« FöregåendeFortsätt »
federal and state power, where regulation
ters, so far at least as the latter were concern-
NOTES OF IMPORTANT DECISIONS.
FOREIGN CORPORATIONS CARRYING
The Supreme Court said: “It (the company)
Neither the continuance of the ob-
It is stated that were the company to main-
All of this proceeds upon the idea, that a
MONOPOLY-VIOLATION OF NOTICE AS
The first of these cases held that this could
The difference in decision between these
Lacombe, C. J., in speaking for a unanimous
This opinion is about as inconclusive as that
ket as to a preference selection of an article of necessity, as to make him formidable, his means aiming at that end may not be arrested, though when he becomes formidable the course he has pursued may be condemned as no longer to be used. By the same token, a de. cree ought not to stop him entirely, but merely reduce his sales below the danger point.
SELF-DEFENSE-ONE CO-OWNER OF ILLICIT BUSINESS ATTACKING ANOTHER THEREIN.-In 80 Cent. L. J. 440, and in 81 ibid. 291, there was considered the “castle" principle under different aspects, the former where the attack was upon an owner of a home
guest lawfully therein and not by an intruder, and the latter where the attack was by an intruder and the killing was not in the house, but in the yard outside. The former case was People v. Tomlins, 213 N. Y. 240, and the latter was Thomas v. State (Ala. Court of Appeals), 69 So. 315.
In Hill v. State, 69 So. 941, decided by Alabama Supreme Court, the question recurs, as to the application of the “castle' principle where a homicide was of deceased in an illicit distillery set up and maintained by the slayer and the deceased. It was held that: “If the person engaged in an unlawful business would not be protected in his illegal credit sales, it will not be held that if, while operating or conducting this unlawful business, he is attacked (this illegal business place not being his dwelling house), he has the same right to stand and defend that he would have in his dwelling house or house used in the conduct of a lawful business. The unlawful business house or place, and its keeper or maintainer are for the time not protected by the special right of defense of the castle. * Such unlawful occupant has no higher or more special right of defense than that extended to him in a public thoroughfare or in his wood or field."
We think this is sound doctrine, but unnecessary to be announced in a case where the homicide was not of an intruder but of one having equal right, or as good right, in the place, whether that of a lawful or unlawful business, as that of the slayer, a distinction pointed out by us in 80 Cent. L. J. 44, supra.
We say the principle announced as to occupant in a place where unlawful business is carried on affording no right of "castle" is sound, but this position is not free from doubt and may have its limitations. It is not a situa
ATTORNEY AND CLIENT-COMPROMISE OF JUDGMENT BY CLIENT IN WHICH ATTORNEY HAS INTEREST. By Kentucky statutes attorney at law is given a lien for his contingent fee in claims in suit according to agreement, which lien passes over to be a lien on judgment recovered in the suit. In a case decided by Kentucky Court of Appeals there was a suit and a judgment against a solvent defendant, which was compromised by the client, and the question was, what should be attorney's recovery against defendant? Chreste v. Louisville Ry. Co., 180 S. W. 49.
The Court said: “This is not a case where settlement was made with a client prior to judgment; nor is it a case where the judgment debtor is insolvent. It is a case where there was a judgment for $1,000, and a solvent judgment debtor settled with the plaintiff for $300. In such a case the amount of the judgment, and not the amount of the compromise controls; in other words, if the judgment debtor settles with the judgment creditor, in the absence of the creditor's attorney, for less than the amount of the judgment, he does so at his peril and cannot thereby deprive the attorney of any portion of the fee to which he is entitled under and by virtue of his contract of employment. As Chreste's contract between him and Drake called for a fee equal to 50 per cent of the amount of recovery, and as Drake recovered a judgment for $1,000, it follows that Chreste is entitled to recover of the railroad company one half of the amount of the judgment, or the sum of $500.”
The record in this case shows that after the verdict was obtained for $1,000 and motion for
trial overruled, the railroad company agreed to pay a third person $175 if he would procure a settlement with plaintiff for $300. This third party agreed to give plaintiff $125 of his $175 if he would settle, which netted to plaintiff $425, the railroad agreeing to pay the attorney fee. The consideration moving to plaintiff very probably was the avoidance of an appeal by defendant. By the arrangement it paid out $475 and now has to pay the attorney $500. Its sharp practice did not gain for it anything, as, no doubt, court costs ate up the margin of $25.
The decision seems to indicate that when a
client, though a compromise would limit attorney's recovery, if made at any time before judgment, whether with his consent or with: out it.
RECENT DECISIONS OF THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.
QUESTION No. 94. Is it the opinion of the Committee that there is professional impropriety in the following conduct of an attorney for a Bankrupt, viz:
The Bankrupt has filed an offer of composition on the basis of 20 per cent. His attorney sends out a circular letter to all of the creditors of the Bankrupt urging them to accept the offer and enclosing to them blank proofs of claim to be made out by the creditors, stating to them that he will file the proofs for them with the Referee in Bankruptcy and collect and remit their dividends free of charge, in case they see fit to return their respective proofs of claim to him.
Answer No. 94.-Although the question does not disclose how the attorney will collect the dividend, it would seem that his intention is to suggest the giving of a proxy or power of attorney. By the acceptance of such proxy in the usual form, the attorney would at once be authorized to act for both debtor and creditor-charged with conflicting duties. Unless his circular letter makes it entirely clear that the attorney, in offering to file proofs of claim, does not seek to assume the relation or duties of an attorney to the creditors, the Committee disapproves the practice suggested. Of course, no such communication should be sent direct to creditors who are represented by counsel.
merits of his claim before the Court the client must set forth his cause of action in legal terms with legal characterization of the facts, and swear to it. Of course the actual facts are clearly either true or false.
But do you consider that such a verification is equivalent to an affidavit of merit and that therefore there is a question of legal ethics involved, so that an attorney should not draw up a pleading for his client unless he, as a lawyer, believes beyond a doubt that his client has the law on his side? Or is it sufficient for the attorney to feel that his client has a claim or defense which is justiciable, as suggested by Section 30 above referred to, regardless of the attorney's own view of the legal merits? There' is room for argument in most cases, as shown by the frequency of dissenting opinions of Courts.
Answer No. 95.—In the opinion of the Committee, if the facts be truthfully pleaded, the lawyer may present any fairly debatable law question for the Court's determination. The client is entitled to have a fairly debatable question of law presented from the angle of his side, though the lawyer might think, and might advise his client, that the question was doubtful one. This, of course, excludes the raising of such points as the lawyer knows are without merit. At all times the lawyer must truthfully plead the facts as they are known to him; and if he pleads such facts according to their legal effect, he must believe that they fairly warrant the statements he makes in the pleading. For this he is responsible to the Court of which he is an officer.
QUESTION No. 95. Pleadings—The lawyer's duty in respect to statement of facts and presentation of law.
Relation to Client-The lawyer's duty in re spect to statement of facts and presentation of law, in pleadings.
Relation to Court-The lawyer's duty in respect to statement of facts and presentation of law, in pleadings.
Under Section 30 of the Code of Ethics of the American Bar Association, as published by West Publishing Co. in 1915, it is suggested that it is a lawyer's right to insist upon the judgment of the Court as to the legal merits of his client's claim, unless the suit is brought to harass or injure, etc.
Under New York practice practically all pleadings are verified. In order to get the legal
QUESTION No. 96. Advertising Solicitation.-Card of announcement that lawyer is a certified public account. ant-not disapproved.
Card of announcement by lawyer that he is a certified public accountant, containing argumentative statements of his usefulness--disapproved.
In the opinion of the Committee would there be professional impropriety in a member of of the bar addressing a circular letter or printed announcement card to members of the bar advising them that he is both a member of the bar and a certified public accountant, and offering his services to them in matters of legal accounting, such as the preparation and trial of cases requiring a knowledge of accounting practice, enumerating by way of suggestion to them various classes of cases arising in their practice in which he considers that he may assist them with advantage because of his knowledge of the theory and practice of accounts?
Answer No. 96.—In the opinion of the Coming down this "inveterate incongruity” bemittee there would be no professional impro
tween the adjective law and the substantive priety in a member of the Bar addressing a
law that the "Code" made its appearance printed announcement card to members of the Bar, advising them that he is both a member in our jurisprudence. Relief had been of the Bar and a Certified Public Accountant; sought through the establishment of courts but the addition of the other matters stated in
of equity and the use of legal fictions; but, the question seems to the Committee to be ob
at last, the defects of the old system bejectionable.
came so pronounced and obstructive of justice that the entire system was subjected to
a revolution resulting in the new system REACTIONARY INTERPRETATION commonly called the “Code.” OF THE CODE.
What is the meaning of this provision of
the "Code"? It must mean exactly what it Whether the Reformed Procedure or says: first, that the distinction between ac"Code” is successful in a given state de- tions at law and suits in equity are abolpends largely upon the interpretation given ished, and second, that there shall be but by its courts to its simplest and most com- one form of action denominated a civil acprehensive provision, which in the words tion. of the New York Code is as follows:
The legislature by this provision did not "The distinction between actions at law attempt to disturb the primary rights, duties and suits in equity, and the forms of all and liabilities of persons either at law or in such actions and suits heretofore existing, equity, nor did it undertake to abolish all are abolished; and there shall be in this distinction between “law” and “equity” as state hereafter but one form of action for the two departments of our municipal law. the enforcement or protection of private In other words, a wrong violating a primary rights and the redress of private wrongs, right gives rise to a secondary right either which shall be denominated a civil action." legal or equitable and entitles the party New York Code, S. 3339.
wronged to either a legal or an equitable Many of our courts at first hesitated, in remedy just the same as it did before the fact refused, to recognize in this provision adoption of the "Code.” But what the legisanything but meaningless babble. But the lature did undertake to abolish was the dislamentable thing is, that a few courts still tinction between legal actions and equitable persist in nullifying in a large measure this suits. The remedies awarded by the courts basic provision of the "Code."
are not effected because the remedy is no This provision, in fact the whole system part of the action or suit but is the result of of Reformed Procedure, sought to eradicate such action or suit. So, also, the legislature two egregious defects of the common law did not attempt to abolish the different legal system of pleading, viz: (1) distinction be- remedies, but did undertake to abolish all tween actions at law and suits in equity, and forms of actions by which those remedies (2) the many distinct and arbitrary forms were attained. The remedies, however, of actions of law. And back of these de- were not effected but remained in the new fects the framers of the "Code" recognized system as in the old. Pomery Code Remthat the method of administering the law edies, Chap. 1. (the adjective law) had become petrified in It was' merely the machinery by which
entitled to an equitable remedy, or that he Court of Missouri using the following lanproceeded in equity when he was entitled
guage: to a legal remedy, or that he misconceived "While the use of formal and technical the nature or form of his action at law, e. g. averments, which were necessary at combrought an action in assumpsit when he mon law to the statement of a cause of should have brought it in case. It was the action, have been dispensed with by our purpose of the legislature to avoid such dis- code and are no longer necessary, the same appointments and permit a party to state the material allegations are necessary under it facts upon which he bases his primary that were necessary at common law; and it rights and the acts or omissions violating is clear, we think, that at common law, in these rights, and require the court to award order to state a cause of action in trover, the proper remedy. The legislature sought the petition should state that the plaintiff to change and did change to a great degree had possession, or the right to the possesthe forms, mode of procedure, parties, sion, of the property sued for at the time pleadings, and other steps of the action, but of the conversion.”'1 The courts that take not the remedies to which the parties were this position do not seem to grasp the disentitled under the substantive law.
tinction between actions and remedies. The There is under the "Code" but one form legislature did not attempt to abolish the of action whatever the remedy sought might remedies then existing but merely the acbe, whether legal or equitable, whether er tions, the machinery if you please whereby contractu or ex delicto. This form of action the litigant is given his remedy. The actions consists of a statement of the primary rights were not inherent and were subject to aboliof the parties and the manner in which tion. these primary rights have been violated. It If a plaintiff has stated his case on the is not the duty of the pleader to indicate theory that he is entitled to equitable rethe form of the pleading, obviously because lief when as a matter of fact he is entitled there is but one form. It is merely his duty to legal relief, he should not suffer by reato present to the court the facts. It then son of the fact that he has not anticipated becomes the duty of the court to determine the remedy to which he is entitled. To so what remedial rights flow from these facts hold would be to maintain all the distinction and to award the consequent remedy. between legal actions and equitable suits
I have tried to ascribe the logical and known at the common law except the mere sensible meaning to this provision of the necessity of attaching a name. Yet there “Code.” The great bulk of the more mod- are courts that hold that under the circumern decisions have given this provision as stances just given the plaintiff must fail.? liberal an interpretation as its language
Here again the court fails to recognize that warrants; but there are a few courts that all actions, not remedies, are abolished by refuse to break the shackles that have the “Code." bound us to the traditions of the old sys
The courts of Indiana have imposed upon tem, and therefore have refused to inter- this provision' a peculiar interpretation. The pret the provision in accordance with its courts of that state require that a pleading plain meaning
must proceed upon some definite "theory," Some courts in effect maintain that the and that the complaint must be good upon division of actions into legal and equitable, the theory upon which it is pleaded, and if and the distinctive features of actions at not, it is held bad, although the facts pleaded law, are inherent and cannot be abolished,
(1) Citizens' Bank V. Tiger Nail Co., 152 Mo. and that, therefore, the legislature meant 145. 53 S. W. 902; see also. Casey v. Mason. 8 only to abolish the names of pleadings and
Okla. 665, 29 Pac. 252; Parsley v. Nicholson, not the forms. Thus we find the Supreme
(2) Shaw v. Howes, 126 Ind. 474, 26 N. E. 483.
65 N. C. 210.