tracted for more than ten per cent interest, yet the loan was not necessarily usurious. An authority to loan money at a legal rate of interest does not include by implication the authority to loan it at an illegal rate. An authority to violate the law will never be presumed. When Danforth exacted, in addition to the ten per cent interest which was embraced in the note, something for the benefit of himself, he went outside the legitimate purposes of his agency, and as Knapp did not authorize it expressly or by implication, he should not be affected thereby." So in Brigham v. Myers, 51 Iowa, 397, it was held to be "well settled that when an agent for loaning money takes a bonus or commission to himself beyond the legal rate of interest without the knowledge, authority or consent of his principal, it does not affect with usury the loan of the principal." These decisions seem to be founded on plain principles of justice and right. For when two persons, the agent and the borrower, conspire together, and for their own purposes violate the law, how can punishment for their acts be justly imposed on the innocent third party, the lender? Palmer. Opinion by Woods, J. [Decided Dec. 14, 1885.]

Call v.

CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTGRANT OF EXCLUSIVE PRIVILEGE-ABROGATION OF MONOPOLIES-GRANTING PRIVILEGE TO THIRD PARTY. -The charter of the New Orleans Water-works Company, granting to that corporation the exclusive privilege of supplying New Orleans and its inhabitants with pure and wholesome water from the Mississippi river, by means of mains and pipes placed in the streets, public places and lands of that city, reserving to the city council authority to graut to any person contiguous to that stream the privilege of laying pipes to the river, exclusively for his use, constitutes a contract within the meaning of the contract clause of the Constitution of the United States. The clause of the present Constitution of Louisiana abrogating the monopoly features of existing corporations other than railroad corporations is inoperative in respect of the charter of this company, which was granted before the adoption of that instrument. An ordinance of the city council of New Orleans authorizing the lessee of the St. Charles Hotel in that city, distant many blocks from the Mississippi river, to supply that hotel with water by means of pipes and mains laid in the streets of that city, is a violation of the company's contract with the State, and therefore void. New Orleans Water-works Co. v. Rivers. Opinion by Harlan, J. [Decided Dec. 7, 1885.]

GOVERNOR HILL'S ADDRESS AS PRESIDENT OF
THE STATE BAR ASSOCIATION, JAN-
UARY 19, 1886.

GENTLEMEN-It seems to be expected that your presiding officer should make a few remarks at each annual meeting of the association. But for such custom I should content myself with the simple discharge of the routine duties you have assigned me without attempting suggestions of any nature.

The New York State Bar Association was incorporated by a special act of the Legislature passed May 2, 1877. It was formed, as declared in the act creating it, "to cultivate the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, to elevate the standard of integrity, honor and courtesy in the legal profession, and to cherish the spirit of brotherhood among the members thereof." It is to be regretted that it has not as fully accomplished the benign purposes of its creation as it ought. It must be confessed that of late years it has scarcely met our reasonable expectations, and is less

vigorous, strong or influential than we had anticipated.

During the period of its existence, nearly nine years, it has not done as much as it might toward promoting "reform in the law" or to "elevate the standard" of our profession. It may be difficult to account for this failure, except it is evident that lack of active interest on the part of the great body of the lawyers of the State in the work of the association has been the great drawback to its more complete success. They have refrained from active participation in the labors of our organization, preferring to intrust its management and control to the faithful few who have zealously followed its fortunes for so many years, and to whose earnest and unselfish endeavors is due the credit for whatever success or merit it bas heretofore achieved.

The objects our association is intended to promote are worthy of the noblest efforts and highest aims of the best men in our ranks, and the united exertions of us all. Those who enjoy the honors and emoluments of our noble profession should not hesitate to assume some portion of its burdens and responsibilities. It should not be forgotten that we owe a duty to those who are to follow us-to the younger members of the bar who are soon to take our places, and it is to their interest and for their encouragement as much as our own that the maintenance of this association in all its integrity and pristine usefulness is imperatively demanded.

I would quicken the interest in our proceedings by having the association assume more responsibility in regard to the various questions that concern the State. It should be aggressive, rather than passive in its policy. It should exercise that influence which should legitimately pertain to an organization of its importance and character, and its opinions should be boldly asserted and stoutly maintained.

There is now pending before the Legislature a measure known as the proposed Civil Code. Irrespective of its merits-upon which subject I express no opinion-it is a measure of vast and conceded importance in reference to which there may well be honest differences of opinion among the profession, as well as among the people. It must be acted upon by a body that will have little opportunity to ascertain its merits. It is deserving of careful attention, calm and deliberate discussion and unprejudiced judgment. Flippant oratory, fulsome eulogy or severe denunciation should not influence or determine its adoption or rejection.

It would be unbecoming on my part to question the wisdom or ability of the Legislature to properly pass upon so important a subject, but I may be permitted to suggest that it possibly could better be determined by a more deliberative body -having greater familiar ity with existing law-and possessing a more ample opportunity for studying its details and reflecting upon its advisability. It is a question to be decided unaffected by clamor or irrelevant appeals of any charac

ter.

It is believed that the opinion of the State Bar Association upon the merits of this measure, announced after ample discussion and full opportunity of all to be heard, would greatly influence its consideration by the Legislature, and essentially control it. If it should be understood that at a special meeting to be held thirty days or so hence this measure would be discussed and a recommendation made concerning it to the lawmaking power, an interest would be created and a spirit devolved which would eventually secure a wise solution of the matter. Such an assemblage and such a discussion would attract attention throughout the whole State, not only by reason of the importance of the subject itself, but the ability and learning which would unquestionably be displayed and the weight

which would naturally attach to its discussion, and the result of such a conference, honestly and unselfishly expressed, would surely convince the judgment and influence the action of the representatives of the people in the Legislature, who are only anxious to discharge their duty as it is made plain to them upon this as well as upon every other subject.

If it be urged that our best lawyers are busy and have no time for such discussions, it may be answered that many of them have already spent sufficient time before the respective committees of the two houses arguing this question in years past, to convince two or three such bodies as the Bar Association, and yet the subject is as far from intelligent legislative solution as it has been for several years. The profession can find ample time for this purpose. Enough lawyers annually attend the conventions of each of the political parties to supply the bench with judges for fifty years to come, and there has been no complaint of any lack of time on their part.

The crowded and increasing calendar of the Court of Appeals presents a subject which may properly be considered again by the association with a view of suggesting a remedy. That court is disposing of cases as rapidly as is possible. I would not have them work harder or decide more rapidly. They are overworked already to the danger of their health and livesand should not be hurried. It is to the honor and credit of its judges that the court of last resort hears patiently and decides deliberately as well as wisely. Many lawyers assert that it is the only court in the State where they are accorded a patient and respectful hearing and an ample opportunity to present their views. This is of course an exaggeration, but the criticism may well apply to many courts and judges. Nevertheless the fact exists that the calendar of the Court of Appeals is increasing, and that it requires several years to reach an ordinary case on its general calendar. As the wealth, business and population of the State increase, so does its litigation, and possibly there is no practicable way in which to relieve this court as at present constituted.

A subject which so intimately concerns the lawyer and his client is deserving of thoughtful attention. "To facilitate the administration of justice," being, as we have observed, one of the declared objects of our association, it is proper that our efforts be applied toward devising some plan or scheme for the speedy disposition of cases appealed to our highest court. It may be advisable that the Legislature be requested to authorize the appointment of a commission to prepare suitable constitutional amendments to accomplish the desired object, similar to that appointed by Governor Hoffman, in 1872, which ultimately led to the securing of many needful constitutional reforms. That Commission consisted of thirty-two members, four from each judicial district and two from each of the two principal political parties of the State, and was thus non-partisan in its character, and was in fact a body of ability, dignity, and character. It would seem as though some such experiment were worth trying at the present time.

Under the mandatory provisions of our amended Constitution, the question of the holding of a convention to revise the Constitution of the State must be submitted to the electors and determined by them at the ensuing fall election. The propriety of such a convention is a political question in its broadest sense, although not a partisan one. What position shall the Bar Association take upon it? Is such a convention advisable-is it really necessary, is it reasonably probable that its work would meet the ultimate approval of the people?

Your opinion upon these questions might aid their solution and be of benefit to the public.

It has been the desire and effort of our association to discard, as far as possible, political considerations in the selection of judges, especially those of our higher courts. It was mainly owing to the influence of the bar throughout the State that induced the convention of each political party in 1884 to nominate both Judges Rapallo and Andrews for the Court of Appeals, one a democrat and the other a republican. It was a creditable and patriotic act. Both had served the State faithfully for fourteen years, and each was entitled to this mark of the confidence of the people.

This fall another judge of that court is to be selected. There is no other State official to be chosen. Cannot the good example set in 1884 be followed up by the selection of the same candidate for this high judicial office by both political parties? The expense and turmoil of a contested State election could be avoided, and some acceptable and able lawyer agreed upon, who would be satisfactory to the people, and thus prevent an unseemly partisan strife over a single judicial position. The trouble and expense of two State conventions could be dispensed with, by having such a candidate agreed upon by the respective State committees of the two parties. This result, so desirable and appropriate, I am sure can be accomplished if it should be heartily recommended by this association and indorsed by the active efforts of the leading lawyers of both parties. It might serve as a step hereafter toward wholly removing the selection of judicial officers from the field of partisan politics. By such concerted movements as these can the influence of the bar be exerted and made manifest for the public good and for the promotion of the true welfare of this State.

As has been stated, one of the declared objects of our association is "to elevate the standard of integrity and honor in the legal profession." I fear sometimes that it is apparent that such standard is being lowered rather than elevated. On every hand there are evidences that many consider our honorable calling a business rather than a profession, and that its only object is the accumulation of wealth, no matter how. I have been astonished at the extravagant and extortionate charges which some members of our profession assume to make for services of slight consequence and little real value. They seem to regard it as their province to demand all the client can stand, and sometimes more. Some railroad managers announce it as their policy to charge as freight rates "all the traffic will bear," and some lawyers seem to imitate this policy in respect to the litigations of their clients. I have observed that lawyers of moderate ability and only fair standing usually charge more than those who are the recognized and honorable leaders of the bar in their respective localities.

The position of the lawyer is one of confidence - he is trusted by his client. He should not abuse that confidence. He should not take advantage of his position and insist upon a compensation wholly disproportionate to the services performed. In my judgment nothing is bringing more discredit upon our profession to-day than the unwarranted and extravagant compensation which is being demanded by some of its members for their labors. Their clients cannot pay them, and ought not to pay them, for the money demanded is not honestly or actually earned. Such lawyers should not be upheld by their brethren in the profession, for their course is injuring the fair fame of the whole bar. They bring discredit upon an honorable calling, and cause the whole business community to lose confidence in our honesty and integrity as a class.

On February 1, 1870, at a meeting for the organization of the New York City Bar Association, Samuel J. Tilden made a speech, and among other things truly

FIELD ON THE PROPOSED CIVIL CODE.

said: "If the bar is to become a method of making | LETTER FROM PROF. CAEN TO DAVID DUDLEY money, making it in the most convenient way possible, but making it at all hazards, then the bar is degraded." This is as true now as when it was first uttered by this distinguished citizen, who clearly saw the danger that was liable to beset us, and warned us from it.

The lawyer who faithfully and ably serves his client is entitled to a fair and even liberal compensation. This his clients are usually willing to pay. But he must not expect to secure a competence for life out of a few cases, or for the performance of ordinary services requiring no great skill, pcculiar talent, or special effort. It is the false pretense under which many such unreasonable charges are exacted, to which I object; the exaggeration of legal difficulties, the assumption that extraordinary ability is always and necessarily exerted, the delays occasioned by the lawyers' own lack of diligence, all of which are often made the pretext for extravagant compensation, and tend to lessen the public respect for the honor and sincerity of our profession. These may be unwelcome truths to many who thrive at the law, but they are truths nevertheless.

There should be exerted a healthy sentiment among the profession which should frown down the schemes of these Shylocks, who care little for the honor or dignity of the profession, but who seek membership in it solely for the emoluments they can extract from it.

I have had occasion during the last year to officially visit the prisons of this State and listen to the applications for pardons of the convicts. Many a heartrending story have I heard. Tales of woe, of suffering, and of misspent lives have been poured into my ears. Serious complaints were presented to me by many convicts against the lawyers who assumed to defend them at their trials. They assert that they were not permitted to be sworn in their own behalf; that their lawyers took all their money and then refused to let them testify or to sum up their cases for them, or otherwise properly protect their rights. Many of these were cases wherein from their very nature it was absolutely essential that the prisoners should have been permitted to tell their own story, and the failure to do so inevitably led to conviction. I have investigated some of these cases and there seems to have been no excuse for the lawyers who conducted them and who pretended to make a defense, but who neglected to exercise even ordinary prudence or diligence in their client's behalf. There is no justification or excuse for counsel who thus trifle with men's liberty, and abandon them in the hour of their need. Undoubtedly some of these stories may be exaggerated or wholly false, but I have been convinced that many of them are substantially true and that there are practitioners in the criminal law throughout the State and especially in New York city, who are a disgrace to any profession, and who positively endanger the rights of those whom they assume to defend. I hope to be able during the coming year to continue such investigations, and to procure sufficient evidence in some of these cases to warrant proceedings to prevent such counsel from longer practicing at the bar.

In conclusion, permit me to urge greater interest in these annual gatherings. A single meeting during an entire year is not sufficient to keep alive "the spirit of brotherhood among the members."

It is to be hoped that hereafter there will be witnessed greater activity in our counsels; renewed zeal in behalf of the administration of justice; an honest endeavor to purify the bar and to dignify the bench; an earnest effort to reform abuses in the laws and to elevate the standard of professional methods.

THE following is from one of the most distinguished

advocates and professors of France, a gentleman of continental reputation, who has been pronounced by a most eminent authority to be the best qualified person in Europe to express an opinion on a code. Some purely personal portions of the letter are omitted:

PARIS, Dec. 30, 1885.

My dear sir and much-honored colleague:

I have received the project of the Civil Code for the State of New York that you have been so kind as to send me. I am very grateful for it. It is a considerable and very remarkable work. I have perused it, and found in the reading great interest and very real profit. You ask me what is my opinion on the project of the Civil Code of New York compared with the other Civil Codes. There is not, to my knowledge, another Europeau Civil Code which comprehends so great a quantity of different matters. There are inserted here matters, which in the countries of Europe are placed in the Civil Code, and matters which, such as bills of exchange, insurance, bottomry, etc., are reserved for the Commercial Code. Perhaps it would have been preferable not to confound all these matters in ure Code. The Legislature will have made here an enormous labor, and for its prompt execution a divisTon would be very much better. The reduction seems to me in general very good. You evidently know in the United States very much better how to frame the laws than in England. In England they descend to infinite details, and they rely but little on general principles. On the contrary, the project of the Civil Code seems to me compiled the best Codes of Europe. The formula of each artice is brief, exact and clear. I find that the reduction the project of the Code for the State of New York is in all respects excellent. I approve also very much the general divisions of the proposed Civil Code i preliminary title (general definitions and divisious), and in three great parts (persons, goods and obligations). The fourth and fifth parts are devoted to general rules very useful to establish. They correspond greatly to the two famous titles of the digest of Justinian: De verborum significatione. De diversis regulis juris. We have nothing to resemble it in the Codes on the continent of Europe. But this is a gap, and I approve very much of the insertion of these general rules in your great project of the Code. * * *

Receive the assurance of my most distinguished and devoted sentiments. CHARLES LYON CAEN.

Hou. DAVID DUDLEY FIELD.

CORRESPONDENCE.

SUNDAY OBSERVANCE.
Editor of the Albany Law Journal:

Apropos of your remarks in this week's number concerning the Sunday question, and the opening of the libraries and museums on that day, the manner in which those in authority treat the question is discreditable both to them and to our boasted enlightenment. I don't know how it may be in Albany, but here in New York on Sundays and holidays our barrooms and rum shops are always open, and our libraries, museums and art institutions tightly closed. Every rum shop in New York can- and nine-tenths of them do business, and retail misery, crime and death on the Sunday through the side door. How can we wonder at the increase of crime, and what else can we expect? You

cannot compel the wearied wage worker of the week to attend church on Sunday. From every thing in art, learning and science that will purify and elevate his morals and bring him nearer to nature and to nature's God; from all the refining and ennobling influences of music and of the fine arts he is rigidly debarred on the only day in the week he may call his own; while on the other hand the only place outside of his cramped home in the crowded tenement he should avoid is leftment, and dismissed the suit, held, that the court practically open to tempt him to his ruin.

CHARLESTON, W. Va., Jan. 17, 1886.

[We refer to the following: An attorney agreeing to prosecute a non-assignable cause of action for a certain contingent interest in the recovery, gets no right before judgment that can prevent or affect his client's settlement of the action. Custerer v. City of Beaver Dam, 56 Wis. 471; S. C., 43 Am. Rep. 725. An attorney agreed to prosecute a slander suit for one-half the recovery. The plaintiff got a verdict, and secretly settled with the defendant, disregarding his attorney. Held, that the satisfaction of the verdict should not be vacated. Miller v. Newell, 20 S. C. 122; S. C., 47 Am. Rep. 833. A., having sustained personal injuries by the negligence of B., employed C. as attorney to sue therefor, upon the agreement that C. was to have a certain proportion C. notified of any recovery for his compensation.

B. of the arrangement. The suit was brought, and
C. settled with A. and obtained his release. Held,