5. The utmost candor and fairness should characterize the dealings of attorneys with the courts and with each other. Knowingly citing as authority an overruled case, or treating a repealed statute as in existence-knowingly misquoting the language of a decision or text-book-knowingly misstating the contents of a paper, the testimony of a witness, or the language or argument of opposite counsel-offering evidence which it is known the court must reject as illegal, to get it before the jury, under guise of arguing its admissibility-and all kindred practices-are deceits and evasions unworthy of attorneys.

Purposely concealing or withholding in the opening argument positions intended finally to be relied on, in order that opposite counsel may not discuss them, is unprofessional. Courts and juries look with disfavor on such practices, and are quick to suspect the weakness of the cause which has need to resort to them.

In the argument of demurrers, admission of evidence, and other questions of law, counsel should carefully refrain from "side-bar" remarks and sparring discourse, to influence the jury or by-standers. Personal colloquies betweed counsel tend to delay, and promote unseemly wrangling, and ought to be discouraged.

6. Attorneys owe it to the courts and the public whose business the courts transact, as well as their own clients, to be punctual in attendance on their causes; and whenever an attorney is late he should apologize or explain his absence.

7. One side must always lose the cause; and it is not wise, or respectful to the court, for attorneys to display temper because of an adverse ruling.

DUTY OF ATTORNEYS TO EACH OTHER, TO CLIENTS, AND TO THE PUBLIC.

8. An attorney should strive at all times to uphold the honor, maintain the dignity, and promote the usefulness of the profession; for it is so interwoven with the administration of justice, that whatever redounds to the good of one advances the other; and the attorney thus discharges, not merely an obligation to his brothers, but a high duty to the State and his fellow

man.

9. An attorney should not speak slightingly or disparagingly of his profession, or pander in any way to unjust popular prejudices against it; and he should scrupulously refrain at all times, and in all relations of life, from availing himself of any prejudice or popular misconception against lawyers, in order to carry a point against a brother attorney.

10. Nothing has been more potential in creating and pandering to popular prejudice against lawyers as a class, and in withholding from the profession the full measure of public esteem and confidence which belong to the proper discharge of its duties, than the false claim often set up by the unscrupulous in defense of questionable transactions, that it is an attorney's duty to do every thing to succeed in his client's cause. An attorney "owes entire devotion to the interest of his client, warm zeal in the maintenance and defense of his cause, and the exertion of the utmost skill and ability," to the end that nothing may be taken or withheld from him, save by the rules of law, legally applied. No sacrifice or peril, even to loss of life itself, can absolve from the fearless discharge of this duty. Nevertheless it is steadfastly to be borne in mind that the great trust is to be performed within, and not without the bounds of the law which creates it. The attorney's office does not destroy man's accountability to his Creator, or loosen the duty of obedience to law and the obligation to his neighbor; and it does not permit, much less demand, violation of law, or

any manner of fraud or chicanery, for the client's sake.

11. Attorneys should fearlessly expose before the proper tribunals corrupt or dishonest conduct in the profession; and there should never be any besitancy in accepting employment against an attorney who has wronged his client.

12. An attorney appearing or continuing as private counsel in the prosecution for a crime of which he believes the accused innocent, for-swears himself. The State's attorney is criminal if he presses for a convic tion when upon the evidence he believes the prisoner innocent. If the evidence is not plain enough to justify a nolle pros., a public prosecutor should submit the case, with such comments as are pertinent, accompanied by a candid statement of his own doubts.

13. An attorney cannot reject the defense of a person accused of a criminal offense, because he knows or believes him guilty. It is his duty by all fair and lawful means to present such defenses as the law of the land permits, to the end that no man may be deprived of life or liberty but by due process of law.

14. An attorney must decline in a civil cause to conduct a prosecution when satisfied that the process is merely to harass or injure the opposite party, or to work oppression and wrong.

15. It is a bad practice for an attorney to communicate or argue privately with the judge as to the merits of his cause.

16. Newspaper advertisements, circulars and business cards, tendering professional services to the general public, are proper; but special solicitation of particular individuals to become clients ought to be avoided. Indirect advertisement for business, by furnishing or inspiring editorials or press notices, regarding causes in which the attorney takes part, the manner in which they were conducted, the importance of his positions, the magnitude of the interests involved, and all other like self-laudation, is of evil tendency and wholly unprofessional.

17. Newspaper publication by an attorney as to the merits of pending or anticipated litigation, call forth discussion and reply from the oppisite party, tend to prevent a fair trial in the courts, and otherwise prejudice the due administration of justice. It requires a strong case to justify such publications; and when proper, it is unprofessional to make them anonymously.

18. When an attorney is a witness for his client except as to formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the cause to other counsel. Except when essential to the ends of justice, an attorney should scrupulously avoid testifying in court in behalf of his client as to any matter.

19. The same reasons which make it improper in general for an attorney to testify for his client, apply with greater force to assertions, sometimes made by counsel in argument, of a personal belief of the client's innocence or the justice of his cause. If such assertions are habitually made they lose all force and subject the attorney to falsehood; while the failure to make them in particular cases will often be esteemed a tacit admission of belief of the client's guilt, or the weakness of his cause.

20. It is indecent to hunt up defects in titles, and the like, and inform thereof, in order to be employed to bring suit; or to seek out a person supposed to have a cause of action, and endeavor to get a fee to litigate about it. Except where ties of blood, relationship or trust, make it an attorney's duty, it is unprofessional to volunteer advice to bring a law suit. Stirring up strife and litigation is forbidden by law, and disreputable in morals.

21. Communications and confidence between client and attorney are the property and secrets of the client, and cannot be divulged except at his instance; even the death of the client does not absolve the attorney from his obligation of secrecy.

22. The duty not to divulge the secrets of clients extends further than mere silence by the attorney, and forbids accepting retainers or employment afterward from others involving the client's interests in the matters about which the confidence was reposed. When the secrets or confidence of a former client may be availed of or be material, in a subsequent suit, as the basis of any judgment which may injuriously affect his rights, the attorney cannot appear in such cause without the consent of his former client.

23. An attorney can never attack an instrument or paper drawn by him for any infirmity apparent on its face; nor for any other cause where confidence has been reposed as to the facts concerning it. Where the attorney acted as a mere conveyancer, and was not consulted as to the facts, and unknown to him the transaction amounted to a violation of the criminai laws, he may assail it on that ground, in suits between third persons, or between parties to the instrument and strangers.

24. An attorney openly and in his true character may render purely professional services before committees, regarding proposed legislation, and in advocacy of claims before departments of the government, upon the same principles of ethics which justify his appearance before the courts; but it is immoral and illegal for an attorney so engaged to conceal his attorneyship, or to employ secret personal soliciations, or to use means other than those addressed to the reason and understanding, to influence action.

25. An attorney can never represent conflicting interests in the same suit or transaction, except by express consent of all so concerned, with full knowledge of the facts. Even then such a position is embarrassing, and ought to be avoided. An attorney represents conflicting interests within the meaning of this rule, when it is his duty, in behalf of one of his clients, to contend for that which duty to other clients in the transaction requires him to oppose.

26. "It is not a desirable professional reputation to live and die with--that of a rough tongue, which makes a man to be sought out and retained to gratify the malevolent feeling of a suitor in hearing the other side well lashed and vilified."

27. An attorney is under no obligation to minister to the malevolence or prejudices of a client in the trial or conduct of a cause. The client cannot be made the keeper of the attorney's conscience in professional matters. He cannot demand as of right that his attorney shall abuse the opposite party, or indulge in offensive personalities. The attorney, under the solemnity of his oath, must determine for himself whether such a course is essential to the ends of justice, and therefore justifiable.

28. Clients, and not their attorneys, are the litigants, and whatever may be the ill-feeling existing between clients, it is unprofessional for attorneys to partake of it in their conduct and demeanor to each other, or to suitors in the case.

29. In the conduct of litigation and the trial of causes the attorneys should try the merits of the cause, and not try each other. It is not proper to allude to, or comment upon, the personal history, or mental or physical peculiarities or idiosyncrasies of opposite counsel. Personalities should always be avoided, and the utmost courtesy always extended to an honorable opponent.

30. As to incidental matters pending the trial, not affecting the merits of the cause, or working substantial prejudice to the rights of the client, such as forc

ing the opposite attorney to trial when he is under affliction or bereavement; forcing the trial on a particular day to the serious injury of the opposite attorney, when no harm will result from a trial at a different time; the time allowed for signing a bill of exceptions, crossing interrogatories, and the like; the attorney must be allowed to judge. No client has a right to demand that his attorney shall be illiberal in such matters, or that he should do any thing therein repugnant to his own sense of honor and propriety; and if such a course is insisted on, the attorney should retire from the cause.

31. Where an attorney has more than one regular client, the oldest client, in the absence of some agreement, should have the preference of retaining the attorney as against his other clients in litigation between them.

32. The miscarriages to which justice is subject, and the uncertainty of predicting results, admonish attorneys to beware of bold and confident assurances to clients, especially where the employment depends upon the assurance, and the case is not plain.

33. Prompt preparation for trial and punctuality in answering letters and keeping engagements, are due from an attorney to his client, and do much to strengthen their confidence and friendship.

34. Au attorney is in honor bound to disclose to the client at the time of retainer all the circumstances of his relation to the parties, or interest or connection with the controversy which might justly influence the client in the selection of his attorney. He must decline to appear in any cause where his obligations or relations to the opposite party will hinder or seriously embarrass the full and fearless discharge of all his duties.

35. An attorney should endeavor to obtain full knowledge of his client's cause before advising him, and is bound to give him a candid opinion of the merits and probable result of his cause. When the controversy will admit of it he ought to seek to adjust it without litigation if practicable.

36. Where an attorney, during the existence of the relation, has lawfully made an agreement which binds his client, he cannot honorably refuse to give the opposite party evidence of the agreement,b ecause of his subsequent discharge or instructions to that effect by his former client.

37. Money or other trust property coming into the possession of the attorney, should be promptly reported, and never commingled with his private property or used by him, except with the client's knowledge and consent.

38. Attorneys should as far as possible avoid becoming either borrowers or creditors of their client; and they ought scrupulously to refrain from bargaining about the subject-matter of the litigation, so long as the relation of attorney and client continue.

39. Natural solicitude of clients often prompts them to offer assistance of additional counsel. This should not be met, as it sometimes is, as evidence of want of confidence; but after advising frankly with the client it should be left to his determination.

40. Important agreements affecting the rights of clients should, as far as possible, be reduced to writing; but it is dishonorable to avoid performance of an agreement fairly made, because not reduced to writing, as required by rules of court.

41. An attorney should not ignore known customs or practices of the bar of a particular court, even when the law permits, without giving opposing counsel timely notice.

42. An attorney should not attempt to compromise with the opposite party without notifying his attorney, if practicable.

43. When attorneys jointly associated in a cause can

not agree as to any matter vital to the interest of their client, the course to be pursued should be left to his determination. The client's decision should be cheerfully acquiesced in, unless the nature of the difference makes it impracticable for the attorney to co-operate heartily and effectively, in which event it is his duty to ask to be discharged.

44. An attorney coming into a cause in which others are employed should give notice as soon as practicable, and ask for a conference, and if the association is objectionable to the attorney already in the cause, the other attorney should decline to take part unless the first attorney is relieved.

45. An attorney ought not to engage in discussion or arguments about the merits of the case with the opposite party without notice to his attorney.

46. Satisfactory relations between attorney and client are best preserved by a frank and explicit understanding at the outset, as to the amount of the attorney's compensation, and where it is possible, this should always be agreed on in advance.

47. In general it is better to yield something to a client's dissatisfaction at the amount of the fee, though the sum be reasonable, than to engage in a law suit to justify it, which ought always to be avoided, except as a last resort to prevent imposition or fraud. 48. Men, as a rule, over-estimate rather than undervalue the worth of their services, and attorneys in fixing their fees should avoid charges which unduly magnify the value of their advice and services, as well as those which practically belittle them. A client's ability to pay can never justify a charge for more than the service is worth, though his poverty may require a less charge in many instances, and sometimes none at all.

49. An attorney may charge a regular client, who intrusts him with all his business, less for a particular service than he would charge a casual client for like services. The element of uncertainty of compensation where a contingent fee is agreed on, justifies higher charges than where compensation is assured.

50. In fixing fees the following elements should be considered: 1st. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to properly conduct the cause. 2d. Whether the particular case will debar the attorney's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that the attorney would otherwise be employed; and herein of the loss of other business while employed in the particular case, and the antagonism with other clients growing out of the employment. 3d. The customary charges of the bar for similar services. 4th. The real amount involved, and the benefit resulting from the service. 5th. Whether the compensation was contingent or assured. 6th. Is the client a regular one, retaining the attorney in all his business? No one of these considerations is in itself controlling. They are mere guides in ascertaining what the service was really worth; and in fixing the amount it should never be forgotten that the profession is a branch of the administration of justice, and not a mere moneygetting trade.

51. Contingent fees may be contracted for, but they lead to many abuses, and certain compensation is to be preferred.

52. Casual and slight services should be rendered without charge by one attorney to another in his personal cause; but when the service goes beyond this, an attorney may be charged as other clients. Ordinary advice and services to the family of a deceased attorney should be rendered without charge in most instances; and where the circumstances make it proper to charge, the fees should generally be less than in case of other clients.

53. Witnesses and suitors should be treated with fairness and kindness. When essential to the ends of justice to arraign their conduct or testimony, it should be done without villification or unnecessary harshness. Fierceness of manner and uncivil behavior can add nothing to the truthful dissection of a false witness' testimony, and often rob deserved strictures of proper weight.

54. It is the duty of the court and its officers to provide for the comfort of jurors. Displaying special concern for their comfort, and volunteering to ask favors for them, while they are present-such as frequent motions to adjourn trials, or take a recess, solely on the ground of the jury's fatigue, or hunger, the uncomfortableness of their seats, or the court-room, and the like-should be avoided. Such intervention of attorneys, when proper, ought to be had privately with the court; whereby there will be no appearance of fawning upon the jury, nor ground for ill-feeling of the jury toward court or opposite counsel, if such requests are denied. For like reasons one attorney should never ask another in the presence of the jury to consent to its discharge or dispersion; and when such a request is made by the court, the attorneys, without indicating their preference, should ask to be heard after the jury withdraws.

55. An attorney ought never to converse privately with jurors about the case; and must avoid all unnecessary communication, even as to matters foreign to the cause, both before and during the trial. Any other course, no matter how blameless the attorney's motives, gives color for imputing evil designs, and often leads to scandal in the administration of justice. 57. An attorney assigned as counsel for an indigent prisoner ought not ask to be excused for any light cause, and should always be a friend to the defenseless and oppressed.

Orders affirmed in both appeals with costs-Thomas M. King and others, respondents, v. John H. Post, appellant, impleaded with Reon Barnes and others.

-Order of General Term reversed and judgment for defendant ordered upon the order non-suiting plaintiff with costs-Throop Grain Cleaner Company and another, respondents, v. H. Cardenis Smith, appellant. Judgment affirmed with costs-Ida Hornbostel, appellant, v. Francis S. Kinney and another, respondents.-Judgment affirmed with costs-Daniel B. Childs and another, respondents, v. George J. Seabury, impleaded, etc., appellant. -Motion for reargument denied with costs-John A. McDougal v. State.-Motion for reargument denied with costsSamuel T. Ludlow v. George W. Mead- -Motion to open default granted on payment of fifty dollars costs-Samuel McElroy v. Brooklyn Underground Railroad Company. Motion to revive action granted, to substitute DeGraff and Murray executors, etc., of Caroline Sweeney, deceased, and also to substitute Elias Root, as attorney for such executors; the balance of the motion denied without costs-Caroline Sweeny v. John Chadwick. - Motion to show cause denied with costs-Henry A. Vanderbeek v. William Taylor and others. Motion to dismiss denied; that to put case over granted without costs-Elnathan Sweet v. Dorilus Morrison. Motion to dismiss granted with costs-Daniel Goldsmith v. Union Mutual Life Insurance Company.- -Motion to dismiss granted with costs-Henry C. Adams v. Harry A. Babcock.-Motion to vacate order. Ordered that the

ALBANY, JUNE 23, 1888.

CURRENT TOPICS.

THE Solland case, which was in fating

one, and especially important as the latest word on the subject of charitable trusts from our Court of Appeals. And yet we have a strong impression that it is too technical, and that impression has been strengthened by an able criticism of the opinion in the Central Law Journal. We are inclined to agree with that writer, that the trust should not be allowed to fail because no particular church was specified as the beneficiary, and that the executor may or should be compelled to make a selection, and that " any Roman catholic church, competent by law to hold such property, might well, as the possible legatee, ask by petition to be made a party to the suit, and that the executor be compelled to designate the church to which the legacy should be paid." Of course the designation might not fall on the petitioning party, but any such church would have the right to institute the proceeding. The trust in question is no more indefinite or uncertain than many others which have recently been enforced in the courts of this country. Stress is laid in the opinion on the fact that the church is not limited to some particular locality, and concedes, in effect, that if it had been so ordered, it would have been effectual. But a trust for any catholic church in the city of New York would have involved the necessity of selection, and this would have been no more dangerous or objectionable than a general field of choice. By consulting 36 ALBANY LAW JOURNAL, 113, and note at 115, it will be seen that by the weight of recent authority this trust is supportable. The Massachusetts cases are especially liberal, as for example: "To assist, relieve and benefit poor and necessitous persons, and to assist and co-operate with any such charitable, benevolent, religious, literary and scientific societies, as shall appear to the trustees best to deserve," etc., was held valid. So "to the Methodist Episcopal Church, South," for foreign missions, was recently held valid in Kentucky. So in Maine, of a bequest to the town of Skowhegan, for the worthy and unfortunate poor,” etc. On the other hand, in Wisconsin, "to the poor in the city of Green Bay" was recently held void. This was put partly on the ground that no trustee was named. But what is an executor for? A trust should never be allowed to fail for such a reason. On the ground of uncertainty in the beneficiaries that trust would anywhere else have been sustained, as in Connecticut, where one for "worthy, deserving, poor, white, American, protestant, Democratic widows and orphans in B.," was held valid. There has VOL. 37 No. 25.

We fully agree with the Journal's concluding remarks as follows: "Contrary to our usual custom, we have considered this case in this department of the Journal, not merely because we regard the conclusion of the court as incorrect, but to protest against the inveterate habit of all of our courts in making a great mystery of cases of this description. No sooner is a will, involving a question of charitable uses propounded, than points of law arise like 'quills upon the fretful porcupine,' and the subject becomes as critical to handle as that formidable animal himself. The statute of 43 Eliz. is at once invoked, and all other like statutes, older and younger; precedents innumerable are cited pro and con, and the case is involved in impenetrable darkness. And yet nine times out of ten the real questions are easily soluble by the application of a few well known maxims of the secular law, which in every other connection are universally accepted, such as a sane man may, by deed or will, do any thing lawful with his own; that is certain which can be made certain; that a trust shall not fail for the want of a trustee, and the like. We think that if in any one branch of the law codification is more desirable than in any other, it is this special branch, and that the declaratory statute should establish a simple system, upon which trusts of this character should be construed."

The disadvantages of a bad temper are illustrated in Pullman's Palace Car Co. v. Ehrman, Mississippi Supreme Court, April 16, 1888, where the plaintiff, while on a car which was both an eating and sleeping-car, ordered his berth to be made up; the porter replied that it would be done as soon as he had furnished two lunches previously ordered; and after an angry dispute plaintiff went into a forward car and sat up all night, though the berth was made up for him. Held, that he was not entitled to damages. The court said: "It is manifest that no wrong was done the appellee of which he can justly complain, and whatever unpleasantness he encountered appears to have been brought about as the direct and natural result of his own conduct. He had no right to have his bed made instantly, as demanded, under the circumstances, and as it was made ready in good time, and he chose not to use it, as he might, he can blame no one but himself for the discomfort of sitting up all night. The rudeness complained of in the altercation with the servants of the appellant sprang naturally from the mauner and language of the appellee, and furnish