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not commit the expert irrevocably, right or wrong, verse opinions, but if they allowed themselves to be to the client's interests.
retained, they would be effectually silenced. Then The usual argument advanced for the “retainer" the defendant, or forger, could produce some witside is that the relations between expert and client nesses, who would pass as experts, and with this are sacred, and that the expert in such relation has positive testimony win his case. Several recent received privileged information.
prominent murder cases could be used as illustraThere should be no necessity for giving any priv- tions of this point. ileged information to the expert. In the case of the A brother expert has told me of a case, where milhandwriting examiner two sets of writings are lions of dollars hung on the authenticity of a docubrought to him — the standard and the questioned ment, upon which he was called to give a profesand his opinion is asked as to the identity or non- sional opinion. The opinion was adverse, and identity existing between the two. It is not neces- apparently stunned the clients anu attorneys, notsary to give him the history of the case, and to pour withstanding the fact that they must have known into his ear “privileged " information.
that the instrument was a forgery. The attorneys What privileged information can there be in finally offered the expert $50,000 to change his mind, written documents which are intended to be used and to testify that the writing was genuine. He not in court soon? The only privilege that the expert only spurned the offered bribe, but informed the could abuse, would be to inform the opponents of attorneys that if they pushed the matter further and the existence or contents of some of these documents attempted to defraud the rightful heirs, that he prior to the trial. And of course any expert who would make the whole matter public. Here was a would do this would soon lose standing with attor- carefully planned conspiracy, involving forgery, to neys for both sides; and no decent attorney would secure possession of millions of dollars worth of desire or accept information obtained in that way. property, and had the expert thought it proper to
But the mere examination of the handwriting in allow himself to be retained, of course he would the standards on one side of the case, can surely con- have to remain a silent witness to the wrecking of a vey to the expert no privileged information, should vast estate. he be called later to the other side. It can only be Lawyers and laymen too, frequently accuse experts the mere existence of certain documents, or the con- of always agreeing with those who approach them tents of such documents, that would be considered first; and then when experts do not agree with privileged information. It would require a stretch the side first approaching them, and they (the exof imagination to believe that a batch of cancelled perts) render service for the opposing side, there is checks could seriously be considered as privileged a cry of "privileged information” raised against information, but if so, then the expert should and being consulted by both sides of the same controwould be silent about them.
versy. It would seem that experts are “ damned Let us look at the matter from the expert's point
if they do; and damned if they don't.” of view. It would be improper for him to accept
It is very seldom that an expert is engaged by one any fee except for actual work performed — and to side, after giving an adverse decision to the other take a fee to purchase his silence would certainly side. In my own practice I find that once out of lay him open to charge of being bought — and prove every four or five times I render an adverse decision, the charge at the same time.
yet in only four out of over one hundred of the Suppose a case involving a large sum of money cases, where adverse decisions were given, have I and an expert fee running into the thousands is testified for the opposing side. It is not the number brought to the office of an expert. He receives a of such cases that makes them important, but rather small sum for the preliminary examination and the under-lying ethical principle involved. makes a report contrary to the expectations or con- I do not know that it is the best unravelling of the tentions of his client. The expert has no moral expert question in our courts, but as I view it, an right to take any further fee, because he cannot per- I improvement on the present practice would be to form any further service — for that side of the case. have official experts, and allow both sides of the By this adverse decision, the expert has cut himself controversy with exhibits, to be submitted to them. out of a large fee. But should the opposite sideWhen decision was reached, the experts could still desire to engage his services, why should he be kept be examined and cross-examined in open court, if out of a large fee for work which he can con- thought necessary. This may not be a perfect soluscientiously perform for them?
tion of the expert witness problem, but I am conLooking at the subject from the point of view of vinced it is an improvement over the present method. public policy furnishes the strongest argument
I hope the bench and bar will take this matter up, against experts being retained. Any defendant in a and aid the experts in living up to a code of ethics criminal case,
or the person putting forward a that is at once moral, sensible and practical; and I forged document in a civil suit, could, for a few also hope that the plan of having official experts will thousands of dollars "retain" (were this practice receive consideration from the same source. permissible) every professional handwriting expert
WILLIAM J. KINSLEY. in the country. The experts might have given ad- New York.
A GRAVE QUESTION; A LIVE ISSUE WITH paper upon
which it is written, that title A DEAD MAN.
by inheritance, under the statutes of descent and
distribution, is not a perfect title, carrying all A suit was recently instituted at Jackson, Miss., the right of the decedent. I never knew a pleadby a bright young lawyer against the contractors ing before this one predicated of the conception for the erection of the
even rights of action, descended demanding damages in his client's favor for at the death of the owner with a string to it, by personal injuries received while laboring
which it might be jerked back. Such is not the the building. In his zeal magnify his law, your honor; a dead man's property, including client's sufferings, and in the hope of increas- his causes of action, is at once by operation of law ii.g his recovery, the attorney charged in the
invested in his heirs or his administrator. Their declaration that “the plaintiff suffered death a thou- title is as complete and perfect as was the decedent's sand times.” An older member of the bar, who in his lifetime, and there is no way known to the some time since learned to be more moderate in the law of divesting them of that title, even should the use of language, was employed to defend. A gen- dead man, by a miracle, be restored to life. I call eral demurrer was filed to the declaration, assigning your honor's attention, however, to the fact that as cause therefor that, “ Under the facts stated the this declaration nowhere charges that the plaintiff plaintiff cannot recover.” When the hearing of the ever came to life after suffering death, and I think demurrer was about to be reached the young attor
we must regard him as absolutely dead. But, if ney caused a dozen or more law books, including by any sort of implication, it can be claimed by my the reports of nearly as many States, to be brought young friend that his declaration can reasonably be to the court-house and arranged on the desk before construed as showing that his client is yet alive, him; the young man evidently thinking that the law I shall not invoke the rule that pleadings are to be of master and servant, contributory negligence, safe taken strongest against the pleader, because I am appliances, safe places to work at, etc., was involved. satisfied to rest this issue upon the contention that Finally the case was called and the young man read even a resurrection of a dead man will not divest his declaration with much emphasis to the court, the title of his heirs or personal representatives and took his seat, to hear from his adversary. The which was invested in them by his death, a perfect defendants attorney then stated the demurrer and title passed, no string to it — and reinvest it in the proceeded in argument, in the most solemn tone and new man. serious manner, without a smile, as follows, as near
“ Your honor, I was greatly surprised that my as his remarks can be remembered :
bright young friend could have produced so many “If the court please, the question presented by authorities as he has on the table before him, on the demurrer is a grave one, upon which I feel con- this question. The cases which he will read you fident there is but little, if any, direct authority. surely be distinguishable from this Your honor will perceive that this declaration dis- | There is but ne instance in all history, not to tinctly avers that the plaintiff 'suffered death a
speak of Him who was more than human, before thousand times.' Of course the words “a thousand | this case out of which the exact question before the times' can add nothing to the strength of the plead-court could have arisen, and that is the case of ing, and we are justified in treating the declaration Lazarus. We are told in the Holy Scriptures that as simply charging that the plaintiff died, or, to use Lazarus died, was dead for four days and that his its own language, ‘suffered death' once, and once
body stunk. By the performance of a miracle, only, as a result of the injuries received because of Lazarus thereafter was raised from the tomb, the averred negligence of the defendants.
brought back to life, resurrected; but we have no dead man maintain a suit? A serious question. record that he ever instituted, much less mainWe have here a live issue which my clients have tained, an ejectment for the lands which he owned been compelled to join with a dead man.
before death, or replevin, detinue, trover or other “My first conception of appropriate procedure in action for the recovery of any personal property this case, if the court please, was to suggest the which passed from him to others when he died. death of the plaintiff, supporting the suggestion by the I have often thought, your honor, when reading the record, and to ask that the suit be abated, but reflec- gospel account of the resurrection of Lazarus, of tion led me to conclude that course appropriate only his extreme poverty, so far as concerns worldly where death occurred after the beginning of the goods, as he came from the tomb. He did not even suit; here, however, the plaintiff suffered death be- own the grave clothes which were upon his body, fore the institution of the action, and the grave for it has often been decided that grave clothes question presented, as it seems, can be raised only should, in indictments for stealing them, be averred by deinurrer.
to be the property of the executor. “Now, your honor, I have never found in the " It is a long step from Lazarus to Banks Bracy, law books any
for the claim of my Jr., this plaintiff, but we have to make it for an young friend; he
necessarily make it. exact parallel to the grave and solemn question for otherwise his declaration is not worth the now before this court.
There is another view of this case, and it is, For the purpose of exhibiting some of the peculiar perhaps, the correct one. If this action be taken inducements offered incorporators by these rival as a suit for the wrongful death of the plaintiff, it contestants for foreign patronage, we select the cannot be maintained. Nothing was better settled State of New Jersey, though it should be distinctly at common law than that no action would lie for understood that in so doing, no disparagement of the death of a person. Lord Campbell's act and the claims of other States is intended. our statute, modeled after it, does not give the right Here is a partial list of the attractions offered: to sue to the dead man, but to his next of kin or
1. Perpetual duration. his personal representative. There is not a word in
2. None of the corporators need be residents of any of the statutes which can be reasonably con- the State. strued as providing for the resurrection of the
3. But one resident director is required. decedent.
4. The right to purchase and hold stock of other “Before saying more, however, I will hear from
corporations. my bright young friend and see what authority he
5. This may be best stated in the language of one presents for his most unusual contention.”
of the writers referred to: The plaintiff's attorney did not join very heartily
The laws of New Jersey involve no publicity; the in the amusement of the other listeners; he seemed amazed that the question discussed was involved, of state being the list of officers and directors, filed
only report required to be filed with the secretary but modestly admitted that his authorities were not
within thirty days after the annual stockholders' applicable and graciously yielded to the suggestion of the court that the declaration had better be meeting. The corporation must keep a record of
the stockholders in New Jersey, which is open to amended.
inspection by the stockholders, but is not public
property. The books of account and general records THE TRAMP CORPORATION.*
of the company are not required to be kept in New
Jersey; may be free from inspection even by the (BY WILLIAM E. CHURCH, of CHURCH, McMURDY stockholders. Under New Jersey's law it is not
& SHERMAN, Chicago, Formerly a Justice of the necessary to file or publish any statement of loans Supreme Court of Dakota.)
or liabilities, nor to disclose the private affairs of
the corporation. An article in the “ Outlook” of December 14, 1901, 6, Powers. Quoting again from the pamphlet by William D. Washburn, Jr., of Minnesota, on symposium : "Minnesota and the Railway Trust,” contains these New Jersey certainly grants broad powers. In suggestive sentences:
one of the most recent charters the power is given, The people of Minnesota do not believe for a among other things, to make any kind of contract, moment that the State of New Jersey can erect an to carry on any business and do all things therein organization to defy the law in the State of Minne- set forth to the same extent as natural persons
Neither the statutes of the State of might or could do in any part of the world, as New Jersey nor of any other State can saddle this agents, contractors, trustees or otherwise. corporation upon a sovereign people.
A reference to the General Incorporation Act of Equally suggestive is the following paragraph the State shows that after conferring power upon from a pamphlet recently published for gratuitous any three or more persons to become a corporation distribution by the Broun-Green Co., of New York, “ for any lawful purpose or purposes whatever," under the title “Where to Incorporate," a sympo- the statute excepts certain specified lines of business, sium by members of the eastern bar, setting forth among them, railroad, telegraph and telephone comthe special advantages presented by four States, re- panies and follows the enumeration with this respectively, as breeding ground for corporations or- markable if not unique proviso: ganized for the actual purpose of carrying on
It shall, however, be lawful to form a company business in some other State:
hereunder for the purpose of constructing, mainBy the rules of inter-state comity, a corporation taining and operating railroad, telephone and teleorganized under the laws of a particular State, may graph lines outside of this State. transact business beyond the borders of that State;
In other words, by this proviso, the State of New it is even legal for citizens of one State to incorpo- Jersey undertakes the truly benevolent task of crerate a company in another State for the purpose of ating corporations to construct and operate the pubcarrying on their entire corporate business in the lic utilities of her sister States. Accordingly we State where they live. This may be practically find the charters of the Carnegie Company, the stated to be the recognized doctrine of the country United States Steel Corporation, the Federal Steel and is universally recognized as the tendency of Company and others providing for the construction modern corporation law.
and operations of railways, but only outside of
New Jersey. *Read before the Illinois State Bar Association at Chicago, July 17, 1902.
That even this partial list of the advantages pre
sented by the State of New Jersey offers most of a State having no interest whatever in the coralluring inducements to promoters of what have been poration, except to preserve it. aptly called “tramp” corporations will hardly be The organization of such concerns as the Northdenied. Their material value is largely attested by ern Securities Company to acquire and hold the the fact that so many corporations are willing to stock of business corporations, if not indicative of pay not only the initial fee, but also the annual a purpose to erect one more obstacle in the path of taxes imposed by the State, for the mere privilege judicial investigation, at all events makes such a of corporate existence under its charter.
result tolerably — or intolerably — certain. That this list also contains the germs of almost adverse legislation intervenes, it is by no means imevery element which has tended to excite popular possible that we may be treated to the edifying apprehension and distrust concerning the rapid spectacle of a corporation organized by citizens of growth of corporate control in the business of the Minnesota, under the laws of Delaware, to operate country must be evident to any one familiar with a railroad in North Dakota, the stock of which shall the subject.
be owned and its business controlled by another In order that no element of convenience may be corporation organized for the purpose by citizens lacking, sundry local Corporation Trust Companies of New York under the laws of New Jersey. Inhave been formed, which undertake not only to deed, the process may be indefinitely extended. procure any desired charter, but to provide within Long ago, in the case of Bank of Augusta v. the State convenient rooms which shall answer the Earle (13 Peters, 519), the Supreme Court of the designation of “principal place of business” of United States laid down certain principles which the corporation, where the annual elections may be have ever since been generally recognized and apheld and where such of the books may be kept as plied, with their natural and necessary development, the law requires to be kept in the State; also to by the courts of this country. Some of these may furnish the statutory resident director.
be here stated : Perhaps the most amazing thing about all this “A corporation being the mere creation of local is that there is so much truth in the statement law, can have no legal existence beyond the limits above quoted to the effect that the legality of the of the sovereignty which created it. It must dwell organization of corporations in one State by citi- in the place of its creation and cannot migrate to zens of another, for the purpose of carrying on the another sovereignty. The recognition of its existentire corporate business in their own State, is the ence even by other States and the enforcement of recognized doctrine of the country; universally its contracts made therein, depend purely upon the recognized as the tendency of modern corporation comity of those States; a comity which is never law. That the statement is wholly or largely true extended when the existence of the corporation or as a juridicial fact can hardly be conceded. That the exercise of its powers are prejudicial to their it has a substantial foundation in a quite general interests or repugnant to their policy. Having no public tolerance must be admitted.
absolute right of recognition in other States, but Any adequate attempt to explain the reason for depending for such recognition and the enforcethis remarkable condition would unduly extend the ment of its contracts upon their assent, it follows scope of this paper. It is sufficient for the present
matter of course that such assent may be purpose to say that any doctrine which affirms or granted upon such terms and conditions as those any legislation which assumes the right of a State States may think proper to impose” (Paul v. Virto breed corporations whose purpose is to operate ginia, 8 Wall. 168, citing Bank of Augusta v. solely in another State — usually that in which Earle). their actual progenitors reside — is a wide departure Answering the contention that in respect of its from the fundamental principles of corporate ex- contracts, entered into outside of the State of its istence and a presumptious imposition upon inter- creation, the members of a corporation were to be state comity.
regarded as individuals carrying on business under No wonder that the people of some of the States their corporate name and therefore in that capacity are beginning to awaken both to the danger which entitled to the privileges and immunities secured lurks in these encroachments upon their legislative by the Constitution to citizens in the several States, and commercial rights and to this gross infringe- Chief Justice Taney, in Bank of Augusta v. Earle, ment of their sovereign dignity.
among other reasons for denying the soundness of The people of Minnesota will not, nor ought they the proposition, said: to submit to it. Nor will the people of many other “Besides, it would deprive the State of all control States of the west and northwest. If there were no over the extent of corporate franchises proper to be other reason it would be intolerable that for the granted by the State; and corporations would be redress of any evils involving the internal manage- chartered in one to carry on their operations in ment or corporate existence of such organizations another. It is impossible upon any sound principle of for the investigation of their corporate books to give such a construction to the article in and accounts, citizens of the States where the busi- question." ness is carried on should be driven to the courts It was accordingly held that whenever a corpo
ration makes a contract, its is the contract of the indicate some advantages in the Pennsylvania plan legal entity — the artificial being created by the over that of New Jersey. charter, and not the contract of the individual About this time the people of a county in the members, and that the only rights it can claim are State of Kansas voted to subscribe for $200,000 of the rights which are given to it in that character, the stock of the Missouri, Kansas and Texas Railand not the rights which belong to its members as way Company, to be paid in bonds of the county, citizens of a State.
and shortly afterward that company entered into a Again, speaking of the rule of inter-state comity, contract with the Land Grant Railway and Trust and of the presumption, in the absence of adverse Company whereby the latter agreed to build cerlegislation or judicial decision, of the existence in tain sections of the road in consideration of the a State of a comity permitting the transaction of assignment to it by the former of sundry securities, business therein by foreign corporations, Justice including its interest in the aforesaid bonds which Taney says:
as yet were unissued. “And when (as without doubt must occasionally
The commissioners of the Kansas county having happen) the interest or policy of any State requires refused on demand to make the subscription to the it to restrict the rule, it has but to declare its will stock or to issue the bonds which the people had and the legal presumption is at an end."
voted, suit was brought to compel them to do so, The particular development of the idea of breed- whereupon the commissioners answered that the ing “tramp
corporations, which consists in provid- alleged Land Grant Railway and Trust Company ing a general system of rapid incubation, open to
was no corporation and had no existence as such all who may choose to avail themselves of its ad- in the State of Kansas. vantages, is of comparatively recent growth; the
In the course of an opinion affirming the soundidea itself is not new.
ness of this defense, the Supreme Court of Kansas February 16, 1866, the legislature of Pennsylvania
said : passed an act entitled “An act to incorporate the
“No rule of comity will allow one State to spawn New York and California Vineyard Company.” At corporations and send them forth into other States that time, the legislatures of Pennsylvania were not
to be nurtured and do business there when said at all particular to provide their statutes with titles first mentioned State will not allow them to do indicating their real objects, and this particular business within its own boundaries.
From statute, albeit a special charter, afforded no hint the only territory in the world over which the State whatever of the actual purposes of the organization, of Pennsylvania has any jurisdiction or control, which a perusal of the act shows to have been the and in which it could authorize a corporation to acquisition, operation and disposal of mining prop- have an office or to do business, it excluded this erty, with the usual incidental powers, but with this corporation, and the attempt on the part of the State singular limitation, viz. : that all of these powers of Pennsylvania to authorize this corporation to were to be exercised “ in any State of the United have an office or to do business anywhere except States or the territories thereof except in the State in the State of Pennsylvania is ultra vires, illegal of Pennsylvania."
and void. The truth is that while this supposed A second section provided that it should “be corporation was originally organized for the whole lawful for the company to establish the necessary United States, except the State of Pennsylvania, offices for the business of the company wherever and afterwards by its amended charter for the whole their business is located and to have their principal world, except Pennsylvania, it had no legal or valid office in the United States in such place as they existence anywhere on the face of the earth. At may deem expedient, at which place it shall be law- the very creation of this supposed corporation its ful to hold all meetings for the transaction of the creator spurned it from the land of its birth as business of the company."
illegitimate and unworthy of a home among its By a supplement to the original act of incorpo- kindred and sent it forth a wanderer on foreign ration, passed February 16, 1870, this New York soil. Is the State of Kansas bound by any kind of and California Vineyard Company was granted courtesy or comity or friendship or kindness to power to borrow money in any State, territory or Pennsylvania to treat this corporation better than country, except the State of Pennsylvania," and to its creator had done?" (Land Grant Railway & secure the same by bond, etc.
Trust Company v. Coffey Co., 6 Kansas, 245). With an evident recognition of the incongruity It would seem, therefore, that the grapes raised between the legislative title of this act and the de- by the New York and California Vineyard Company clared objects of the company, and possibly with a of Pennsylvania did not find a market in the State prophetic sense that the stockholders might not care of Kansas. to be limited to either, the power was conferred This case presents what is perhaps the most conupon them of changing the name of the corporation spicuously flagrant instance on record of trespass at their discretion, which was promptly done by the upon the doctrine of inter-state comity and shows adoption of the name of “The Land Grant, Railway how one court dealt with such a bare-faced imposi& Trust Company.” All of which would seem to ition. To talk of the obligations of comity in such