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struction of the act of April 7, 1849, and its supplements of April 20, 1853 (Pamp. Laws, 637), and 27 March, 1854 (Pamp. Laws, 215). Hoard v. Wilcox, 11 Wright, 51; Mansfield Iron Works v. Willcox, 2 P. F. S. 378; Patterson v. Lane, 11 Casey, 275; Brinham v. Wellersburg Coal Co., 11 Wright, 43. In the case of Youghiogeny Shaft Co. v. Evans, 22 P. F. S. 334, the case of Briuham v. Wellersburg Coal Co., supra, and Hoard v. Wilcox, supra, are cited with approval, and Agnew, J., there says: "The liability of the stockholders is secondary, and the proceeding to enforce it is statutory, not at common law; it was therefore held in several decisions that in such case the proceeding is wholly governed by the statute, and the rights and liabilities of the parties must be ascertained by it." O'Reilly v. Bard. Opinion by Clark, J. [Decided Oct. 6, 1884.]

KANSAS SUPREME COURT ABSTRACT.*

PARTNERSHIP-PROPERTY OF, PURCHASED BY PARTNER-EXEMPTION.-One partner may acquire title to partnership property by purchase from the copartnership, and if the purchase is not made with the intent to hinder, delay or defraud the creditors of the copartnership, and the property purchased is such as is exempt from levy and sale on execution under the statutes of the State, may hold it as against creditors of the copartnership. Burton v. Baum. Opinion by Hurd, J. CONTEMPT-WHAT CONSTITUTES-HABEAS CORPUS. --To constitute a direct contempt of court there must be some disobedience to its order, judgment or process, or some open and intended disrespect to the court or its officers in the presence of the court, or such conduct in or near the court as to interrupt or interfere with its proceedings or with the administration of justice. To constitute a constructive contempt of court some act must be done, not in the presence of the court or judge, that tends to obstruct the administration of justice, or bring the court or judge or administration of justice into disrespect. D. executed his recognizance to appear in the District Court at a certain term and submit to a trial on a criminal charge pending against him in such court. He did not appear at the term of the court at which he was recognized, but absented himself from the county where the court was held. Proceedings were taken against him for contempt, and he was convicted and imprisoned. Held, that the facts stated in the charge against him, on which he was convicted, do not constitute a contempt for which he can be punished by fine or imprisonment. The judgment rendered was not warranted by law, and the court was without jurisdiction to render it, and the imprisonment under it is illegal, and the petitioner is entitled by proceedings in habeas corpus to be discharged from imprisonment. Matter of Dill. Opinion by Hurd, J.

MECHANICS' LIEN-LEASEHOLD ESTATE-EXTENT of LIEN. A mechanics' lien, or lien for materials and labor, may attach to a leasehold estate. We think the word "owner" in the statute as it now exists is comprehensive enough to include an owner of a leasehold estate as well as the owner of a greater estate. In the case of Chouteau v. Thompson, 2 Ohio St. 114, 123, the Supreme Court of Ohio, in construing a similar statute, uses the following words, to wit: "The word 'owner' in the first section of the act is not limited in its meaning to an owner of the fee, but includes also an owner of a leasehold estate. If the ownership is in fee, the lien is upon the fee; if it is of a less estate, the To hold that an lien is upon such smaller estate. owner in fee only is meant would be directly subversive of the policy of the act, and in a great degree ren*Appearing in 32 Kansas Reports.

der it useless." A leasehold estate may include buildings, fixtures and machinery placed upon the real estate by the tenant. Such a lien may attach to the leasehold estate, including the buildings, fixtures and machinery placed upon the real estate by the tenant, although the tenant may have the right and privilege of removing such buildings, fixtures and machinery from the leased premises. Hathaway v. Davis. Opinion by Valentine, J.

CORRESPONDENCE.

PREFERENCES IN THE COURT OF APPEALS. Editor of the Albany Law Journal:

The attention of the bar is being called to the necessity of relieving in some mode the Court of Appeals, and many different views and suggestions have been pre. sented. There is one matter however, while it will not tend to lessen the labors of the court, attention should be called to; that is, the great and growing injustice caused by the statutes creating preferences as a matter of right. While criminal cases should be preferred, there is no reason why all other cases should not be heard in their order, unless the court should deem it proper to advance such cases if in its judgment public or private interests justify it. The first two hundred cases on the present calendar are preferred under the statutes, and it may be safely asserted that in not ten per cent of them is there any reason for urgency, or that making them take their turn with other causes would produce any hardship. In upward of one-half of the other causes the returns were filed during 1883, and none of them will probably be reached before the June session, about two years from the time the return is filed, and probably in most of them an early hearing is as much deserved or necessary as in an equal number of preferred causes. Making of a calendar before the existing one is called through, operates to further postpone the hearing of causes on the general calendar. If the present calendar should remain until the causes thereon are all called, and that should be the rule hereafter adopted, it would materially alter the limitation; there would not be the yearly pushing back of causes on the general calendar to make way for cases where the appeals are taken long after other cases. Should not this matter be called to the attention of the court?

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AN INTERESTING INQUIRY. Editor of the Albany Law Journal:

I have been trying to compute the interest on a note from Oct. 25, also Oct. 29, also Oct. 31, 1884, to March 19, 1885. The question I want settled is: How long a time has elapsed on which the interest must be computed? I want the correct legal method of computing the time, but I cannot find any thing upon the subject. I write this to ask if you will indicate in your journal where I may go for authorities, even if you cannot answer my query yourself. I can obtain four different results for each note. What is the correct or legal method? An early reply will greatly oblige NEW YORK, March 30, 1885. INQUIRER.

The Albany Law Journal.

ALBANY, APRIL 18, 1885.

CURRENT TOPICS.

HE Central Law Journal seems to have some

fession and not a trade, and as it concerns the administration of justice, they ought to be better than other men. We believe that the lawyers of Missouri are, as a class, as good as those of Alabama, and we believe that many of them in good standing in both States have been, and are, in the habit of prosecuting actions of ejectment and damage suits upon agreements to receive an aliquot part of the recovered a compensation for their

what modified its views concerning the morals services. This makes them speculators in lawsuits,

degrades them from the honorable position of counsellors and advocates into that of secret parties, and tempts them into practices which are incompatible with a faithful demeanor toward the courts. We may err in this conclusion as to Alabama, and we do not speak of the east, with which we are not much acquainted; but we have reason to believe that this practice is more or less prevalent throughout the entire west and south. We have not yet seen or heard of any attempt on the part of any bar association to rebuke or correct it." In the main we agree with these views. It is refreshing to see this ex

of the legal profession, and especially with regard to the "traffic in litigation." The Journal once sneered at our old-fashioned notions about the "contingent fee business." Possibly its change of views is attributable to a recent change of editors. Such a change sometimes works a difference of opinion. Recently alluding to the conduct of the Pacific Coast Bar Association in a certain case, the Journal said: "The better members of the bar have been guilty of too many questionable practices to proceed with alacrity toward purging their own ranks, and when they do proceed they find it an expensive and ungrateful task." This having been criti-pression in so influential a journal, and it must have cized by a correspondent, the Journal justified it as follows: "The language above quoted was deliberately written. It embodies a profound conviction, the result of many years acquaintance with the morals and practices of the legal profession. There are of course many honorable and highminded men in that profession. But the public distrust of the profession is increasing every day, and it is not an ignorant distrust, the result of low prejudice, or the opinions of that class of people whose misfortunes or crimes bring them in contact with the lowest class of lawyers. The best members of the legal profession in Missouri have, since the State existed, trafficked in litigation-bought it and sold it as though it were merchandise, and they are still doing it. We ask our learned correspondent if it is not so in Alabama. A barrister could If the spirit of agnosticism continues to spread not remain a member of any of the English Inns of as it is now doing it will soon become necessary to Court who would do this. It is notorious that pro- modify our laws concerning judicial oaths, or a fessional morals in the United States are very lax, large and highly respectable part of the community and that lawyers in good standing can everywhere will be disqualified from testifying. Mr. Louis be found who have done things that would disbar Claude Whiton discoursed on this topic in 29 ALB. them in England. This is an unpleasant thing LAW JOUR. 344. Recently in Massachusetts a bill, to say. It is especially an unpleasant thing for a the effect of which was to allow "infidels,' lawyer to say who loves his profession, and desires ists" and "agnostics" to testify in the courts of to promote its honor and extend its good name. A that State, was defeated in its Legislature. Acman does not start on a career of moral reform un- cording to newspaper reports the vote in the til he acquires a profound conviction of his own un- Senate stood 22 against the bill to 10 in its favor. worthiness. The same law holds good in respect The Central Law Journal says: "Some of the most of any number of men or any class of men. pure, honest, upright and distinguished men in real reformation will begin in the ranks of the legal Massachusetts are absolutely denied the right to profession until that profession as a body begins to protect by their testimony their liberty, their propshare in some measure in the popular conviction of erty and their lives in the courts of justice by the its own unworthiness. As long as the members of infamous rule which that vote perpetuated. the profession are content to rest in the idea that But when we think of the fate of the bill in the all its practices are honorable, no real movement Massachusetts Senate, just spoken of, we feel like toward reformation will commence." And still saying, 'poor, old, narrow-contracted, hide-bound, more recently the Journal thus responds to another bigoted, middle-aged, ante-deluvian, crustacean, critic: "We agree that the lawyers as a class are superstitious, puritanical, praise-God-bare-bones, as good as other men; but as their calling is a pro-hew-Agag-hip-and-thigh, zeal-of-the-land-busy, I

weight, coming from one of the first legal authors of our time, and an honored judge. In connection with this, we call attention to a leading article in another column, in which it is shown that the attorney in this State, under the law of 1879, has a lien on the client's cause of action, not to be affected by any settlement between the parties. This probably applies only to the attorney. It ought to be extended to the counsel. This would do away with the stock pretext for the necessity of the "contingent fee business." But what with "trafficking in litigation" and resisting the demand of the people for simple laws and cheap justice, the lawyers in the Legislature and out of it, or a good many of them, seem determined to ruin the profession.

VOL. 31-No. 16.

No

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am-better-than-thou, Massachusetts!'" This is rather rough, but we are not sure that it is not deserved.

Speaking of agnostics—at a meeting of the Nineteenth Century Club in New York, at which the subject of discussion was, "Moral Evil, its Sources and Remedies," Mr. D. G. Thompson, a wellknown New York lawyer, author of a work on Psychology, read an elaborate essay, in which he undertook to show that the great source of moral evil is poverty, and that the remedy is to divide up property more equally. He was combated by Father McGlynn, Catholic, and Rev. Mr. Williams, Unitarian. The weak point of Mr. Thompson's argument is in not recognizing the terrible prevalence of sin among the rich. One suggestion made by him struck us forcibly that laws ought to recognize and provide for satisfying while regulating the innate passions of men, and we then thought of the extreme folly, on which we have often commented, denying remarriage to parties divorced for their own infidelity. But what particularly strikes us just now is that Mr. Thompson, with all his culture and learning, and his unquestioned good character, might not be a competent witness in Massachusetts, against such a fellow as Sullivan, the prize-fighter, because while Mr. Thompson does not deny, and hopes for the existence of a God and a future state of reward and punishment for earthly deeds, he "does not know." In the discussion by the New York club Father McGlynn declared himself an ardent disciple of Henry George in respect to land tenure, which will give joy to Mr. Clark, whose work on 66 Man's Birthright" we recently found a little fault with, however much it may disagree with the practice of the Father's church.

There was a field-day in the lower house of our Legislature last week on the Code, in which Messrs. Ives, Baker and others distinguished themselves by their advocacy of the Code, while several others, whose names we suppress out of charity, distinguished themselves, Erostratus-fashion, by their opposition. The measure commanded a support of sixty-three votes against thirty-five. This result will encourage both sides, we suppose. want to know what, if any thing, the opponents of the Code propose to give us. This matter is more important than capitols and parks. Are we to have any amelioration of our laws? And if so, when and what?

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'ability;" but possibly he is afraid that the Code would interfere with the sale of the ponderous work on damages, originally written by another and very distinguished Sedgwick, and recently edited by the contemporary Sedgwick. But let us take courage, for "King Arthur" does not "rule this goodly land." Then The Nation says Mr. G. L. Rives has contributed to the same discussion a pamphlet on "Torts under the Code," in which he declares that the provisions "are in a remarkable degree incomplete, inaccurate and misleading." We do not know what warrant Mr. Rives has for setting up as an authority. It is our misfortune never to have heard of him as a jurist or legal writer, or in any other way; but to oppose the Code is a good way for a young or old lawyer to become known, if not distinguished. The Nation observes: "Codification, if we are to have it, ought to be the work of the best legal minds. This 'Civil Code' is radically bad and disgraceful. Mr. Sedgwick deserves hearty thanks for his exposure of it." That puff ought to sell a good many copies of Mr. Sedgwick's great ancestor's great work on Damages, but we fear it will not, in California, at least. Now the question is, who is the attorney who gives the Post and Nation their legal opinions, and what axe he has to grind. We infer that any man who is so virulent as to pronounce the Code "disgraceful" has an axe to grind by defeating it. All these gentlemen would better confess that they are opposed to any and all codification.

NOTES OF CASES.

[N Ulrich v. 'New York Cent., etc., R. Co., New

IN York City Common Pleas, Daily Reg., April 7,

1885, it was held that one riding on a railroad on a free pass exempting the railroad company from liability for negligence, may still recover if he was riding in a drawing-room car for hire. The court, Van Hoesen, J., said: "The plaintiff was using this free ticket undoubtedly, but he was also using another ticket, which he purchased and paid for. If he had been traveling on the free pass alone, the stipulations that it contains would have been a bar to his recovery. The language of the stipulation Now we means that if the person using the pass accepts free passage he shall relinquish his right to compensation for injuries, and the law of this State holds that a free passage is itself a full consideration for a contract that will discharge a carrier of passengers from its common-law liability. The pass entitled him to ride in one of the common cars of the In all the Code-literature there is nothing quite company, but the plaintiff wished accommodations so amusing as the comments of the Evening Post of a better kind, and therefore he applied for transand The Nation. These inform us that at the direc-portation in one of the drawing-room cars that tion of the New York Bar Association, Mr. Arthur form a part of the defendants' trains. He was acG. Sedgwick has published a review of the Code cepted as a passenger in the drawing-room car provisions in fifty-four sections on damages, and an- called the Empire, and paid one dollar for transnounce that "of only three sections is Mr. Sedg-portation in that car to New York. If the free wick able to say unqualifiedly that they are correct." This speaks poorly for Mr. Sedgwick's

pass gave him the right to travel on the train it gave him no right to travel in that car, and it is

evident that the rights and relations of the parties were changed by the sale to him of the ticket for the drawing-room car. He became a passenger for hire. Of that there can be no doubt, nor can there be any doubt that he was at the same time using a free pass. As a passenger for hire, who, in bargaining for transportation in the drawing-room car, had made no contract that relieved the company from its liability for damages if he were injured through its negligence, the plaintiff has all the rights that the law gives to ordinary passengers; and having paid for a ticket he is not to be considered as one who, in consideration of a free passage, has agreed not to hold the company liable for injuries. The defendant voluntarily made a new contract, and cannot now ignore it, and insist that the rights of the parties shall be measured by a contract that was intended to operate upon a condition of affairs that it has seen fit to change. The defendant has taken money from the plaintiff for carrying him, and it has no right to say that he was a free passenger, and to ask the court to incorporate into the drawing-room ticket the provisions of the free pass. Of course, we have heard the objection that the defendant did not, but that the Wagner Car Company did, make the contract to carry the plaintiff in the drawing-room car. We know nothing of the arrangement between the defendant and the Wagner Car Company, but as no one without leave of the defendant can run cars upon its track, we must assume that the drawingroom cars are run for the benefit of the defendant." Thorpe v. N. Y. C. R. Co., 76 N. Y. 409; S. C., 32 Am. Rep. 325.

In Twigg v. Ryland, 62 Md. 380, it was held that the knowledge of the vicious character of a dog by a servant is not imputable to the master unless the dog is in the charge and keeping of the servant. The court said: "After giving evidence of the injury inflicted by the dog, the plaintiffs gave evidence to prove that the defendant was a butcher in Cumberland, and that he had about his premises a colored man as an assistant, who drove the meat wagon and delivered meat to the customers of the defendant, and that the dog was frequently with him, and generally followed him. They then of fered to prove that this colored man knew that the dog was vicious and dangerous, and was disposed to attack and bite and injure persons; and that such colored man, while in the employ of the defendant, had told one of the plaintiffs' witnesses that he had made known to the defendant, before the injury to the plaintiff, that the dog was of a vicious disposition, and had attacked and bitten other persons. To this offer the defendant objected, and the objection was sustained by the court, and as we think, rightly sustained. It is very true, as shown by the authorities, that if the owner of a dog place it in the charge and keeping of a servant, the servant's knowledge of the dog's ferocious disposition is the knowledge of the mas

ter.

But it is not true that the knowledge of any servant that a dog may follow, or be with about the premises where he is employed, as to the disposition of the dog, is to be imputed to the master. This is clear upon all the authorities. The case that goes as far upon this question as any other to be found in the reports, and which has been mainly relied on by the appellants, is that of Gladman v. Johnson, 46 L. J. (C. P.) 153, where notice of the mischievous propensity of the dog, given to the wife of the defendant, who attended to the business of her husband in his absence, for the purpose of being communicated to the husband, was held to be some evidence of a scienter to be considered by the jury. But in delivering judgment in tnat case, Bovill, C. J., says: 'I am not prepared to assent to the proposition that notice to an ordinary servant, or even to a wife, would in all cases be sufficient to fix the defendant, in such an action as this, with knowledge of the mischievous propensity of the dog. But here it appears that the wife attended to the mik business, which was carried on upon the premises where the dog was kept, and that a formal complaint as to that dog was made to the wife when on the premises, and for the purpose of being communicated to her husband. It may be that this is but slight evidence of the scienter, but the only question is, whether it is evidence of it. I think it is.' This case was referred to and commented upon in Goode v. Martin, 57 Md. 610, 611; S. C., 40 Am. Rep. 448. And in the case of Stiles v. Cardiff Steam Nav. Co., 33 L. J. (Q. B.) 310, where a similar question arose, the lord chief Justice said that notice of the vicious propensity of the dog given to porters or servants employed about the premises would not suffice, but that if brought home to a person who had the general management of the yard, in which the defendants themselves could not be supposed to be acting, and who had authority to say whether a dog should be kept there or not, or whether it should be chained up or not, it would be otherwise. The case of Baldwin v. Casella, L. R., 7 Exch. 325, proceeded upon the ground that the defendant had deputed to his coachman the care and control of the dog, and therefore a notice to him of the vicious nature or propensity of the dog was notice to the master. And there is nothing in the case of Applebee v. Percy, L. R., 9 C. P. 647, that in any way contravenes the principle of the previous cases, to which we have referred. We are clearly of opinion, therefore, upon the facts as stated in the bill of exception, that the knowledge, whatever it may have been, of the negro man in regard to the propensity of the dog was not legally imputable to the defendant; and especially were not the declarations of the negro man evidence against the defendant. The man himself should have been called as a witness."

In Caldwell v. Snook, 35 Hun, 73, it was held that in an action for damages by the bite of a dog,

ethics that to work for a contingent fee was dishonorable, destroying the relation of confidence between attorney and client, and an attack on the independence and integrity of the profession.

All this has gradually changed. What was for

alties, is now protected by positive enactments. These declare, in no uncertain tone, that the public estimate put upon the morality of the legal profession has so far risen that now the compensation of an attorney or counsellor for his services is governed by agreement, express or implied, and is not

In view of the changes which have taken place it may not be uninteresting to trace briefly the development of this branch of the law.

where it is shown that the owner knew that the dog had previously bitten another person, evidence of the good character of the dog is incompetent. The court, Hardin, P. J., said: "To meet the case thus made out by the plaintiff, the defendant took the stand as a witness, and called several other wit-merly a malum prohibitum, visited with severe pennesses, and gave evidence tending to show the quiet, peaceable and harmless habits and character of the dog. Among the witnesses was one Fagin, who lived a quarter of a mile from the defendant, and who had occasionally observed the dog and his conduct. Against the plaintiff's objection that the testimony was not competent or material, he was al-restrained, but favored by law. lowed to testify 'there was nothing malicious in his conduct, so far as I saw. * * * He never undertook to bite anybody, or do any thing wrong.' When Ballsby was testifying he said he had known the dog'seven or eight years.' He was then asked 'have you observed the dog's actions on these occasions you have been there?' Plaintiff objected to the question as immaterial, and the objection was overruled, and plaintiff excepted. Witness answered he had observed the dog on those occasions, and added 'he has always been friendly enough to me.' We think that it was error to receive the evidence quoted, and other of the same character, and allowing it to be considered as defending the acts of the dog in question. Buckley v. Leonard, 4 Den. 500. By snch evidence the plaintiff may have been prejudiced indeed; probably that had a controlling effect with the jury, as they may have thought that if they found the dog had a good character for peaceable conduct, the defendant was not liable though he received notice of his having bitten Miss Erwin, as she testified." Boardman, J., concurred. Follett, J., said: "I concur in the result, though I think the opinion states the rule rather strongly in respect to the non-admissibility of evidence showing the peaceable disposition and conduct of the dog. The rule is undoubtedly correct as applicable to the facts of this case. But if a question of fact had arisen as to whether the dog had bitten the plaintiff or others, or whether the defendant had notice of the ferocicus disposition of the dog, then I think evidence of the peaceable disposition and conduct of the dog would have been admissible. Thus limited, I concur."

ATTORNEY'S LIENS UPON THE CAUSE OF
ACTION.

THE question of contingent retorney and rights

and obligations between client arising therefrom, are matters of growing importance to the legal profession. In the time of Sir William Blackstone the laws against champerty and maintenance were so stringent and far reaching (see Bl. Comm., Bk. IV, ch. 10, §§ 12, 13), that a lawyer who entertained the thought of taking a case for a sum dependent upon his success was deterred on every side by penalties and punishments. It was laid down as a principle of legal

Formerly it was both illegal and against public policy for an attorney to agree with his client for a share in the judgment to be obtained. Benedict v. Stuart, 23 Barb. 420; Satterlee v. Fraser, 2 Sandf. 141. Yet the courts early recognized the principle that a party should not run away with the fruits of a cause without satisfying the just demands of his attorney, by whose industry, and in many instances, at whose expense those fruits had been obtained. Wilkins v. Carmichael, 1 Doug. 102; Turwin v. Gibson, 3 Atk. 720. They constantly interfered to protect their officers from dishonest or unfair settlements between the parties, and put their protection sometimes on the ground of fraud and collusion between the parties (Rasquin v. Knickerbocker Stage Co., 21 How. Pr. 293; Carpenter v. Sixth Ave, R. Co., 1 Am. L. Reg. [N. S.] 410), and sometimes on the ground of an implied equitable lien of the attorney. Haight v. Holcomb, 16 How. Pr. 160; Wilkins v. Batterman, 4 Barb. 47; Ward v. Wordsworth, 1 E. D. Smith, 598. And to protect his rights as lienor he was obliged to give notice to the judgment debtor that he had a lien thereon for his costs. But even then he was without protection in all cases where the cause of action was of such a nature as not to be assignable; and frequent instances of this character occurred, when by settlement between the parties before judgment he was deprived of all compensation.

This continued to be the law of New York until the enactment of the Code of 1848. No change was made by this except to abolish the old fee bill, and to allow an attorney to agree with his client for his compensation. In other words, under section 303 of that Code, the doctrine of an implied equitable lien was stretched to cover the agreed

compensation, whatever the amount, ile, or judg

where cause of action was assignable,
ment was obtained. Rooney v. Second Ave. R.
Co., 18 N. Y. 368.

Until 1879 no further change on this point was made in the law, for section 66 of Throop's Code (1877), as originally enacted, was substantially the same in legal effect as section 303 of the Code of 1848. Quincey v. Francis, 5 Abb. N. C. 286; Mc Cabe v. Fogg, 60 How. Pr. 488. Under section 66, as it stood until the amendment of 1879, the par

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