CONFLICTING DUTIES.-Is there professional impropriety in the following conduct of an attorney for a bankrupt, viz: The bankrupt has filed an offer of composition on the basis of 20%. His attorney sends out a circular letter to all of the creditors of the Bankrupt urging them to accept the offer and enclosing to them blank proofs of claim to be made out by the creditors, stating to them that he will file the proofs for them with the Referee in Bankruptcy and collect and remit their dividends free of charge, in case they see fit to return their respective proofs of claim to him. Answer. Although the question does not disclose how the attorney will collect the dividend, it would seem that his intention is to suggest the giving of a proxy or power of attorney. By the acceptance of such proxy in the usual form, the attorney would at once be authorized to act for both debtor and creditor-charged with conflicting duties. Unless his circular letter makes it entirely clear that the attorney, in offering to file proofs of claim, does not seek to assume the relation or duties of an attorney to the creditors, the Committee disapproves the practice suggested. Of course, no such communication should be sent direct to creditors who are represented by counsel.

PLEADINGS-RELATION TO COURT-RELATION TO CLIENT.-Under Section 30 of the Code of Ethics of the American Bar Association, it is suggested that it is a lawyer's right to insist upon the judgment of the Court as to the legal merits of his client's claim unless the suit is brought to harass or injure, etc. Under New York practice practically all pleadings are verified. In order to get the legal merits of his claim before the Court the client must set forth his cause of action in legal terms with legal characterization of the facts, and swear to it. Of course the actual facts are clearly either true or false. But do you consider that such a verification is equivalent to an affidavit of merit, and that therefore there is a question of legal ethics involved, so that an attorney should not draw up a pleading for his client unless he, as a lawyer, believes beyond a doubt that his client has the law on his side? Or is it sufficient for the attorney to feel that his client has a claim or defense which is justiciable, as suggested by Section 30 above referred to, regardless of the attorney's own view of the legal merits? There is room for argument in most cases as shown by the frequency of dissenting opinions of Courts. Answer.-If the facts be truthfully pleaded, the lawyer may present any fairly debatable law question for the Court's determination. The client is entitled to have a fairly debatable question of law presented from the angle of his side, though the lawyer might think, and might advise his client, that the question was a doubtful one. This, of course, excludes the raising of such points as the lawyer knows are without merit. At all times the lawyer must truthfully plead the facts as they are known to him; and if he pleads such facts according to their legal effect, he must believe that they fairly warrant the statements he makes in the pleading. For this he is responsible to the Court of which he is an officer.

ADVERTISING

SOLICITATION.-Would there be professional impropriety in a member of the bar addressing a circular letter or printed announcement card to members of the bar advising them that he is both a member of the bar and a certified public accountant, and offering his services to them in matters of legal accounting, such as the preparation and trial of cases requiring a knowledge of accounting practice, enumerating by way of suggestion to them various classes of cases arising in their practice in which he considers that he may assist them with advantage because of his knowledge of the theory and practice of accounts? Answer. There would be no professional impropriety in a member of the bar addressing a printed announcement card to members of the bar, advising them that he is both a member of the bar and a certified public accountant; but

the addition of the other matters stated in the question seems to the Committee to be objectionable.

EMPLOYMENT-RELATION TO CLIENT.-Is it proper professional conduct for a lawyer, who is the attorney for a Board of County Commissioners, to advise it in answer to its inquiry whether in his opinion it has legal power to grant an application for the reduction of an assessment on the personal property of a class of institutions, where the lawyer is not only the attorney for the Board but also a large property holder and taxpayer, and a director and stockholder in one of the institutions of the class concerned? In the opinion of the Committee, is it sufficient that in advising the Board he should disclose the fact of his interest, or should he decline to advise on account of such conflicting interests? Answer.—The attorney should decline to advise on account of his conflicting personal interest in the matter involved. His personal interest, and the quasijudicial character of the municipal body, differentiate this case from those where upon full disclosure of his professional relation to both parties to a controversy, a lawyer may advise either party as to the law applicable thereto.

COLLECTION AGENCY-FEES.-A. B., an attorney, is in partnership with C. D., a layman, in the collection business, and, under the partnership agreement, divides the earnings of that business with C. D. He does not divide with C. D. the fees which he may receive upon any act or service performed under his name and by virtue of his office as an attorney. A part of the partnership earnings, however, is derived from commissions charged upon collections made by attorneys to whom claims are sent by the partnership. Is there any impropriety in the above practice? Answer. It is improper for a lawyer to engage in partnership with a layman and divide fees. A fee charged for professional services is none the less a reward for professional services because it is called "a commission." Lawyers in other States, who are dividing with a collection agency here the compensation they receive for professional services, are themselves, in the opinion of the Committee, guilty of unprofessional conduct. That the service excludes the bringing of suit or appearance in court does not change the inherent character of the situation. In performing the service the lawyer's professional skill and responsibility are engaged. There is no objection to a lawyer engaging in the collection of an account, but when he does so, he does so as a lawyer and is subject to the ethics of his profession.

ANNULMENT OF MARRIAGE-EMPLOYMENT.-X., a woman, marries A. She then marries B., who is ignorant of her previous marriage to A. She then secures a decree of divorce from A. and marries C. B. desires annulment because of X.'s incompetency to contract the marriage with him. C., in order to remove the marriage to B. as an apparent obstacle to the legality of his own marriage relation, is willing to contribute to the expenses and counsel fees of B. in procuring an annulment decree. Would there be impropriety in a lawyer accepting a retainer from B. to procure an annulment decree, with the knowledge that C. is contributing to his compensation, or a joint retainer from B. and C. to procure such decree for B.? Answer. The lawyer in question might with entire propriety advise both B. and C. as to the legality of B.'s marriage with X. and might with propriety accept a fee from each for such advice. There seems therefore, to be no reason why, if he is retained by B. to have that marriage annulled, he could not accept a retainer to which C. contributes. It is to the interest of C., to whom X. is now married, to have her prior marriage to B. annulled; and on the facts stated a clear case for such annulment in favor of B. seems to be made out-it being assumed that

the marriage of X. to A. was valid and was in full force at the date of her marriage ceremony with B. The doubt in the mind of the inquirer arises, we assume, from an apprehension that some suspicion of collusion might attach to the suit, as C. would be supposed to be acting in the interest of his wife, the defendant in the action. But such apprehension, we think, is groundless. X. could, we think, maintain the action of annulment as well as B., and we do not see why the husband of X. might not with propriety bear a part or even the whole of the expense of a suit, no matter by whom instituted, which will serve to remove an apparent impediment to his own marriage.

TITLE TO ICE ON MILL POND.-That the right of flowage belonging to the owner of a dam does not carry with it the right to take ice from the stream above the dam, although they have a right to an undiminished amount of water, is the conclusion of the Court of Appeals of New York in a recent decision. The Court say:

"The true rule is correctly stated by Mr. Farnham in his elaborate treatise on the Law of Waters and Water Rights (volume 2, p. 1603) where he says: 'As between the owner of the soil and one having a right to flow the land for creating a water power, the title to the ice is in the former.' As against the owner of the easement of flowage, the owner of the soil has the right to remove the ice which forms over his land, subject to the qualification that he must not thereby damage the mill privilege. There was no question of damaging the mill privilege in the present case, as the owner of the mill privilege was the person endeavoring to remove the ice. A somewhat different view seems to have been entertained at one time by the courts of Connecticut. Thus in Mill River Woolen Mfg. Co. v. Smith, 34 Conn. 462, decided in 1867, it was held that the owners of the water of a mill pond owned the ice formed upon it, and that the riparian proprietors had no right, as owners of the soil, to remove it. The doctrine thus declared, however, must later have undergone considerable modification in that jurisdiction for in the case of Geer v. Rockwell, 65 Conn. 316, 32 Atl. 924, decided in 1895, we find Mr. Justice Baldwin, one of Connecticut's ablest judges, saying: 'Under an ordinary flowage petition the plaintiff acquires a perpetual right to build and maintain a dam, but this does not constitute him the proprietor of the ice which may be formed upon the pond. On the contrary, such ice belongs to the proprietor of the lands overflowed, subject only to the right of the mill owner to have it left to melt where it is, if this be necessary to maintain a proper supply of water for his mill.' But whatever may be the Connecticut doctrine, the rule generally recognized elsewhere is that the privilege of flowage or pondage does not carry with it the right to take ice formed over the land of an adjoining riparian owner; that right may be exercised by the latter, except so far as it may operate to the detriment of the mill privilege. Such is the law as established in Maine, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin, and Nebraska. A riparian owner above a mill dam has the fixed and well-defined right to take ice from the stream where it flows over his land. The owners of the mill dam cannot avail themselves of such right, notwithstanding the fact that their action may be said to have rendered its exercise possible. 'It is not a purpose recognized by law for which a person's land can be appropriated by another, but it is a privilege attached to and becomes a part

VOL. L.

1 Valentine v. Schawtz, 109 N. E. 866.

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of the property' of the upper riparian owner. Steens v. Kelley, 78 Me. 445, 450, 6 Atl. 868, 57 Am. Rep. 813. The rule laid down in this Maine case was expressly adopted by the Supreme Court of Pennsylvania in Searle v. Gardner, 13 Atl. 835. That ice forming upon water belongs to the owner of the soil beneath the water is declared to be the general rule by the Supreme Court of Illinois in Washington Ice Co. v. Shortall, 101 Ill. 46, 40 Am. Rep. 196. Where the dividing line between two adjacent land owners runs through an artificial pond raised by a dam across a natural stream, the ice formed upon such stream belongs to the owners of the land forming its bed. State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224. "The right to maintain a mill dam and exercise the privileges belonging thereto does not confer the right to take ice formed thereon.' Julien v. Woodsmall, 82 Ind. 568. In Bigelow v. Shaw, 65 Mich. 341, 32 N. W. 800, 8 Am. St. Rep. 902, it is said: "The owner of the soil under the water is ordinarily the sole and exclusive owner of the ice forming upon such water. . . . and in all the reported cases that I can find, except two, it is expressly held, in a case like the one at bar, that the land owner has the exclusive right to the ice, and to gather and sell it for his own benefit, provided he does not thereby impair, to a perceptible and substantial extent the flow of water for mill purposes, and that the mill owner has no right whatever to such ice. This right

grows out of the title to the bed of the stream, and such use of the water as results therefrom.' It is settled in Wisconsin that the title to the bed of a stream is in the riparian owners whether the stream be navigable or not. 'Ice which forms on streams or ponds, the bed of which is subject to private ownership, belongs to the owner of such bed, and such owner may maintain trespass for its removal.' Reysen v. Roate, 92 Wis. 543, 66 N. W. 599. In Eidemiller Ice Co. v. Guthrie, 42 Neb. 238, 60 N. W. 717, 28 L. R. A. 581, the Supreme Court of Nebraska has said: 'Both reason and precedent support the doctrine that the riparian owner has the right to use all the water which it is necessary for him to employ for any purpose and to cut and remove the ice which may form upon the stream adjoining his land, in any quantity or to any extent, for his own use, or to store for sale, provided he does not, by so doing, diminish or decrease the flow of water to the mill below what is required to successfully operate or run the mill.' There is a class of ice cases in which it is held that one who does not hold title to the bed of a pond may nevertheless acquire by prescription the right to take ice therefrom as a profit a prendre or easement appurtenant to the land. Such a case was Hinckel v. Stevens, 165 N. Y. 171, 58 N. E. 879. The existence of any such prescriptive right in favor of the owner of the mill dam in the present case is negatived by the findings of the trial court."

PROHIBITING DENSE SMOKE IN CITY.-The Supreme Court of Michigan declares to be void an ordinance of the City of Detroit prohibiting the emission of dense smoke from any smoke stack used in connection with any steam boiler in any building, boat or any other structure. The complainants were the owners of steamboats on the Detroit River and a lower court had ruled that the smoke might be prevented by the use of appliances for smoke consumption and that the ordinance was enforceable. But the Supreme Court reverses this ruling on the ground that the evidence of expert marine engineers showed that there was no known appliance which could be used upon marine boilers to prevent the emission of smoke,

and the Court added that its invalidity was not a bar to a future prosecution if practical and efficient appliances were discovered, or to liability for a common-law nuisance. Steere, Judge, said:

"Recognizing the importance of this case not alone to the owners of vessels plying upon the Detroit river within the corporate limits of the city of Detroit, but to the city of Detroit itself, we have given careful attention to the testimony introduced relative to the practicability and efficiency of the appliances used for the prevention of smoke in marine equipment in the present state of the art. We think it fair to assume that the conclusion reached by the learned judge who tried the case below was based upon his belief that the Jones underfeed stoker had reached such a state of perfection as to make its installation in marine practice feasible and reasonable, and the results to be obtained therefrom satisfactory. That testimony related to five boats, only, where such installation had been made. It would be of no avail to set out the voluminous testimony upon this question. It is sufficient to say that to our minds it is far from convincing. In some instances it is clear that the appliance, after its installation, has been removed, and in all instances the results obtained are not left entirely free from doubt. The expert testimony introduced upon the question, while not conclusive, strongly persuades us to the view that up to the present time no device has been invented which within the confined space available for installation in marine practice is adequate for the elimination of smoke so long as the consumption of bituminous coal is permitted. Mr. Frank E. Kirby, whose opinion seemed to have controlled-or at least largely influenced-the judgment of the court below upon the former trial, testified in the case at bar as follows: "There is no efficient device that is known to me for the prevention of smoke in marine practice.' Mr. Kirby is known as perhaps the most experienced designer of vessels for use on inland waters in the State of Michigan. Prof. Frederick C. Saddler of the University of Michigan, an expert of distinction, testified as follows: 'I do not know of any device with which a marine plant can be equipped at the present time that would operate successfully under marine conditions and eliminate the emission of smoke in the operation of the vessels on the Detroit river here and the ferry service. Q. Will you state whether in your judgment, from the investigation and studies you have made, it is possible to construct a steamer for passenger service on the Detroit river and equip it with any device the Jones underfeed or any other-that when so equipped will be efficient for operation and service and comply with all the government requirements for operation? A. I do not know of any such device.'

"Testimony to the same effect was given by the following persons: Peter McLaren, chief engineer for 20 years of the Walkerville ferry line; Frank W. Stogell, superintendent of Hiram Walker & Sons, Ltd., an engineer for 15 years; Edward A. Dustin, manager of the Ashley & Dustin Steamer Line; Arthur J. Fox, of the same line, a master and pilot since 1874; J. P. Wells, of the Detroit & Cleveland Navigation Company, a marine engineer for 25 years; Winfield Dubois, a marine engineer for 35 years, with the White Star Line; James D. Stewart, a marine engineer for 20 years and for 3 years operating a Jones underfeed stoker; Minton Sicklesteel, a marine engineer for 10 years with the Detroit and Cleveland Navigation Company; George F. Moore, an employe of the city of Detroit, and marine engineer for 15 years and engineer of the fire tug James F. Battle, and A. G. Matteson, chief engineer of the Grand Lakes Engineering Works. It is perhaps worthy of note that the fire tugs James F. Battle and James R. Elliott, belonging to the city of Detroit and operating upon the Detroit River, are not equipped with either the Jones underfeed or any other smoke-consuming device. Taken in its entirety, we are convinced