not commit the expert irrevocably, right or wrong, to the client's interests.

The usual argument advanced for the "retainer" side is that the relations between expert and client are sacred, and that the expert in such relation has received privileged information.

There should be no necessity for giving any privileged information to the expert. In the case of the handwriting examiner two sets of writings are brought to him—the standard and the questioned and his opinion is asked as to the identity or nonidentity existing between the two. It is not necessary to give him the history of the case, and to pour into his ear "privileged" information.

verse opinions, but if they allowed themselves to be retained, they would be effectually silenced. Then the defendant, or forger, could produce some witnesses, who would pass as experts, and with this positive testimony win his case. Several recent prominent murder cases could be used as illustrations of this point.

A brother expert has told me of a case, where millions of dollars hung on the authenticity of a document, upon which he was called to give a professional opinion. The opinion was adverse, and apparently stunned the clients an attorneys, notwithstanding the fact that they must have known that the instrument was a forgery. The attorneys finally offered the expert $50,000 to change his mind, and to testify that the writing was genuine. He not only spurned the offered bribe, but informed the attorneys that if they pushed the matter further and attempted to defraud the rightful heirs, that he would make the whole matter public. Here was a carefully planned conspiracy, involving forgery, to secure possession of millions of dollars worth of property, and had the expert thought it proper to allow himself to be retained, of course he would have to remain a silent witness to the wrecking of a vast estate.

What privileged information can there be in written documents which are intended to be used in court soon? The only privilege that the expert could abuse, would be to inform the opponents of the existence or contents of some of these documents prior to the trial. And of course any expert who would do this would soon lose standing with attorneys for both sides; and no decent attorney would desire or accept information obtained in that way. But the mere examination of the handwriting in the standards on one side of the case, can surely convey to the expert no privileged information, should 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 if they do; and damned if they don't."

Let us look at the matter from the expert's point of view. It would be improper for him to accept any fee except for actual work performed and to take a fee to purchase his silence would certainly lay him open to charge of being bought and prove the charge at the same time.

Suppose a case involving a large sum of money and an expert fee running into the thousands is brought to the office of an expert. He receives a small sum for the preliminary examination and makes a report contrary to the expectations or contentions of his client. The expert has no moral right to take any further fee, because he cannot perform any further service. for that side of the case. By this adverse decision, the expert has cut himself out of a large fee. But should the opposite side desire to engage his services, why should he be kept out of a large fee for work which he can scientiously perform for them?

con

Looking at the subject from the point of view of public policy furnishes the strongest argument against experts being retained. Any defendant in a criminal case, or the person putting forward a forged document in a civil suit, could, for a few thousands of dollars "retain" (were this practice permissible) every professional handwriting expert in the country. The experts might have given ad

It is very seldom that an expert is engaged by one side, after giving an adverse decision to the other side. In my own practice I find that once out of every four or five times I render an adverse decision, yet in only four out of over one hundred of the cases, where adverse decisions were given, have I testified for the opposing side. It is not the number of such cases that makes them important, but rather the under-lying ethical principle involved.

I do not know that it is the best unravelling of the expert question in our courts, but as I view it, an improvement on the present practice would be to have official experts, and allow both sides of the controversy with exhibits, to be submitted to them. When decision was reached, the experts could still be examined and cross-examined in open court, if thought necessary. This may not be a perfect solution of the expert witness problem, but I am convinced it is an improvement over the present method. I hope the bench and bar will take this matter up, and aid the experts in living up to a code of ethics that is at once moral, sensible and practical; and I also hope that the plan of having official experts will receive consideration from the same source.

NEW YORK.

WILLIAM J. KINSLEY.

A GRAVE QUESTION; A LIVE ISSUE WITH paper
A DEAD MAN.

upon which it is written, that title 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 new that property, even rights of action, descended State capitol, demanding damages in his client's favor for at the death of the owner with a string to it, by personal injuries received which it might be jerked back. Such is not the

while

laboring

on

the building. In his zeal to 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 ing 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 attorwe 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 as his remarks can be remembered:

"If the court please, the question presented by the demurrer is a grave one, upon which I feel confident there is but little, if any, direct authority. Your honor will perceive that this declaration distinctly avers that the plaintiff 'suffered death a thousand times.' Of course the words 'a thousand times' can add nothing to the strength of the pleading, and we are justified in treating the declaration as simply charging that the plaintiff died, or, to use its own language, 'suffered death' once, and once only, as a result of the injuries received because of the averred negligence of the defendants. dead man maintain a suit? A serious question. We have here a live issue which my clients have been compelled to join with a dead man.

Can a

"My first conception of appropriate procedure in this case, if the court please, was to suggest the death of the plaintiff, supporting the suggestion by the record, and to ask that the suit be abated, but reflection led me to conclude that course appropriate only where death occurred after the beginning of the suit; here, however, the plaintiff suffered death before the institution of the action, and the grave question presented, as it seems, can be raised only by demurrer.

"Now, your honor, I have never found in the law books any warrant for the claim of my young friend; he must necessarily make it. for otherwise his declaration is not worth the

Lazarus thereafter

"Your honor, I was greatly surprised that my bright young friend could have produced so many authorities as he has on the table before him, on this question. The cases which he will read you surely must be distinguishable from this one. There is but one instance in all history, not to speak of Him who was more than human, before this case out of which the exact question before the court could have arisen, and that is the case of Lazarus. We are told in the Holy Scriptures that Lazarus died, was dead for four days and that his body stunk. By the performance of a miracle, was raised from the tomb, brought back to life, resurrected; but we have no record that he ever instituted, much less maintained, an ejectment for the lands which he owned before death, or replevin, detinue, trover or other action for the recovery of any personal property which passed from him to others when he died. I have often thought, your honor, when reading the gospel account of the resurrection of Lazarus, of his extreme poverty, so far as concerns worldly goods, as he came from the tomb. He did not even own the grave clothes which were upon his body, for it has often been decided that grave clothes should, in indictments for stealing them, be averred to be the property of the executor.

"It is a long step from Lazarus to Banks Bracy, Jr., this plaintiff, but we have to make it for an exact parallel to the grave and solemn question now before this court.

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

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 denied. Their material value is largely attested by the fact that so many corporations are willing to pay not only the initial fee, but also the annual taxes imposed by the State, for the mere privilege of corporate existence under its charter.

The people of Minnesota will not, nor ought they 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

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 and California Vineyard Company was granted power "to borrow money in any State, territory or country, except the State of Pennsylvania," and to secure the same by bond, etc.