Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1872-01-16

$3.50
temptation during the last i've years to
depart from tbs Inc Of integrity. have
not the faculty, somehow, to 90 n any
mean or contemplate conduct, My friend
and I could resdily have avoided this
whole thing. We could have said to Mr..
Williamson, employ another 4 we
could have said to MI. Dean, employ an
other agent. We could have closed and
effAced all possible
FEAR OF DISCOVERY,
II for q single moment q cIandestine pur-
pose had entered into our imagination. 1t
never did. We were the counsel OF the
company, and We we're the counsel OF the
stOckholder. Mr.. Fitch was the secretary
Of the company; he was the agent OF the
stockholder, and we hid nothing. We
made him The author of the bill, as he had
been in his official capacity the author OF
the bill in the court below. There is,
therefore, so far as he and I are concerned
Notwithstanding the sharp criticism OF
our brethren on the other side-there Is
| nothing in the face of our transaction
| thss the kesnest moralist could except to-
Well, Why did we do thst2 Now / will
/ give you the true history of this conduct,
Ny friend was exceedingly engaged
He was the counsel il this case, and his
time was enormously occupied, and he
wanted somebody to assist HIM. h had
two purposes to serYe-he wanted to serve
q friend, and he wanted assistance in the
case. He called upon me, and with the
utmost ssrnestness asked me to investi-
gate tkis matter thoroughly and fully, il
order that by no possibility could our
clients fall into a mistake. l did do 1t
and, 80 help me God, 1t I ever did in the
whole course OF my life give earnest, in
thing in tPis world, I did to tha investi-
CATION Of this case before the advice was
! given; and If I did not nave authority that
| ought to satisfy any reasonable lawyer
not only ss to Ehe prOpriety of the act, but
as 70 the course which we intended &c
pursue, then I hs7e
NOT LEARNED ANYTHING
upon the fscs OF the earth by twenty-five
years Of experience at tbs bar
Ifrss sat down and said to mYselfi
" Can this stakeholder sue in the United
states COURT" WEI ], 1 said, he can so fal
as I know, because ne is = non resident
Then the question arises, can he, being q
| st0ckhOLdeT-csn he sue in a court OF chan
Gerry AZ all? Well, I said 20 myself, Et
can. Why? Because, although the cor
porstion is mis- trustee, he has distinctive
property In his stock. He could not suS
Tor the gas works or the pipes, or any
thing that was the common property o.
the company, but this distinctive tndiyid.
Z uAIH DEAEOAAL AAIEAC1H IL kA0 1gOe0A .
IL that Is ssssilsd by anybody, he being 4
fres white nan twenty-one years of sgs
ne has . right to protect any property
upon the face Of the earth that Is distlnc.
tive in it's character,
I ssid to myself, take the position o.
/ guardian and ward.
ATREssPAssER
enters upon the estste Of an infant and
undertakes &C cut down his ornamental
| trees. He is not obliged to 90 to his guar
| dian and demand hat the guardian shal.
file 3 bill OF Injunction. He may file
| bill Of Injunction by his next friend snd
stop thar waste, pecultsr IN its character
ard i~rrsparsble in its results.
Take the case Of executor ard hsic. Th'
executor is charged with the sole care o
the property. He has the whole real-es
tate title in him, but il anybody wastes
tina estate, has there eVsr been 8 dOubi
but that the heir could go into 3 court o
ehsncery and enj0in the trespssser from
/ committing proPably irreparable injury?
Then 1 further said, here is a mO-tgsgol
and NOR gsgee. the mortgage is the trus
tee of the mOrsgsgor, and Yet II anybody
enters upon the property and perpetrsteE
g 5reEpss5, the mOrtgsgor could hle a Dill,
NOS calling upon the mortgage.
I am Just showing you how my mind
ran, because all these things are not whist
lam thinking of now, but what L thought
then. InoW come to the last, snd l think
it is q more analogous case. The
MAYOR AND BOARD OF ALDERMEN
are bound to protect the individual prop
erty OF a citizen of the municipsl corpo
ration. Hsts & member OF the municipal
corporation, and the board Of mayor and
aldermen are his cleo i've and distinctive
trustees. They are bound 20 protect hin
I --.s-r- umu nEs Milo -fgfatfnn ri hfz nrnR.
er1V in the Wayof uuissnc5s. Bus II hC
is # sctsd by DU5lic nuisance, he has The
right to restrain the man who commits
the nuisance, without calling upon tbt
board Of aldermen.
There are thousands OF such cases
They p~sreolst5 the lsW-boOks. There are
twenty Of them cited In my brief. But
your honor, We did not stop there. 1 an
sm trying to show you that this sdY1c'
was honestly given, and that il wa no
wholly unfoBnded and Unwsrrsnted.
Now We turn to the books. l. was
matter OF earnest investigation. could
cite g matter TO four honor that would
show you how earnest it was personally
to ourselves We had handsome Zee In
YOlved in this matter, and il was by th'
p~rovccstion of q large fee, thsb we Wsr;
prompted to sssiduOus labor In THU
case. Now we turn to the books. Al
theae
BOOKS
I have before ms. 1 don's now remember
positively that I had them before me, bU'
l know that I must have had them, be
cause they 1T in with and embody ths
sdvice We gave
OUR CLIENT
as to the course to pursue. We find In th'
court of Ohio, in 1858, Is McLsne, 616
an suthority on this whole proceeding
We find the precise case by q learned
court, on the identical question, giving u
sll the Law that we nsed. Suppose We
have it2 Suppose I show to your honor
that I hsd found such a case, n that
case bsing unrsv5rssd. and suppose that
this Dodge and Woolsey case should final
~ stand IN the way, Is not this case to BE-
OF such authority az to remove the mat
ter from the charge of an
UNwARRANTRD oPINIoN7
If found n case decided one way,
/ and another case in she supreme court
another, have I not the right to advise
my client to try 1t over again
Can q respectable attorney, standing vel
in his profession, properly esteemed a. the
bar, be accused Of unWsrrsDted counsel
/ who, supported By one authority, advises
/ his client to proceed in a particular course
/ Of conduct Why, then, ''once decided
[ llLOkgA 6A49Aa AEA III AAAO VI low Via
hiss been sver settled could be reversed
/ except ct the hazard of
MALICIOUS PROSECUTION.
Is not that so3 Let me say that sftel
l the close investigation tbst l gave to this
! case when my friend, Mr.. Humes, pressed
by other business, was unable to make an
investigatiOD-When l submitted to him
my views, together With the authorities
l ehau nhka7naN mr. mnEna1 apnQurrannG
The case 10 which 1 sllude Is that OF Foote
vs.. Link and the trustees Of the Life In
/ sUrsnce snd Trust company of Ohio. /
hevs been invited to bring to your honOr's
attention a matured case, and one well
/ considered, and this is such an one It is
true it is subject 10 the criticism of having
been decided by Mr.. Justice McLsne, and
l our friend Mr. Smith understands him tc
I have been q very inaccurate lawyer, whose
reports are Of questionable value, and
whose opinions were not highly esteemed
in the supreme court OF the United States
OF which he was q member. Undoubtedly
the
CRITICISM IF MR. SMITH
| lacked nothing ofboldness, and i'll WerenOi
fortified by other authority than my OWL
| opinion, l should scarce venture to gain
say il. But the most eminent men in the
ration, smohg others the late Chief. JUS.
10 @eN0J 49, AbSSAAC9 00HSAAi
/ Bates, have rendered tribute 10 Judge Nc,
Lane'sresesrch and ability and to his great
requirement IS a judge. And when IL is
| considered that they had much greater
| opportunities for kpoSiHg Judge McLsne
their testimony may be considered % hsv.
ing tia more imposing weight. Further
than this I do not deem It necessary to
enter upon the defense OF one who living,
was essentially one OF the great men Of
America. 1 will now proceed to read the
case 10 which 1 refer. During the late
t-rm a bill was fled by the complainant,
a CITIZEN CT CONNECTICUT,
against The defendants, In which was set
out the charter OF the trust company,
showing that there was q provision in il
declaring that the capital stock should be
taxed no higher than the capital stock OF
bonds Ia tbe State. Also, that 8 PROPOSE