ant occupied at Castle Bromwich, the defendant shot at and killed the pigeon. The questions for consideration are: First, whether the plaintiff can be said to have a property in the pigeon, which was admittedly tame and reclaimed; and if so, then, secondly, whether by the act of taking the pigeon away from its home for the purpose of training it, and there releasing it, the plaintiff lost his property in the bird, and thereby his right to bring this action to recover damages for the killing of it by the defendant. Whether in fact by releasing it in the manner stated he abandoned the property he otherwise would have had in it whilst in his possession; in short, whether the pigeon, in consequence of plaintiff's action, lost its character of a tame pigeon and became feræ naturæ." After referring to and commenting on Dewell v. Saunders, Cro. Jac. 490; Reg. v. Cory, 10 Cox's C. C. 23; Reg. v. Thickle, L. R., 1 C. C. 158; Child v. Greenhill, Cro. Cas. 553; Reg. v. Brooks, 4 C. & P. 131; Reg. v. Cheafor, 21 L. J. 43, M. C.; Taylor v. Newman, 4 B. & S. 89, the court thus concluded: "There appears to be a connection between the soil and animals feræ naturæ, so far as the ownership in both is concerned. In an ordinary case, if the owner of a reclaimed pigeon chooses to take it from its home, and set it free on soil that does not belong to him, having no further care or thought about it, or if the bird escapes, and betakes itself to its natural liberty, this would, I think, amount to an abandonment of the previous reclamation, and it would again become feræ naturæ ; but I cannot think that what the plaintiff has done in this case, the taking away of the bird and releasing him for the purpose of training, teaching it his lesson in short, can amount to an abandonment of his property in the pigeon. This temporary release from the plaintiff's custody for the purpose indicated could never be intended by the plaintiff to be an abandonment of the valuable property he possessed in the pigeon. The plaintiff was merely following the ordinary method of teaching the bird so as to cause it to become more useful and of greater value. After the best consideration I can give to the matter, I have arrived at the conclusion that the property, which the English law, following the Roman in this respect, allows individuals to possess in pigeons is a special possessory property, a right to have them protected whilst on the owner's property, or under his control. No case that I have found goes so far as to say that the owner of pigeons can have an absolute property in them at all times and in all places. Dewell v. Sanders, if correct, decides there can be no such absolute property. If I thought that the plaintiff by his act had lost the possession or custodia of the pigeon, his property in the pigeon, in my opinion, would have been gone, and I should have been obliged to decide that this action could not have been maintained; but in the present case, for the reasons already stated, I think the reclaimed character of the pigeon ought not to be considered as abandoned, but that it continued notwithstanding the act of the plaintiff, and that being so, I hold, for the reasons given, that the property in the pigeon continued in the owner, and

that the plaintiff is entitled to the verdict. I have not arrived at this decision without much hesitation and some doubt." "In ancient times the question was by no means of the importance it has in recent times become. A vast amount of capital, indeed, is now invested in these birds; a very extensive traffic in them is carried on both at home and abroad. It is much to be desired that this important question, on which so much property depends, should not remain doubtful, but should be decided by the high court." The Law Times thinks "a somewhat dangerous principle is admitted" here.

In Dicks v. Yates, English Court of Appeal, May 24th, Law Times, May 28th, the question was whether the defendant, Edmund Yates, by publishing in the World a novel or serial story by Miss Braddon under the title of "Splendid Misery,” had infringed the copyright in that title, which was claimed by the plaintiff from his publication in December, January, and February, 1874-5, in his weekly periodical known as Every Week, of a work of fiction called " 'Splendid Misery; or East End and West End," written by Colin H. Hazlewood, and illustrated by R. Huttula. Jessel, M. R., called attention to the differences between Every Week and the World. The first was a collection of novels, the second was a newspaper, with from time to time a feuilleton containing weekly installments of a story or novel. The two papers were of a totally different character, were brought out at a different price, and were addressed to a totally different class of readers. Two more perfectly different objects to which a paper could be directed it was difficult to discover. discover. As to the legal questions the question whether there could be a copyright in the particular title, he was of opinion that there could not. The words "Splendid Misery" were old, and the combination was really a common and hackneyed term. It was proved to have been the title of a novel published in 1801, and there was no invention or originality by the plaintiff in such a combination any more than in the words "miserable sinners." Then it was said that user of the words by the plaintiff might entitle him, as in the case of a trademark, to restrain any one else from publishing a work under that title, lest the public should mistake it for his work. In the two titles themselves there were remarkable differences. The one was "Splendid Misery; or, East and West End, by Colin H. Hazlewood. The other "Splendid Misery," by Miss Braddon, author of "Lady Audley's Secret,' etc. No serious argument, therefore, on the question of trade-mark could be, or indeed was, raised. Assuming there was copyright in a title — and he was not going to say that there could not be did it mean? It was the right of multiplying copies of an original work, and it must be shown that the work was original; if not, then there could be no copyright. How could this title be said to be original when the very same words had been used for the very same purpose some eighty years ago ? It was no answer to say that people had forgotten the older novel. There was no evidence to show

what

most elaborate defense of the practice which he cites. Mr. Bayard was undoubtedly a highly respectable man and lawyer, but he lived in a State where there never had been any public sense opposed to the practice. Champerty and maintenance never existed in that State. So he held slaves, we suppose, and thought it right. He took a single claim to collect for a percentage; it does not appear that he was in the habit of doing this thing. We hardly think his son, the present senator, would advocate such a practice in these days. But what is said on this subject in the Delaware case is obiter, after all, for the court held that Mr. Bayard had not performed his part of the contract, and therefore there could be no recovery on it.

In Voorhies v. Dorr, 51 Barb. 586, the question did not arise and was not discussed. The action was by a layman to recover an agreed compensation for the defendant lawyer's use of the plaintiff's name in a lawsuit, and what the court said was in reference to that contract.

in 1879, after rehearsing the common arguments in favor of the practice, said: "It is urged that practices, which before the Code were universally regarded in the profession as disreputable, unworthy, demoralizing, and tending to degrade the profession and impair the administration of justice, are not changed in their character, because they may possibly have ceased to be illegal, or to be absolutely prohibited by statute; or because a law removing restraints upon them has been passed at a time when it seemed to be the fashion to throw down every legal barrier to, and restraint upon, the admission of an attorney, or his practice when admitted, and to rely solely upon the diligence, the integrity and honor of men as a sufficient safeguard. It is also urged that the character of these practices remains the same as ever; that they are still, as ever, demoralizing, deteriorating in their tendency; that they do, as ever, tend to barratry, to stirring up of suits, the encouragement of litigation, and the tampering with evidence. That they are an easy and tempting source of large profits to able and adroit lawyers; that such cases, with proper management, are sure to succeed before juries, and that it is rare that a case cannot, on some question, be got before a jury; that the communistic tendencies of the present time produce enormous verdicts- fortunes in themselves; that such temptations are calculated to drag away the profession from its moorings, and its regular, steady business, to these barratrous spec

612. But it was obiter. If Judge Countryman had pursued his quotation one sentence, he would have found this: "But in this case there is an effort to recover land, not as a measure of compensation, but as a part of the very property in controversy." And the court refused to enforce the agreement between the attorney and client, by which the former was to have one-third of the land recovered.

The Wisconsin cases cited by Judge Countryman, while they pronounce the practice lawful, afford no breath of sanction of the morality or propriety of the practice.

This examination reduces Judge Countryman's array of indorsers to a very small showing. Now let us look at the other side, commencing at home, and coming from the time when the practice was unlawful down to the present time, when it is lawful. Chancellor Kent said, in Arden v. Patterson, 5 Johns. Ch. 48: "The purchase of a lawsuit by an attorney is champerty in its most odious form; and it ought equally to be condemned on principles of public policy. It would lead to fraud, oppression, and corruption. As a sworn minister of the courts of justice, the attorney ought not to be permitted to avail himself of the knowledge which he acquires in his professional character, to speculate in lawsuits. The precedent would tend to corrupt the profession, and produce lasting mischief to the community."

The arguments on this side of this question have never been better presented than by ex-Judge Samuel Hand, of this city, who, in his address as president of the New York State Bar Association,

ranging for a contingent fee with a poor man, who applies to an attorney, yet the tendency of permitting such arrangements is to set members of the profession advertising for such cases, soliciting at the expense of all manly and professional dignity, persons who are known to have causes of action, and inducing them to violate constantly the statute against the advancing of moneys as an inducement to placing suits in their hands. It is said that worthless persons, having nothing, risking nothing, are induced under this system to present and swear through simulated causes of action, relying upon attorneys to furnish all necessary moneys and divide the profits if successful. All these mischiefs and irregularities are, it is insisted, injurious to the standing before the world and to the inward tone of the profession."

On the same occasion, Mr. Tracy C. Becker, of Buffalo, in an essay on Contracts for Contingent Compensation for Legal Services, remarked: “I cannot conceive of any serious argument that will convince any one that such speculations are not demoralizing and dangerous in the extreme." "With the frequency of contracts for contingent compensation the money changers and speculators insidiously, yet surely, gain a foothold on the threshhold of that noble edifice. Would it not be well to imitate that great law-giver and moralist who, when he found them clinging about another temple two thousand years ago, scrupled not to overturn their tables, and to drive them forth lest their presence should pollute the sacred place?"

Although the practice in question is now lawful

in this State, the courts do not seem to regard it with much favor. In Voorhies v. McCartney, 51 N. Y. 390, the commission of appeals held that an attorney under such circumstances, bringing an action in the name of another, is still liable for the defendant's costs; and Gray, C., observed: "The repeal of the former laws upon that subject has not legalized such contracts; it made such transactions by lawyers only tolerable by leaving such of them as might choose to embark in such enterprises upon the same footing as other speculators, any one of whom may employ an attorney to bring an action in which he is beneficially interested in the name of another."

In Coughlin v. N. Y. C. & H. R. R. Co., 71 N. Y. 443; S. C., 27 Am. Rep. 75, the court held that in spite of an agreement of the nature in question, the client could release his claim to the defendant and defeat his attorney. The court, Earl, J., remarked: "Its exercise" (i. e., the extraordinary power of the court) "to secure to an attorney the statutory fees, small in amount and easily ascertainable, was just and proper, and could lead to no abuse. But to exercise it so as to enforce all contracts between clients and attorneys, however extraordinary, is quite another thing. Here the attorneys were contractors. They took the job to carry this suit through, and to furnish all the labor and money needed for that purpose, and they are no more entitled to the protection which they now seek than any other person not a lawyer would have been, if he had taken the same contract. When a party has the whole legal and equitable title to a cause of action, public policy and private right are best subserved by permitting him to settle and discharge that, if he desires to, without the intervention of his attorneys."

Now to go outside our own State. In Duke v. Harper, 66 Mo. 51; S. C., 27 Am. Rep. 314, the court said: "But there is nothing in the law of champerty as expounded by Blackstone and Bouvier, and the American courts in the adjudicated cases which we have cited, that is not applicable to our condition. The race of intermeddlers and busybodies is not extinct. It was never confined to Great Britain, and the little band of refugees who landed from the May Flower on the coast of New England were not entirely free from the vice of intermeddling in the concerns of other people. It is as prevalent a vice in the United States as it ever was in England, and we do not see but that a law restraining intermeddlers from stirring up strife and litigation betwixt their neighbors is wholesome and necessary, even in Missouri. A man having a doubtful claim to property in the possession of another, who would hesitate to incur the expense of testing its validity, will readily agree that one who will bear the burden of the contest, and take part of the recovery for his pay, may institute the suit in his name. Such contracts are champertous and should be so held on principle everywhere.'

In Adye v. Hanna, 47 Iowa, 264; S. C., 29 Am. Rep. 484, the court held that an attorney's agreement to pay any judgment against his client if he

For

would appeal and pay his fees, is void, and remarked: 66 In another respect it is in conflict with the policy of the law, which promotes and upholds | purity and justice in the administration of remedies in the courts. The attorneys bound by the contract become liable in the place of their client. They have the most powerful motive to pervert justice and corrupt its source, in order to escape the liability they have assumed. They are officers of the court, and as such ought to be trusted by judges as well as clients. Their duty does not require them to pervert the law or deceive those clothed with the power to administer it. On the contrary, it forbids them, under the heaviest penalties, to do any act that may have such an effect. They are to aid the courts in the administration of justice. Their duty requires them to endeavor to secure to their client his rights under the law and nothing more. such services the law will secure them compensation from their clients. It requires neither arguments nor explanations to show what great temptations would be placed before the attorney to violate his duty and to endeavor to corrupt the fountain of justice, were he to take the place of his client and become responsible for all liabilities incident to a decision adverse to him. The law will not permit members of the legal profession to be assailed with temptations so dangerous in their character. They have the most grave duties to perform in the administration of justice; they stand before the world, as a class, distinguished for honor, integrity, and publie virtue. The law will be careful to recognize no rules or principles which in their application to the practice of courts or business of attorneys may tend to corrupt the legal profession, or rob it of the high character it has always maintained."

In Pennsylvania, Chief Justice Gibson characterizes the practice as "questionable." Foster v. Jack, 4 Watts, 339. Judge Rogers says it is a "subject of regret." Judge Kane, in Ex parte Plitt, 2 Wall. Jr., 452, says: "It is not a practice to be generally commended."

From Chief Justice Sharswood's admirable essay on Professional Ethics we extract the following: "A horde of pettifogging, barratrous, custom-seeking, money-making lawyers, is one of the greatest curses with which any community can be visited." "Except in this class of cases" (undefended claims) 'agreements between counsel and client that the compensation of the former shall depend upon final success in the lawsuit- in other words, contingent fees however common such agreements may be, are of a very dangerous tendency, and to be declined in all ordinary cases.' "It is to be observed, then, that such a contract changes entirely the relation of counsel to the cause. It reduces him from his high position as an officer of the court, and a minister of justice, to that of a party litigating his own claim. Having now a deep personal interest in the event of the controversy, he will cease to consider himself subject to the ordinary rules of professional conduct. He is tempted to make success, at all hazards and by all means, the sole end of his exertions. He becomes blind to the merits of the case, and

would find it difficult to persuade himself, no matter what state of facts might be developed in the progress of the proceedings, as to the true character of the transaction, that it was his duty to retire from it. It places his client and himself in a new and dangerous relation. They are no longer attorney and client, but partners. He has now an interest which gives him a right to speak as principal, not merely to advise as to the law and abide by instructions. It is either unfair to him or unfair to the client. If he thinks the result doubtful, he throws all his time, learning and skill away upon what, in his estimation, is an uncertain chance. he believes that the result will be success, he receives in this way a higher compensation than he is justly entitled to receive. It is an undue encouragement to litigation. Men who would not think of entering on a lawsuit, if they knew that they must compensate their lawyer whether they win or lose, are ready upon such a contingent agreement to try their chances with any kind of a claim. It makes the law more of a lottery than it is. The worst consequence is yet to be told-its effect upon professional character. It turns lawyers into higglers

If

with their clients. Of course it is not meant that these are always its actual results; but they are its inevitable tendencies- in many instances its practical working. To drive a favorable bargain with the suitor in the first place, the difficulties of the case are magnified and multiplied, and advantage taken of that very confidence which led him to intrust his interests to the protection of the advocate. The parties are necessarily not on an equal footing in making such a bargain. A high sense of honor may prevent counsel from abusing his position and knowledge; but all have not such high and nice sense of honor. If our example goes toward making the practice of agreement for contingent fees general, we assist in placing such temptations in the way of our professional brethren of all degrees the young, the inexperienced, and the unwary, as well as those whose age and experience have taught them that a lawyer's honor is his brightest jewel, and to be guarded from being sullied, even from the breath of suspicion, with the most sedulous care."

Chief Justice Sharswood, in the same essay, quotes the following advice from Price on Limitation and Lien, characterizing the author as "a gentleman of the largest experience and highest character for integrity and learning at the Philadelphia bar": "Permit me to advise and earnestly to admonish you, for the preservation of professional honor and integrity, to avoid the temptation of bargaining for fees or shares of any estate or other claim, contingent upon a successful recovery. The practice directly leads to a disturbance of the peace of society, and to an infidelity to the professional obligation promised to the court, in which is implied an absence of desire or effort, of one in the ministry of the temple of justice, to obtain a success that is not just as well as lawful. It is true, as a just equivalent for many cases honorably advocated and incompetently paid by the poor, a compensation may and

will be received, the more liberal because of the ability produced by success; but let it be the result of no bargain, exacted as a price before the service is rendered, but rather the grateful return for benefits already conferred."

If our language on this subject is deemed "severe," what will be said to that of the foregoing extracts? Does our correspondent refuse to recognize these high authorities?

VALIDITY OF STATUTE PRESCRIBING CHARACTER OF EVIDENCE.

RHODE ISLAND SUPREME COURT, FEBRUARY 5, 1881. STATE OF RHODE ISLAND V. BESWICK.*

A statute of Rhode Island which forbids, under a penalty, the keeping for sale of spirituous liquors, provides that "it shall not be necessary to prove an actual sale of the liquors enumerated in any building, shop, saloon, place, or tenement, in order to establish the fact that any of said liquors are there kept for sale; but the notorious character of any such premises, or the notoriously bad or intemperate character of persons frequenting the same, or the keeping of the implements or appurtenances usually appertaining to grog-shops, tippling shops, or places where such liquors are sold, shall be prima facie evidence that said liquors are kept on such premises for the purposes of sale within this State." Held, that the statute, by making the recited circumstances prima facie evidence against an accused, is unconstitutional and void, in depriving the accused of the protection of the common-law principle that every person is to be presumed innocent until he is proved guilty, as recognized in the Constitution of Rhode Island, and in violating the provision that an accused shall not "be deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land

The statute also provided "that no negative allegations of any kind need be averred or proved in any complaint." Held, that this did not violate any constitutional right of the accused person.

XCEPTIONS to the Court of Common Pleas in a

E*

prosecution for a violation of this statute.

"If any person shall keep or suffer to be kept on his premises or possessions, or under his charge, for the purpose of sale, in violation of the preceding sections of this act or any of them, any ale, wine, rum, or other strong or malt liquors, or any mixed liquors, a part of which is ale, wine, rum, or other strong or malt

liquors, he shall on conviction, be fined twenty dollars and be imprisoned in the county jail ten days." Other facts appear in the opinion.

Samuel P. Colt, Assistant Attorney-General, for the State.

Hugh J. Carrol & Charles E. Gorman, for defendant.

DURFEE, C. J. The complaint is in the form provided by Public Laws Rhode Island, chapter 797, of March 18, 1880, for prosecutions under Public Laws Rhode Island, chapter 508, sections 18 and 19, of June 25, 1875. The complaint is for a violation of section 19. One objection to it is that section 19 no longer exists, having been repealed by Public Laws Rhode Island, chapter 653, section 2, of February 20, 1878. But chapter 653, section 2, while it repeals section 19 as it originally existed, re-enacts it in an amended form as section 19 of chapter 508. It must therefore be taken as section 19 of chapter 508 in respect of offenses subsequently committed. Other objections relate to the form of the complaint, which the defendant contends is fatally defective in that it does not contain the usual negative averments. Chapter 797, section 2, provides that "no negative allegations of any kind need be

* To appear in 13 Rhode Island Reports.