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struction of the act of April 7, 1849, and its supple- der it useless." A leasehold estate may include buildments of April 20, 1853 (Pamp. Laws, 637), and 27 ings, fixtures and machinery placed upon the real esMarch, 1854 (Pamp. Laws, 215). Hoard v. Wilcox, 11 tate by the tenant. Such a lien may attach to the Wright, 51; Mansfield Iron Works v. Willcox, 2 P. F. leasehold estate, including the buildings, fixtures and S. 378; Patterson v. Lane, 11 Casey, 275; Brinbam v. machinery placed upon the real estate by the tenant, Wellersburg Coal Co., 11 Wright, 43. In the case of although the tenant may have the right and privilege Youghiogeny Shaft Co. v. Evans, 22 P. F. S. 334, the of removing such buildings, fixtures and machinery case of Briuham v. Wellersburg Coal Co., supra, and from the leased premises. Hathaway V. Davis. Hoard v. Wilcox, supra, are cited with approval, and Opinion by Valentine, J. Agnew, J., there says: “The liability of the stockholders is secondary, and the proceeding to enforce it
CORRESPONDENCE. is statutory, not at common law; it was therefore held in several decisions that in such case the proceeding is PREFERENCES IN THE COURT OF APPEALS. wholly governed by the statute, and the rights and lia- Editor of the Albany Law Journal: bilities of the parties must be ascertained by it."
The attention of the bar is being called to the necesO'Reilly v. Bard. Opinion by Clark, J.
sity of relieving in some mode the Court of Appeals, [Decided Oct. 6, 1884.)
and manydifferent views and suggestions have been pre.
sented. There is one matter however, while it will not KANSAS SUPREME COURT ABSTRACT.*
tend to lessen the labors of the court, attention should
be called to; that is, the great and growing injustice PARTNERSHIP-PROPERTY OF, PURCHASED BY PART- caused by the statutes creating preferences as a matter NER-EXEMPTION.-One partner may acquire title to of right. While criminal cases should be preferred, partnership property by purchase from the copartner- there is no reason why all other cases should not be ship, and if the purchase is not made with the intent to heard in their order, unless the court should deem it hinder, delay or defraud the creditors of the copartner- proper to advance such cases if in its judgment public ship, and the property purchased is such as is exempt or private interests justify it. The first two hundred from levy and sale on execution under the statutes of cases on the present calendar are preferred under the the State, may hold it as against creditors of the co- statutes, and it may be safely asserted that in not ten partnership. Burton v. Baum. Opinion by Hurd, J. per cent of them is there any reason for urgency, or CONTEMPT-WHAT CONSTITUTES-HABEAS CORPUS.
that making them take their turn with other causes --To constitute a direct contempt of court there must
would produce any hardship. In upward of one ball be some disobedience to its order, judgment or pro
of the other causcs the retnrug were filed during 1883, cess, or some open and intended disrespect to the court and none of them will probably be reached before the or its officers in the presence of the court, or such con
June session, about two years from the time the reduct in or near the court as to interrupt or interfere turn is filed, and probably in most of them an early with its proceedings or with the administration of hearing is as much deserved or necessary as in an justice. To constitute a constructive contempt of court
equal number of preferred causes. Making of a calensome act must be done, not in the presence of the
dar before the existing one is called through, operates court or judge, that tends to obstruct the administra- to further postpone the hearing of causes on the genetiou of justice, or bring the court or judge or admin- ral calendar. If the present calendar should remain istration of justice into disrespect. D. executed his until the causes thereon are all called, and that should recognizance to appear in the District Court at a cer- be the rule hereafter adopted, it would materially altain term and submit to a trial on a criminal charge
ter the limitation; there would not be the yearly pushpending against him in such court. He did not ap- ing back of causes on the general calendar to make way pear at the term of the court at which he was recog
for cases where the appeals are taken long after other nized, but absented himself from the county where
Should not this matter be called to the atten. the court was held. Proceedings were taken against
tion of the court ? him for contempt, and he was convicted and impris.
ANTI-PREFERRED. oned. Held, that the facts stated in the charge against him, on which he was convicted, do not constitute a
A CORRECTION. contempt for which he can be punished by fine or im- Editor of the Albany Law Journal : prisonment. The judgment rendered was not war- I note in your last week's journal you say, in column rauted by law, and the court was without jurisdiction of judicial salaries, that Circuit judges in this State to render it, and the imprisonment under it is illegal, (Missouri) get $4,500 per year. You are in error; they and the petitioner is entitled by proceedings in habeas get $2,000 per year, and pay their expenses from that corpus to be discharged from imprisonment. Matter sum; and are the poorest paid and hardest worked of Dill. Opinion by Hurd, J.
servants of the people. MECHANICS' LIEN-LEASEHOLD ESTATE--EXTENT OF
WM. A. WOOD. LIEN.-A mechanics' lien, or lieu for materials and la- KINGSTON, Mo., March 26, 1885. bor, may attach to a leasehold estate.
We think the word “owner" in the statute as it now exists is com
AN INTERESTING INQUIRY. prehensive enough to include an owner of a leasehold
Editor of the Albany Law Journal: estate as well as the owner of a greater estate. In the
I have been trying to compute the interest on a note case of Chouteau v. Thompson, 2 Ohio St. 114, 123, the
from Oct. 25, also Oct. 29, also Oct. 31, 1884, to March Supreme Court of Ohio, in construing a similar stat
19, 1885. The question I want settled is: How long a ute, uses the following words, to wit: “The word
time has elapsed on which the interest must be comowner'in the first section of the act is not limited in
puted? I want the correct legal method of computing its meaning to an owner of the fee, but includes also
the time, but I cannot find any thing upon the suban owner of a leasehold estate. If the ownership is in
ject. I write this to ask if you will indicate in your fee, the lien is upon the fee; if it is of a less estate, the journal where I may go for authorities, even if you lien is upon such smaller estate. To hold that an
cannot answer my query yourself. I can obtain four owner in fee only is meant would be directly subver
different results for each note. What is the correct or sive of the policy of the act, and in a great degree ren
legal method ? An early reply will greatly oblige
INQUIRER. *Appearing in 32 Kansas Reports.
NEW YORK, March 30, 1885.
The Albany Law Journal.
ALBANY, APRIL 18, 1885.
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 land or money a for their
of the legal profession, and especially with regard degrades them from the honorable position of counselto the "traffic in litigation.” The Journal once lors and advocates into that of secret parties, and sucered at our old-fashioned notions about the con- tempts them into practices which are incompatible tingent fee business.” Possibly its change of views with a faithful demeanor toward the courts. We may is attributable to a recent change of editors. Such err in this conclusion as to Alabama, and we do not & change sometimes works a difference of opinion. speak of the east, with which we are not much acRecently alluding to the conduct of the Pacific quainted; but we have reason to believe that this Coast Bar Association in a certain case, the Journal practice is more or less prevalent throughout the said: “The better members of the bar have been entire west and south. We have not yet seen or guilty of too many questionable practices to pro- heard of any attempt on the part of any bar associceed with alacrity toward purging their own ranks,
ation to rebuke or correct it." In the main we agree and when they do proceed they find it an expen
with these views. It is refreshing to see this exsive 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 weight, coming from one of the first legal authors follows: "The language above quoted was delib- of our time, and an honored judge. In connection erately written. It embodies a profound convic- with this, we call attention to a leading article in tion, the result of many years acquaintance with another column, in which it is shown that the atthe morals and practices of the legal profession. torney in this State, under the law of 1879, has a There are of course many honorable and high- lien on the client's cause of action, not to be afminded men in that profession. But the public fected by any settlement between the parties. This distrust of the profession is increasing every day, probably applies only to the attorney. It ought to and it is not an ignorant distrust, the result of low be extended to the counsel.
This would do away prejudice, or the opinions of that class of people with the stock pretext for the necessity of the “ whose misfortunes or crimes bring them in contact tingent fee business.” But what with “trafficking with the lowest class of lawyers. The best members in litigation ” and resisting the demand of the peoof the legal profession in Missouri have, since the ple for simple laws and cheap justice, the lawyers State existed, trafficked in litigation — bought it in the Legislature and out of it, or a good many of and sold it as though it were merchandise, and they them, seem determined to ruin the profession. 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 stunding 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 unpleasent 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," "athelawyer 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. No 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
Vol. 31 - No. 16.
am-better-than-thou, Massachusetts!' This is ability; " but possibly he is afraid that the Code rather rough, but we are not sure that it is not would interfere with the sale of the ponderous deserved.
work on damages, originally written by another and
very distinguished Sedgwick, and recently edited Speaking of agnostics — at a meeting of the Nine by the contemporary Sedgwick. But let us take teenth Century Club in New York, at which the courage, for “King Arthur” does not.“rule this subject of discussion was, “Moral Evil, its Sources goodly land.” Then The Nation says Mr. G. L. Rives and Remedies,” Mr. D. G. Thompson, a well- has contributed to the same discussion a pamphlet on known New York lawyer, author of a work on “ Torts under the Code,” in which he declares that Psychology, read an elaborate essay, in which he the provisions are in a remarkable degree incomundertook to show that the great source of moral plete, inaccurate and misleading.” We do not evil is poverty, and that the remedy is to divide up know what warrant Mr. Rives has for setting up as property more equally. He was combated by an authority. It is our misfortune never to have Father McGlynn, Catholic, and Rev. Mr. Williams, heard of him as a jurist or legal writer, or in any Unitarian. The weak point of Mr. Thompson's ar- other way; but to oppose the ode is a good way gument is in not recognizing the terrible prevalence for a young or old lawyer to become known, if not of sin among the rich. One suggestion made by him distinguished. The Nation observes: “Codification, struck us forcibly — that laws ought to recognize if we are to have it, ought to be the work of the best and provide for satisfying while regulating the in- legal minds. This Civil Code'is radically bad nate passions of men, and we then thought of the and disgraceful. Mr. Sedgwick deserves hearty extreme folly, on which we have often commented, thanks for his exposure of it.” That puff ought to denying remarriage to parties divorced for their sell a good many copies of Mr. Sedgwick's great own infidelity. But what particularly strikes us just ancestor's great work on Damages, but we fear it now is that Mr. Thompson, with all his culture and will not, in California, at least. Now the question learning, and his unquestioned good character, \ is, who is the attorney who gives the Post and might not be a competent witness in Massachusetts, Nation their legal opinions, and what axe he has to against such a fellow as Sullivan, the prize-fighter, grind. We infer that any man who is so virulent because while Mr. Thompson does not deny, as to pronounce the Code “disgraceful ” has an axe and hopes for the existence of a God and a to grind by defeating it. All these gentlemen future state of reward and punishment for earthly would better confess that they are opposed to any deeds, he "does not know.” In the discussion by and all codification. the New York club Father McGlynn declared himself an ardent disciple of Henry George in respect
NOTES OF CASES. to land tenure, which will give joy to Mr. Clark, whose work on “Man's Birthright” we recently found a little fault with, however much it
N Ulrich v. 'New York Cent., etc., R. Co., New agree with the practice of the Father's church.
1885, it was held that one riding on a railroad on a
free pass exempting the railroad company from There was a field-day in the lower house of our liability for negligence, may still recover if he was Legislature last week on the Code, in which Messrs. riding in a drawing-room car for hire. The court, Ives, Baker and others distinguished themselves by Van Hoesen, J., said: “The plaintiff was using their advocacy of the Code, while several others, this free ticket undoubtedly, but he was also using whose names we suppress out of charity, distin- another ticket, which he purchased and paid for. guished themselves, Erostratus-fashion, by their op- If he had been traveling on the free pass alone, the position. The measure commanded a support of stipulations that it contains would have been a bar sixty-three votes against thirty-five. This result to his recovery. The language of the stipulation will encourage both sides, we suppose. Now we means that if the person using the pass accepts free want to know what, if any thing, the opponents passage he shall relinquish his right to compensaof the Code propose to give us. This matter is more tion for injuries, and the law of this State holds important than capitols and parks. Are we to that a free passage is itself a full consideration for have any amelioration of our laws? And if so, a contract that will discharge a carrier of passenwhen and what?
gers from its common-law liability. The pass en
titled 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 cor- pass gave him the right to travel on the train it rect.” This speaks poorly for Mr. Sedgwick's gave him no right to travel in that car, and it is
evident that the rights and relations of the parties ter. But it is not true that the knowledge of any were changed by the sale to him of the ticket for servant that a dog may follow, or be with about the the drawing-room car. He became a passenger for premises where he is employed, as to the disposihire. Of that there can be no doubt, nor can there tion of the dog, is to be imputed to the master. be any doubt that he was at the same time using a This is clear upon all the authorities. The case
As a passenger for hire, who, in bar- that goes as far upon this question as any other to gaining for transportation in the drawing-room be found in the reports, and which has been mainly car, had made no contract that relieved the com- relied on by the appellants, is that of Gladman v. pany from its liability for damages if he were in Johnson, 46 L. J. (C. P.) 153, where notice of the jured through its negligence, the plaintiff has all mischievous propensity of the dog, given to the the rights that the law gives to ordinary passen- wife of the defendant, who attended to the busigers; and having paid for a ticket he is not to be ness of her husband in his absence, for the purpose considered as one who, in consideration of a free of being communicated to the husband, was held passage, has agreed not to hold the company liable to be some evidence of a scienter to be considered for injuries. The defendant voluntarily made a by the jury. But in delivering judgment in tnat new contract, and cannot now ignore it, and insist case, Bovill, C. J., says: 'I am not prepared to asthat the rights of the parties shall be measured by sent to the proposition that notice to an ordinary a contract that was intended to operate upon a con- servant, or even to a wife, would in all cases be dition of affairs that it has seen fit to change. The sufficient to fix the defendant, in such an action as defendant has taken money from the plaintiff for this, with knowledge of the mischievous propensity carrying him, and it has no right to say that he of the dog. But here it appears that the wife atwas a free passenger, and to ask the court to incor-tended to the mik business, which was carried on porate into the drawing-room ticket the provisions upon the premises where the dog was kept, and of the free pass.
Of course, we have heard the that a formal complaint as to that dog was made to objection that the defendant did not, but that the the wife when on the premises, and for the purpose Wagner Car Company did, make the contract to of being communicated to her husband. It may carry the plaintiff in the drawing-room car. We be that this is but slight evidence of the scienter, know nothing of the arrangement between the de- but the only question is, whether it is evidence of fendant and the Wagner Car Company, but as no it. I think it is.' This case was referred to and one without leave of the defendant can run cars commented upon in Goode v. Martin, 57 Md. 610, upon its track, we must assume that the drawing- 611; S. C., 40 Am. Rep. 448. And in the case of room cars are run for the benefit of the defendant.” | Stiles v. Cardiff Steam Nav. Co., 33 L. J. (Q. B.) Thorpe v. N. Y. C. R. Co., 76 N. Y. 409; 8. C., 32 310, where a similar question arose, the lord chief Am. Rep. 325.
justice said that notice of the vicious propensity of
the dog given to porters or servants employed about In Twigg v. Ryland, 62 Md. 380, it was held that the premises would not suffice, but that if brought the knowledge of the vicious character of a dog by home to a person who had the general management a servant is not imputable to the master unless the of the yard, in which the defendants themselves dog is in the charge and keeping of the servant. could not be supposed to be acting, and who had The court said: “After giving evidence of the in-authority to say whether a dog should be kept jury inflicted by the dog, the plaintiffs gave evi- there or not, or whether it should be chained up or dence to prove that the defendant was a butcher in not, it would be otherwise. The case of Baldwin v. Cumberland, and that he had about his premises a Casella, L. R., 7 Exch. 325, proceeded upon the colored man as an assistant, who drove the meat ground that the defendant had deputed to his wagon and delivered meat to the customers of the coachman the care and control of the dog, and defendant, and that the dog was frequently with therefore a notice to him of the vicious nature or him, and generally followed him. They then of- propensity of the dog was notice to the master. fered to prove that this colored man knew that And there is nothing in the case of Applebee v. Percy, the dog was vicious and dangerous, and was dis- L. R., 9 C. P. 647, that in any way contravenes the posed to attack and bite and injure persons; and principle of the previous cases, to which we have that such colored man, while in the employ of the referred. We are clearly of opinion, therefore, defendant, had told one of the plaintiffs' witnesses upon the facts as stated in the bill of exception, that he had made known to the defendant, before that the knowledge, whatever it may have been, of the injury to the plaintiff, that the dog was of a the negro man in regard to the propensity of the vicious disposition, and had attacked and bitten dog was not legally imputable to the defendother persons. To this offer the defendant ob- ant; and especially were not the declarations of jected, and the objection was sustained by the the negro man evidence against the defendaut, court, and as we think, rightly sustained. It is The man himself should have been called as a very true, as shown by the authorities, that if the witness.” owner of a dog place it in the charge and keeping of a servant, the servant's knowledge of the dog's In Caldwell v. Snook, 35 Hun, 773, it was held that ferocious disposition is the knowledge of the mas- in an action for damages by the bite of a dog,
where it is shown that the owner knew that the dog ethics that to work for a contingent fee was dishad previously bitten another person, evidence of the honorable, destroying the relation of confidence good character of the dog is incompetent. The between attorney and client, and an attack on the court, Hardin, P. J., said: “To meet the case thus independence and integrity of the profession. made out by the plaintiff, the defendant took the All this has gradually changed. Wbat was forstand as a witness, and called several other wit- merly a malum prohibitum, visited with severe pennesses, and gave evidence tending to show the alties, is now protected by positive enactments. quiet, peaceable and harmless habits and character These declare, in no uncertain tone, that the pubof the dog. Among the witnesses was one Fagin, lic estimate put upon the morality of the legal prowho lived a quarter of a mile from the defendant, fession has so far risen that now the compensation and who had occasionally observed the dog and his of an attorney or counsellor for his services is govconduct. Against the plaintiff's objection that the erned by agreement, express or implied, and is not testimony was not competent or material, he was al- restrained, but favored by law. lowed to testify 'there was nothing malicious in In view of the changes which have taken place his conduct, so far as I saw.
it may not be uninteresting to trace briefly the deundertook to bite anybody, or do any thing wrong.' | velopment of this branch of the law. When Ballsby was testifying he said he had known Formerly it was both illegal and against public the dog "seven or eight years. He was then asked policy for an attorney to agree with his client for a have you observed the dog's actions on these occa- share in the judgment to be obtained. Benedict v.
have been there?? Plaintiff objected to Stuart, 23 Barb. 420; Satterlee v. Fraser, 2 Sandf. the question as immaterial, and the objection was 141. Yet the courts early recognized the principle overruled, and plaintiff excepted. Witness an
that a party should not run away with the fruits of swered he had observed the dog on those occasions, a cause without satisfying the just demands of his and added 'he has always been friendly enough to attorney, by whose industry, and in many instances, me. We think that it was error to receive the evi- at whose expense those fruits had been obtained. dence quoted, and other of the same character, and Wilkins v. Carmichael, 1 Doug. 102; Turwin v. allowing it to be considered as defending the acts Gibson, 3 Atk. 720. They constantly interfered to of the dog in question. Buckley v. Leonard, 4 Den. protect their officers from dishonest or unfair settle500. By snch evidence the plaintiff may have been ments between the parties, and put their protection prejudiced indeed; probably that had a controlling sometimes on the ground of fraud and collusion beeffect with the jury, as they may have thought that tween the parties (Rasquin v. Knickerbocker Stage if they found the dog had a good character for Co., 21 How. Pr. 293; Carpenter v. Sixth Ave. R. peaceable conduct, the defendant was not liable Co., 1 Am. L. Reg. [N. S.] 410), and sometimes on though he received notice of his having bitten Miss the ground of an implied equitable lien of the atErwin, as she testified.” Boardman, J., concurred. torney. Haight v. Holcomb, 16 How. Pr. 160; WilFollett, J., said: “I concur in the result, though I kins v. Batterman, 4 Barb. 47; Ward v. Wordsworth, think the opinion states the rule rather strongly in 1 E. D. Smith, 598. And to protect his rights as respect to the non-admissibility of evidence show- lienor he was obliged to give notice to the judging the peaceable disposition and conduct of the ment debtor that he had a lien thereon for his dog. The rule is undoubtedly correct as applica- costs. But even then he was without protection ble to the facts of this case. But if a question of in all cases where the cause of action was of such a fact had arisen as to whether the dog had bitten nature as not to be assignable; and frequent inthe plaintiff or others, or whether the defendant stances of this character occurred, when by settlehad notice of the ferocious disposition of the dog, ment between the parties before judgment he was then I think evidence of the peaceable disposition deprived of all compensation. and conduct of the dog would have been admissi- This continued to be the law of New York until ble. Thus limited, I concur.”
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 ATTORNEY'S LIENS UPON THE CAUSE OF for his compensation. In other words, under secACTION.
tion 303 of that Code, the doctrine of an implied equitable lien was stretched to cover the agreed
and obligations between attorney and client where the cause of action was assignablejudgarising therefrom, are matters of growing import- ment was obtained, Rooney v. Second Ave. R. ance to the legal profession. In the time of Sir Co., 18 N. Y. 368. William Blackstone the laws against champerty Until 1879 no further change on this point was and maintenance were so stringent and far reach- made in the law, for section 66 of Throop's Code ing (see Bl. Comm., Bk. IV, ch. 10, SS 12, 13), (1877), as originally enacted, was substantially the that a lawyer who entertained the thought of tak- same in legal effect as section 303 of the Code of ing a case for a sum dependent upon his success 1848. Quincey v. Francis, 5 Abb. N. C. 286; Mc was deterred on every side by penalties and punish- Cabe v. Fogg, 60 How. Pr. 488. Under section 66, ments. It was laid down as a principle of legal as it stood until the amendment of 1879, the par