equals. His grasp of the facts of the most complicated case was singularly rapid and accurate. Perhaps it was this facility of apprehension which led him sometimes into a rather too early expression of opinion as to the legal bearing of facts. He was not always 'swift to hear and slow to decide.' He was not always patient with counsel whose sense of duty to their clients led them to combat the view which he had taken up. But with all this he was a judge who inspired great confidence. His opinion, if sometimes prematurely expressed, was seldom wrong; and it was usually supported by a clear enunciation of principle and a careful analysis of cases. His place at Lincoln's-inn will be hard to fill."

CORRESPONDENCE.

THIS MEANS BUSINESS.

"A successful lawyer speedily prosecutes claims on contingent fees; excellent references. Attorney, box 1,312 Post-office."

Editor of the Albany Law Journal:

Should any thing further be needed to sustain you in the discussion with Judge Countryman, I inclose the above slip cut from the New York Herald of June 21. Yours truly.

RICHARD M. CADWALADER.

PHILADELPHIA, June 22, 1881.

JUDGE COUNTRYMAN ON ETHICS.

Editor of the Albany Law Journal:

The closing interrogatory of your elaborate article, last week, seems to invite a response. I am not reluctant to accept your summons. My previous communication was merely designed to meet your assumption that there were no authorities to sustain the views I had advanced relating to contingent compensation. | I promptly gave you a few citations which seem to have required an extra week for thorough digestion. And what is your answer? You suggest, in the Delaware case, that Mr. Bayard was a slaveholder! And you aver that "what is said by the court on this subject is obiter," because Mr. B. had not performed his part of the contract. Let us see. The court could not reach the question of non-performance until it had affirmed the validity of the contract. If the agreement had been held illegal, it would have been immaterial whether it had been performed or not, and the action would have been dismissed without considering the latter point. In determining the status of the contract, the court adjudged that the English statutes of champerty were not recognized in Delaware: and as there was no local statute on the subject, the only remaining proposition involved in the decision was necessarily whether the agreement was tainted with immorality. But I humbly submit that even an obiter expression of opinion after solemn argument, by the highest tribunal of a sovereign State, is quite as authoritative as the ex parte effusions of the most eminent journalist or practitioner at the bar.

You misinterpret my language in reference to the case in 1 Otto, 252. I did not attribute my quotation to the chief justice, but stated that he delivered the opinion, giving in the same connection the point of the decision in the language of the syllabus, which is a correct abstract of the case. But in the other citation from the same court (Stanton v. Embrey, 3 Otto, 548), to which you make no allusion, I gave the language of Judge Clifford; and in that case the contract

for contingent remuneration, if the time be important, was made before any of the services were rendered.

You are equally unfortunate in your criticism of the case from 1 McArthur, 558. The court, while distinctly asserting that the contract was unobjectionable on moral grounds, held it to be illegal merely because it fell within the prohibition of the English statute of champerty, which had always been held to be a part of the common law of Maryland, and therefore of the District of Columbia.

You are correct in stating that the contract in Voorhies v. Dorr, 51 Barb. 586, was made with a layman, a fact which I had overlooked. But it does not affect the principle in the slightest degree. Judge Johnson said: "The arrangement between the parties, falls exactly within the general definition of maintenance." But as the English statute on that subject was adjudged not to be law in this State, and there was nothing immoral in the contract itself, it was strictly enforced. The same court had previously applied the same rule to a contract between an attorney and client for a contingent fee. Benedict v. Stuart, 23 Barb. 420. In the latter case Judge Welles, in delivering the opinion, said: "That part of the bargain- that the plaintiff and Mr. Martindale were to have 20 per cent of the amount to be recovered, which is the only feature of the transaction claimed to be champertous, would, when viewed in connection with the other parts of the agreement, tend to repress, rather than promote, a litigation between the defendant and the railroad company." P. 421. Aud Mr. Martindale has since held the high position of attorney-general of this State.

You finally suggest that "the Wisconsin cases cited, while they pronounce the practice lawful, afford no breath of sanction of the morality or propriety of the practice!" Is it necessary to refer a professor of law to the maxims, ex dolo malo, -ex turpi causa, -- ex turpi contractu, · -non oritur actio?

But I only gave you a few samples from many authorities bearing directly on the point in controversy. I now send you another installment, without note or comment, to which it is high time you should devote a little attention: Major's Ex'rs v. Gibson, 1 Pat. & H. (Va.) 48; Marsh v. Holbrook, 3 Abb. Ct. of App. Dec. 176; Fitch v. Gardenier, 2 id. 153; Schamp v. Schenck, 40 N. J. Law, 195; Hunt v. Test, 8 Ala. 713; Wright v. Meek, 3 Green (Iowa), 472; Martinez v. Vines, 32 La. Ann. 305.

You wish to know what I think of the authorities you have cited. Noting your solicitude to escape from the issue you have raised, that there were no authorities sustaining my view; and your desire now to fall back upon another and distinct issue, whether there are any in support of yours, which I never thought of questioning, I follow you with pleasure. You cite seven judicial decisions, only two of which have any application to the point in dispute, and those are two of the strongest authorities I have seen against your position. In Foster v. Jack, 4 Watts, 334, the action was brought by an attorney to recover the value of his services on an implied assumpsit. There was no express contract either for an absolute or contingent fee. The opinion of Chief Justice Gibson was devoted to an explanation of a former decision in which he had concurred, holding that no action would lie in favor of a lawyer to recover his fees. This decision he now assisted in overruling, maintaining the right of the attorney to his reward. The learned judge remarked: "This is not the time nor the place to discuss the legality of contingent fees; and 'he refused to consider that question.

In Adye v. Hanna, 47 Iowa, 264, the attorneys, to induce their client to bring an appeal, after a trial at nisi prius, agreed to pay all the costs, if he should be beaten. The court properly held that the contract was void, and used the vigorous language you have

quoted. May I ask, why you cited this case? The contract on the part of the attorneys was for an absolute, not a contingent fee, of $27.50! P. 265. But you conceded at the outset that such a contract was perfectly proper! Do you mean then to apply this judicial condemnation to yourself? If it has any application to this controversy, it points directly against your position. No, the simple fact is, that in this as in all other cases where similar language is used, the denunciation is hurled, not against the principle involved in either class of contracts, but against special features of deception or corruption in the particular

case.

In Voorhies v. McCartney, 51 N. Y. 387, the only question was whether the attorney, who was beneficially interested in the claim, and had advised its transfer by a non-resident owner to an insolvent person in the State, for the purpose of bringing the suit, was liable for the costs of the opposite party, under the statute which provides that such person "shall be liable for costs in the same cases, and to the same extent, in which a plaintiff would be liable;" and it was very properly decided in the affirmative. The particular remark quoted by you from the opinion of the court, is as unintelligible as it was unnecessary. How a contract "not legalized" is "only tolerable," I leave for you and the learned commissioner to explain.

The cases of Arden v. Patterson, 5 Johns. Ch. 44, and Coughlin v. N. Y. C. & H. R. Co., 71 N. Y. 443, may be considered together. In the first case, the attorney purchased the entire cause of action and prosecuted it in the name of another; and in the second he stipulated to find all the money necessary to carry on the case." Of course it was held in each suit that the attorney violated the statutes prohibiting the purchase of claims for prosecution, or the advance of money as an inducement to litigation. The language quoted from the chancellor, had no reference whatever to contracts for services, but related to the purchase of claims for the purpose of prosecution. And in the second case, Judge Earl stated the true distinction, with his usual perspicuity. He said: "An attorney may stipulate with his client for any compensation they may agree upon, and such compensation may be absolute or contingent; but he may not purchase a claim for prosecution, and he may not advance, or agree to advance, any money for the purpose of inducing a party to place a claim in his hands for collection." 71 N. Y. 453. But this very distinction is recognized in the Delaware case and in all the authorities I cited. In Duke v. Harper, 66 Mo. 51, the contract of the attorneys was for one-fourth of the claim, contingent on success. Judge Henry vindicated the champerty laws and denounced "the race of intermeddlers and busy-bodies" as you have stated, and concluded as follows: "The contract under consideration, however, is not champertous, because while the attorneys agreed to receive as a compensation for their services, as such, a portion of the property in controversy, they did not bind themselves to pay any portion of the expenses of the litigation." P. 61. The court below, in reaching the same conclusion (2 Mo. App. 1), uses this language: "We see nothing contrary to the welfare of society and the administration of justice in upholding a contract between attorney and client, that the attorney should be paid out of the thing recovered. On the contrary, many a poor man with a just claim would find himself unable to prosecute his rights, could he make no arrangement to pay his advocate out of the proceeds of the suit. Such contracts have been of constant occurrence throughout this State, and if they are immoral or illegal, there are perhaps few attorneys in active practice amongst us who have not been habitual violators of the law." Pp. 10, 11.

But your crowning citation is Ex parte Plitt, 2 Wall.

Jr. 452. This is an interesting case. It involved the validity of conflicting claims of many persons as heirs at law to an estate amounting to $800,000. After the suit had been tried at the Federal circuit in Pennsylvania and an appeal had been taken to the Supreme Court of the United States, an arrangement was made with the successful claimants and their attorneys, by which Messrs. Tilghman and Newbold, two eminent lawyers of Philadelphia, and a third lawyer at Washington, to be selected by them, were to take charge of the case in that court, and receive "a commission of 7 1-2 per cent, contingent on the amount recovered," to "be divided into three equal parts, 2 1-2 to Mr. Tilghman, 2 1-2 to Mr. Newbold, and 2 1-2 to the third counsel at Washington." Daniel Webster was afterward selected as the "third counsel," and was informed of the agreement. Mr. Webster (who was opposed to slavery), pleasantly asked whether they could not get something as they went along, “ enough at least to nib the pen?" On being informed that this was impossible, he assented to the terms and participated in the argument, which resulted in sending the case back for a new trial. The same parties having succeeded again, another appeal was taken to the Supreme Court, where after being twice argued, the judgment was finally affirmed by an equal division of the judges. Mr. Webster took no part in the case after the second appeal. His engagements as secretary of State probably precluded his doing so, on the preliminary argument, and he died before the reargument took place. Messrs. Tilghman and Newbold received the 7 1-2 per cent, $60,000, for their services, but paid no portion of it to Mr. Webster or to his representatives. His executors, disclaiming auy connection on his part with the contract for a contingency, doubtless because as in the Bayard case he had failed to perform, applied to the court for a reasonable allowance out of the fund for his services. And this petition was granted, the court expressly approving of the contract in all its particulars, as reasonable and proper.

"While we such precedents can boast at home,
Keep thy Fabricius and thy Cato, Rome!"

These are your judicial authorities! If I were inclined to pursue your peculiar methods of imputation, I might very properly pause here to inquire whether a "huckster" would have been justified in wresting the condemnatory remarks of the judge in the Missouri case from their proper connection, to give the court the appearance of censuring a contract which it distinctly approved? And I might also ask whether "a huckster's conscience" would have permitted him, in the Iowa case, to misapply the indignant comments of the court, relating to a contract for an absolute fee, which he approved, to an agreement for a contingent fee which he condemned? But I am too much pleased with all your citations to wrangle with you over these little indiscretions. If after another twelve days' search you should still be unable to produce a single case in support of your views, I was about to say that I would undertake to furnish it myself, but I will think of that.

Now a few words with reference to your quotations from Sharswood's "Legal Ethics," and the deliverauces of two of our local celebrities. As the essay of Judge Sharswood is the source and inspiration of all these disquisitions, it will be unnecessary to refer to the others in detail. Judge Sharswood's book is doubtless the ablest presentation of the honorarium theory in the language. And whatever may be thought of his arguments, it must be admitted that he is thoroughly in earnest and consistent in his views. He gives his unqualified adhesion to the English rule that it is wrong and undignified to enter into a preliminary contract for the services of advocacy, but highly hon

orable to insist on pre-payment before the service is rendered! Judge Sharswood objects to any contract between the advocate and client, and your first quotation from his essay is a portion of his criticism on the propriety of such a contract for an absolute, not a contingent fee! His entire review of the subject of compensation is one continuous lamentation over the tendencies of American decisions to abandon the obsolete and fantastic theories of ancient Latium touching the relation of patron and client. I have considered all these topics in my address, and shall not stop to repeat myself here. But I cannot permit you to take shelter behind Judge Sharswood or any other gentleman. If he is right your views are as untenable as mine. You have constructed a tub for yourself and it

must stand on its own bottom. If you have indiscreetly contracted your area it is your affair, and you must take the consequences. Now you have expressly approved that portion of my address "devoted (I quote your language) to combating the false delicacy of the idea of the honorarium." You have conceded in terms that there is "no impropriety in a simple preliminary agreement on the amount of compensation, not giving the lawyer an absolute ownership or interest in a cause of action for unliquidated damages." You also concede that "the lawyer is worthy of his reward, and should have the means of compelling payment." But it is precisely such concessions and the practices they encourage that Judge Sharswood deplores, as tending to create "a horde of pettifogging, barratrous, custom seeking, money making lawyers - one of the greatest curses with which any community can be visited!"

You have further conceded that a "highminded lawyer" may now and then, "under special circumstances," take a "few cases upon contingencies, and "be justified in this course. This is an admission that there is nothing immoral at least in the practice,

to this limited extent But you are bound to mark the limitation and to draw the line beyond which "the better class of lawyers" may not pass. How many of these cases may one lawyer accept without peril? After having taken one, how long a time must intervene before he can properly accept another? If ten clients having similar cases at the same time wish to employ the same attorney, how many of them must he reject because they happen to come in "a heap?" If all of the clients are equally persistent in retaining him without delay, upon what principle should he select one or more and reject the rest? Among how many different attorneys should the ten clients be apportioned? What is the degree of poverty on the part of the client, that will justify the acceptance of his contingent retainer? These questions suggest their own answers. Your concessions in any event are fatal. There can be no compromise between right and wrong. If the practice of receiving contingent fees be heinous, disreputable, demoralizing and degrading, as you have insisted, no "highminded" lawyer can descend to it even once, under any circumstances. If "the lawyer who makes this his practice becomes a huckster," even though he is fair and honest in his dealings, how can the attorney be properly characterized who, while professing to regard the practice as dishonorable, avails himself of such a loop-hole of escape as you have furnished him, to take into his net "now and then a few" of this class of cases? I reserve the right to paint such a creature in his true colors on some future occasion, if it should become necessary.

You have suggested with great apparent candor that I must have some instinctive doubt of the propriety of the practice," because I "leave it to the client to make the advance." Let me put you to the test. You think it is right to make a contract for an absolute fee. Would you deem it delicate and proper to sug

Judgment affirmed with costs-Nichols v. White Judgment reversed and new trial granted, costs to (No. 2); Pennock v. White; Eccleston v. Guernsey. abide event-Nichols v. White (No. 1).—Order reversed and rehearing granted, costs to abide event In re Gantz, to vacate, etc. (two appeals). Appeal dismissed without costs - People ex rel. Haneman v. Tax Commissioners; People ex rel. Bunce v. Tax Commissioners; People ex rel. Pfarrins v. Tax Commissioners.- - Order of General Term reversed and that of Special Term affirmed without costs- People ex rel. Term reversed, rehearing granted, costs to abide event Burnet v. Jackson, Auditor, etc. - Order of General Jemison v. Citizens Savings Bank of Jefferson, Texas. The court took a recess till Monday, October 3.

THE

NOTES.

HE American Law Record for June, 1881, contains an article by Mr. W. H. Whittaker on Codification. The writer feels "sure that no written law ever cured one uncertainty without producing from two to ten in its place." There is a good deal of difference between "uncertainty" and criticisms and quibbles upon written law which lawyers are paid to make. The Washington Law Reporter of June 22 contains an excellent summary of the recent Seven Constitutional Cases in the Federal Supreme Court. The Penn Monthly for June contains a very interesting biographical sketch of the late William Beach Lawrence, by Charles Henry Hart. - The Western Jurist says that until lately the Iowa State Bar Association has been "too weak to live and too proud to die."-The Southern Law Review for June-July contains the following articles: Fraudulent mortgages of merchandise, by Ed. J. Maxwell; Authority in the United States courts of State constructions of the law of municipal bonds, by H. J. Beakes; Rights of a receiver to sue in a foreign court, by Simon Greenleaf Croswell; Consignee's right of action against carrier, by James O. Pierce.

We have received a pamphlet entitled "The quality of mental operations debased by the use of alcohol; certain depraved mental states analyzed;" by P. L.Wright, M. D., Bellefontaine, Ohio, reprinted from the Alienist and Neurologist, St. Louis, July, 1881. The writer says: With respect to the responsibility of a mind for acts done while in a condition of impaired consciousness, or of consciousness wavering or convulsively acting, it will, we presume, be the verdict of every one thoroughly conversant with this subject, that such a mind, being incapacitated from forming a truly rational motive, cannot be held fully responsible." We must say we should dislike to reside in a community where our life and property were at the irresponsible mercy of any man who got himself "crazy drunk."

The Albany

Albany Law Journal.

THES

ALBANY, JULY 9, 1881.

CURRENT TOPICS.

HE great crime at Washington fills the hearts and minds of all our countrymen. It cast a sickening shadow over the celebration of our National anniversary. The life of our President still hangs trembling in the balance. Our deepest sympathy goes out toward the courageous, cheerful, christian sufferer, and his family. Our hopes, our fears, our prayers, our tears, are all for them. Such an event as the assassination of Lincoln seemed a not inappropriate accompaniment of a time of civil war, but this event has a deeper significance. It shows us the maddening of weak minds in an unholy strife for office, and thus points out the vulnerable point in our National institutions. It gives a great shock to the pride and confidence in which we have held our government, to see the lives of our rulers thus at the mercy of fanatical and disappointed office-seekers. But it should not make us despair of the state of our society. When we consider the passions of men it is a wonder that society is as safe as it is. A thin crust divides us from the seething fires of anarchy. Such an event should teach the administrators of law to execute justice calmly but inflexibly. If the miserable assassin who has wrought this awful crime is morally irresponsible, no feeling of revenge or horror should intervene to defeat pure justice. Madmen cannot, be treated like mad dogs. But if he knew the difference between right and wrong, however erratic and irrational his life may have been, there is no reason why he should not pay the penalty. Justice should be no more summary but no less certain than in the case of the most obscure citizen.

Now that Senator Sessions has been indicted for bribery the partisan newspapers of the one part are abusing the grand jury for doing their duty, and calling it "persecution." Pray what else could the grand jury have done, on the ex parte testimony of Assemblyman Bradley? His uncontradicted testimony would certainly warrant a conviction, and that is the test of the propriety of an indictment. We say, let investigation go on, and if anybody is caught, let him suffer, without respect of person or party. A wind that should waft one of our legislators into the State prison for bribery would be the healthiest breeze that ever blew over the State. Such a cleansing as our bench got in the time of Tweed might well be applied to our Legislature.

Justice Westbrook, of the New York Supreme Court, has pronounced an interesting decision in the Matter of Bayard. Our Revised Statutes punish petit larceny by imprisonment in a county jail not exceeding six months, or by fine not VOL. 24.- No. 2.

The

exceeding one hundred dollars, or by both. laws of 1876 empower the recorder of Cohoes to punish that crime in like manner, except that the imprisonment is "not exceeding one year." Thus the recorder of Cohoes is given power to punish the crime more severely than the courts of the State. This Justice Westbrook holds unconstitutional. He says: "It is certainly repugnant to every fundamental principle of justice that the laws of the State should prescribe different degrees of punishment for the same offense against a general law in different localities thereof — that the gravity of the penalty for a crime, confessedly committed within the border of the same State and of the same county, must depend upon the exact spot of its perpetration, and not upon any circumstance adding to its degree-and that a petit judicial officer should be clothed with greater power to punish for certain crimes under and against the general law than is conferred upon the highest criminal courts." He pronounces the punishment provided by the later law "cruel and unusual." He says: "When the recorder of the city of Cohoes is allowed to punish, and does punish for the same offense by an imprisonment for the term of nine months, has he not inflicted a cruel and unusual punishment? Is not a sentence, when no circumstance of atrocity, nor violation of public or private rights has magnified the crime for which it is imposed, ‘cruel' which adds one-half to the maximum of punishment permitted by the general law of the State, and 'unusual' because not the usual or ordinary one imposed?" "When the general law has in plain words declared what shall be the maximum of punishment for a particular crime all over its jurisdiction, a special statute, which excepts from the operation of the general law a small portion of the State and gives to a local magistrate within such excepted district power to inflict double that punishment for the same crime, when committed therein, cannot be upheld, and must be declared void." The law thus laid down may be sound, but it strikes us that the learned justice has labelled it wrong; that if unconstitutional at all, it is for inequality. We are inclined to think that the phrase "cruel and unusual" was levelled at the intrinsic character of the

punishment, and not at the mere length of impris

onment or amount of fine, unless the same should become monstrously disproportionate. It was undoubtedly intended to prohibit torture, or death by barbarous means, as by burning, for example. So it may prohibit, for example, imprisonment for life or hanging for petit larceny, or a fine of a million of dollars for the like offense. But there is nothing intrinsically cruel or unusual in imprisonment for a year for petit larceny. The objection to the law, it seems to us, is that it does not treat all the citizens of the State alike. It punishes persons for larceny in Cohoes more severely than in the adjoining town of Waterford. This raises an interesting question. Has the State power to do this? It has been frequently decided that a citizen may be twice punished for the same misdemeanor - as for keeping a gaming-house