the purposes of res adjudicata a record which presents on its face a judgment based upon pleadings, thus showing what was decided and terminating the litigation once and for all, in compliance with the maxim, Interest reipublicae ut sit finis litium?

What shall be said of leading authors like Pomeroy, of New York, and Thompson, of Missouri, who fail to instruct us concerning these matters? Pomeroy's Code Remedies appeared in 1875; Thompson's Trials appeared in 1878. Neither they nor their editors cited Bartlett v. Crozier, Clark v. Dillon, or Slacum v. Pomeroy, above mentioned. Thompson says, "The jury find from the evidence, and not from the pleadings."15

Statements like the above from our leading American lawyers have led to the condition where our judges are deciding principles both ways in the same case. Is it any wonder that lawyers like Frederic R. Coudert, of New York, say, "The condition into which the law has fallen is due primarily to incompetency both at the bar and on the bench ?"10

Is it any wonder that ex-Secretary Garrison says of the law:

even

"Little by little the very foundation stones of the structure are being disintegrated or undermined. The means by which this is being accomplished are so subtle and insidious that few are aware of the fact, and there is not only no numerous army of defense, but the small handful who do utter warnings are unheeded. Their warnings fall upon deaf ears, they are scoffed at as reactionaries, as being wedded to the past, and incapable of appreciating modern ideas and the necessities of progress. The whole popular tendency of the times is averse to the calm, steady consideration necessary to reach proper conclusions."

It would seem to be high time that a restatement of the law be attempted, based

(15) 1911 Am. Bar Assn. 681. (16) 41 Am. Bar Rep. 376.

upon the principles or maxims of procedure upon which depend all substantive rights. and which involve an understanding of the state's position as a silent third party to all litigation. EDWARD D'ARCY.

St. Louis, Mo.

DIVORCE-DECREE VESTING TITLE.

165 N. W. 753.

EMMONS v. EMMONS.

Supreme Court of Michigan. Dec. 28, 1917.

In suit for divorce, decree giving wife "use, benefit, and possession" of land, until further order of court, requiring husband to convey the land, and further ordering that further consideration of alimony and property be reversed for further order, did not vest wife with fee, and on her death, though no further order was ever made, the husband, and not her children, were entitled to the land.

MOORE, J. This is an action in ejectment. At the close of the testimony the judge directed a verdict in favor of the plaintiff. The case is brought here by writ of error.

The facts are not in dispute. It is conceded that prior to November 28, 1898, the plaintiff was the owner in fee of the land in controversy. On that day the wife of the plaintiff was granted a decree of divorce upon the ground of desertion. There was in the decree the following:

"And the court doth further order, adjudge, and decree that said complainant, Mary Emmons, from the date hereof have and enjoy the use, benefit, and possession of the land above described with all the appurtenances thereunto belonging until the further order of this court.

"And the court doth further order, adjudge, and decree that said defendant, Albert C. Emmons, forthwith convey by proper deed, to the said complainant, Mary Emmons, the real estate above described with all appurtenances thereunto belonging, and that, if he shall for three months from the date hereof fail and neglect to make conveyance as aforesaid, that this decree stand and be regarded as such conveyance, and a certified copy thereof may be recorded with the register of deeds of said county as evidence of such conveyance.

"It is further ordered that the further consideration of the question of alimony and the property interests involved in said cause be and the same are hereby reserved for further order and decree herein."

The plaintiff made no conveyance. The dewas recorded in the office of the regis

cree

ter of deeds on the 1st day of March, A. D. 1898. Mary Emmons named as complainant in said decree died on the 6th day of September, 1915, leaving as her children and heirs at law the defendant, William Emmons, and Effie Smith, Lottie Riley, and Ettie Sherrard. Effie Smith, Lottie Riley, and Ettie Sherrard since becoming of age and previous to the commencement of this suit conveyed whatever right, title, or interest they had in the abovedescribed lands to the defendant, William Emmons, who was in possession of said lands at the time of the commencement of this suit. It is also admitted that Mary Emmons had the actual possession of the said premises continuously from the date of the decree to the time of her death. It was not shown that the decree was ever modified.

It is conceded the defense hinges upon the provisions of the decree. The claim of counsel is stated in the brief as follows:

"We insist that the decree does not grant to her the title to said land in fee simple. True it is that this title may be a base or qualified title in fee simple, and not a fee simple absolute; but it is equally true that the estate granted by the decree is at least a base or qualified estate in fee.

"A base or qualified fee is an interest which may continue forever, but which is liable to be brought to an end by the operation of some act or event limiting its continuance or extent." 2 Blackstone, Com. 109; 4 Kent, Com. (12th Ed.) 9.

"In case the event which limits the duration of a base fee does not happen during the life of its owner, the estate will descend to his heirs subject to the specified determination." 2 Blackstone, Com. 109; 4 Kent, Com. (12th Ed.) 9, 10."

It is contended that, as the decree was never modified, upon the death of Mrs. Emmons her children would inherit the real estate which is the subject of this suit.

The diligence of able counsel has not called to our attention any authority that is controlling. The authority to make decrees in relation to alimony and the division of the property in cases of divorce is purely statutory, and is conferred by chapter 232, Compiled Laws, now chapter 217, C. L. 1915.

In Bialy v. Bialy, 167 Mich. 559, 133 N. W. 496, Ann. Cas. 1913A, 800 Justice Steere, speaking for the court, discusses quite at length the principles which should control in providing permanent alimony and the authority which gives the court of chancery its power to make decrees in relation thereto. In the course of the discussion it is said:

"Alimony, by whatever authority it is conferred, is an incident of marriage, and based

on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily it signifies, not a certain portion of his estate, but an allowance or allotment adjudged against him for her subsistence, according to his means and their condition in life during his separation, whether it be for life or for years. In prac

tical application an award of permanent alimony in a gross sum may result in a division of the husband's estate; but the controlling element not to be lost sight of is his compulsory contribution for her support and maintenance under obligations of the marriage contract."

*

The record does not disclose the amount of property possessed by either Mr. and Mrs. Emmons at the time the decree in the divorce case was made. It must be conceded that the language of the decree is somewhat ambiguous. It is clear that the judge meant to decree to Mrs. Emmons personally the "use, benefit, and possession of the land with all the appurtenances," not for a stated time, but until the further order of the court. There is nothing in the decree to indicate that he intended that anybody but Mrs. Emmons should “enjoy the use, benefit, and possession of the land." There is no suggestion that upon her death the real estate should go to her children. The decree closes with the statement:

"It is further ordered that the further consideration of the question of alimony and the property interests involved in said cause be, and the same are hereby, reserved for further order and decree herein."

-which is quite inconsistent with the idea that the title in fee to the real estate passed to her and her heirs by the decree.

Judgment is affirmed, with costs to the plain

tiff.

NOTE-Modification of Decree in Divorce Applies Only to What Concerns the Future.-The conclusion the court arrives at in the instant case is quite incomprehensible. The opinion appears to concede, that had the husband defendant actually executed the conveyance the court directed, then the property would have vested in the wife so that her children would have inherited. But it is plainly stated that if the husband neglects to execute such conveyance within three months, then the decree shall operate in the same way as if he had executed it. It may "be regarded as such canveyance, and a certified copy thereof may be recorded ***. as evidence of such conveyance." If the decision

is right in result, it must be because a decree in a divorce case does not operate to pass property absolutely, because it is subject to modification. Is this true?

In Zentzis v. Zentzis, 163 Wis. 342, 158 N. W. 284, it is said: "There is a well recognized practice that an award of alimony is subject to modification at any time by the court that awarded

it or by an independent action in another court in either the same state or a foreign state, but such power to revise and alter a judgment for alimony does not apply to judgments in divorce actions making a final division and distribution of the husband's estate. Such a judgment cannot be reviewed or altered in this state after the term of court in which it was rendered."

In that state, then, a final judgment in a divorce case would stand like any other judgment-subject to amendment only during the

term.

But independently of the right to modify decrees in divorce, it is greatly to be doubted whether the right applies to modify judgments for lump sums, or where no future payments are involved. In annotation, for example, to Weber v. Weber, 153 Wis. 132, 140 N. W. 1052, 45 L. R. A. (N. S.) 875, there is given an extensive annotation to a note entitled, "Modification of decree for alimony because of subsequent misconduct of former wife," and of the great number of cases cited all speak of monthly or other periodical payments.

In one of these cases it is said: "While it is competent for the court that grants a divorce from the bond of matrimony to commute the alimony and to assign a sum in gross or a specific portion of the husband's property to the wife for her support and maintenance, and thereby to make the decree for such allowance final in every respect, yet *** if the court in fact allows to the wife divorced from the bond of matrimony which it would allow to a wife divorced merely from bed and board, it is not apparent why it should lose control of the one when it does not lose control of the other." Alexander v. Alexander, 13 App. D. C. 334, 45 L. R. A. 806.

In Emerson v. Emerson, Md., 87 Atl. 633, a distinction in the question of modification is spoken of regarding alimony as a maintenance for the wife out of current income after divorce, and therefore subject to modification and not a division of the property.

And even in case of payments after the decree allusion is made to an allowance up to the rendition of the decree as being conclusive. Cole v. Cole, 142 Ill. 19, 31 N. E. 109, 19 L. R. A. 811, 34 Am. St. Rep. 56.

In Stanfield v. Stanfield, 22 Okla. 574, 98 Pac. 334, there was a monthly allowance made to the wife adjudged by the final decree, it was said: "After the divorce the parties go into the world as strangers to each other and generally even the adultery of the wife, except possible under special conditions not involved in this case, will not relieve the husband of the payment of alimony in accordance with the decree."

In the case the husband sought modification as to custody of children, but the court decided the case purely upon construction of the terms of the decree, refusing to modify it.

In English decision, periodical payments are affected by the clause, "dum sola et casta," but where there is an order for permanent maintenance, this clause was not usually inserted. Medley v. Medley, L. R. 7 Prob. Div. 122, 51 L. J. Prob. N. S. 74.

In Flood v. Flood, 5 Bush (Ky.) 169, there was an attempt by a husband to secure a reconveyance of property conveyed to trustees, but this was refused, the court saying: "No doubt the

Louisville Chancery Court properly adjudged a dissolution of the marital relations and restored to him the custody of his children, and adjudged to him all property which she had received from him by reason of the marriage or in consideration thereof; but it did not, nor could, adjudge to him the rights of property which had been secured to her use for life as a support in place of alimony." If this does not mean that what is settled as on the day of the rendition of a decree as distinguished from what may be modified in the future, I do not understand what is meant to be said.

It seems to me that the mobile character, so to speak, of a decree in divorce regarding property rights is in respect to what is applicable to future conditions as they arise. As to all it determines as to the past, it is as final and may be set up as res judicata, as any other judgment or decree. C.

ITEMS OF PROFESSIONAL

INTEREST.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION No. 141.

Employment Fees.-Accepting employment upon contingent fee. Proper conditions indicated. Is it, in the opinion of the Committee, consistent with the "essential dignity of the profession" for a lawyer to accept professional employment upon a contingent fee, even under the safeguards mentioned in Canon 13 of the American Bar Association?

If the Committee considers the practice to be, as a general rule, undignified or otherwise improper, does the Committee recognize as exceptions,

(a) Cases of commercial collections, tax-reductions or tax-refunds, and similar cases, in which it appears to be the universal custom to make compensation contingent upon success and measurable by the sum collected, refunded, etc.;

(b) Meritorious cases of any kind undertaken on behalf of poor persons?

Is the propriety of accepting employment on a contingent fee dependent to any extent upon the custom in that regard which prevails generally among members of the bar in the community wherein the lawyer in question practices?

ANSWER No. 141.

In the formulation of the canons of ethics of the American Bar Association, no subject

precipitated such debate as Canon 13, the one relating to contingent fees, which reads as follows:

"Contingent fees, where sanctioned by law, should be under the supervision of the Court, in order that clients may be protected from unjust charges."

Even as it was formulated after the debate, it has not been universally accepted. The Bar Association of Boston adopted instead the following:

"A lawyer should not undertake the conduct of litigation on terms which make his rights to reasonable compensation contingent on his success, except when the client has a meritorious cause of action but no sufficient means to employ counsel unless he prevails; and a lawyer should never stipulate that in the event of success his fee should be a fixed percentage of what he recovers, or a fixed sum, either of which may exceed reasonable compensation for any real service rendered.

"Such practices tend to corrupt and discredit the Bar. Lawyers who try to get business by charging nothing unless they succeed, even though they leave the size of their fees to be determined by the amount and character of their services, are constantly tempted to

promote groundless and vexatious suits. Those who go further and bargain that, if successful, their fees shall be fixed sums or percentages, are not only apt to become public pests, but are in constant danger of abusing or betraying their own clients. When making such a bargain the lawyer's superior knowledge and experience give him an advantage which tempts him to overreach his client. By making it, he in effect, purchases an interest in the litigation. Consequently, unhappy conflicts between his own and his client's interest, in respect to the settlement or conduct of the suit, are always likely to arise; his capacity to advise wisely is impaired; and he is beset by the same temptations which beset a party to be dishonest in preparation and trial.”

Experience shows that the contingent fee, as a general practice in any branch of the law, has a tendency to breed the twin evils of solicitation of employment and improper division of fees. It develops both in the lay and in the professional mind a conception of the practice of the law as a business, not as a profession, and tends to lower the essential standards of the Bar.

While we recognize that under existing standards each lawyer is largely the judge of the soundness of his conduct in such cases, we think that the time has come for the members of the American Bar in their respective states to reconsider the basis for the existing law upon the subject and to consider whether

all contingent fees should not by law be made subject to summary review by a Court on the application of the client.

As to the specific inquiry (a) put by the inquirer, the Committee can see no reason for applying any different principle.

As to the case (b), the Committee is of opinion that, while the practice of the contingent fee finds some justification in "meritorious cases ** * undertaken on behalf of poor persons," nevertheless such arrangements should also be under the complete supervision of the Court.

So long as the present practice prevails generally among members of the Bar in any community, this Committee cannot assume to say that there is any impropriety in lawyers practicing in such communty accepting such cases, where they are unsolicited.

BOOK REVIEWS.

ZOLINE'S FEDERAL APPELLATE JURISDICTION AND PROCEDURE.

This kind of jurisdiction is one in which there are many slips by those invoking it. Buf in the great majority of cases the law on the subject easily may be found. The subject is not taught in the schools. It must be learned by careful search of statutes and decisions interpreting them.

The work above indicated by Mr. Elijah N. Zoline of New York and Chicago Bar and revision thereof by Mr. Stephen A. Day of Chicago and Cleveland Bar is especially helpful to the practitioner. Its propositions are fortified by a great abundance of authority, and there is an appendix of Federal Forms apparently very complete.

The binding is in buckram, the typography and paper excellent and the work comes from the law book house of Clark Boardman Co.. Ldt., New York, 1917.

BOWERS ON THE LAW OF CONVERSION.

This work by Mr. Renzo D. Bowers, of Roswell, New Mexico, who is known to the profes sion as the author of "The Law of Waiver," a very excellent work, is a well conceived, well executed and very practical treatise on the Law of Conversion. This treatise relates in no way to equitable conversion but to that in which

exists an intent so as to make one liable for acts of dominion wrongfully exerted over the property of another, that is, if this dominion is over personal, as distinguished from real property.

The subject gives scope for treatment of a great variety of situations and relations, as well as the character and kind of personal property regarding which conversion may be charged.

Thus see relation of principal and agent, mortgagor and mortgagee, pledgor and pledgee, bailor and bailee and where between parties no conventional relation exists.

The author speaks of waiver of conversion, evidence, burden of proof, presumption, manner of proof and admissibility thereof, measure of damages, the value of plaintiff's interest in converted property and the trial of causes in conversion.

On the whole, we repeat that the work is a most useful and timely book. It is typographically well executed, is bound in law buckram and is published by Little, Brown & Company, Boston, 1917.

HUMOR OF THE LAW.

"Germany declares that with her unrestrict ed submarine campaign she'll hold up meat, she'll hold up cotton, she'll hold up munitions, she'll hold up all neutral maritime commerce. But maybe, instead of that, she'll hold up her hands before she gets through."-Henry Flood.

"One summer afternoon," relates an American who has spent a bit of his time in China, "a young girl passed in the street of Chuanchow, where a shabby scholar sat reading to a group of idlers outside the prefect's yamen. She had sold her last doughnut, and the day's earnings lay in her empty basket. Some one noticed how absorbed she was; a deft hand moved lightly, and the money disappeared from the basket.

"When the story came to an end, the girl awoke from her dream to find that the precious pile of cash was gone. She spoke of her loss to the people who stood near, and, with the callousness of a Chinese crowd, they all laughed. At that moment the prefect came out of the yamen, noticed the child's grief, and inquired the cause of her trouble. He waited patiently while the girl told her tale between sobs. Meantime a crowd had collected, and the prefect gave orders that the girl be taken

to the justice hall, that the case might be tried. When the people saw him re-enter, they trooped in after him, and even the idlers crowded into the yamen to see the fun.

"The examination came to an end without throwing any additional light on the theft, and some of the bystanders began to laugh. His excellency spoke a word to the attendants, and the great doors of the yamen closed with a clatter. 'Such a breach of etiquette must be punished,' said the prefect, speaking slowly and with emphasis. 'Each person shall pay a fine of eight cash before he leaves the court.'

"As the first man laid his cash upon the. table, the prefect's eyes scanned his face. Then, to the surprise of everybody, the great man carefully counted the coins with his own fingers. The brown heaps of money increased, and presently a mean-looking fellow came up and paid his fine. His excellency counted the coins. "This money is covered with grease,' he said. 'What right have you to bring dirty cash to me? Pay eight more for your bad manners.'

"The man put the money on the table without a word.

"What!' cried the prefect, 'these coins are also covered with grease. It is against the law to pay dirty money into court. Turn out all the money you have. There are sure to be some clean coins among the number.'

"The attendants emptied the fellow's pockets and found 92 coins.

"Ah! 92 cash, along with the 16 already paid in fines, makes 108-exactly the amount lost by the little girl. How do you account for that?"

"It is just the sum I had in my pocket.' "Where did you get the cash?"

"I got them from a man in the street in exchange for a large coin. He must have given me greasy money.'

"Go at once and fetch that man. I will send a runner with you to bring him into court.'

"The man lay in a position that he had to take before the representative of the government, with his head flat upon the pavement, and said nothing.

"You took this money from the child,' went on the prefect. 'It is covered with grease because she counted it after handling her oily doughnuts. She lost 108 cash, exactly the sum that was in your pocket when you entered the yamen. You are the thief!"-Ohio Law Bulletin.