THE

NOTES OF CASES.

THE case of De May v. Roberts, Michigan Supreme Court, June 8, 1881, 9 N. W. Rep. 146, so far as we know, is unique, at least since the time when Clodius in disguise penetrated the mysteries of the Bona Dea. It was there held that where a physician takes an unprofessional unmarried man with him to attend a case of confinement, and no real necessity exists for the latter's assistance or presence, both are liable in damages; and it makes no difference that the patient or husband supposed at the time that the intruder was a medical man, and therefore submitted without objection to his presence. The physician testified that the layman, who bore the misleading name of Scattergood, accompanied him reluctantly, on foot, on a dark and stormy night, when the roads were too bad to drive or ride a horse, to carry a lantern, an umbrella, and some instruments. The physician told the husband that he had brought Scattergood along to help him carry these things, and Scattergood was admitted without objection. The house was only fourteen by sixteen feet in size, and the doctor and the intruder were necessarily in the same room with the suffering lady. At the doctor's request, Scattergood once gave some trifling manual assistance, but did not obtrude himself, but conducted in a proper manner. The court remarked: "Dr. DeMay therefore took an unprofessional young unmarried man with him, introduced and permitted him to remain in the house of the plaintiff, when it was apparent that he could hear at least, if not see all that was said and done, and as the jury must have found, under the instructions given, without either the plaintiff or her husband having any knowledge or reason to believe the true character of such third party. would be shocking to our sense of right, justice and propriety even to doubt that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one, and no one had a right to intrude unless invited, or because of some real and pressing necessity which it is not pretended existed in this case. The plaintiff had a legal right

It

to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation. The fact that at the time she consented to the presence of Scattergood, supposing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterward ascertaining his true character. In obtaining admission at such a time and under such circumstances without fully disclosing his true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterward sustained, from shame and mortification, upon discovering the true character of the defendants." The action was brought by the wife.

In Baker v. Allegheny Valley R. Co., Pennsylvania. Supreme Court, October, 1880, it was held that an employer should know that a rope used on a derrick

for three years is no longer safe, and is responsible for an injury caused by the breaking of such a rope to an employee who was not acquainted with the rope. The court said: "It is not negligence in the master if the tool or machine breaks, whether from an internal original fault not apparent when the tool or machine was at first provided, or from an external apparent one produced by time and use not brought to the master's knowledge. These are the ordinary risks of the employment which the servant takes upon himself. Ryan v. Cumberland Valley R. R. Co., 11 Harris, 384. But do these rules apply to such an instrument as a rope used in a derrick which is employed in raising heavy weights ? No doubt a perfectly new rope, and one to all appearance sound, may break, and the master would not be responsible for the consequences, having furnished a rope of the proper size for the purpose, to all appearances sound. But there was evidence in this case sufficient certainly to make a question for the jury that such a rope, after having been used for a year or more, and exposed during that time as the one in question seems to have been, was no longer a safe rope, even though it did not outwardly exhibit any signs of decay. The master is bound to know that a rope, under such circumstances, will It will not do for him to only last a limited time. furnish a sound rope, and then fold his arms until, by actually breaking, it is demonstrated to be inseIt will not do to say that the servant is bound to know this as well as his master, and to warn him that, after such a time, he ought to provide a new rope. Is the servant bound to notify

cure.

the master of that which he knows or ought to know without such information? He knows how

long the rope has been in use. The servant may

not know. In this case the deceased did not know. It appears to have been the first day that he worked on the derrick. There was nothing to attract his notice in the outward appearance to show how long it had been in use. It is the duty of employers to renew instruments of this character at proper intervals. The expense would certainly not be great, and a due regard to the lives of their servants imperatively demands it.”

In Penfold v. Universal Life Ins. Co., New York Court of Appeals, May 31, 1881, it was held that under a condition in a life policy, that the insurer should not be liable "if the insured shall die by his own hand or act, voluntary or otherwise," the liability is not avoided when death ensues from an accidental taking of an overdose of medicine, duly prescribed. The court said: "The question in all cases of this character is the proper interpretation of a contract, and the point of inquiry is what obligations the parties must, from the language used with relation to the subject-matter and the circumstances, be reasonably supposed to have intended to assume. The clause against suicide is clearly intended to protect the insurance company against the fraudulent act of the insured whereby he may, even at the sacrifice of his own life, secure a benefit to those whom he may desire to favor at the expense

of the insurance company. But as has been already said, it has been held from the earliest day that a suicide committed in consequence of insanity was not within the meaning of the condition, although within its literal terms. The decisions establishing this doctrine were placed upon the ground that the death, though apparently caused by the act of the party, was not so caused in contemplation of law, because his mind did not concur in the act, his mental organs having been so diseased as to cease to control his actions, or to guide them in accordance with reason. At a later day in the history of life insurance, some companies, for the purpose of avoiding the difficulties involved in the inquiry as to the condition of the mind of the person committing self-destruction, stipulated for exemption from liability in all cases of suicide, whether 'sane or insane.' Others adopted the words 'voluntary or involuntary,' others, as in the present case, 'voluntary or otherwise.' It would not be a fair interpretation of this clause, in either of the forms mentioned, to hold it to cover the case of a purely accidental death from poison occurring to a sane person, through mistake or ignorance, though his own hand might have been the innocent instrument by which the deadly potion was conveyed to his lips. Such an accident cannot be presumed to have entered into the minds of the contracting parties, or to have been intended to be stipulated against. The insurance was intended to cover the risk of premature death, which might result from any of the casualties to which human life is subject, selfdestruction being excepted. A purely accidental act, committed by a sane person, with no idea of injuring himself, cannot be regarded as an act of self-destruction within the meaning of such a contract. Suicide is the act stipulated against. The words 'voluntary or otherwise' preclude the parties claiming under the policy, if the act was one of suicide, from setting up the condition of mind of the party committing it, and contending that it was an involuntary act of suicide. But still it must be a suicide, and who would contend that the taking of poison by mistake, or any other act which a sane person might innocently commit, though it should result in death, was what is ordinarily understood as self-destruction or suicide? It is unreasonable to suppose that one effecting an insurance upon his life, in stipulating against death caused by his own hand or act, could intend to embrace such a casualty, or that the insurance company could fairly expect him so to understand." The court cited Van Zandt v. Ins. Co., 55 N. Y. 169; S. C., 14 Am. Rep. 215; Newton v. Ins. Co., 76 N. Y. 426; S. C., 32 Am. Rep. 335. The case of one accidentally setting fire to his own premises would seem analogous to this.

In First National Bank of Salem v. Grant, 71 Me. 374, it is held that the maker of an accommodation note, lent without restriction, is liable to a third person who acquires it for value after maturity. This is put on authority, quoting Harrington v. Dorr, 3 Rob. 283; Story Prom. Notes, § 194; Brown v. Mott, 7 Johns. 362; Sturtevant v. Ford, 4 M. & G.

101; Parr v. Jewell, 81 E. C. S. 684; Maitland v. Citizens' Nat. Bk., 40 Md. 540; S. C., 17 Am. Rep. 620. So says Mr. Daniels, Neg. Inst., § 786. On the other hand, the recent case of Carrol v. Peters, 1 McGloin (La.) 88, takes the opposite view, upon principle as well as authority. It is here said the tendency of the later English cases is against the doctrine laid down by Mr. Daniels, and Parr v. Jewell, supra, is cited to show this. The doctrine of New York, Pennsylvania, Alabama, and Massachusetts, is opposed to that of the principal case. Chester v. Dorr, 41 N. Y. 279; Hoffman v. Foster, 43 Penn. St. 137; Bower v. Hutchinson, 36 id. 285; Battle v. Weems, 44 Ala. 105; Kellogg v. Barton, 94 Mass. 527. The case of Chester v. Dorr, supra, overrules Brown v. Mott, 7 Johns. 362; Grant v. Ellicott, 7 Wend. 227. See Bigelow on Bills and Notes, 444. On principle these latter cases seem right. If one who acquires commercial paper after maturity takes it subject to the equities between the original parties, it would seem that no stronger equity could be conceived than the want of consideration,

DE

THE CONTINGENT FEE BUSINESS.

ESIRING to obtain some disinterested and authoritative opinions on the subject of discussion between Judge Countryman and ourselves, we have addressed letters to several gentlemen, who, it will be conceded, represent the purest morals and highest intellect of our profession, asking them to express their views for publication. These gentlemen are Mr. Justice Bradley, of the United States Supreme Court, Judge Cooley, of the Michigan Supreme Court, and ex-Judge Dillon. For the information of our lay readers we add, that the two latter gentlemen are among the most distinguished legal authors in this country, and are lecturers at law schools, as well as experienced and admired judges. We have received the following responses:

Mr. Justice Bradley writes: "I fear that my notions on this subject will be regarded as a little oldfashioned. Chief Justice Hobart said: 'I hold that if an attorney follow a cause to be paid in gross, when it is recovered' (that is, not to be paid unless he succeeds), 'that is champerty.' And it seems to me that it has the essence of champerty. Strictly speaking, champerty is an agreement to prosecute a suit in consideration of participating in the recovery, or an agreement to divide the spoils. But an agreement that the pay shall depend on the recovery, is substantially the same thing. There may be a metaphysical difference, but not a moral The undertaking of suits on speculation promotes litigation. Stale or doubtful claims, which would never have been stirred, are thereby put in suit. The peace of society is disturbed by litigation fomented by those who are not concerned in it. This has been condemned in all ages. The civil law condemns it. The common law followed the civil. If the legal profession should encourage among its members the promotion of litigation by raking up claims and prosecuting them on shares, it would

one.

not long be tolerated by the community. A practice which leads to such a result should be discouraged.

"My opinion, therefore, is that it is derogatory to the honor of the profession; that it has a tendency to degrade it; that it indicates, wherever it prevails, a low state of professional morality.

"There may be cases where common charity would require a lawyer to aid a poor man in obtaining his rights. But he should be careful not to require any onerous exaction as the condition of his efforts. In case of recovery there would be no harm in asking for a fee somewhat proportioned to the degree of success. But no agreement to this effect should be exacted. It should be a voluntary payment.

"Mr. Penrose, a barrister, was sued in champerty for taking part of the land recovered. He pleaded that he was counsel in the case, and that the land was given to him in payment of his fee. The plea was demurred to, but was sustained, because it did not appear that there was any previous agreement that he should have the land for his fee. (Bro. Abridg. Champerty, 3.) As Blackstone says: A man may maintain the suit of his near kinsman, servant, or poor neighbor, out of charity and compassion, with impunity.' (4 Com. 135.) But entering into another's suit by partnership for the purpose of speculation and gain, is a different matter. Domat says: "The honor of the profession of advocates engages them not only to maintain and defend justice and truth, and to make use of no unfair practices, but to abstain from all manner of prevarication, from purchasing the rights of their clients, or bargaining with them for a share of what they shall recover,' etc. (Pub. Law, book II,'tit. 6, sec. 2, par. V.)

"As a question of professional propriety, therefore, I am opposed to the practice of counsel taking causes for their clients on speculation.

Judge Dillon writes: "A delicate sense of propriety hardly consists with taking a case on speculation,' as I undersand the phrase. I have never taken such a case nor a case upon an expressed contingent fee. Most professional charges, however, are sub modo contingent, that is, a lawyer charges more for the same skill and labor where they lead to a successful result than where they do not. Exceptional cases may justify a contingent fee; but the tendency of the practice and the abuses resulting from it are such that it ought not to be favorably regarded."

Judge Cooley writes: "1. A member of the bar is a minister of justice. He is licensed to assist the court in the administration of the law; and in the performance of his special functions he puts legal claims and defenses in due form for an orderly determination, assists in eliciting the truth upon legal issues, aids the court by his investigations and arguments to right conclusions upon the law, and attends to the execution of the judgments which are awarded. As experience is thought to demonstrate that a just result is most likely to be reached when each party to a controversy has his special counsel

to examine, prepare and present his side, the lawyers called in must assume antagonistic positions, but each is supposed to have his attention directed to the final attainment of a right conclusion, and the profession itself has no justification for its existence except as it fulfills its mission as above indicated.

"2. In the performance of professional functions, the lawyer owes duties to his client, to the court, and to the State. To his client he owes fidelity and unreserved confidence; to the court he owes respect, obedience, frank and truthful advice, and generous support, and to the State he owes the duty of making his office, like that of the judge, conducive to the general good by means of a just administration of law.

3. Clothed with such functions, and charged with such important duties, a lawyer is permitted to charge a reasonable compensation for his services, which is sometimes regulated in advance by the law, and sometimes left to negotiations or the testimony of witnesses after the services are performed. In many cases lawyers have not been content with this reasonable compensation, but have entered into arrangements with their employers for contingent fees, on the no cure no pay plan of medical charlatans, or have stipulated, when suing for the recovery of property or damages, that they shall receive in case of success a certain proportion of the recovery in lieu of fees. As such arrangements are most often made with persons of limited means, who can ill afford the expense of unsuccessful litigation, they are made to wear a benvolent aspect, as arrangements whereby injured poverty may be enabled to obtain its due. But that they are corrupting, and affect injuriously all the relations which the lawyer enters into is believed to be unquestionable.

"4. The first injurious consequence of such a practice is that it tempts lawyers to deal deceitfully with those who go to them for advice; to express doubts of results when they feel none, to suggest difficulties which they do not really anticipate, to magnify the probable cost of litagation; in short, to do any thing rather than express a frank opinion of the actual case and its probabilities, with a view if possible to bring the client to the point of proposing a part of the property or damages claimed, if by means thereof he shall be put in possession of the remainder. If, for example, the lawyer can so far discourage his client as to obtain from him an offer of one-half of property worth $20,000 for the performance of services worth not to exceed $500, and success seems reasonably certain, he is manifestly interested to the extent of $9,500 to deal disingenuously with his client; and if the practice is recognized as legitimate, the temptation will often prove too great to be resisted. If suit is instituted without any such arrangement, there is then the temptation to permit delays, annoyances, trouble and cost to the client that might be avoided, with a view to the same end; and no doubt some lawyers who consider themselves high-minded and honorable unconsciously lose the spur to diligence in their suits when discouragement to their clients seems

likely to prove more profitable to them than would the energetic pursuit of a remedy. Thus the practice invites and tempts the lawyer to conceal from the client his real views, and to antagonize the interest of the client; a condition in which the law contemplates he shall never be placed.

"5. A further injurious consequence is that it takes from the lawyer the feeling that he is a minister of justice, and enlists his selfishness in a way that precludes his making a just administration of the law his first consideration. The lawyer's legitimate fee is payable irrespective of the result, and he is supposed to occupy a position from which he can contemplate the controversy with a desire that the correct rule of law shall be applied and the truth be expressed in the judgment whether the result to his client be favorable or unfavorable. The policy of the law is that neither his feelings nor his interest shall be so far enlisted as to tempt him to desire injustice; but a contingent fee makes him a party in desire and anxiety; he becomes disqualified to be the adviser of the court, and the high sense of honor that should actuate all his professional conduct is blunted by the bribe that tempts his fidelity to justice. The court thus loses its proper reliance, and the State loses in great measure the advantages anticipated from this body of officers.

"6. A third injurious consequence is that it leads to the bringing of many suits that ought never to be brought. Such bargains are most often met with in suits for alleged negligent injuries. In the majority of these corporations are defendants. Many of the suits are justly brought and justly result in substantial recoveries; others are instituted in reliance, not upon justice or the law of the case, but upon the effect of appeals to passion or prejudice. These are often taken as mere ventures, as one might invest in a lottery ticket or in the exploration of an unknown land for possible mineral wealth. Perhaps no other class of suits does so much toward bringing the jury system into contempt, or toward creating a feeling of antagonism between aggregated capital on the one side and the community in general on the other; and lawyers who bring the suits are interested in making the most of this feeling. In no small degree this affects the public confidence in legal proceedings; corporators are made to believe that justice for them is not to be obtained from juries, and the public is made to believe that courts very often improperly interpose to annul just verdicts against great corporate monopolies. And when the court is censured for administering the law impartially, the lawyer who, unaffected by the interest or passion of his client, ought unhesitatingly to give the court his moral support, is found to be himself a suitor in the client's name, and his expressed disappointment and anger, which the public do not know are interested, are vastly more effective in weakening the hold of the court upon public confidence than could be any complaints of the suitor whose interests were known to be at stake. These evils are present more or less in other cases, but are conspicuously present in these.

"7. A further injurious result is that it affects

the mind as all gambling does, and not only renders the judgment untrustworthy, but begets a disinclination for the somewhat monotonous routine of daily professional life. If only the customary fee is at stake, it may confidently be expected that the lawyer will bring a cool judgment to the consideration of a proposed suit; but it is easy to see merits when a possible fortune awaits the lawyer at the conclusion; and whoever is accustomed to take such chances is in great danger of coming after a time to look upon the administration of the law as the turning of the wheel of a lottery, where any venture, however unpromising, may come out a prize. Such a lawyer gradually loses confidence in fundamental and enduring principles; his judgment is confused in the hopeful contemplation of possibilities, when it should seize hold upon and cling to legal verities, and it becomes wholly unsafe and unreliable. Safe legal advice can only be given by one who comes to the consultation in a judicial frame of mind, and dismisses for the time all such selfish considerations as would tend to lead the mind to a particular conclusion. And while this seems plain and unquestionable, it is no plainer than that a lawyer becomes untrustworthy in judgment in proportion as he permits his sense of honor and professional fidelity to be subordinated to his personal interests.

"8. The practice, then, is injurious to the cause of justice, to the court and to the lawyer himself. Rare good fortune may in some cases make it result in pecuniary prosperity, but it must be at such sacrifices as the teachings of the professions should secure one against a willingness to submit to. Under such circumstances it would seem that if poor persons need assistance to enforce their substantial rights, and are unable to pay for it, a lawyer, properly imbued with a sense of the just nature of his calling, will prefer to give assistance as a matter of charity, rather than place himself in a position that antagonizes the interest of the client, at the same time that in great degree it incapacitates him from performing the highest and most honorable of his duties, namely, those which are owing to the court and to the law itself."

Senator Hoar, of Massachusetts, in an address before Yale Law School, on the 28th ult., observed: "If you will walk these high paths you must abandon the pursuit of wealth as a principal or considerable object of life. Of course, the lawyer must have his quiddam honorarium. He must have his ample library. He must provide for his wife and children a comfortable home, lay up something for old age, and start his children in life with a good education and the stimulant of his own good example. That is pretty much all. I hope to see our profession everywhere return to its ancient and healthy abhorrence of contingent fees and everything that savors of speculation in justice. When you are once known to the people, not as masters of the law, but as traders and traffickers seeking your own gain, the virtue has gone out of you. Who would strike from the rolls of our illustrious brotherhood the men whom I have mentioned, who lived

and died poor and left to their children names far better than riches, and insert all the millionaires whom mankind have forgotten? Or even the great part of the list of chancellors and chief justices whose lives Lord Campbell has written? Would you not rather inherit or leave behind names worthy to be remembered as among the founders of the jurisprudence of an American State than a fortune, or a park, or a fish-pond, or a palace, or a picture gallery, or a stud of race-horses? It has been well said, that it is the saddest of all epitaphs, 'the rich man also died, and was buried.'"

A prominent member of the bar of this State writes us: "There are cases in which the practice is admissible, but as a habit it is dangerous. The most serious objection to it, as seems to me, is that the lawyer is dealing with his client at an advantage. Indeed, the principle that forbids a trustee from dealing with the trust estate, and restrains an agent from buying of his principal, seems fully to apply. Thus in a case where I was fairly called upon to work on shares, I declined to name a share, and referred that to two competent friends of the client, who were well advised of the nature of the risk. I am by no means sure that all such bargains should not be made invalid, and for this reason alone."

On the other hand, a correspondent, a practicing lawyer of this State, writes us that "while it may be that as a rule the practice of making the attorney's compensation depend upon the result of the action is all wrong, and tends to wrong doing, and the promotion of litigation, yet in many cases in the hands of honorable and conscientious attorneys it promotes justice and results in securing to a poor suitor rights which he would otherwise lose. Like many other things, the working of it depends more upon the man who makes the bargain than on the bargain itself."

The last is the only opposing voice that has reached us, and it does not seem a very confident or earnest one. The writer undoubtedly sees the danger as plainly as we do. But is it not a hazardous thing to adopt a course of practice which can be preserved from corruption only by confining it to a certain class of practitioners? St. Paul says something about the proper course to pursue in regard to meat, "if meat causeth thy brother to offend." After all, our correspondent does not so far advocate the adoption of such a habit and practice, even by the purest and most high-minded men, and seems to consider it at best a hazardous philanthropy.

"GOD'S LAW OF MARRIAGE," AND BISHOP DOANE.

discussing the subject of Affinity in its relation

is the theologi

cal side of the question; more especially as those who rest their assumptions upon "God's Law of Marriage," take up a position that at first sight would appear to be impregnable, for "God's Law" must surely be clear, and both above and beyond discussion! And yet in order to bring a certain degree of affinity within "God's Law" its advocates are compelled to resort to

a species of sophistry unworthy of a special pleader conscious of defeat upon the merits. If the deceased wife's sister is flesh of the husband because husband and wife are spoken of in Scripture as "one flesh," every blood relative of the deceased wife must in a greater or less degree be of the flesh of the surviving husband, and therefore according to what we are told is the true translation, the husband is barred from marrying any such relatives of his late wife, no matter how remote the relationship, because, forsooth, they are by some mysterious freak of nature, ""flesh of his flesh." "None of you shall approach to any that is flesh of his flesh." The Protestant Bishop Doane, if his premises are carried out to their legitimate conclusion, far outstrips the Roman Catholic Church of the middle ages in the extent of the prohibitions against marriage, for the latter church never extended the prohibitions beyond the seventh degree. See the opinion of Mr. Justice Willes in Beamish v. Beamish, 9 H. L. Cas. 274. Even then they were never deemed "God's Law" in the sense of being immutable, a dispensing power being claimed and frequently exercised by the Pope, as indeed it is still. The Popes never yet went the length of assuming to dispense with "God's Law," - hence it is they never authorize a divorce, because Christ Himself said, in reference to marriage, "That which God hath joined together let not man put asunder." The successors of St. Peter have ever treated the prohibited degrees simply as part of the disciplinary law of the church, enacted for the benefit of society, with a view to regulating the morals of the world, but subject to relaxation under certain circumstances, upon a proper representation to the head of the church. Bishop Doane would appear, however, to out-Herod Herod, for, according to him and his theory, "God's Law of Marriage" is not only not immutable, but indefinite. We shall presently see how far he is accurate in his premises or logical in his conclusions. But let us consider the history of the prohibited degrees, and above all endeavor, by the help of the Bible, to the invocation of which the bishop can assuredly entertain no objection, to discover what is "God's Law," and how far the law of man may be said to further the Divine institution of marriage without conflicting with or contravening the law of God in its practical application to the requirements, the necessities and the moral well-being of mankind.

Accepting the Bible account of the creation of man as "God's Law," we find that no prohibited degrees affecting the intercourse of the sexes could have existed originally. The great human family descending from a single pair, rendered the marriages of brothers with sisters and cousins with cousins, inevitable. Neither mental nor physical deterioration of progeny was the result, or the race must have deteriorated from the beginning, and yet the belief in such a result of consanguineous marriages continues one of the many popular errors which necessarily arise in arguing from a foregone conclusion to the premises, instead of from the premises to their legitimate conclusion. Thus, because, if there happen to be any specific or organic disease in a particular family (and almost every family has its specific complaint), the marriage between members of that family intensifies the disease in their progeny, it is argued that such marriages are against the law of nature or the law of God, whereas it should be remembered that disease has been the growth of ages and of circumstances that the first generations of man were comparatively free from it, though capable of contracting it, and that there is no record of any physical or mental infirmity in the early ages of mankind having resulted from consanguineous alliances, which until the time of Moses were unchecked, and that the Levitical decrees, by whomsoever promulgated, were directed against the spread of social evils of a moral rather than of a physical character.