Add. 49, a Common Pleas decision in been considered settled in PennsylvaPennsylvania, made in 1793. In this, nia: Baulsbaugh vs. Frazer, 7 Harris 95 though the counsel who sued was after- (1852). The same principle has been wards a distinguished Justice of the adopted expressly in many of the other Supreme Court, and the Court was pre- States. Vermont, Vilas vs. Downer, 21 sided over by a learned and able Judge, Vt. (6 Washb.) 419; Massachusetts, who reported the case, yet the opinion Thurston vs. Percival, 1 Pick. 415; briefly states that an attorney in Penn- Ames vs. Gilman, 10 Met. 239; New sylvania may recover for his services as York, Lynch vs. Willard, 6 Johns. Ch. counsel, over and above the legal fee 342; Stevens vs. Adams, 23 Wend. 57, due him as attorney. When, however, 26 Id. 451; Wilson vs. Burr, 25 Wend. the point first came before the Supreme 386; Merritt vs. Lambert, 10 Paige 352; Court, in 1819, Mooney vs. Lloyd, 5 S. & Wallis vs. Loubat, 2 Denio 607; DelaR. 412, it was elaborately argued, and ware, Stevens vs. Monges, 1 Harrington the decision in Brackenridge vs. McFar- 127; South Carolina, Duncan vs. Breitland overruled: Chief Justice TILGHMAN haupt, 1 McCord 149; Clendenin vs. saying, "the policy of refusing this Black, 2 Bailey 488; Ohio, Christy vs. remedy has not been adopted without Douglas, Wright 485; Kentucky, Rust great consideration. The field is ample vs. Larue, 4 Litt. 417; Caldwell vs. Shepand would admit of a long discussion. herd, 6 Monr. 389; Tennessee, Newnan But it is enough for us that no princi- vs. Washington, Mart. & Yerg. 79; Misple of law has been more clearly laid souri, Webb vs. Browning, 14 Mo. 354; down, and that there is sufficient evi- Texas, Baird vs. Ratcliff, 10 Tex. 81; dence of its being one of those prin- and Florida, Carter vs. Bennett, 6 Fla. ciples which were adopted on the settle- 214. The American doctrine therefore ment of Pennsylvania." This decision, may be considered settled in favor of however, was in turn overruled in Gray the power to recover, in all the States, vs. Brackenridge, 2 Penn. 75 (1830), the with the honorable exception of New Court being composed of new Judges, Jersey. In Seely vs. Crane, 3 Green 35, with the exception of GIBSON, C. J., it was expressly decided that counsel fees who expressed his satisfaction in over- could not be recovered eo nomine in New ruling that case. In Foster v. Jack, 4 Jersey; and this decision was affirmed Watts 334 (1835), the later doctrine was in Van Atta vs. McKinney, 1 Harr. 235. affirmed, GIBSON, C. J., saying that he In some of the cases above cited, the was dissatisfied with the decision in common law rule is not urged at all, Mooney v. Lloyd. "On principle, be- and in very few of them does it receive cause I was unable to comprehend why any adequate discussion. In some. the a valuable consideration might not raise distinction between attorneys and counan implied promise, as well as support sellors or advocates, generally considered an express one; and for its conse- abolished in this country, is attempted quences, because I felt assured it would to be preserved, though the same perbe found entirely incompatible with the sons act in all of those capacities business and necessities of both counsel even in these cases the distinction is and client here." "The dignity of the made merely to limit the attorney to his robe, instead of any principle of policy, legal fees, and to allow him for such of furnishes all the arguments that can be his services as do not come strictly brought to the support of it at the pre- under the function of an attorney, his sent day Since this case, the law has action on a quantum meruit. But The decisions generally are based on the ground of implied contract, as for other services, and the summary manner in which they set aside so timehonored a principle of the common law is not a little remarkable. The best argument on this side will be found in the opinion of CRABB, J., in Newnan vs. Washington, Mart. & Yerg. 79. "It is consonant with the nature of our institutions that faithful labors should be rewarded by reasonable remuneration." "We have here no separate orders of society; none of those exclusive privileges which distinguish the lawyer in England." On the score of public policy, it is the best. "Leave the doctrine as desired, and the happy moment will always be selected by the unconscientious, when the anxious suitor is elevated by hope or depressed by fear, to extort unreasonable advances in the shape of gratuities. But let it be known that industry and attention and ardor will certainly be compensated by reasonable payment, and you encourage forhearance on the part of the attorney or advocate. He is not tempted to get what he can while the fever of his client is up; he waits in security until his labors are performed, his services rendered, knowing that he will at last receive what a disinterested jury shall award." This argument, it seems to us, is more specious than sound. Under any rule, the unconscientious will seize an opportune moment to extort gratuities from anxious clients; and the object to be aimed at is not the hopeless one of total prevention of oppression and rascality in individual cases, but the elevation of the general tone of the profession. And it is with no disrespect to that ancient institution, that we most earnestly deprecate a rule which commits the estimate of arduous professional labor to the uncertain tribunal of a jury box. For what is a jury trial between counsel and client, but a family quarrel, which strangers are called in to witness and decide-a scandalous affair which inevi tably lowers the profession in the estimation of all bystanders? It is said that the Paris bar regards such suits as dishonorable, though allowed by the law of France, and would punish an advocate who should sue, by striking him from the list (Sharswood. Prof. Ethics, p. 84); and it is true that the feeling of the bar in America, at least in the large cities, will generally prevent any but an aggravated case from going to suit. But who shall say how long this will be so, or where the relaxation of professional tone shall stop, which is thus begun ? It is said, moreover, that the common law rule is a mere matter of theory, supported, as C. J. GIBSON, expresses it, by "the dignity of the robe." As a mere question of remuneration, we may concede that there is no practical difference at all. No one pretends that the English bar, under their rule, is less liberally, less promptly, or less generally paid than ours; the fact, from various causes, is notoriously the reAnd this objection, therefore, appears to be the strongest argument in favor of the old rule; for what is more desirable than the preservation of “the dignity of the robe," so to speak, the fostering of that spirit which binds the bar together as brethren of an honorable profession, and subjects their general tone and character to the restrictions of a moral force which the most reckless and unprincipled dare not wholly defy? verse. So much upon general principle. Upon authority, the common law rule is not questioned in our cases, and it is overruled on the vague ground of unsuitableness .o our institutions. Why unsuitable? Not because it deprives the lawyer of his just compensation, for the English barrister is at least as punctually paid as the American attorney. But, says Judge CRABB, "we have here no separate orders of society." Are we to understand, then, that it is unsuitable because it is undemocratic? Surely, to deprive a man of the right to sue for his services, which belongs to the most menial laborer, is not investing him with an aristocratic privilege, dangerous to republican liberty. And a profession whose ranks are free to all who choose to enter, can never in a country like this become an obnoxious aristocracy, though its dignity, its learning, and its honor able character may give it so much of moral precedence as is implied in its hard-earned title of a learned profes sion. We have been led into this length of discussion against our will; for, however profound our convictions on the subject, the decisions are made, and we must bow to them; but we may at least venture a hope that this case will challenge attention in those states where the law has not been expressly decided, and may even yet arrest what must be conceded to be the general current of the American decisions. J. T. M. Court of Common Pleas. Jan. 16, 1863. BRAMPTON vs. BEDDOES.1 The defendant, a general draper, sold the good-will of his business to the plaintiff under a written agreement, one of the terms of which was as follows:-"That the defendant should not carry on, or assist in carrying on, a business such as is now carried on at 17 Lupus street, Pimlico, being a general drapery and hosiery business, within two miles of that place." The defendant afterwards went into the district for the purpose of collecting old debts, and being there was asked by some persons to supply them with goods, which he did: Held, in an action for breach of the agreement against the defendant for carrying on business within the prescribed limits, that in order to do so to such an extent as to be a breach of the contract, it was not necessary he should have either place of business or house within the district. This case was tried before WILLES, J., in London, when a verdict was found for the plaintiff, leave being reserved to set it aside on the ground that the breach was not proved. The action was brought for the breach of an agreement, whereby the defendant was bound not to carry on or assist in carrying on a general drapery and hosiery business within a certain district. The facts were as follows: The defendant sold his business, which was that of a general draper, to the plaintiff, under a written agreement, the following 17 Law Times Rep. N. S. 679. being one of the terms:-"The said Thomas Beddoes agrees that he will not carry or assist in carrying on a business such as is now carried on at 17 Lupus street, Pimlico, being a general drapery and hosiery business, within two miles of that place, under the forfeiture of 2007., to be recovered as and in the nature of liquidated damages." The defendant afterwards, by his own showing, went into the district for the purpose of collecting old debts, and whilst there was asked by some persons to supply them with goods such as were sold by a general draper, which he did. The defendant, however, had no shop or place of business within the prescribed limits, but resided in lodgings in Thayer street, which is more than two miles distant from Lupus street. On behalf of the defendant it was contended that the meaning of the agreement was that there was no breach unless the defendant had some place of business within the stipulated distance. A rule having been obtained on a former day, Joyce now showed cause, and cited Turner and Another vs. Evans, 2 E. & B. 512. Hawkins, Q. C. (Rigby with him), in support of the rule. ERLE, C. J.-I am of opinion that what the defendant did was clearly a breach of the agreement, and that this rule, therefore, ought to be discharged. It would not be necessary for a man to have a permanent shop within the prescribed limits to make a breach of this agreement. The purpose of the plaintiff in purchasing the good-will of the business from the defendant was to get his customers; but the defendant has himself supplied them with goods, and has so prevented the plaintiff from getting their custom. WILLIAMS, J.--I am of the same opinion. WILLES, J.-I think the "carrying on the same business" does nct mean that it should be actually carried on in a shop within the stipulated district, but the sale of goods within that district. KEATING, J., concurred. Rule discharged. SUPREME COURT OF NEW YORK.1 Railroads in Cities; Rights of Property-owners; Power of the Legislature mer Streets, and Right to grant Franchises therein; Fee of the StreetsConstitutionality and Validity of Act of April 17, 1860, chartering Broadway Railroad Company.―The legislature, in passing the Act of April 17, 1860, authorizing the construction of a railroad in the Seventh Avenue, and in certain other streets, &c., in the city of New York, assumed the right to grant the franchise absolutely and unconditionally, so far as the occupation of the streets and avenues for the purposes of the railroad was involved, without compensation being made to the owners of any interest in the land forming the streets: The People and others vs. Kerr and others, and the Mayor, &c., of the City of New York. The act is not void as being repugnant to the constitutional prohibition against the taking of private property for public use, without compensation: Id. The fee of the streets and avenues resides in the corporation of the city of New York, in trust, to be kept open for ever as streets for the use of the public: Id. The trust vested in the corporation proceeded from the sovereign power, either of the crown of Great Britain, or of the state of New York, or from both; and exists for the use and benefit of all the people of the state, who are the beneficiaries or cestuis que trust for whom the trust was created, and by whom, through their legislature, it is sustained and continued: Id. The power to exempt the grantees from the payment of any damages or compensation for the franchise granted by the Act of April 17, 1860, was clearly within the scope of legislative authority: Id. The occupation of the streets for the purpose of constructing and operating the railroad authorized by that act, does not involve the taking of property, in such a sense as to come within the prohibition of the constitution; which implies, first, a private owner; second, a taking from him; and, third, the property or thing taken having the legal qualities of property, and the owner's interest in which is capable of legal estimate: Id. The streets are not in the hands of private owners, and what is authorized by the act to be taken is not private property. The grant in the statute is of a franchise. And the act authorizing the grantees to construct and operate the railroad is a mere legislative license to do so: Id. From the Hon. O. L. Barbour, Reporter; to appear in the 37th volume of his Reports. |