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Central Law Journal.
ST. LOUIS, MO., JANUARY 7, 1916.
LORD READING CALLED TO TASK FOR HIS AMERICAN INTERVIEW ON "JUSTICE."
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.
FALSE PERSONATION IN CLAIMING TO BE A FEDERAL OFFICER OF A NONEXISTING OFFICE.
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
Mr. Justice Whitney, speaking for a
It is then said: "Accepting this criterion
Verily do we find the United States,
good will for the government and its of-
The genius of our government lies par-
But is it not hard, indeed, to see how
It avails little to criticise a ruling, even
federal and state power, where regulation
NOTES OF IMPORTANT DECISIONS.
FOREIGN CORPORATIONS CARRYING
The Supreme Court said: "It (the company)
It is stated that were the company to main-
All of this proceeds upon the idea, that a
ters, so far at least as the latter were concern-
MONOPOLY-VIOLATION OF NOTICE AS
The first of these cases held that this could
The difference in decision between these
Lacombe, C. J., in speaking for a unanimous
This opinion is about as inconclusive as that
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.
RECENT DECISIONS OF THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.
QUESTION No. 94.
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.
QUESTION No. 95.
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.
QUESTION No. 96.
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?