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Central Law Journal.

ST. LOUIS, MO., JANUARY 7, 1916.


A judge who stoops to flatter public misconceptions of the judicial administration of the law deserves the rebuke contained in the sharp comments which the English law journals have made with reference to some after-dinner remarks of Lord Reading while on his recent visit to this country.

Lord Reading is quoted as saying that "the idea that it is the duty of the law courts to dispense law, is becoming obsolete. It is recognized that the true duty of the courts is to dispense justice."

Law Notes (London) in its December, 1915, number, says:

"If his Lordship is correctly reported,

then the observation of the average blunt old lawyer will be short and simple. 'Rot!' The tongue of the most careful man runs away with him in an afterbanquet speech, and if his Lordship did make any such remark he now bitterly repents it. What a nonsensical idea laymen have on this point. 'Well, sir, it may be law, but it ain't justice.' In our experience, we have noticed the remark is generally made by a litigant who has just lost his case. The law of the land is made up of common law and statute law. If this law does not produce what the community regard as justice, then let Parliament amend the law. But in the name of common sense, don't let justice depend on the length and breadth of each judge's foot, or rather, brain."

Law and justice are not interchangeable terms. The one is objective; the other subjective. Law, in the practical use of that term, is society's conception of justice, concretely expressed in statute and decision. Abstract justice is an

ever advancing but never completely attainable ideal toward which society keeps steadily striving. This ideal is realized in some measure from time to time by legislation changing or modifying rules of law. It must be borne in mind, however, that the popular assembly of the people is alone authorized to make the changes which the people regard as necessary to bring practical legal rules and abstract principles of justice into closer working relationship, and a judge is justified neither in lagging behind nor in going ahead of the community's conception of justice as expressed in the action of the legislature. A. H. R.


The U. S. Supreme Court reverses ruling by District Court reported in 221 Fed. 140, that false personation of an officer or

employe of the United States under the

Federal Statute, "must be personation of some particular person or class of persons, since there cannot be a false personation of a suppositious individual who never existed or whose class never existed." United States v. Barrow, 36 Sup. Ct. 19.

The Supreme Court holds to a broader meaning of the federal statute, saying that: "To 'falsely assume or pretend to be an officer or employe acting under the authority of the United States' *** is the thing prohibited. One who falsely assumes to pretend to hold office that has a de jure existence is admittedly within its meaning. That is, where the assumption or pretense is false in part, but contains a modicum of truth the statute is violated. Why should it be deemed less an offense where the assumption or pretense is entirely false, as where the very office or employment to which the accused pretends title has no legal or actual existence?"

The pretense in this case was that defendant falsely pretended to be an employe



of the United States to sell the "Messages
and Papers of Presidents," and it was
claimed that as there was no such federal
employment, the United States had no con-
cern in the pretense, but this was an of-
fense, if any, under state law alone, and
state authority could not be encroached


Mr. Justice Whitney, speaking for a
unanimous court, except McReynolds, J.,
not sitting, quoted from a cited case by
defendant in error, as follows: "An act
committed within a state, whether for a
good or a bad purpose, or whether with
an honest or criminal intent, cannot be
made an offense against the United States
unless it have some relation to the execu-
tion of a power of Congress, or to some
matter within the jurisdiction of the United

It is then said: "Accepting this criterion
the legislation now under consideration is
well within the authority of Congress. In
order that the vast and complicated opera-
tions of the government of the United
States shall be carried on successfully,
and with a minimum of friction and ob-
struction, it is important-or, at least, Con-
gress reasonably might so consider it-not
only that the authority of the governmental
officers and employes be respected in par-
ticular cases, but that a spirit of respect
and good will for the government and its
officers shall generally prevail. And what
could more directly impair this spirit than
to permit unauthorized and unscrupulous
persons to go about the country falsely as-
suming, for fraudulent purposes, to be en-
titled to the respect due to an officer of the
government. *** It is surely the same,
and the power of Congress to prevent it is
quite the same, whether the pretender
names a non-existing office or officer."

Verily do we find the United States,
though with limited and delegated powers
and those incidental thereto for the protec-
tion of such powers, a touchy institution.
And when those incidental powers take on
the enforcing of "a spirit of respect and

good will for the government and its of-
ficers" by criminal enactments, this seems
the announcement of an era more in con-
formity to notions in monarchical, than in
republican rule.

The genius of our government lies par-
ticularly in the principle that all of our
citizens, whether some of them are ser-
vants in official capacity during a brief
period or during good behavior, are all
equal and all obedient and respectful and
with good will for law and order. No other
obedience, respect or good will is required
or necessary or considered more than sur-
plusage where this is had. It follows, as
the night follows the day, that, if all of
these are given to the law, its ministers will
not be obstructed, and when there is speech
of extra respect and good will to such min-
isters, it is misspeech only or an anomaly.

But is it not hard, indeed, to see how
there is any lack of respect and good will
for the federal government, in its dele-
gated functions, for one to pretend to per-
sonate a federal officer under an authority
that has no existence in federal law? It
might deceive one ignorant of federal law,
but it would be proof conclusive of fraud-
simple fraud, only-to one informed. When
the ignorant one shall become informed, he
would say, "I will prosecute the cheat for
the fraud," and he would go to the jurisdic-
tion which enforces a penalty for such a
deception. Can this jurisdiction be taken
away by the offender telling a lie? This
would be the case were objection made be-
fore a state court.

It avails little to criticise a ruling, even
though it be not unanimous, of our Federal
Supreme Court, but the reasoning adduced
in its support seems to us to smack too
much of countries whose officials in civil
life strut with the importance which mili-
tary discipline tolerates, not to say encour-
ages. We trust this is not the forerunner
of what shall obtain in the times of greater
preparedness which seem to be coming.
This decision does not greatly help to keep-
ing well-defined the boundaries between.

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federal and state power, where regulation
ends for the special purpose of our govern-
mental agency enforcing the duties de-
volved on it and where the state power
to punish crime as crime exists without



Federal Supreme Court reverses Kentucky
Court of Appeals in a holding by the latter
court, that a foreign insurance company con-
tinued to do business in Kentucky where as to
policies in force in that state it received pay-
ment of premiums necessary to be paid to
keep the policies alive. Provident S. L. Assur.
Co. v. Kentucky, 36 Sup. Ct. 34.

The Supreme Court said: "It (the company)
had sought to withdraw itself completely from
the state. The conclusion that it continued
to do business within the state, notwithstand-
ing this withdrawal, appears to be based solely
upon the fact that it continued to be bound to
policy holders resident in Kentucky under poli-
cies previously issued in that state, and that
it received the renewal premiums upon these
policies. As the policies remained in force, it
is said that the company continued to furnish
protection to citizens of Kentucky. The re-
newal premiums, as already stated, were paid
in New York. There is, however, a manifest
difficulty in holding that the mere continuance
of the obligation of the policies constituted
the transaction of a local business for which
a privilege tax could be exacted. As a priv-
ilege tax, the tax rests upon the assumption
that what is done depends upon the state's
consent. But the continuance of the contracts
of insurance already written by the company
was not dependent on the consent of the
state. ***
Neither the continuance of the ob-
ligation in itself, nor acts done elsewhere on
account of it, can be regarded as being within
the state's control."

It is stated that were the company to main-
tain an office in the state to collect premiums
on old policies, or in renewal of them, this
would subject the company to the privilege tax
spoken of.

All of this proceeds upon the idea, that a
regulation aimed at the foreign company
would not impair the obligation of the con-
tract between the company and its stockhold-

ters, so far at least as the latter were concern-
ed, and if state construction of the statute
had this necessary result this construction
would be rejected. And we think that, if the
reasonably necessary way of preserving stock-
holders' rights required an office in the state
for a limited purpose, this also should be
granted. But it was unnecessary for the Su-
preme Court to go to this extent.

TICLE.-We called attention in 81 Cent. L. J.
127, to an apparent conflict in U. S. v. Kellogg
Toasted Corn Flakes Co., 222 Fed. 725, and
Great Atlantic & Pacific Tea Co. v. Cream of
Wheat Co., 224 Fed. 566, as to whether a man-
ufacturer could, without violating the anti-
trust act, fix resale price, at retail, of a manu-
factured product.

The first of these cases held that this could
not be done, while the second held it could.
Now, the ruling in the second case has been
affirmed on appeal to Second Circuit Court of
Appeals. Great Atlantic & Pacific Tea Co. v.
Cream of Wheat Co., 227 Fed. 46.

The difference in decision between these
two cases seems not to lie at all in the fact,
that the United States was prosecuting and
plaintiff was seeking to establish his right to
purchase from a manufacturer unwilling to

Lacombe, C. J., in speaking for a unanimous
court in the affirming opinion, speaks of the
business as follows: "The business of de-
fendant is not a monopoly, or even a quasi-
monopoly. Really, it is selling purified wheat
middlings, and its whole business covers only
about 1 per cent of that product. It makes
its own selections of what by-products of the
milling process it will put up, and sells what
it puts up under marks which tell the pur-
chaser that these middlings are its own selec-
tion. It is open to Brown, Jones and Robinson
to make their selections out of the other 99
per cent of purified middlings and put them
up and sell them; possibly one or more of them
may prove to be better selectors than de-
fendant, or may persuade the public that they
are." The opinion goes on in this way and
concludes by saying: "We have not yet reach-
ed the stage where the selection of a trader's
customers is made for him by the government."

This opinion is about as inconclusive as that
which it affirms. Its language in some view is
broad enough to include an article of necessity
and it hedges by a recital that this article is
not such. When merely by reason of the fact
a manufacturer has not yet captured the mar-

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ket as to a preference selection of an article of necessity, as to make him formidable, his means aiming at that end may not be arrested, though when he becomes formidable the course he has pursued may be condemned as no longer to be used. By the same token, a decree ought not to stop him entirely, but merely reduce his sales below the danger point.

SELF-DEFENSE-ONE CO-OWNER OF ILLICIT BUSINESS ATTACKING ANOTHER THEREIN.-In 80 Cent. L. J. 440, and in 81 ibid. 291, there was considered the "castle" principle under different aspects, the former where the attack was upon an owner of a home by a guest lawfully therein and not by an intruder, and the latter where the attack was by an intruder and the killing was not in the house, but in the yard outside. The former case was People v. Tomlins, 213 N. Y. 240, and the latter was Thomas v. State (Ala. Court of Appeals), 69 So. 315.

In Hill v. State, 69 So. 941, decided by Alabama Supreme Court, the question recurs, as to the application of the "castle' principle where a homicide was of deceased in an illicit distillery set up and maintained by the slayer and the deceased. It was held that: "If the person engaged in an unlawful business would not be protected in his illegal credit sales, it will not be held that if, while operating or conducting this unlawful business, he is attacked (this illegal business place not being his dwelling house), he has the same right to stand and defend that he would have in his dwelling house or house used in the conduct of a lawful business. The unlawful business house or place, and its keeper or maintainer are for the time not protected by the special right of defense of the castle. * *


unlawful occupant has no higher or more special right of defense than that extended to him in a public thoroughfare or in his wood or field."

We think this is sound doctrine, but unnecessary to be announced in a case where the homicide was not of an intruder but of one having equal right, or as good right, in the place, whether that of a lawful or unlawful business, as that of the slayer, a distinction pointed out by us in 80 Cent. L. J. 44, supra.

We say the principle announced as to occupant in a place where unlawful business is carried on affording no right of "castle" is sound, but this position is not free from doubt and may have its limitations. It is not a situation any individual has the right to challenge. It is a situation for the state by direct proceeding to assail and the occupant would

have opportunity to defend his occupation as lawful. Suppose a business is lawful but is carried on without proper license?

ATTORNEY AND CLIENT-COMPROMISE OF JUDGMENT BY CLIENT IN WHICH ATTORNEY HAS INTEREST. By Kentucky statutes attorney at law is given a lien for his contingent fee in claims in suit according to agreement, which lien passes over to be a lien on judgment recovered in the suit. In a case decided by Kentucky Court of Appeals there was a suit and a judgment against a solvent defendant, which was compromised by the client, and the question was, what should be attorney's recovery against defendant? Chreste v. Louisville Ry. Co., 180 S. W. 49.

The Court said: "This is not a case where settlement was made with a client prior to judgment; nor is it a case where the judgment debtor is insolvent. It is a case where there was a judgment for $1,000, and a solvent judgment debtor settled with the plaintiff for $300. In such a case the amount of the judgment, and not the amount of the compromise controls; in other words, if the judgment debtor settles with the judgment creditor, in the absence of the creditor's attorney, for less than the amount of the judgment, he does so at his peril and cannot thereby deprive the attorney of any portion of the fee to which he is entitled under and by virtue of his contract of employment. As Chreste's contract between him and Drake called for a fee equal to 50 per cent of the amount of recovery, and as Drake recovered a judgment for $1,000, it follows that Chreste is entitled to recover of the railroad company one half of the amount of the judgment, or the sum of $500."

The record in this case shows that after the verdict was obtained for $1,000 and motion for new trial overruled, the railroad company agreed to pay a third person $175 if he would procure a settlement with plaintiff for $300. This third party agreed to give plaintiff $125 of his $175 if he would settle, which netted to plaintiff $425, the railroad agreeing to pay the attorney fee. The consideration moving to plaintiff very probably was the avoidance of an appeal by defendant. By the arrangement it paid out $475 and now has to pay the attor ney $500. Its sharp practice did not gain for it anything, as, no doubt, court costs ate up the margin of $25.

The decision seems to indicate that when a judgment has been obtained, proceedings by appeal do not open matters so that a settlement may be made by defendant with the

client, though a compromise would limit attorney's recovery, if made at any time before judgment, whether with his consent or without it.



Is it the opinion of the Committee that there is professional impropriety in the following conduct of an attorney for a Bankrupt, viz:

The Bankrupt has filed an offer of composition on the basis of 20 per cent. His attorney sends out a circular letter to all of the creditors of the Bankrupt urging them to accept the offer and enclosing to them blank proofs of claim to be made out by the creditors, stating to them that he will file the proofs for them with the Referee in Bankruptcy and collect and remit their dividends free of charge, in case they see fit to return their respective proofs of claim to him.

Answer No. 94.-Although the question does not disclose how the attorney will collect the dividend, it would seem that his intention is to suggest the giving of a proxy or power of attorney. By the acceptance of such proxy in the usual form, the attorney would at once be authorized to act for both debtor and creditor charged with conflicting duties. Unless his circular letter makes it entirely clear that the attorney, in offering to file proofs of claim, does not seek to assume the relation or duties of an attorney to the creditors, the Committee disapproves the practice suggested. Of course, no such communication should be sent direct to creditors who are represented by counsel.


Pleadings-The lawyer's duty in respect to statement of facts and presentation of law. Relation to Client-The lawyer's duty in respect to statement of facts and presentation of law, in pleadings.

Relation to Court-The lawyer's duty in respect to statement of facts and presentation of law, in pleadings.

Under Section 30 of the Code of Ethics of the American Bar Association, as published by West Publishing Co. in 1915, it is suggested that it is a lawyer's right to insist upon the judgment of the Court as to the legal merits of his client's claim, unless the suit is brought to harass or injure, etc.

Under New York practice practically all pleadings are verified. In order to get the legal

merits of his claim before the Court the client must set forth his cause of action in legal terms with legal characterization of the facts, and swear to it. Of course the actual facts are clearly either true or false.

But do you consider that such a verification is equivalent to an affidavit of merit and that therefore there is a question of legal ethics involved, so that an attorney should not draw up a pleading for his client unless he, as a lawyer, believes beyond a doubt that his client has the law on his side? Or is it sufficient for the attorney to feel that his client has a claim or defense which is justiciable, as suggested by Section 30 above referred to, regardless of the attorney's own view of the legal merits? There is room for argument in most cases, as shown by the frequency of dissenting opinions of Courts.

Answer No. 95.-In the opinion of the Committee, if the facts be truthfully pleaded, the lawyer may present any fairly debatable law question for the Court's determination. The client is entitled to have a fairly debatable question of law presented from the angle of his side, though the lawyer might think, and might advise his client, that the question was a doubtful one. This, of course, excludes the raising of such points as the lawyer knows are without merit. At all times the lawyer must truthfully plead the facts as they are known to him; and if he pleads such facts according to their legal effect, he must believe that they fairly warrant the statements he makes in the pleading. For this he is responsible to the Court of which he is an officer.


Advertising Solicitation.-Card of announcement that lawyer is a certified public accountant-not disapproved.

Card of announcement by lawyer that he is a certified public accountant, containing argumentative statements of his usefulness-disapproved.

In the opinion of the Committee would there be professional impropriety in a member of of the bar addressing a circular letter or printed announcement card to members of the bar advising them that he is both a member of the bar and a certified public accountant, and offering his services to them in matters of legal accounting, such as the preparation and trial of cases requiring a knowledge of accounting practice, enumerating by way of suggestion to them various classes of cases arising in their practice in which he considers that he may assist them with advantage because of his knowledge of the theory and practice of accounts?

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