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pel him to do so. It was contended on behalf Gray, J., not voting, carefully reviews the of Mr. Savage that it was unjust to deprive leading cases, and concludes that the Hay an attorney of his means of livelihood for case has always been recognized by this four months and force him to remain idle court as sound and valuable authority, and until his term as judge begins; that the plain having thus stood for fifty years as the law intent of the statute is that a judge-elect shall of this State upon the subject, it should not not practice law after he has entered upon his be disturbed, for it rests upon the principle, judicial duties, but that he is not a judge of founded in public policy, that the safety of a court of record until he has qualified as property generally is superior in right to a such. Attorney-General Sheets, who was particular use of a single piece of property by supposed to take an opposite view, advised its owner. “It renders,” says the court, the court of his inability to discover any law " the enjoyment of all property more secure on the other side of the case. The court al- by preventing such a use of one piece by one lowed the peremptory writ, thus establishing man as may injure all his neighbors. It the precedent of permitting attorneys to prac- makes human life safer by tending to prevent tice until they become judges in fact. We a landowner from casting, either with or can see no possible harm in this course, par- without negligence, a part of his land upon ticularly when, as in the case at bar, the prac- the person of one who is where he has a tice of the judge-elect related to and covered right to be. It so applies the maxim of sic only cases in which he had been retained utere tuo as to protect person and property prior to the election at which he was elected from direct physical violence which, although
accidental, has the same effect as if it were In Mary Sullivan, Adm'x, etc., v. Carroll intentional. It lessens the hardship by placDunham and others, decided by the New | ing absolute liability upon the one who York Court of Appeals January 9, 1900, the causes the injury. The action in question main question presented was whether one was a misfortune to the defendant, but it was who, for a lawful purpose and without negli- a greater misfortune to the young woman gence or want of skill, explodes a blast upon who was killed. The safety of travelers upon his own land and thereby causes a piece of the public highway is more important to the wood to fall upon a person lawfully traveling State than the improvement of one piece of in a public highway, is liable for the injury property, by a special method, is to its thus inflicted. The question is not an en
owner.” It may be added that where the intirely new one, but the adjudication by the jury is not direct, but consequential, such as highest court in the State is of decided in- is caused by concussion which, by shaking terest as confirming the principle heretofore the earth, injures property, there is no lialaid down, that no one will be permitted to bility in the absence of negligence. (See 134 accomplish a legal object in an unlawful | N. Y. 156.)
The earlier leading cases (Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes The Molineux trial winds its slow length Co., 2 N. Y. 163) related to trespasses upon along, with the end still far from visible. lands, whereas the present one involves tres- After many weary weeks for court, counsel pass upon the person of a human being when and jurors, and before the prosecution has she was where she had the same right to pro- finished its case, a perfectly natural event, tection from injury as if she had been walk-which observers of the trial have long anticiing upon her own land. The Court of pated, namely, the illness of one of the jurors, Appeals remarks with force: “As the safety comes to pass, as a result of which we have of the person is more sacred than the safety a postponement of the trial for an indefinite of property, the cases cited should govern period, if, indeed, its complete failure to proour decision unless they are no longer the duce anything definite may be averted. We law.” Judge Vann, who wrote the opinion are reminded that the district attorney who of the court, in which all concurred except was engaged in the trial of a murder case in
New York several years ago prepared a bill mately make criminal trials impossible unless their for introduction in the legislature providing progressive long-windedness is, in some way, for a thirteenth juror in capital cases, who
checked. Every great criminal trial occupies more
time than its predecessor. At the present rate of should hear all the testimony, but have no
increase not very many years will elapse before part in the finding of a verdict except in case the criminal trial will have attained a duration that of a vacancy created by death or incapacity
will enable the death rate to defeat justice in every on the part of some one of the original important case. twelve. The bill containing such provision legislative interference to check this evil. Much
It seems to us that the time has already come for was never enacted into law, although at the
can be accomplished in this direction without raistime it created considerable interest. The ing the grave question of the State's right to so propriety of some such provision is again iar infringe upon personal liberty as to dictate to forcibly brought before the public, as it con
a man. defending himself from an accusation of
crime the manner of his defense. The State certemplates the possibility of all the enormous
tainly has the right to dictate to the State's lawyers expenditure already incurred in the Molineux the manner in which they shall try the State's trial — estimated as high as $250,000 - cases, if the State chooses to take the risk of sufgoing for nought. This rheumatic juror who fering disadvantage before the courts as a result of has caused the postponement of the trial will, its dictation. We do not believe any serious risk in case of his inability to participate further of this sort would be incurred by imposing a statu
tory time limit on public prosecutors. We don't in it, be the unconscious means of incurring believe the State ever had against any one a case a very large expense. Thus the question of worth trying that could not be fully presented the propriety of enacting some such legisla- within a fortnight or so by a thoroughly competent tion as above suggested forces itself upon the district attorney, able to distinguish for himself
between evidence and twaddle. public attention. On the subject of the length of criminal trials the Rochester Democrat and Chronicle makes some observa
Notes of Cases. tions which are so pertinent and forcible that we quote them for the benefit of JOURNAL
Contracts Public Policy. – In Richardson v. readers:
Scott's Bluff County, decided by the Supreme
Court of Nebraska in December, 1899, it was held That one of the Molineux jurors has been in- that a contract by which a person agrees to draft capacitated for jury duty by illness is not surpris- a bill, have it introduced in a legislature, explain ing. It is in the natural order of things — just it to, and make arguments in its favor before, what was to have been expected.
committees of the legislature, and do all things There are twelve men of average health and needful and proper to secure its passage, such strength on the Molineux jury. The trial has party to receive no compensation unless the paslasted seventy days. There is always a strong sage of the bill (an appropriation act) is procured, probability that of any group of twelve men, pur- | if successful the fees not fixed, but to be liberal, is suing their ordinary avocations, at least one will vicious, illegal and void, and, in the event of the be incapacitated for at least one day out of a period passage of the bill, there can be no recovery of a of seventy days. Take these twelve men away fee in a suit upon the contract, nor as upon an from their ordinary avocations, place them under implied contract, or a quantum meruit for the servunusual mental and physical strain in an unaccus- ices performed. The court said in part: tomed and unhygienic environment during the In regard to contracts of the nature of the one period of seventy days, and the probability will be which is herein asserted by plaintiff, it was stated strengthened. Extend sufficiently the period of in Wood v. McCann (6 Dana, 366), quoted in seventy days and you will have conditions that will Cooley, Const. Lim. ([6th ed.) 163, 164), and in insure the breaking down of every one of your an article by Samuel Maxwell in 28 Am. Law twelve men during the given period. Extend the Rev. (p. 211) on the subject of “Necessity for period a little longer and the local death rate will the Suppression of Lobbying," that “a lawyer make it mathematically certain that one of your may be entitled to compensation for writing a twelve men will die during the given period. If petition or even for making a public argument your twelve men happen to be the twelve jurors before the legislature or a committee thereof, but in a criminal trial the result of the one man's death the law should not help him or any other person will be the nullification of the trial.
to a recompense for exercising any personal influLawyers who try criminal cases as if there were ence in any way in any act of the legislature. It no limit to the endurance of the jurors will ulti- is certainly important to just and wise legislation,
and, therefore, to the most essential interests of the there is a guaranty that the solicitor will be paid public, that the legislature be perfectly free from he is entitled to have the fund paid into court any extraneous influence which may either cor- pending the determination of his compensation. rupt or deceive the members or any of them.”
Action by the Hudson Trust and Savings InstiThe contract declared upon, and especially as
tution against the Carr-Curran Paper Mills and shown by the evidence, was both specific and gen
others. Motion to substitute solicitor. eral in its terms relative to what was to be done by the plaintiff, and, moreover, it provided for a PITNEY, V. C. (orally). Mr. Nutzhorn was contingent fee an indefinite sum, but a liberal solicitor for the defendants, Clark & Spencer, who one, if the act passed; nothing if it failed. The obtained a decree for a considerable sum of money contract, if ever made, was vicious and illegal, and about $4,000. Subsequently that decree was asthere could be no recovery under it, nor as upon signed by Clark & Spencer to Mr. Edwards' client, an implied contract, nor upon a quantum meruit. and Mr. Edwards moved to substitute his firm as (Wood v. McCann, supra; Marshall v. Railroad solicitors in place of Mr. Nutzhorn; the object Co., 16 How. 345, 14 L. ed. 953; Coquillard's being to enable them to control the fund in the Adm'r v. Bearss, 21 Ind. 479; Harris v. Roof's hands of the sheriff or in court, which fund is the Ex’rs, 10 Barb. 489; Weed v. Black, 2 MacArthur, result of Clark & Spencer's decree. Mr. Nutz268; Chippewa, V. & S. R’y v. Chicago, St. P., M. horn objects to the substitution, unless his bill for & O. R’y, 75 Wis. 224, 44 N. W. 17.) It was de- services is paid, in addition to the taxed bill of cided in the cases just quoted that a contract, the costs. Mr. Edwards is willing to pay the taxed nature of the one in suit, which provided for con- bill of costs, and also the extra services, but the tingent fee or compensation, is illegal and void, parties disagree as to the amount of those extra because such fee or compensation is a direct and services. The case has been presented as though strong incentive to the exertion of not merely per- Mr. Nutzhorn's right must stand or fall upon the sonal, but sinister, influence upon the legislature." question of his removal as solicitor, and the subIt follows that the judgment of the District Court stitution of Mr. Edwards' firm in his place. In this must be affirmed.
both parties are wrong. The client has at all times
an absolute right to change his solicitor; but he Marriage Evidence. In Flanagan v. Flan- | cannot, in my judgment, in so doing, deprive his agan, decided by the Supreme Court of Michigan solicitor of his right to compensation, or injure or in December, 1899, it appeared that plaintiff knew destroy any lien which the solicitor has upon the defendant had been perviously married, but was fruit of his labors. Here it is known to the court told by him that he was divorced. They were mar- that Mr. Nutzhorn has been active in procuring ried in 1885, from which time they lived together this decree, and there is a fund in court which is as husband and wise. Defendant was not divorced the fruit of his labors; and upon that fund he has from his former wife until 1893, upon hearing a lien for the value of his services, as well as for which plaintiff insisted upon a new ceremony, but the taxed costs. And, while I think that he candefendant contended such action would create a not resist a motion to substitute a solicitor in his scandal, that it was not necessary, that they would place, that motion cannot be granted except upon treat the former marriage as binding, after which terms that Mr. Nutzhorn's lien upon the fund shall they continued to live together as husband and not be disturbed thereby. wife, defendant introducing plaintiff as his wife Some discussion has been had as to the value and having her join with him in executing legal of Mr. Nutzhorn's services, and the proper mode instruments, in which she was designated as his of ascertaining their value, and the parties seem wife. It was held that the evidence was sufficient inclined to submit that question to me. The to justify a finding that there was an agreement, proper material therefor has not been furnished to made after the former divorce, to take each other the court. Mr. Nutzhorn must make out a detailed as husband and wife, which made a valid marriage. schedule of his services and disbursements, and
serve it upon the other side; and then, if they ATTORNEY AND CLIENT -COMPEN- cannot agree, it may be either referred to a master SATION -LIEN- TAXATION.
or determined by the court itself in a summary New Jersey COURT OF CHANCERY.
manner upon hearing the parties. I may as well,
however, state roughly what I understand to be Opinion Filed November 6, 1899.
the principle upon which the court must act in HUDSON TRUST AND SAVINGS INST. v. CARR- ascertaining his compensation. The matter underCURRAN PAPER MILLS.
went consideration recently by the Court of Errors 1. A client has an absolute right to change his and Appeals in the case of Strong v. Mundy (52 solicitor, but he cannot, in so doing, deprive him N. J. Eq. 834, 31 Atl. 611), in which that court reof any lien he may have for his compensation. viewed and reversed an order advised by me.
2. Where a client desires to change his solicitor, | There is a great difference in the mode of ascerand such solicitor has a lien on a fund, unless | taining the value of solicitor's services in England and this country. In England the solicitor pays law as to the recovery of counsel fees, eo nomine, the counsel. He is not a counselor himself, and has not been changed by that decision. The atcounsel fees and solicitor's fees are entirely dis-tendance of the solicitor in court, even though tinct. A solicitor pays the counsel, and then he he does not open his lips, even though you has his right of action against his client for all do not allow anything for counsel fees eo nomine, moneys that he has paid out, and for his own fees entitles him, under that decision, in my judgment, and services. Everything that a solicitor does in to compensation. Although I do not think that England, if it is writing a letter, or going across decision particularly affects this case, it does show the street to see another man, making any inquiry the Court of Appeals to be liberal. Now, in my - any thing that you can imagine that a solicitor judgment, for all that Mr. Nutzhorn has done at can do — whether there is any suit pending, or the request of his client (directly or indirectly, beeven contemplated, or not, is subject to taxation cause there is an intermediate counsel), Mr. Nutzunder a regular schedule of fees. I examined the horn has a lien upon this fund; and, unless he has subject for myself, and have the last edition of the a guaranty that he will be paid, he is entitled to English book on the subject. And the practice is have the fund paid into court. The client is entifor the solicitor to make out a schedule of his sery- tled at any time to change his solicitor. The lien ices - and a good deal of it is per diem, too — and which is in his way is only a lien upon papers. If hand it to his client. He must render a regular you merely want to change his relation, and dis. bill. If the client wishes to have it taxed he can charge him as solicitor, you have got a right to do have it taxed, and for that purpose it goes before it; but you cannot disturb his lien upon the fund what is called a "taxing master," who is the judge; recovered, for what he has already done. and he determines the reasonableness of all Mr. William D. Edwards, for the motion. charges, and looks over the vouchers for moneys Mr. Henry M. Nutzhorn, opposed. paid, and all that sort of thing. Then, when it is finally determined, the solicitor can sue for it. And there are two kinds of taxation there as well IN THE SUPREME COURT OF THE KINGas here. One is taxation as between solicitor and
DOM OF BIRDS. client, and the other is taxation as between parties as to what shall be recovered in suits from the Turtle Dove v. Cuckoo. At Law, No. 41144. other side. A solicitor is obliged to pay out moneys and to do work. There are a number of
BY GEORGE ALFRED TOWNSEND, JR., AND JOHN items that he cannot recover from the other side.
CONNELL, JOINT AUTHORS. For instance, the whole amount of the witness fees may not be allowed there. The taxing master does In an oak hard by, 'neath the open sky, not always allow as much as the solicitor is obliged The birds held term of court. to pay, nor does he always allow as much counsel This case, well known, as will be shown, fee as he pays. He may employ three counsel. Gave promise of rarest sport. The law does not allow taxation for more than
Fair Turtle Dove was mad in love two, as against the other side. Therefore the bill
With a roué of an old Cuckoo; as taxed between solicitor and client is a different
She swore he said they'd soon be wed, thing from the bill as taxed between party and
And for breach of promise did sue. party. Now, in Mundy v. Schantz ([N. J. Ch.] 30 Atl. 322), I held that in the absence of any proof
When a false one has broken the vows by him of any contract for extra pay, or of any services spoken, not in the fee bill — any extra services performed
The courts are all agreed,
writ of attachment" for a maid on a besides what was included in the items allowed him in the fee bill — he could not recover. If he
Is not the way to proceed. proved that he performed services and did work outside the fee bill, he was entitled to pay for it,
The jury empaneled were truly untrammeled or, if he stipulated in advance for compensation
By views as to who was right; greater than that fixed by the fee bill, he was so
From the judge they admire to Robin, the crier, entitled. The Court of Errors and Appeals dif- Presented the law in its might. fered with me, and said that the fees allowed in
Sir Owl for his client, the Roué defiant, the fee bill were not the amount that the solicitor
Whom all the birds did stare at, was entitled to recover against the client for the work mentioned in the fee bill. I ght the
Looked gorged with law until they saw
Miss Dove and her counsel, Poll Parrot. made a mistake. A learned counsel said to me that the law as I laid it down had been the law in All capped and gowned, Judge Jay renowned, England for five hundred years, and I am quite The pleadings having scanned, sure it had been; but the rule laid down by the With serious face — “ Outline your case!” Court of Errors and Appeals is the law now. The Of Poll Parrot he did demand.
Midst chirps and caws (and some applause)
Poll Parrot cleared well his throat;
We'll prove beyond all doubt
Must be fulfilled when made,
Damage lies in love or trade.
State briefly now your case.” With downcast eye and sad reply
She took the stand with grace;
Sir Cuckoo this coming June,
And vowed by May's fair moon.
From out his wapentake;
O wear these for my sake!''
His journeys up and down,
Then told how he had flown.
(That Phidias of the birds), How for a fee, on each dead tree,
He carved Sir Cuckoo's words.
Love sonnets were thick as leaves;
Like the wind midst autumn sheaves.
In his “high notes so skilled,
For Cuckoo's cash had filled.
Next witnessed for their daughter;
Conclude Sir Cuckoo's slaughter.
Their lying tale we scorn!
From Falsehood's self are born!
We all admit 'tis true,
to woo! “ We do admit
yes, quite a bit Of evidence so far But when we're through to the jury true
We shall prove a case in bar. “ How you carved the trees, pray tell us, please,
Great sculptor of all nations."
Ah, Love, about thee, as in the sky,
Or morning light through which I wing, There speaks a dawning; so in thine eye
(As wondrous as the song I sing) I see a secret, which in my sleep Stirs up my soul with passion deep!
“Ah, Love, thy necklaced throat divine,
Thy swelling breast, thy ankle trim, And all thy charms make thee a shrine
Where Cupid chants his daily hymn.
In a maple I've built thee a nest,
“ Enough, enough! 'Tis wretched stuff!"
Judge Jay cried in dismay. "I little thought you would be taught
To sing such wanton lay!”
"We rest our case, for there's no trace
Of guilt - no, not a wit.
Do nothing but acquit."
As he sat down with awful frown,
Old Poll's sarcasm grim Roused all his speech, and made him screech
This thunderbolt at him:
“Thy ceaseless chatter of sense or matter
No truthful word contains,
From some one else's brains."