washington City law schools and one had graduated from Syracuse Law School after two years academic work a Syracuse. One member of the class had taken two year at Dartmouth, one had graduated from the Illinois State Normal University at Bloomington and one member of the class had taken one year at DePaul and two at Georgetown without graduating. Two members of the class, including the graduate of the Normal University had taken corres pondence law courses. Three members of the class studied in Vermont law offices only without even correspondence courses, while six members of the class had not had the advantage of higher academic education. On the ten questions without the research work, the sin gular result of this examination was that none of those who had had the academic education passed, but all of those who had not had it did. Most of those who had taken the law school courses passed but there were two notable exceptions Dr. Isadore Loeb, who taught Constitutional Law for The examination proved too hard for both the Law graduate and for Miss * one of the best stu many years, resigned in May to become Dean of the School dents in the class. Without the change which was made in of Business at Washington some of the marks on account of the research work, six University, St. Louis, Mo. passed and four failed on the ten questions. The lowest any There has been added a member of the class was marked was 71 and the highest 84 three-hour (required) course 75 being the passing mark. in Legal Ethics for first-year students. Costigan's Cases are used. It is being given by Mr. Orville M. Barnett, the University attorney. At the end of an hour and a quarter in the library on the research work, which consisted of a search for the law o one of the questions, in the Vermont Statutes, Vermon Reports, Atlantic Reporter, American Digest System, C. J ELECTION DISTRICT election district Whether composed, as at dif- election of remedies 1. The choice by a per to an action of one of two or more coerting elective franchise The right or privilege of a elective office One where the officer is chosen by elector. One ofcers or the electoral coll electric Associ 122 EMBARRASS elementa 1. The ultimate, undecomposable parts In common speech. 2. Earth, air, fire, and water. elevated railroad A railroad which is placed elevation The term when applied to grain con- elevator 1. A cage or platform and the hoisting elevator allowance Payment limited by car- eligible 1. Worthy of choice. 2. Fitted or elinguation. The punishment of cutting out the 123 EMBARRASSED embrace To include. 20 CJ 494. THE LAST WORD IN LAW DICTIONARIES ENCOUNTER employ 1. Employment (20 CJ 1238 § 2). 2. To & Hired to employee 1. One who is employed. A person 4. In workmen's compensation. acta 8. A person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises, or at the plant, or in the course of his employment away from the plant of his employer (See WORKMEN'S COMPEN SATION ACTS PAMPH. 47 $ 38 and n 33). Every person in the service of another under any contract of hire, express or implied, oral or written (1921 Annot. p 1179). 5. All natural persons who perform services for another for valuable consideration (1921 Annot. p 1180). employer 1. One who uses or engages the services of other persons for pay. 20 CJ 1244. In workmen's compensation aéta. 2. A master whose business is of a character designated by the the aid of the number THE COLLEGIATE LAW DICTIONARY MODERN CONVENIENT Because it is New and Up-to-Date. Because it Contains more than 35,000 Definitions of more than 17,000 Words, Because it is Printed in Small Type on Thin Paper, making a Small Handy AUTHORITATIVE... Because it is Compiled by one of the Greatest Legal Editorial Staffs in Exist- THE AMERICAN LAW BOOK COMPANY 272 Flatbush Extension Appuied to carriage of goods. 2. A notice, issued by a common carrier, refusing to receive or carry certain kinds of freight on its line, or between certain points, and may be for a limited and definite period, or for an unlimited or indefinite period. 20 CJ 404. Applied to shipping. 3. A prohibition to sail. embarrass In pleading, the bringing forward of Brooklyn, N. Y. enceinte Pregnant. ent conferring power to law. 2. To perform or h has been enacted or emoluments of office The profits which are en autre droit in the right of another. encephalo meningitis A disease which con- enclose To close within; to surround. * and Cyc., R. C. L., L. R. A., and A. L. R., a different one of "Well, sir, you see, I married SO SURE ARE WE YOU WILL BE GREATLY ORDER BLANK THE LAW STUDENT, 272 Flatbush Ext., Brooklyn, N. Y. Inclosed find $3.00. Please send me The Collegiate Dictionary postpaid, and The Law Student, free for one year. Name Address If student, state law school or office.. L. S. Nov. 15, 1925. 1 red-lantern danger signals. It Overhanging told by a H stand over against his faul to at least one worry. S go and Judge Lamm on the Mule It was Dr. Johnson (was it seems the unridden mule not?) who observed that crowded against the ridden Oliver Goldsmith had "con- one and harassed Parker by tributed to the innocent coming in scraping contact gayety of mankind." (Nota with his circumjacent leg. bene: If, as a pundit tells me, Any boy who ever rode the it was Garrick and not Gold- lead horse in harrowing his smith Johnson spoke of, and father's field will get the idea. if in quoting I misquote, then In this pickle he took hold of memory has played a trick the Halter rope, still fastened upon me and a learned bar to the hames, to keep the unwill correct me. Time and ridden mule from rasping his weightier matters press me to said leg. It might as well be but plaintiff's dander was up nounced, I am go on and leave the ("quota- said at this point that wit- and he as buggy-owner de- scholar, as it is spelled). It liability on a kindred phas tion" (?) stand.) The func- nesses for plaintiff did not ob-manded as new wheel worth results that casual connection of liaility for sheep-killing tion of this suit is somewhat serve that the end of the rope ve dollars, and sued. In between the negligence in to-wit: Every dog is entitle the same. Beginning with the was attached to the hames of the justice court, defendant hand and the injury is "J. P.'s" it has reached the "P. the ridden mule. As they saw lost outright and appealed. broken, and recovery cannot with this mule. Absent prod J's" and its journey has run it, Parker was leading the In the circuit court, the go on the neck-and-neck the- of the bad habit of "spread the gamut of three courts, mule. As will be seen a bit same. The learned judges ory. This because it is plain ing" when led, and the scien one above the other. Now, further on, at this point a of the Court of Appeals under the distances disclosed ter, liability did not sprin secundum regulam, it, a fuss grave question arises, towit, is could not agree (the furor by the evidence that the from the mere fact his hin over five dollars, has reached it negligence to lead a mule scribendi being much in mule's hind legs could reach leg (he being scared) the highest court in the State by hand or should he be fas- evidence and three learned the buggy wheel in spite of over the wheel while he wa for final disposition-all this tened "neck and neck" to his opinions falling from their a neck-and-neck attachment. led by a five-foot halter rope because (1) of divergence of fellow? But we anticipate. several pens) and sent the (b) The next question is a bit for it must be held that a le opinion among our learned Going back a little, it seems case here and here it is. My elusive, but seems lodged in mule is not a nuisance per se brethren of the Springfield as follows: At about the time Brother Graves has well dis- the case. It runs thus: There unless he is to be condemne Court of Appeals, and (2) the Parker had reached said part posed of it on certain being no evidence tending to on that score out-and-out be provisions of the Constitution of Walnut street, plaintiff and grounds, but, the theme being show the mule was "wild and cause of his ancestry in that behalf made and two others were in a buggy the Missouri mule and state unruly" as charged, is such some law of heredity, som provided. However, if the pulled by a single horse and pride calling for further ex- a mule per se a nuisance, a asinine rule, so to speak, amount at stake is small, the on their own way home to the position, the said furor scri- vicious animal, has he a heart question we take next. (2 value of the case for doc- country. So equipped, these bendi has seized me as-wit- devoid of social duty and Some care should be taken trine's sake is great. As I see several parties met face to ness: (a) It is argued that it fatally bent on mischief when not to allow such scornfu it, the case is this: Dale, a face. At this point it will do was negligence to ride one led by a halter on the street remarks as that "the mule ha man of substance, a farmer, to say that while the mules mule and lead its fellow by of a town, and must his owner no pride of ancestry or hop owned a brown and a gray were used to being on the hand. That they should be answer for his acts on that of posterity" to press upor mule, both young and of fine water wagon, it is not so clear halter-yoked "neck and theory? Attend to that view our judgment. He inherits his growth; one saddlewise, the that these travelers three neck." Parker says he necked of it: (1) There are sporadic father's ears, but what of other otherwise. Both, used were. There are signs of that them in a way, but plaintiff instances of mules behaving that? The ass's ears, pre to the plow and wagon, were artificial elation in the vehicle takes issue on the fact. Al- badly. That one that Absaentitled to the designation party that in the evening lowing credit to plaintiff's evi- lom rode and that "went from sented by an angry Apollo "well-broke and gentle." One springs from drinking dence, two questions spring, under" him at a crisis in his were an affliction to King Parker was Dale's manser- ("breathing freely"), but on viz.: First, is the neck-and- fate, for instance. So it has Midas, but not to the mule vant and in the usual course the morning after produces neck theory "mule law" in been intimated in fireside pre- He is a hybrid, but that was of his employment had charge the condition of involuntary this jurisdiction? Second, if cepts that the mule is unexof these mules. On a day cer- expiation Dr. Von Ihring calls so, then was the absence of pected in his heel action, and tain he had driven them to a "katzenjammer." They disa- the neck-and-neck adjustment has other faults. In Spanish water wagon in the humble vow being half-seas-over or the proximate cause of the folk lore it is said: "He who office of supplying water to a drunk. Their chief spokes- injury? We may let the first wants a mule without fault cloverhuller in the Ozark man, as descriptive of the question be settled in some must walk." So, at the region hard by its metropolis, situation, in part told his other mule case and pass to French chimney-corner, the to-wit, Springfield. Eventide story mathematically in this the second as more important. adage runs: "The mule long had fallen, i. e., the poetical fashion: "I had not drank so It will be observed that the keeps a kick in reserve for time of day had come when much but what I kept count. I neck and forequarters of the his master." "The mule don't the beetle wheels his droning can keep count until I take mule did not do the damage. kick according to no rule," flight, drowsy tinkling lulls three and hadn't quit counting Contra, the hindquarters or saith the American negro. the distant folds, and all the yet." In the course of their "business end" of the mule His voice has been a matter air a solemn stillness holds. journey they, too, came to the were in fault. We take judi- or derision, and there be In other words, dropping into brick rick, the ditch, the ridge cial notice of facts of nature. those who put their tongue in the vernacular, it was time of dirt, and the red lights on Hence, we know that halter- their cheek when speaking of to "take out." Accordingly, Walnut street. There they ing a mule neck-and-neck to it. Witness the German proParker took out, with his met, as said, the gray and another will not prevent his verb: "Mules make a great mind fixed on the watch dog's brown mule and Parker, face hind parts spreading. His fuss about their ancestors honest bark baying deep- to face. When mules and neck might be on one line, having been asses.' mouthed welcome as he drew rider approached and passed but his hind legs and heels on, and so on. But none of near home. He mounted the the three travelers, all on the might be on another, a diver- these things are factors in the ridable mule. He says he tied same side of the ditch, the led gent one. True the mental instant case; for here there the other to the hames of the mule, whether scared by the concept relating to shying or was no kicking and no brayharness on the ridden one by hole in the ground, the rick spreading would naturally ing standing in the relation of a four or five foot halter of brick, or the ridge, in the originate in the mule's head. causa causans to the injury rope, and was plodding his dark, shied from his fellow But it must be allowed as a to the wheel. Moreover, the weary way homeward à la the ("spread" himself) and pres- sound psychological proposi- rule of logic is that induction plowman in the Elegy. The ently his hind leg was mixed tion that haltering his head which proceeds by merely vicissitudes of the journey in up with the shafts and wheel or neck can in no wise con- citing instances is a childish due course brought him to of the buggy. When the trol the mule's thoughts or affair, and, being without any Walnut street in said city of status quo ante was re-estab- control the hinder parts af- certain principle of inference, Springfield. At a certain ished both leg and wheel fected by those thoughts. So it may be overthrown by conplace in that street the city were found damaged. Subse- much, I think, is clear, and is trary instances. Accordingly fathers had broken the pave- quently a blacksmith offered due to be said of the Missouri the faithfulness, the dependment and make a "rick of to repair the damages to the mule, whose bones, in attes- ableness, the surefootedness, brick" aside a long hole or wheel for, say, a dollar and a tation of his activity and the endurance, the strength, ditch. Hard by this rick of half. This sum defendant, worth, lie bleaching from and the good sense of the brick was a ridge of fresh though denving liability, was Shiloh to Spion Kop. from mule, all matters of common earth capped by a display of willing and offered to pay; San Juan to Przemysl (pro-knowledge, may be allowed to And so man's invention centuries Moreover, if his sire stands very word jack-ass is a term |