action in the Municipal Court on the ground that there is another action pending. This demurrer is opposed by Attorney B and is overruled on the ground that the defense of another action pending can only be raised by answer. Attorney B collects $10.00 costs allowed by the Municipal Court on the overruling of the demurrer, and the defendant subsequently serves a verified answer raising the point of action pending in the County Court, and the case is set for trial. On the trial day neither the plaintiff nor Attorney B appear in the Municipal Court and the case is dismissed on defendant's motion.

1. Do the above facts indicate improper conduct on the part of Attorney B?

2. Should Attorney B ascertain from the plaintiff the fact that another action for the same cause was then pending? If he did not so ascertain, was he negligent in not doing so? Answer No. 41.-In the opinion of the Committee, the question discloses no impropriety upon the part of Attorney B, and no fact upon which negligence can be imputed to him, is stated. It would have been proper professional courtesy to notify his adversary of his intention to default, and to consent to discontinue, with his client's assent; but his failure to do so was not professional misconduct.

Question No. 43.-About twenty years ago A was convicted of a felony. After serving about eight years of his sentence, he was pardoned and restored to full civil rights. Immediately after the pardon he set up in business and has continued in that business at the same address for about ten years. He is peaceful, respectable and well thought of. Recently he was compelled to bring two suits against B, both involving questions of fact. B's counsel knew of A's conviction, his pardon, his restoration to full civil rights and his subsequent clean private and successful business life. Yet on the occasion of each trial, (one before a jury,) B's counsel interrogated A concerning his conviction of a crime, the sentence imposed, the time served, the charge and even made certain details of or consequences of the crime a part of his questions. Do you consider this conduct and these questions of B's counsel proper and ethical?

Answer No. 43.-The Committee considers that wanton, unnecessary or unreasonable inquiry or comment respecting the discreditable past history of a witness or party, is unethical and improper professional conduct; it cannot, however, assume to say that such inquiry or comment, whether admissible or not under

the law of evidence, was, in the case suggested, wanton, unnecessary or unreasonable.

Question No. 44.-An attorney, in the course of representing a client in certain specific matters, is informed by the client that certain real estate is held by a third person for him (the client) in the third person's name, the property having been transferred by the client to the name of the third person for the purpose of avoiding a judgment, that deed being placed on record, the client, however, having taken back a deed from the third person to himself, this deed remaining off record and in the client's possession. The information is given to the attorney in the course of a general discussion, and entirely disconnected from any matter in which counsel's service or advice had been given.

The client afterwards fails to pay the attorney for the services rendered. Suit follows and judgment is recovered by the attorney. Execution is issued and returned unsatisfied. It appears then that the collection of the judgment, and therefore compensation to the attorney for his services, will be impossible unless he is permitted to proceed after the real estate in question and permitted to show that the same really belongs to the debtor client.

1. Would it be improper for the attorney, in enforcing his claim for compensation against his client by legal process, to attempt to reach his client's interest in the real property, thus necessarily disclosing in the proceedings, and utilizing for his own benefit, his client's statement to him, collection otherwise being impossible?

2. In legal proceedings for the enforcement of the claim, can the attorney properly call upon another attorney, who prepared and took the acknowledgments to the deeds of conveyance and reconveyance, to testify respecting the transaction?

Answer No. 44.-In the opinion of the Committee, to preserve inviolate his client's confidence is a fundamental ethical rule of our profession, binding upon every lawyer. This rule is now embodied in our New York Code of Civil Procedure, Section 835, and has been rigidly applied, but with certain apparent exceptions. With such possible exceptions in mind, the majority of the Committee is still of opinion that the attorney should not, in the case submitted, utilize for his own benefit the confidential statements of his client; and it would therefore answer Query No. 1 in the affirmative, and Query No. 2 in the negative.

LAWYER (American), highest standing; consultation free; notary public....Sundays, evenings till 9.

Answer No. 45.-In the opinion of the Committee, all of the advertisements appended to Question No. 45 are improper.

"The ethics of the legal profession forbid that a lawyer should advertise his talents or his skill as a shop-keeper advertises his wares." (People v. McCabe, 19 L. R. A. 231.)

The first four, are also objectionable because they seem to indicate a willingness to take all cases, irrespective of the merit of the cause; and the first three have the demerit of containing an impossible and therefore false and misleading guaranty of satisfaction.

BOOK REVIEW.

LUDWIG'S CONSULAR TREATY RIGHTS. Students of international law will find food for thought in the perusal of this very timely work, and especially the comments made by the author on the most Favored Nation Cause, as to which there has been of late years more or less consideration paid both by Federal and State Courts. Our liberal immigration laws and the great influx of peoples of all character of nationalities in the old world bring many of the questions home to us and it is shown that many

questions which statesmanship existing at the time of earlier treaties could not foresee and provision therefore may have turned out to be both broader, in some respects, and narrower, in other respects, than they would be were these treaties to be drafted anew.

The book is quite attractive in appearance and comes from The New Werner Comnany, Book Manufacturers, Akron, Ohio, 1913.

HUMOR OF THE LAW.

"Well, son, now that you've graduated, wnat are you going to be?"

"I think I'd like to be a lawyer, sir. There's a good deal of money passes through a lawyer's hands, isn't there?"

"He never lets it pass through if he knows his business, my son."-Boston Transcript.

The West Publishing Company recently received the following letter relative to a note appearing under "Cases of Interest."

"Dear Sirs: In the issue of Advance Sheets, N. W. Reporter, date of April 25th, under title 'Cases of Interest,' is a statement, 'Negro lies, but so did Abram,' which raises an important question of veracity on the part of the Oklahoma court, to which reference is made.

"The jurist who wrote that opinion is likely to find himself a full-fledged member of the Ananias club unless he in the future exercises more care in his assertions. Abram told the truth in the reference found in Genesis, 12th chapter, 11th to 20th verses. Sarai was his sister. If the judge will read Genesis, 20:12, he will find the positive statement so made by Abram. She was the daughter of his father, but not of his mother.

"The man who hints that the father of the faithful and the friend of God was a liar simply shows that he is himself a stranger to Goa and does not realize what is necessary to constitute a man His friend. The statement or Abram was the absolute truth, and the Oklahoma court should in humility acknowledge the error and their need for pardon. Yours for truth, H. W. L."

One of the editors, after reading the above and scanning over the Biblical references, solloquizes as follows; but not desiring to start a Shakespeare-Bacon controversy, he declines to offer apologies to either:

"To lie or not to lie, that is the question.
Whether it be nobler in the mind

To always tell the plain unvarnished truth
Or sometimes to prevaricate; to lie,

And run the risk of being caught at last-
But what is truth and what's a lie?
Duth it consist alone in formal words?
Or may it also be by act and deed?
Aye there's the rub. We prate and boast
Of truth and then we act the lie
As Abram did. And was his guilt the less
Than that of the poor ignorant negro lad
Who stood in fear and trembling of the law?
Before the bar of justice, great and small,
White-skinned and dark-hued suitors equar

stand.

And sometimes, strange to say, alike are skinned

Ere from the sacred precinct they withdraw."

WEEKLY DIGEST.

Weekly Digest of ALL the Current Opinions of ALL the State and Territorial Courts of Last Resort, and of all the Federal Courts.

California Colorado

Georgia..

Indiana

Kansas..

Kentucky..

Massachusetts.

Michigan

Minnesota

Mississippi New Mexico. New York..

North Carolina.

North Dakota.

Oklahoma....
Oregon

South Carolina.

Tennessee

Texas...

.71

.62, 97

..2, 25, 31, 32, 40, 51, 75 .22, 33, 46, 52, 55, 59, 60, 89, 90 .39, 56, 63, 66, 69, 93, 102, 105 20, 27, 28, 34, 36, 44, 64, 83, 91 12, 18, 21, 45, 61, 58, 70, 95, 100 .35, 73 .17 .15, 48 .23, 86 .29, 78 .16, 38, 43, 49, 57, 76, 96, 106 ..54, 77 .42, 47, 50, 58, 72, 101 .85, 103 37 .10, 98

..13, 14, 24, 26, 67, 79, 84, 87, 88, 107

2. Discharge.-While under Bankr. Act it is not essential, in order to bring debts within the provision excepting liabilities for fraud, that there be a judgment for fraud, yet, where a creditor, instead of enforcing the liability based on fraud, enforces a judgment on the contract, the debtor's discharge will be effective as to after-acquired property.-Ford V. Blackshear Mfg. Co., Ga., 79 S. E. 576.

3.- -Pledgee.-A pledgee of the bonds of a bankrupt corporation pledged to secure its own note, which purchased the bonds when sold at public auction, held, under the facts shown, entitled to prove the same against the estate.Turner v. Metropolitan Trust Co. of City of New York, C. C. A., 207 Fed. 495.

a

5. Practice. Where transferee a of bankrupt's assets, alleged to have been fraudulently transferred, claimed that he had purchased and paid for the same while the bankrupt was engaged in his ordinary business, the transferee was entitled to have the question determined in a plenary suit, regardless of the fact that his testimony was incredible.-In re Green, U. S. D. C., 207 Fed. 693.

6. Preference.. Partial payments made by a bankrupt to two creditors whose claims were barred by limitations, prior to the filing

of a voluntary bankruptcy petition, for the purpose of renewing the debts, held not to create a preference. In re Banks, U. S. D. C., 207 Fed. 662.

7. Preference.-A bank with knowledge of the insolvency of a bankrupt, having set off deposits against the bankrupt's indebtedness with its consent while it was a going concern, held entitled to retain the same, but neither it nor its subsequent transferee of certain notes, were entitled to prove their claims without the bank's surrender of deposits wrongfully set off after the bankrupt ceased to do business in the ordinary course.-In re Wright-Dana Hardware Co., U. S. D. C., 207 Fed. 636.

8. Preference.-That a chattel mortgage given to secure antecedent indebtedness was given pursuant to agreement contemporaneous with indebtedness held not to prevent it constituting a voidable preference.-In re Herman, U. S. D. C., 207 Fed. 594.

9. -Trustee's Lien.-The lien conferred on a bankrupt's trustee dates from the time of the bankruptcy proceedings.-Big Four Implement Co. v. Wright, C. C. A., 207 Fed. 535.

10. Banks and Banking-Set-off.-Notwithstanding Negotiable Instruments Law where one who signed as maker seeks to set off his deposit in an insolvent bank against his liability to the bank on the note, he will not be treated as the real party in interest, where he signed for the benefit of his comaker in order to enable him to negotiate the instrument.-Knafe v. Knoxville Banking & Trust Co., Tenn., 159 S. W. 838.

11.

Bills and Notes-Certificate of Deposit.A certificate of deposit issued by a bank, not subject to check and payable to the depositor's order on return of the certificate properly indorsed, is negotiable.-Pomeroy Nat. Bank v. Huntington Nat. Bank, W. Va., 79 S. E. 662.

12. Delivery.-There was a good delivery of a note to the payee, where it was delivered by the maker to her husband with the knowledge and consent of the payee, to be held by the maker's husband as the payee's agent.-Crosier v. Crosier, Mass., 102 N. E. 901.

13. Joint Obligation.-Where a note recites that "we" promise to pay, and is executed by the president of a corporation for the company, and indorsed by him as surety, it must be treated as a joint obligation.-Canadian Long Distance Telephone Co. v. Seiber, Tex., 159 S. W. 897.

14. Brokers-Enforceable Contract.-Where a purchaser procured by a broker was ready, willing, and able to complete the sale, and the vendor could have compelled specific performance by complying with his contract to tender a good record title to the property, the broker had completed his services and was entitled to commissions.-McLane v. Petty, Tex., 159 S. W.

16. Hearsay Evidence.-Hearsay and common reputation is received in boundary disputes, provided it has its origin at a time comparatively remote, and attaches to some monument or natural object, or is fortified by evidence of occupation and acquiescence giving the land a definite location.-Locklear v. Paul, N. C., 79 S. E. 617.

17. Carrier of Passengers-Assumption of Risk. While a caretaker riding in the car with a shipment of live poultry instead of in the caboose assumed all risks reasonably incident to that mode of carriage, he did not assume those resulting from unnecessary and extraordinary occurrences involving dangers not incident to the proper handling of such freight trains.— Kloppenburg v. Minneapolis, St. P. & S. S. M. Ry. Co., Minn., 143 N. W. 322.

18. Contracts-Construction.-Under a contract to furnish plaintiff with board and food for the rest of her life, defendant was bound to furnish her food according to her needs, and, if he did not, he was liable for the fair value of the food not furnished.-Soderlund v. Helman, Mass., 102 N. E. 899.

19. Construction Contract. It is competent for the parties to a construction contract to agree therein that the decision of, an engineer on disputed matters shall be final and conclusive, and in the absence of fraud or mistake so gross as to necessarily imply bad faith the decision of the umpire so selected will not be revised by the courts.-United States v. Cooke, U. S. D. C., 207 Fed. 682.

20. Pleading.-Where a contract sued on is not alleged to be in writing, it will be presumed to be oral.-Blish Milling Co. v. Detherage, Ky., 159 S. W. 816.

21. Public Policy.-A written agreement, executed by a husband and wife while the relation existed, which provided for the payment by the husband of a certain amount in trust, to pay a part thereof to the wife until a divorce was secured and the remainder after the wife had secured a divorce, was void as against public policy.-Wolkovisky v. Rapaport, Mass., 102 N.

E. 910.

22. Corporations-Venue.-At common law a corporation could be sued only in the county where its corporate property was situated or where it had its principal place of business, and under statutory provisions it can be sued in other forums only as therein provided.-Great Western Life Assur. Co. v. State, Ind., 102 N. E. 849.

23. Criminal Evidence-Confession.-In determining whether a confession is admissible in evidence, the court and not the jury is to determine both the law and the fact; the province of the jury being merely to determine the effect of the confession as evidence of guilt. -State v. Armijo, N. M., 135 Pac. 555.

24. Instructions.-Where there is a confession of the crime by the defendant in evidence, it is not necessary for the court to give a charge upon circumstantial evidence.-Anderson v. State, Tex., 159 S. W. 847.

"acts of fire and Providence excepted," held subject to explanation so far as related to the quoted phrase, and to proof that, by a recognized local custom, defendant undertook to insure all cotton in its warehouse.-Rochelle Gin & Cotton Co. v. Fisher, Ga., 79 S. E. 584. 26. Damages-Measure of. There measure of damages for mental suffering except what an impartial jury shall deem adequate.Yellow Pine Paper Mill Co. v. Lyons, Tex., 159 S. W. 909.

27.

is

no

-Punitive.-Failure of a railroad enginerr, on approaching a crossing in a sparsely settled locality, to give statutory warning signals is not gross negligence per se, so as to authorize a recovery of punitive damages in an action for death at a crossing.-Schmid's Adm'r v. Louisville & N. R. Co., Ky., 159 S. W. 786.

28. Punitive. To warrant punitive damages, the injury need not result from an intentional wrong, a showing of reckless conduct or such gross negligence as to indicate the wantom disregard of the rights of others, being sufficient.-Chesapeake & O. Ry. Co. v. Johns' Adm'x, Ky., 159 S. W. 822.

29.

a father,

Deeds-Restrictions.-Where conveying a part of a residence tract to his son, inserted a building restriction in the deed, such restriction was for the benefit of the father's remaining portion of the tract, and was enforceable by the subsequent grantees thereof. -Appel v. Buckbinder, 143 N. Y. Supp. 710.

30. Divorce Alimony.-On granting a divorce to a wife, the court should make a proper division of the property, though most of it had been acquired by the husband before marriage. Hale v. Hale Wash., 135 Pac. 481.

31.

Easements-Private Way.-The stopping or impeding of a private way which has been opened and is in use is a private nuisance.Adair v. Spellman Seminary, Ga., 79 S. E. 589.

32.- Streets on Plat. Where lots are bought and sold with reference to a plat showing certain streets, a person who purchases with reference to the plat acquires such a right in all the streets designated thereon as entitles him to enjoin the obstruction of one such street, even though his lots do not abut upon it.-Adair v. Spellman Seminary, Ga., 79 S. E. 589.

33.-Way of Necessity. That a way may be one of necessity, the facts must be such that the law raises the presumption that the parties had agreed that the grantee should have right of access to the land conveyed over unconveyed land of the grantor; and, a valid express agreement having been made, there is no room for presumption.-Jann V. Standard Cement Co., Ind., 102 N. E. 872.

One

34. Electricity-Extraordinary Care. handling a high current of electricity in a public street is bound to use a much higher degree of care than ordinary care to keep its wires safe.-Owensboro City R. Co. v. Haden, Ky., 159 S. W. 792.

35.- -Proximate Cause.-Where, in an action for death of plaintiff's intestate by contact with a broken electric light. wire, it appeared that the exercise of reasonable care by defendant telephone company, the wires of which sagged against the light wire of defendant vil

lage, or by the village, to prevent contact, would have prevented the accident, the question of proximate cause was properly submitted to the jury.-Sykes v. Village of Portland, Mich., 143 N. W. 326.

36. Eminent Domain-Discontinuing Highway. A property owner, in the absence of statutory provision, is not entitled to damages for discontinuance of a county road.-Chenault v. Collins, Ky., 159 S. W. 834.

a

37. Sewage.-Where a municipal corporation emptied sewage into stream flowing through plaintiff's land, thus injuring her property, there was a taking of private property for public use within the purview of the Constitution, guaranteeing that private property shall not be taken for public use without just compensation.-Parrish v. Town of Yorkville, S. C.. 79 S. E. 635.

38. Trees on Street.-A quasi public corporation, such as an electric light company, authorized to place poles and wires along the streets of a city cannot invade the rights of a property owner in respect to trees in the street in front of his property, without paying compensation therefor.-Moore v. Carolina Power & Light Co., N. C., 79 S. E. 596.

39. Evidence-Duress.-It is presumed that the influence of duress by threats continues.Eureka Bank v. Bay, Kan., 135 Pac. 584.

40. Receipts.-Warehouse receipts are ordinarily subject to explanation by parol.-Rochelle Gin & Cotton Co. v. Fisher, Ga., 79 S. E. 584.

41. Executors and Administrators-Executor de Son Tort.-At common law a creditor of a decedent could recover from an executor de son tort only if he could show that the acts of the intermeddler resulted in loss to the creditor.Merrill v. Comstock, Wis., 143 N. W. 313. 42. Exemptions-Waiver.-That debtor gives a mortgage on exempt chattels does not work a forfeiture of his right to exemption as against an attaching, creditor.-McComb Watt, Okla., 135 Pac. 361.

a

V.

43. Fraud-False Representations.-When' a party to a bargain knowingly makes false assertions as to the value of the property as an inducement to the trade, and these are accepted and reasonably relied on, they constitute an actionable wrong.-Pate v. Blades, N. C., 79 S. E. 608.

44. Fraudulent Conveyances-Equity.-Where complainant in having certain real property purchased by him conveyed to his sister was actuated by two motives, one of which was fraudulent as against his ex-wife and the other legal, equity would not separate the one from the other and determine which was the controlling factor in ascertaining whether he was entitled to compel a reconveyance of the property from the sister's administrator theory that she held under a dry trust.-Shamo v. Benjimin's Adm'r, Ky., 159 S. W. 798.

on the

45. Frauds, Statute of-Performance Within Year. Where, in an action for the breach of an oral contract, plaintiff testified that defendant agreed to take milk for a year on the date of the conversation resulting in the contract, a charge that, if defendant agreed to take the milk for one year, the agreement could be performed within one year, but, if he agreed to

take the milk for a year from some future date, the agreement was within the statute of frauds, sufficiently submitted the issue of the statute of frauds.-Raymond v. Phipps, Mass., 102 N. E. 905.

46. Guardian and Ward-Accounting.-A guardian, as an officer of the court, must make full disclosure in his reports of all matters affecting the trust, and misrepresentation or concealment which works an imposition on the court and gives the guardian an unfair advantage in his settlement vitiates it.-Euler v. Euler, Ind., 102 N. E. 856.

47. Habeas Corpus-Custody of Child.—The unfitness which will deprive a parent of the right to the custody of his minor child must be positive; the mere fact that the child might be better cared for by a third person being insufficient to deprive him of such right.-Jamison v. Gilbert, Okla., 135 Pac. 342. 48. Homesteads Involuntary Absence.Plaintiff's involuntary absence from a homestead while in jail could not be considered in determining the question of abandonment.-Lindsey v. Holly, Miss., 63 So. 222.

49. Waiver.-A judgment defendant who consents that a judgment for a certain amount may be entered in an action against him, and may be satisfied out of the property attached in that action, waives his homestead in the attached property, and cannot thereafter claim an exemption, as he might have done had the judgment been against his consent.-Simmons v. McCullin, N. C., 79 S. E. 625.

50. Husband and Wife-Alimony.-A decree for alimony, where no divorce is sought, ordinarily differs from the decree where the divorce is sought in that the former contemplates merely the present needs of the wife while the latter contemplates her future support.-Lewis v. Lewis, Okla., 135 Pac. 397.

51. Estoppel.-Where a wife having an equitable title to land to which her husband has the legal title permits him to use same in she is obtaining credit, estopped, after the credit has been extended, from asserting her title as against the lien of a judgment obtained by the creditor, though before judgment her husband had conveyed the land to her.-Ford v. Blackshear Mfg. Co., Ga., 79 S. E. 576.

52. Tenancy By Entireties.-A conveyance of land to a husband and wife creates a tenancy by entireties, and the survivor takes the whole by right of survivorship.-Tharp v. Updike, Ind., 102 N. E. 855.

53. Injunction Abating Nuisance.-Equity will restrain a municipal corporation from abating a nuisance, where private rights are unlawfully encroached upon and irreparable injury will ensue.-Parker v. City of Fairmont, W. Va., 79 S. E. 660.

54. -Abuse of Discretion.-A mistake of law committed by the trial court in granting a mandatory injunctional order for the destruction of property, pending the trial of an action on its merits, is an abuse of discretion.-Bissel v. Olson, N. D., 143 N. W. 340.