vations made in the latter case by the New York Court of Appeals

It was there contended said Danforth, J., that the order in question "unduly protects the attorney and invests his office with an extraordinary prerogative, at which the alarm of suitors may well be awakened,' and her learned counsel pointed out the injurious effect upon the profession, and the injustice to the client of an adjudication which upholds the attorney's right to retain his compensation from moneys collected by him. The doctrine was criticised as if it was new and depended for its support upon recent decisions. On the contrary, the general proposition that an attorney has a lien for his costs and charges upon deeds or papers, or upon moneys received by him on his client's behalf in the course of his employment is not doubted; nor does it stand upon any questionable foundations. It comes to us super antiquas vias. As early as the year 1734 it was held by Lord Chancellor Talbot to arise upon a contract implied by law, and as effectual as if it resulted from an express agreement: Ex parte Bush, 7 Viner's Ab. 74. And in 1779, in Wilkins v. Carmichael, 1 Doug. 101, Lord Mansfield declared that the practice which protected it 'was established on general principles of justice, and that Courts of both law and equity had carried it so far that an attorney or solicitor may obtain an order to stop his client from receiving money in a suit in which he has been employed for him till his bill is paid;' and in Welsh v. Hale, 1 Doug. 238, the same judge held that an attorney has a lien on the money received by his client for his bill of costs. If the money come to his hands he may retain the amount of his bill. He may stop it in transitu if he can lay hold of it. If he applies to the Court they will prevent its being paid over till his demand is satisfied.' Indeed, he has inclined to go still further, and to hold that if the attorney gave notice to the defendant not to pay till his bill should be discharged, a payment by defendant, after such notice, would be in his own wrong, and like paying a debt which had been assigned after notice. And Parke, B., in Baker v. St. Quentin, 12 M. & W. 451, refers to this decision as establishing an attorney's claim to the equitable interference of the Court to have the judgment held as security for the debt due to the attorney, or after notice to compel the defendant to pay its proceeds over again. In our own State this was so well settled that Kent, in his commentaries, Vol. 2, p. 641, puts it down as an established principle that the attorney has two liens for his costs-one on the papers in his hand, and the other on the funds recovered. new rule, therefore, was enacted in Bowling Green Savings Bank v. Todd, 52 N. Y. 489, where it was said that the lien of the attorney * * * attaches to the money recovered or collected upon the judgment. It is plain, then, that the right of lien exists. Its origin should not be lost sight of. The declaration in Ex parte Bush was re-stated by Chancellor Eldon in Corvell v. Simpson, 1 Ves. 279, where he describes it as prima facia 'a

No

right accruing through an implied contract,' and as it exists in favor of those who have bestowed labor and service upon property in its repair, improvement or preservation, the agreement implied must be that the person rendering it shall retain the property until compensation is made. The lien of an attorney stands on no higher ground. In Ex parte Yaldon, 4 Ch. Div. L. R. 129, James, L. J., says, 'The things upon which they claim a lien are things upon which they have expended their own labor or their own money;' and asks, 'Why are they not to have that lien in the same way as any other workman, who is entitled to retain the things upon which he has worked until he is paid for it?' And in like manner in a recent case of Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y. 443, the lien of the attorney upon a judgment recovered by him is upheld upon the theory that his services and skill procured it. Wherever it exists it is supported by the Courts. In the case of a horse-trainer, Best, C. J., says: 'As between debtor and creditor the doctrine of lien is so equitable it cannot be favored too much. Jacobs v. Latour, 5 Bing. 130. And this remark is quoted by Sugden, Ld. Ch., and applied to the case of a solicitor claiming a lien in Plunden v. Desart, 2 Dr. & W. 427."

It will be observed that in the reference above made to Baker v. Quentin, Parke B., is mentioned as affirming that the solicitor has a claim to the equitable interference of the Court in his behalf; "the lien," he said, "which an attorney is said to have on a judgment (which is perhaps an incorrect expression) is merely a claim to the equitable interference of the Court to have that judgment held as a security for his debt." Now in a later case (1 H. & N. 173), Martin, B., said: "The right of the attorney is simply this-that if he gets the fruits of the judgment into his hands the Court will not deprive him of them until his costs are paid." But, this observation certainly seems to narrow overmuch the right of the solicitor to the active intervention of the Court; and indeed the context shows that the learned judge speaking of the solicitor's "general" lien, which is, of course, quite different from his lien for the costs of particular suit: see Stokes on Lien of Attorneys, 139, n. He added: "What possession has the attorney of a judgment? If the client employed another attorney to issue execution would the first attorney have a lien on the proceeds?" (as to which see 5 Ir. Eq. 34; 4 Sc. N. R. 769; Stokes on Lien, 174). And in Lloyd v. Maunsell, 22 L. J. Q. B. 111 (et cf 10 C. B. 428-9), Erle, J., says, as regards a rule obtained by plaintiff's attorney for the defendant to pay him the amount awarded to be paid by the defendant to the plaintiff: "This rule must be refused. An attorney for a plaintiff is only entitled to receive the amount recovered in the action as agent of, and representing the plaintiff. To grant this application would be like allowing an attorney to bring an action in his own name where the client was the contracting party." And in 1 Lush Pr. 3d ed., 339, it is laid down

"options" and "corners" which I have readoffenses in which the criminal ingenuity of our ancestors seems not to have been equal.

The first offense is the illegal sale of options for future delivery of grain and other commodities. The fact that property is sold to be delivered at a future day does not make the contract illegal; or that it is not at the time possessed or owned by the seller; or that the time of its delivery is left within fixed limits, optional with the buyer or seller, though in one sense any such sale is a sale of an option apparently within the statute. What makes it a gambling contract is the intent of the parties that there shall not be a delivery of the commodity sold, but a payment of differences by the party losing upon the rise or fall of the market. Of this intent the jury are to be the judges, and it may be inferred directly from the terms of the contract, or indirectly from the course of dealing of the parties: Pickering v. Cease, 79 Ill., 328; Walcott v. Heath, 78 Ill., 433; Pixley v. Boynton, 79 Ill., 351.

By this legislation the General Assembly had no purpose to interdict bona fide sales of commodities, but only such as are colorable or fraudulent, contrived by both parties as a cover merely for gambling transactions.

The offense of forestalling originally consisted in the buying or contracting for merchandise or victuals coming to market, or dissuading persons from bringing their goods or provisions there, or inducing them to raise their prices. 2 Wharton Criminal Law, § 1849.

Our statute has narrowed the offense so that it covers only forestalling the market by "spreading false rumors to influence the prices of commodities therein." The obvious purpose of the Legislature in making this provision was to protect the people, the consumers as well as innocent traders, from the damage resulting from unnatural and fictitious fluctuations of prices brought about by the false suggestions of interested per

sons.

The offense of cornering the market is not, so far as I am aware, mentioned in the books, but it is one of the numerous family of frauds of which the various members in their fight with society assume an infinitude of shapes and colors. To detect and punish these, notwithing the novelty and apparent innocence of their disguises, is the first business of courts and justices. The thing which we know as a "corner" in the market might be briefly described as a process of driving unsuspecting dealers in grains, stock, and the like, into a "corral " and relieving them of their purses. The essence of the offense consists in the party securing a contract for the future delivery of some commodity at his option, and then, by engrossing the stock of such commodity in the market, making it impossible for the other party to complete his contract, but by purchasing of his adversary at his own price, or paying in cash the difference fixed by such adversary. As was said of another great wrong, if this is not wrong then nothing is wrong.

Public rumor on the street and in the press justifies me in saying that these offenses are rife amongst us, and in asking you, if evidence to that effect should reach you, to make them the subject of inquiry. Your duty and mine is plain. However powerful the combination to defy the laws, and however difficult to detect and punish the crime, we rank ourselves with the criminal if we fail to bring the terrors of the law to bear upon him. For one, I refuse not to hear what fills the ears of all to the discredit of the business men and methods of this city. If the crimes indicated are being committed, it imports much that the validity of our statute and its sufficiency to reach the guilty parties should be early tested. If the spread of gambling has infected our business men, the consequences cannot but be disastrous; the course of business, instead of proceeding quietly and healthily, will become broken by fits of fever and panic; unlawful gains will be preferred to the slow profits of legitimate trade; our farmers, partaking of the prevalent spirit, will hold back their crops in expectation of corner prices, borrowing money upon mortgage to carry on their operations, instead of realizing by the sales of farm products. It is said that these phenomena are already apparent, and they are charged to be the effects of violations of the law. I will only add that, it is not your duty to seek inquisitorially for evidence that crimes have been committed. Should evidence come to you through the regular channels, your duty will be to consider it and act fearlessly and promptly to vindicate the laws. I think I may promise on the part of the judiciary of the county that if you present men for crime it will not go unpunished, so far as the enforcement of the laws depends upon them."

cause.

TRIAL BY JURY.

Trial by jury proves the existence of a free government; it is the exercise by the people of one branch of supreme power. When we say it founds or upholds it, we put the effect for the its value for the conservaBut suppose tion of liberty in the past were admitted it does not follow that it is needed now for a like purpose. Officials are powerless beyond the constitutional limits. Judges by the tenure of office are beyond the influence of executive power, and generally of the ballot-box. The end now to be sought is that the law, as the expressed will of the people, should be everywhere and always supreme and uniform in its administra

tion.

And so we come to this vital question: Is justice according to fixed rates of law more likely to be attended by our present system, or by one in which both fact and law are settled by the court without the intervention of a jury?

In cases in which we may assume that jurors would have no bias, it is obvious that they are greatly liable to error from the want of proper qualifications for the work they are to do. It

be shaken. Nay, it was carried so far that the father could buy the property again from the purchaser for value, and thus get the title as well as the enjoyment of the thing itself from his child or other donee back into his own hands. Thus, in fact, every voluntary settlement contained in itself, tacitly, a clause of revocation for every settlement was, in fact, a sham, and remained, such until the settler's death put a sale of the settled property out of his power. Yet were these sham settlements always held valid against subsequent creditors, if the grantor was out of debt at the time when he made the voluntary conveyance.

American cases do not go as far in favor of sustaining such arrangements as the precedents of the mother country. This may seem strange to some of your professional readers. The general impression prevails that England is severe, but that America is lenient, in its treatment of unfortunate debtors; and this impression is quite true in general; but England has been rather lenient to its fortunate debtors, and the cases decided in her courts of law and equity, as to the validity of family settlements, have generally arisen among the privileged classes. Traders fell under the provisions of the bankrupt laws, which until lately were severe enough; all others, except persons enjoying privileges of parliament, or similar exemptions, were held in awe by imprisonment for debt. The leading cases of contest between creditors and donees, like Cardogan v. Kennett, decided by Lord Mansfield, and reported in Cowper's Report, page 434, arose over the estates of highborn and court ly spendthrifts, who could not be made to give up their goods by the simple process of sending them to jail. The same policy of the law, which forbade the incarceration of a jolly lord at the instance of his lowborn creditors, money-lenders, or tradesmen, forbade, also, the forced sale of his wines, his plate, his linen, his manorhouse, and his park.

Upon the whole, the American courts have not been as favorable as those of England to voluntary settlements, but American legislation has introduced a new mischief. Under the guise of protection to married women, most of our States have given to every married man the broadest facilities for running up two sets of debts-one in his own name, the next in that of his wife. The personalty of the wife has been guarded against the control and debts of the husband; she may make contracts like an unmarried woman, and may, if she choose, employ him as her agent. In the immense majority of cases, the wife is, notwithstanding such laws, under her husband's control as much as before, and, instead of guarding her against her husband, these laws simply aid the latter in defeating the just claims of his creditors. There is another class of cases in which the question arises, can a man have all the enjoyment of property, and yet exclude his creditors from reaching it? Rich fathers, whose sons have been brought up in idleness, try to bequeath to them their inheritance tied up in such a way as to prevent any interest therein from being attached for debt. For this purpose, the estate is vested in trustees, whe are to pay to the beneficiary only the profits, without power of anticipation, or who are to support the beneficiary out of the profits. Now, there is a simple rule which in common reason ought to be applied to such cases. Any mere cause against alienation being incompatible with the right of property in a male adult must be left out of view, and the question then remains: Could the beneficiary have used the property or its income voluntarily toward the payment of his debts? If he

could so use it voluntarily, he should be compelled to do so, if too dishonest to do so without compulsion. It is the same rule which, as indicated above, should be applied to property which the debtor has disposed of by deed or gift or settlement. If he can resume the property, if he can by his mere will make it subject to the demands of his creditors, he should be compelled to do so. I do not maintain that such is now the common law of the United States, but such I maintain it ought to be in order to be just and consistent The intent of the debtor, in making a conveyance, should hardly ever be the standard by which to judge of the fairness or validity of a conveyance. The old English statutes are full of this intent, and so are many of their American copies, but the grantor's intent is not only hard to find, but immaterial when found. What difference can it make to the creditor, whether the debtor has thrown away his property from the worst or from the purest of motives, if the result in each case alike is the defeat of the creditors in the collection of his debt?

I write now of conveyances that are not feigned, but real, but which have been made without valuable consideration. I approve highly of the rule laid down by the Kentucky statute, which declares a voluntary conveyance void as against antecedent debts, without using the word "fraud" or "fraudulent," or any of its equivalents; and I look upon the New York statute, which was made to upset the just decision of Chancellor Kent in Reade v. Livingston, and which left it to the jury, in each case, to judge of the grantor's intent, as highly absurd, for, aside from the bad policy of leaving important rights to depend upon the proof of processes going on inside of a man's brain, the grantor's intent is of no intrinsic importance. It may often be a hardship upon the receiver of a gift that he should, after the lapse of years, have to give it up to the grantor's creditors a great hardship, if, upon the strength of that gift, he has been led into more expensive habits, or into risky business enterprises, and thus been induced to spend or lose the whole value of the gift-but that hardship is no less, when the grantor intended to cheat his creditors by making the gift, nor is it any greater when the grantor acted in the best of faith, believing most sincerely that he had enough other property to meet all his liabilities. The good faith of the donee would be a much better criterion than that of the donor. I think the Court of Appeals of Kentucky started from the right principle, when it held that a son-in-law's removal from a distant country, upon a farm given to him by his father-in-law, was a valuable consideration, sufficient to protect the farm from the creditors of the latter. This visible act is a safer and juster ground on which to rest the ownership of the farm, than the purity of the father-in-law's motives in making the gift.

The law of fraudulent and voluntary conveyances can be brought down upon a firm and rational basis only by eliminating from it, as much as possible, the question of intent. Let us replace that word by the word "effect;" and above all, we should condemn every "feigned" conveyance or disposition. The recent decision of the Supreme Court of the United States, that a mortgage of a stock of merchandise, which the mortgagor retains in his possession with the implied permission to sell it at retail, is fraudulent and void, was a step in the right direction. The court did not indulge in any psychologic research into the mortgagor's mind, but it held the mortgage to be void, because it is upon its face untrue -because it is a contradiction in terms. The courts