their and each of their executors, etc.," it was held that the interest of the covenantees being several, the covenant was several. In Comings v. Little, 24 Pick. (Mass.) 266, there was a conveyance by one Frye to Hilliard, one of the defendants, of an undivided one-half of an acre of land, included in the parcel conveyed to the plaintiff by the defendant, and Hilliard mortgaged the same to Frye to secure the payment of two promissory notes, and the mortgage contained a condition that Hilliard should indemnify Frye against a liability which he was under to one Davis which was an incumbrance on the property at the time of the conveyance by defendants to plaintiffs. Subsequently defendants by their warranty deed conveyed to plaintiff in the usual form that they were seised in fee of the premises. The court said: "Where two persons covenant jointly with another, a joint action lies for the covenantee on the breach of the covenant by one of the covenantors only; because they are sureties for each other for the due performance of the covenant." In Sharp v. Conkling, 16 Vt. 355, the defendant bought of the plaintiffs the right to use the waters of a certain stream and covenanted to divert it from its former channel by a certain time, and carry it across the land of Sharp without injury to it by leaching or running into the same The question before the court was whether the plaintiff could sustain the action in his own name, or whether he must join all the parties of the same part. The court said: "The rule is, I apprehend, the same in regard to covenantors-as to whether they are jointly or severally liable, or in both forms— that it is as to all contracts. It depends altogether upon the form of the contract. Doubtless, in regard to the liability of the covenantors, much in many cases, may depend on construction, and this as to covenantors may be construction, affected by those which considerations similar to influence the construction of covenants in regard to the liability of covenantees. Donahoe v. Emery, 9 Metc. (Mass.) 67, was an action on a covenant for quiet enjoyment, and that the premises were free from incumbrance. The plaintiff was evicted from the premises by virtue of a prior mortgage made jointly with one Denton, with whom at 39 James v. Emery, 8 Taunt. 245. con that time Havelin, whose interest was veyed to the plaintiff by the guardian of his minor children, owned the estate in common. The court said: "The question of whether a coverant is joint or several, must be construed by the rules of construction, as established by the rules of common law found in the authorities. These rules are laid down by Platt on Covenants, Part I, ch. 3, § 2. Where two or more persons covenant with another by the words "we covenant," the words indicate a joint covenant, and are to be so considered, unless from the whole contract it should appear that such was not the understanding of the parties. If two covenant generally for themselves, without any words of severance, or that they or any of them shall do such a thing, a joint charge is created." In the United States it may be said that, as a general rule, lands are liable for the debts of a decedent, whether due by matter of record, by specialty, or simple contract. By his death, however, its quality is changed, and it becomes a lien upon his real estate, which descends to the heir, or passes to the devisee subject to the payment of the debts of the ancestor according to the laws of the State in which it lies.40 By the common law, a covenantee might sue either the executor or the heir at his election, but this has been altered by statute in many States, and in them the liability of an heir on the covenant of his ancestor is a contingent one, depending on the inability of the covenantee to secure satisfaction out of the personal estate. 41 "The liability of an executor, or administrator to the extent of assets in his hands, is the same whether the covenants are broken before or after the decedent's death. Hence damages accruing before and after the covenantor's death, can be recovered in the same action against his executor or administrator. 42 A covenant by two joint lessees, if it is joint and several, will bind the executors of the deceased lessee. 48 On the breach of the covenant, occurring after the death of the covenantor, and the complete settlement of his estate, the covenantee may sue the heirs directly, and they will be liable to the extent 40 Watkins v. Holman, 16 Peters (U. S.), 63, 4 Kent's Com. 424, 2 Hilliards Abr. 539. 41 Rawle on Covenant for Title, p. 547. of the assets descended.44 An action of covenant lies only against the person who has sealed and delivered the instrument.45 Where a deed is inter partes the party having the legal interest in the covenant must always sue, although the beneficial interest be in another. 46 It has been held that although a covenant be joint and several in the terms in which it is expressed yet that if the interest and cause of action be joint, the action must be brought by all the covenantees; and that if, on the other hand the interest and cause of action be several, the action may be brought by one only;47 where the interests are joint, all the parties must be joined in an action on the covenant. Thus where several covenantors bind themselves or some of them to pay a certain sum of money an action cannot be maintained against one of them.48 IV. The Measure of Damages. As a general rule the measure of damage for breach of the covenants for seisin, for right to convey, for quiet enjoyment, and of warranty is the value of the land when the covenant sued on was made, which value is estimated by the consideration money named in the deed, with interest, but without any allowance for rise or fall in value since the sale, or for improvement made, except where the covenants are in a lease, in which the measure of damages is the value of the unexpired term to the lessee, together with the costs of the action of ejectment, and the mesne profits recovered therein.51 Where there is a breach as to part of the land, the damages must be assessed according to the valuation of the price of the part as to which title has failed, and the proportion which it bears to the price of the whole estate conveyed.52 As a general rule 50 44 Walker v. Deaver, 79 Mo. 664; Metcalfe v. Smith's Heirs, 40 Mo. 572. 45 Wilson v. Brechemin, Bright (Pa.), 445; Rockford, R. I. & St. L. R. R. v. Breckemeier, 72 Ill. 267. 46 Barford v. Stuckey, 2 Bro. & Bing. 333; Storer v. Gordon, 3 Maule & S. 308. 47 Eccleston v. Clipsham, Saund. 153; Janus v. Emery, 8 Taunt. 245; Saunders v. Johnson, 1 Saund. 154, note. 48 Montague v. Smith, 13 Mass. 405; Tileston v. Newell, 13 Mass. 406; Harrison v. Matthews, 2 Dowl. N. S. Bail, 318. 49 Brooks v. Black, 68 Miss. 161; Foote v. Burnet, 10 Ohio, 330. 30 Bender v. Fromberger, 4 Dall. (Pa.) 442; Staats v. Ten Eyck, 3 Cai. (N. Y.) 111; Pitcher v. Livingston, 4 Johns. (N. Y.) 1. 51 Williams v. Burrell, 1 C. B. 402; Lock v. Furze, 19 C. B. N. S. 96; Dexter v. Manley, 4 Cush. Mass. 14. 52 Leland v. Stone, 10 Mass. 463; Cornell v. Jackson, 55 the measure of damages for breach of the covenant of warranty is the value of the land when the covenant sued on was made, with interest, but without any allowance for rise or fall in value since the sale, or for improvements made, except where the covenants are in a lease, and where the improvements form a part of the consideration itself. But if the land is not of equal value all over, though sold at a uniform rate per acre, then that amount will be allowed for each acre lost, with interest.55 The recital of the consideration is not conclusive as to the amount and where no consideration is named the measure of damages must be obtained from other evidence as to the value of the laud.54 Parol evidence is admitted to show that the consideration was greater than that expressed, or that it was less.56 In Foote v. Burnett, 10 Ohio, 335, it was held that in an action to recover the amount paid-in good faith to remove incumbrances, the measure of damages is the amount so paid, and this view is sustained in Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105; Leffingwell v. Elliot, 10 Pick. (Mass.) 204; Brooks v. Moody, 20 Pick. (Mass.) 474, and in none of these cases does it appear that the amount paid to remove incumbrances exceeded the amount paid for the land. If the character of the incumbrance be such as to admit of removal, the plaintiff is entitled to recover the amount which he has fairly and reasonably paid to remove it. If the covenantee purchase an outstanding paramount title, actually asserted, his damages upon the covenant for quiet enjoyment or warranty, are measured by the amount he has paid.58 Wilkes-Barre, Pa. GEORGE URQUHART. 3 Cush. (Mass.) 510; Partridge v. Hatch, 18 N. H. 494; Major v. Dunnivant, 25 Ill. 256; Mische v. Baughn, 32 Ia. 528; Blanchard v. Blanchard, 48 Me. 177; Hunt v. Raplee, 44 Hun (N. Y.), 149; Dickens v. Shepherd 3 Murph. (N. C.) 526. 53 Semple v. Wharton, 68 Wis. 626. 54 Smith v. Strong, 14 Pick. (Mass.) 128. 35 Dexter V. Manley, 4 Cush. (Mass.) 26; Belden v. Seymour, 8 Conn 304; Guinnotte v. Chouteau, 34 Mo. 154. 56 Wharton v. Gordon, 24 Ga. 535; Swafford v. Whipple, 3 Greene (Iowa), 267; Williamson v. Test, 24 Ia. 139. 57 Davis v. Lyman, 6 Conn. 255; Funk v. Cresswell, 5 Ia. 88. 38 Lethingwell v. Elliot, 8 Pick. (Mass.) 457. ATTORNEY-DISBARMENT. IN RE BADGER. Supreme Court of Idaho, February 6, 1894. Where an attorney pursuades a person to appear in the United States land office and make oath to an affidavit relating to desert-land entries, and to falsely personate and represent herself to be another person, who had prior thereto made a desert-land entry at such office, he will be disbarred. HUSTON, C. J.: Information was filed against the respondent by Hon. George Ainslie, on behalf of the bar association of the third judicial district, under the provisions of title 4. p. 429, of the Revised Statutes of Idaho, charging him with violation of his oath as an attorney, and of his duties as such, and of being guilty of false representation and fraudulent practices as an attorney, involving moral turpitude, in this: "(1) That the said J. W. Badger, being then employed as an attorney in and about certain matter relating to desert-land entries in the United States land office at Boise City, Idaho, did on or about the 16th day of February. A. D. 1893, at Boise City aforesaid, corruptly instigate, suborn, and pursuade one Aldora Abbott to be and appear in the land office aforesaid, and subscribe and make oath to an aflidavit to be used in said land matters, and to falsely and fraudulently personate and represent herself to be one Cordelia M. Wing, who had prior thereto made a desert- land entry at said office, all of which more fully appears by reference to the complaint of C. S. Kingsley, subscribed and sworn to before Jonas W. Brown, U. S. commissioner, on October 21, 1893, a copy of which said complaint is hereto attached, and marked Exhibit A,' and made a part of this information." The matter was referred to a committee composed of three members of the bar of this court, to take testimony and make report of findings. This duty has been performed by said committee, and the court has carefully and thoroughly examined the report of the committee, and the evidence upon which said report is based and has duly considered the arguments of counsel upon the report and evidence, and will now give the result of its deliberations: There is no duty imposed upon a court more important than that of preserving, to the best of its power and ability, the professional integrity and purity of its bar. Courts are established for the administration of law and justice. The attorneys who constitute its bar are an integral part of the court. Without them, the court would be a dead engine, so far as the accomplishment of the ends of its creation go. The duties and obligations imposed upon the judges of courts are no more binding or obligatory than are those to which their position constrains the attorneys who constitute the bar of the court. The professional conduct of each and every member of the bar is a matter in which all are specially interested. No member has the right. nor should be permitted. to so conduct himself in his profession as to bring reproach upon the guild. There was a time when any scoff or jibe the poet or the romancer saw fit to cast upon the lawyer was received, without question, as deserved obloquy. But that rule has never obtained in this country. The history of the legal profession in this country is the history of the republic. America can proudly and fearlessly challenge comparison of her lawyer sons with any that the world has ever produced. No grander models can be found for the student of the law than our own country presents. And it should be the earnest desire and endeavor of every member of the profession that the standard of professional excellence be not lowered. That unworthy members will be found in the ranks is inevitable; "for where's the palace whereinto foul things sometimes intrude not?" While the standard of ability and integrity of the American bar is second to none, it is to be regretted that defections from the line of professional duty are becoming disturbingly frequent. Perhaps, under all the circumstances, this is less a matter of surprise than regret. Lawyers are only men, and subject to the same influences that act upon other men; and it would perhaps be unjust to expect that, in an age and a country, where the worship of the golden calf has become the accepted and almost universal creed, the legal profession alone should be excluded from the shrine. But the lawyer, if he is a lawyer, in the true acceptation of the term, will ever temper his devotion at that altar with the recognition of those eternal truths which he has drawn from the fountain head of jurisprudence. I cannot myself conceive how a man with ordinary honest instincts, who has been a careful and thoughtful student of Coke, Blackstone, Kent, and Story, can ever be induced to resort to unscrupulous and dishonest methods in the practice of his profession. It may be that it is to the lack of familiarity with the writers mentioned that some of the looseness so painfully apparent in the practice of some members of the profession is attributable. Perhaps another reason for the lowering of the professional standard may be found in the monstrously heretical idea which many, both professional and profane, have of what constitutes true professional success. Το be a lawyer is and should be understood and recognized as being well versed in the law, and possessed of ability to make a just and proper appiication thereof to the facts in a given case. It is an erroneous and unreliable rule which gauges the ability of a lawyer by the number of cases he wins in the courts of first instance. The true test should be, did he show that he was thoroughly conversant with the law of the case, and did he ably and honestly make a just and proper application of the law to the facts, and not the simple inquiry, "Did he get away with the case?" No matter what the means resorted to may have been, though to reach it he may have been obliged to Distort the truth, accumulate the lie, And pile the pyramid of calumny." The attainment of the end sanctified the means, no matter how unprofessional, dishonest, or vile. And I apprehend it to an overweening desire for temporary and ephemeral success, unrestrained by knowledge or recognition of those ethical principles which underlie all the writings and teaching of the fathers of the profession, that much of the moral decadence of the legal profession is attributable. The lawyer who, to secure success, either for himself or his client, will violate, wilfully and knowingly, either the express or implied obligations of his professional oath, is on a par with the minister of the Gospel who, to gratify his avarice, would drag the pure vestments of the altar through the turpid pools of mercenary traffic, or, to encompass an unholy ambition, would "hang the tatters of a political piety upon the cross of an insulted Savior." The restraints which both the common and civil laws laid upon the lawyers in matters of compensation for their services have been greatly relaxed, but the reasons which prompted this relaxation were beneficent, and the action should not be made to serve the purposes of oppression or cupidity. There is no reason why a lawyer should not aequire wealth, as well as another, if he does it honestly and legitimately; but as his temptations, in the way of opportunity, are greater than others, so are his obligations to keep strictly within the lines of probity and integrity. And that in so doing he is adopting the course best calculating to insure success, all experience verifies. Go through the ranks of the profession in this country or elsewhere, and it will be found to be a rule, with scarcely an exception, that the successful members of the profession are those who have practiced upon lines of strictest integrity, and it is a matter of just pride to the profession that deviations from the line of duty are exceptional. The rule given by Burns to his young friend Aiken may well be adopted by every member of the profession as a check upon his zeal either for the acquisition of pecuniary results or the attainment of professional success: "But where you feel your honor grip, Its slightest touches, instant pause,— Had the respondent in this case been governed by such a rule, the painful duty imposed upon this court would have passed by us. Mr. Badger, stand up. As one member of this court, I can assure you I entertain for you only feelings of the profoundest commiseration. I will not add to the painful humiliation of your position by commenting upon the circumstances of your case, further than to say that the court has carefully and critically examined the evidence upon which the findings of the committee are based, and we approve and adopt them. It is the order and judgment of the court that you deliver to the clerk of this court the certificate of admis sion as a member of the bar of this court heretofore issued to you, and that your name be stricken from the roll of attorneys of this court. NOTE.-Courts will exercise jurisdiction to strike an attorney from the rolls or suspend him from practice for professional misconduct when necessary to vindicate its honor, even though the undertaking be not strictly enforceable at law or the misconduct be not such as would subject the attorney to an indictment. Baker v. Commonwealth, 10 Bush (Ky.), 592; In re Blake, 30 L. J. (Q. B.) 32; United States v. Porter, 2 Cranch C. C. 60. To maintain a motion to strike from the rolls the charge must affect the official character of the attorney. People v. Allison, 68 Ill. 151; Er parte Steinman & Hensell, 95 Pa. St. 220. Discreditable acts, if not connected with his duties, will not give the court jurisdiction. Dickens' Case, 67 Pa. St. 169. Indulgence in vices not affecting his personal or professional integrity is not sufficient ground. Baker v. Commonwealth, 10 Bush (Ky.), 592. Nor is ignorance of the law a good cause. Bryants' Case, 24 N. H. 147. Disrespect to the court may amount to gross misbehavior in office, and in such case is good ground for disbarment. Appearing in court armed with deadly weapons. See Sharon v. Hill, 24 Fed. Rep. 726. Assaulting or threatening to assault a judge. Beene v. State, 22 Ark. 149; Ex parte Heyfron, 7 Miss. 127; People v. Green (Colo.), 3 Pac. Rep. 65; Bradley v. Fisher, 13 Wall. (U. S.) 323. But if the offense be committed out of court the offensive language or conduct complained of must have reference to the judge's official acts. Bradley v. Fisher, 13 Wall. (U. S.) 323; Jackson v. State, 21 Tex. 660. Any breach of the oath of fidelity to the court is good ground for disbarment as bringing a divorce suit without authority, and acting in fraudulent collusion with the husband to procure the divorce without the knowledge or consent of the wife is good ground for disbarment. Dillon v. State, 6 Tex. 55. So, for procuring a witness to keep out of the way on trial. Williams v. Hill, 1 Dowl. (N. S.) 669. So, perjury or subornation of perjury. State v. Holding, 1 McCord (S. Car.), 379. So for bribery of a witness. Walker v. State, 4 W. Va. 749. Gross violence of the confidence of the client is good ground for disbarment. In re Martin, 6 Beav. 337; Strout v. Proctor, 71 Me. 288. Thus an attorney is liable to be struck off the roll if he makes default in the payment of money directed to be paid upon summary application. Stevens v. Hill, 10 M. & W. 28. But to render him liable to the summary jurisdiction of the court it is requisite that the money should be received by virtue of his professional employment or as a consequence of his professional character. Anon, 12 C. L. J. 204; People v. Appleton, 105 Ill. 474. An attorney may be suspended or disbarred for any matter showing his unfitness to practice in the courts whether it be a criminal offense or creates a civil liability or not. State v. Winton (Oreg.), 5 Pac. Rep. 337; Ex parte Wall, 13 Fed. Rep. 814; In re Treadwell (Cal.), 7 Pac. Rep. 724. Thus, aiding to procure a divorce, without compliance with the requisites of the law, is ground for striking an attorney's name off the roll. So, advising a breach of trust with design to benefit himself of as sistence rendered to his client in a scheme which he knew to be dishonest and fraudulent. Barnes v. Abby, L. R. 9 Ch. 251. An attorney conniving at the violation of the bankrupt law renders himself liable to suspension. If he deceives the court by bringing a collusive suit on a fictitious note to enable a creditor to escape compulsory bankruptcy he may be disbarred. In re Nathaby (Cal.), 14 Cent. L. J. 90. Taking an unfair advantage of the opposite party in the absence of his professional advisor. In re Oliver, 2 Ad. & E. 692. Or appearing for both plaintiff and defendant in the same action (People v. Spencer, 61 Cal. 128), renders an attorney liable to suspension. An attorney may be disbarred for aiding or abetting a lynching. Ex parte Wall, 107 U. S. 295. So, withholding from his client and his client's administrator money collected by him. People v. Cole, 84 Ill. 327; Kepler v. Klingensmith, 50 Ind. 434; Jeffries v. Lowrie, 23 Fed. Rep. 786. So, fraud and deceit practices toward his client or a third party. Slemmer v. Wright, 54 Iowa, 164; In re Temple (Minn.), 23 N. W. Rep. 463. Neither pardon for felony nor satisfactory settlement with the injured party affect the court's power to disbar. Penobscot Bar v. Kimball, 64 Me. 140; In re Davies, 93 Pa. St. 116. The practice in England and America is for the court to issue a rule upon the attorney reciting specifically the charges against him and requir ing him to show cause why he should not be stricken from the rolls. Weeks on Attorneys, Sec. 83. BOOK REVIEWS. AMERICAN STATE REPORTS, Vol. 34. Among the many interesting cases reported in this volume will be found Williamson v. Yager (Ky.), with an extensive note on the subject of voluntary trusts arising from declaration of trustor; Vanstory v. Thornton (N. C)., with a note on judgment liens on homesteads; State v. Mason (Mo.), wherein is discussed some interesting questions in the law of fraud ulent conveyances, and Orlando v. Pragg (Fla.), on the liability of municipal corporations for the negli gent or wrongful acts of its officers, agents or servants and for torts not sanctioned by its charter. The American State Reports are ably edited by A. C. Freeman, Esq., and published by Bancroft-Whitney Co., San Francisco. WOOD ON THE LAW OF RAILROADS. This is the second edition of a work which first made its appearance in 1885 and which through positive merit has a place in the libraries of most of those whose practice deals with its subject. It is in three large volumes and treats of what are railroads, how created, capital stock, stockholders, preferred stock, transfer of shares, municipal subscriptions, corpo. rate meetings and directors, officers and agents, corporate powers, acquisition of right of way, railroads in streets and highways, eminent domain, location and construction, mechanic's lien, railways as carriers of passengers, negligence, injuries by fire, tickets, expulsion of passengers, sleeping and parlor cars, liability to employees, fellow-servants, baggage, injuries resulting in death, injuries to live stock, carriers of things, mortgages, bonds, etc., receivers, consolidation, legislative control and forfeiture of charter. It will be seen from the above that the subject is exhaustively considered. The text is admirably prepared and the notes are full and exhaustive of the authorities. The mechanical preparation of the volumes is also to be highly commended, the typographical appearance and binding being especially noteworthy. Published by the Boston Book Company, Boston, Mass. THE AMERICAN CORPORATION LEGAL MANUAL. This is Vol. 2 of a series beginning January 1st, 1893. It contains a compilation of the essential features of the statutory law regulating the formation, management and dissolution of general business corporations in America, England, France, Germany, The Netherlands, Italy, Russia, and Spain. It is complete, all changes of statutes being noted to January 1st, 1894. The matter is prepared expressly for this work by members of the bar in the different localities, and is for the use of attorneys, officers of corporations, investors and business men. It is edited by Charles L. Borgmeyer of the New Jersey bar and published by Honeyman & Company, Plainfield, New Jersey. BOOKS RECEIVED. Hand-Book of Criminal Law. By Wm. L. Clark, Jr. A Treatise on the Law of Mortgages of Real Property. Illustrative Cases in Partnership with an Analysis and Citations. By James Paige, LL.M., Professor of Law in the College of Law, University of Minnesota. Illustrative Cases in Personalty. By W. S. Pattee, LL.D., Dean of College of Law, University of Minnesota. Part II.-Sales. Philadelphia: T. & J. W. Johnson & Co., 1894. HUMORS OF THE LAW. Near the old court house in Poughkeepsie there stood years ago a tavern, kept by a Mr. Hatch. It was no uncommon thing to see "the court," jury, counsel, sheriff, constables, prisoners and all, adjourned to Mr. Hatch's bar for drinks. On one of these social occasions the prisoner, a horse thief, slipped away from his constables. When the judge resumed his seat the fact was made known to him. At first he said nothing but appeared to be in deep thought. Finally he arose, and with more than his usual gravity, delivered himself as follows: "Gentlemen of the jury, I am told that the prisoner has informally taken leave of the court and gone the sheriff knows not whither. This gives the case before you a more perplexed phase, as the statutes distinctly provide that the prisoner shall at no time, during trial, sentence or punishment, absent himself from the officers of the law. Therefore it only remains for me to say, that further prosecution in this case must be postponed until the return of the damned scoundrel who has thus informally trifled with the dignity of the court and the people of the State of New York."Green Bag. |