spectively passes to the grantee, devisee, or heirs of the original owner. Whether, therefore, the devolution of the right and the burden accompanies the land depends upon the fact whether the right is for the benefit of a particular tenement. This is illustrated by the case of Bailly v. Stephens, 12 C. B. 91. That case involved a claim of a prescriptive right existing in the owner of close A. to enter close B. and cut and convert all the trees growing thereon. It was held that the grant prescribed for was too large, because the claim was to take and dispose of trees at pleasure, irrespective of the needs of the land owned by the party who claimed the profit. The court distinguished it from the case of Douglass v. Kendall, Cro. Jac. 253, because in the latter case the right was to take thorns that should grow upon the land of the plaintiff to be used at the house and in the tenement of the defendant. "This case," the court remarked, "falls within a class of cases perfectly well known to the law, holding that the owner of an estate may claim, as appurtenant to that estate, a profit to be taken in the land of the other to be used upon the land of the party claiming the profit." In the case of Pierce v. Keator, 70 N. Y. 419, 26 Am. Rep. 612, A., owning a farm, sold a part of it to a railroad company, reserving to himself the privilege of mowing or cultivating that part of the land sold not needed for railroad purposes. The question was whether the right to get the hay passed to the purchaser of the remaining part of the farm. It was held that it did not, because the right to mow was not for the benefit of the said remaining land, but was for purely personal purposes. Chief Justice Church, in delivering the opinion of the court, remarked that the privilege reserved was a right of profit a prendre, and that it might have been regarded in the nature of an easement if the reservation had been made to the grantor on account of his being the owner of the farm; but the reservation was personal-citing the language of Chancellor Walworth, in Post v. Pearsall, 22 Wend (N. Y.) 432, that: "A profit a prendre in the land of the owner when not granted in favor of some dominant tenement cannot be said to be a easement, but an interest or estate in the land itself." In the case of Grubb v. Guilford, 4 Watts (Pa.) 223, 28 Am. Dec. 700, the grantor gave to the grantee the privilege to enter upon remaining lands of the grantor in search of iron ore, to mine it, and carry it away. It was held that the right was not appurtenant to the 20 remaining acres of the grantor, because not necessary to the use or occupation of the 20 acres. These cases exhibit a condition where the right to take soil is personal to the taker, and not for the benefit of other lands. The case of Huntington v. Asher, 96 N. Y. 604, 48 Am. Rep. 652, exhibits a different situation. In this case, A., being the owner of

land upon which was a mill pond, conveyed to B. a half acre of land adjoining the mill pond, and the right to take ice from the pond, with the right and privilege of access for that purpose to and from the pond to the icehouse to be located on the lot conveyed. The grantee covenanted to furnish the grantor, as long as he occupied his then residence, all the ice he required for family use, and to furnish to the purchaser of the pond and mill the privilege to the ice required for his family use. It appears that the land was purchased by B. for the declared purpose of erecting an icehouse in which to store the ice to be cut from the pond. B. sold the half acre so bought to the defendant. The plaintiff sought to restrain the defendant from entering upon the property and exercising a right to cut the ice, under the clause already set out. It was held that the privilege granted was not a license, but was a right to profit a prendre appurtenant to the half acre sold, and it passed to the defendant as successor in title of B. In the present case, the grant of the privilege expressly states that the right to get gravel from plaintiff's land is for the purpose of keeping the milldam upon defendant's land in repair. A more conspicuous instance of the right in one tenement for the use and benefit of another could hardly be exhibited.

It is insisted, however, that, while the rights of the defendant would be complete if the privilege granted is to be regarded as a right to profit in the soil, yet in this case the grant and privilege is to be considered as a mere license, not available by the present owner of the sawmill property. In support of this theory the cases of Eckert v. Peters, 55 N. J. Eq. 379, 36 Atl. 491, and East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248, are invoked. In respect of the case of Eckert v. Peters, it is sufficient to remark that it does not involve a right of profit a prendre at all. The case of the East Jersey Iron Co. V. Wright was this: One Williams had granted to one Rude the exclusive right and privilege of raising and removing ore from Williams' land. Williams granted to other parties the right to all the ore, excepting one shaft, with the right of digging and removing the ore. The owners of the rights and interests of the last-mentioned parties filed a bill to enjoin the owners of Rude's interest from claiming any interest in the land under the grant from Williams as against the complainants. It was held that the grant to Rude was not a lease, but merely a license. This was correct, for the right was one of profit a prendre, and a right of profit a prendre is not per se a lease, but a license. It was a right not appurtenant to any estate, but was a right in gross. Williams, the licensor, sold the land out of which the ore was to be taken. It was held that, after the licensor divested himself of this whole estate in the land, the right granted ceased.

In other words, the burden of the granted privilege did not follow the lands into the hands of a purchaser. In that case, also, there was no consideration for the grant. In the present case, the right is not in gross, but appurtenant, and, as already exhibited, has the characteristics of an easement in devolving the benefits and burdens existing upon the dominant and servient estates, upon their successive owners. In this case there was a consideration for the grant or reservation. It is apparent that the theory upon which that case was decided, is inapplicable to the facts of the present case.

It is to be observed that, in the case just mentioned, in support of the conclusion that the grant to Rude was a license, and not a demise, two cases were cited. One is the case of Handly v. Wood, 2 Barn. & Ald. 724, and the other the case of Funk v. Haldeman, 53 Pa. 229. In the first case, there was a grant of free liberty to dig for tin and all other minerals on certain lands of one Cortelyou, and metals found there, to raise and prepare them for sale; to sell or use them, etc. An action for ejectment was brought by the grantee of this right, and the court held that there was no grant of minerals, but only such as should be found, and no right of possession of the property which should support an action for ejectment; "but," Chief Justice Abbott observed, "it is nothing more than a license to search (irrevocable, indeed, on account of its carrying an interest), with the grant of such of the ore only as could be found." It is entirely settled that the grant of profit in land carried with it no right to possession of the land. The right of profit a prendre is distinct from leases of land from which a profit is to be taken. It grants no right of exclusive possession of land, and only amounts to a license to go upon the land for the purpose of taking sand, gravel, grass, or trees; but, while it grants no right of possession that will support an action of ejectment against the grantor, it is an incorporeal right coupled with an interest, for the disturbance of which an action will lie.

It is obvious that the court, in Handly v. Wood, spoke of the right there as a license in contradistinction to a lease, and not in contradistinction to a right of profit a prendre. For the moment it was admitted that the license was irrevocable, it became a right to take profit in the land. In the other case cited, namely, Funk v. Haldeman, supra, one McEnery, owning land, granted to one Funk the privilege of going upon McEnery's land for the purpose of prospecting and boring for, and taking out of the earth, ore, oil, etc. McEnery afterward conveyed the land to one Haldeman, subject to the agreement with Funk. It was held that Funk did not get a lease granting him possession, but only a license. It was, however, further held that the license was coupled with

an interest, and was not a mere permission revocable at the pleasure of the licensor, but a grant of an incorporeal hereditament which is an estate in land, and may be assigned to a third party. Both of these cases involved rights of profit a prendre in gross, and the right to revoke or assign such rights, need not be discussed.

It is entirely settled in all the cases that a right like the one now in question is not revocable, and is attached to and passes with the dominant tenement. In no jurisdiction is this more entirely settled than that in which Funk v. Haldeman, supra, was decided. Huff v. McCauley, 53 Pa. 209, 91 Am. Dec. 203; Carnahan v. Brown, 60 Pa. 23; Grubb v. Grubb, 74 Pa. 25.

Our conclusion is that the ruling that there existed no right in the defendant to enter the close of plaintiff and take gravel for the purpose indicated, was erroneous. There should be a reversal.

In re YOUNG.

(75 N. J. L. 83)

(Supreme Court of New Jersey. Sept. 19, 1907.) ATTORNEY AND CLIENT-DISBARMENT.

In proceedings for the disbarment of an attorney at law, it was established upon evidence, beyond reasonable doubt, that the attorney had obtained from a fellow townsman $100 upon false representations, by assigning to him one month's salary as county attorney, which the attorney had previously hypothecated to another creditor; that on another occasion he had obtained by false representations from a fellow attorney $525, by the assignment of a mortgage for $600 upon the house of a client of his, taken for a fee, and it appearing that the attorney, when he took the mortgage from his client, who was a poor German woman, had been already awarded by the orphans' court $500 for the alleged services in her behalf in the trial of a caveat against her husband's will, and that this amount was a full compensation for the attorney's services, and that such mortgage would not be enforceable in a court of equity, and that the assignee was unable to collect anything upon the mortgage; and it further appearing that the attorney had made no return of any of the moneys so obtained-it was held that the attorney must be disbarred.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 5, Attorney and Client, §§ 55, 56.] (Syllabus by the Court.)

In the matter of Alexander C. Young. Rule to show cause why the respondent should not be disbarred.

Argued June term, 1907, before FORT, PITNEY, and HENDRICKSON, JJ. Charles C. Black, for prosecutors. Gilbert Collins, for respondent.

HENDRICKSON, J. The rule to show cause was allowed by this court at a preceding term upon the filing of the affidavits of James Smith, John Eitzen, and John I. Weller, charging the respondent, who is an attorney at law of this state, with unprofessional conduct in three several respects therein set forth. The rule required the respond

ent to show cause before this court why he should not be disbarred or suspended from practice because of unprofessional conduct in the following respects: First. That on or about the 8th day of October, 1902, the said Alexander C. Young, being an attorney of this court, obtained from one James Smith the sum of $100 by false and untrue statements and representations, in that he induced the said James Smith to loan to him, the said Alexander C. Young, the sum of $100, by an assignment and transfer to him, the said James Smith, of his salary as county attorney for the county of Hudson, for the month of October, 1902, when he, the said Alexander C. Young, had at that time already made an assignment and transfer of the same month's salary to one A. Granelli, and he, the said Alexander C. Young, at that time knew that the assignment made to the said James Smith was worthless and without value, thereby inducing the said James Smith to part with the sum of $100. Second. That on or about the 9th day of July, 1896, the said Alexander C. Young, being an attorney of this court, did obtain from one John Eitzen the sum of $125, by false and untrue statements and representations; that he induced the said John Eitzen 'to loan him, the said Alexander C. Young, the sum of $125, at the same time pledging as security two stock certificates, one being for six shares of stock in the Avenue C Railroad Company, which on its face showed that said shares are worth $100, and one for six shares of stock in the Somerset Publishing Company; that the said Alexander C. Young at that time represented to John Eitzen that said shares of stock were of enough value to secure to him the repayment of the said sum of $125; that he, the said John Eitzen, believing the statements and representations made by the said Alexander C. Young, and relying on the truth thereof, thereupon loaned to him, the said Alexander C. Young, the sum of $125; and that at that time he, the said Alexander C. Young, knew that the two certificates of stock, one for six shares of stock in the Avenue C Railroad Company, and one for six shares of stock in the Somerset Publishing Company, were without value and worthless, thereby inducing the said John Eitzen to part with the sum of $125. Third. That on or about the 27th day of August, 1900, the said Alexander C. Young, being an attorney of this court, sold a bond and mortgage to John I. Weller for the sum of $525, which on its face represented a security of $600 made by Catharine Schuchardt to Boyd S. Ely, which purported to be a valid and existing lien upon the lands and premises covered thereby, he, the said Alexander C. Young, stating at the time he sold it that the bond and mortgage was a valid mortgage, and that it was a good as gold, and by means of such false statements and representations induced the said John I. Weller to pay to him, the

said Alexander C. Young, therefor, the sum of $525; whereas, in point of fact, the said Catharine Schuchardt disputed the validity of the said bond and mortgage for want of consideration, and it was held by a final decree of the Court of Chancery of the state of New Jersey that the said bond and mortgage was null and void. That, at the time the said Alexander C. Young induced the said John I. Weller to pay to him the sum of $525 for the same, the said Alexander C. Young knew that the said Catharine Schuchardt disputed the same, and that the said bond and mortgage was not a valid security, and that it was null and void for want of consideration, thereby inducing the said John I. Weller, by false and untrue representations, to part with the sum of $525, and give it to him, the said Alexander C. Young. Service of the rule was duly made, and testimony was taken upon both sides, pursuant to leave given by the rule, which we have read and considered in connection with the argument of counsel thereon. We will take up the charges in the order named.

As to charge No. 1, we think it is sustained. Mr. Smith, who has been city treasurer of the city of Hoboken for 12 or more years, testified to making the loan of the $100 to the respondent at the date and under the circumstances named. It is urged for the respondent that the charge that the latter borrowed the $100 from Mr. Smith on an assignment of his salary for October is not strictly true; that it does not appear that the loan was at all conditioned upon the giving of the assignment, which, as counsel urges, seems to have been a voluntary act upon the part of respondent after the loan was made. But a reference to Mr. Smith's testimony, we think, shows that counsel has misunderstood or misinterpreted what the witness did say in this particular. This is witness' account of what happened: "Q. Just give the circumstances in your own way, Mr. Smith. A. Well, I also had a provision business in Hoboken, and Mr. Young came there probably about 4 o'clock one afternoon, and he said he was pretty hard pushed, and wanted to know if I could give him $100. I told him I didn't have it, but would try and get the money for him, and I secured the money, $100, for him, and handed it over to him, and he asked me to step in his office the next day, and I did, and he gave me this acknowledgment, which he said he would”— referring to the assignment of salary for October, dated October 8, 1902, and marked Exhibit P6, which the witness had just identified in response to counsel, and which was at this point offered in evidence. A little further on witness testified: "Q. What did Mr. Young say, if anything, at the time he came there for the $100? A. Well, that he was hard up for money, and he had to have it, and it would be a big favor if I could help him out, and that he would give me an order on the board of freeholders for his

salary for October." And again, a little later: "Q. I am not calling your attention to the document. I am calling your attention to the conversation. When he said he was hard up and would give you an assignment of his salary, was that before or after you gave him the money? A. Before." And on cross-examination Mr. Smith further testified: "Q. And that is about all that was said? A. Yes, sir; about all that was said, except he told me what security he would give for the money. Q. What security did he say he would give you for the money? A. An order on the board of freeholders for his salary, which was $150; the fifty dollars to be returned to him on the collection of it." It is further urged that the charge of fraud is not established, that the respondent acted in good faith and made the assignment of the October salary only because he did not know what months he had assigned to Granelli, and that before writing out the assignment he obtained Granelli's consent to change one of the month's salary assigned to him and allow respondent to assign such month to Mr. Smith. It is true the respondent has testified to such a state of facts, and says that he mentioned this fact to Mr. Smith when he executed the assignment to him; but it will be noticed that Mr. Smith's testimony is to the contrary of this as cited above, where he testifies that at the time of the loan the respondent said he would give to Mr. Smith, if he would help him out, an order on the board for his salary for October. It is further urged, however, that the respondent's testimony in this particular should be accepted as true, because it is corroborated by a circumstance appearing upon respondent's examination, which is to the effect, as alleged, that the word "October" in the assignment of salary to Mr. Smith was written over an erasure of some other word that had been written there, not now discernible. And respondent testified as to this erasure and said: "I wrote this paper, or the body of it, one time in my office, and then it had another month, which I have scratched after speaking to Mr. Granelli and questioned him as to what months had been assigned to him. I went down stairs and put the word October in it before I delivered it to Mr. Smith." The exhibit showing the alteration has not been submitted to us; but, assuming it to show the alteration as stated, we fail to see any special significance in the circumstance as bearing upon the point suggested. Respondent had previously testified that Granelli, in response to his question, said he did not know what months had been assigned to him, and that the papers were in the hands of his attorney, Mr. Allen, but that he (respondent) might go ahead and assign a month's salary to Mr. Smith and charge one he had assigned to Granelli to another month. So that, not having learned which months he had assigned to Granelli when he made it, why he changed the month

in Mr. Smith's assignment to October after erasing a different month does not appear, and the respondent does not say. But had the respondent in fact forgotten what months he had assigned to Granelli? The case shows that on March 10, 1902, he made a formal assignment to Granelli, duly acknowledged, in consideration of $600, of his salary for the months of May, June, July, and August, 1902. This transaction with Mr. Smith was on October 8, 1902, and on June 23d preceding, the assignment was brought freshly to his mind, for on that date he took from Granelli a release in his own handwriting of the months' salary for July and August, and on the same date executed and delivered to Granelli in lieu thereof a transfer to Granelli, drawn in his own handwriting, of his salary for the months of September and October in that year, instead of July and August. Granelli's testimony has been alluded to as lending some support to the respondent's testimony in the particular under consideration. Granelli was called by the prosecutor and testified, and it must be admitted, as counsel suggests, that his testimony was somewhat uncertain and evasive. His testimony reads as if he was an unwilling witness, and that may be accounted for to some extent by the witness' admission that he had refused in the first instance to obey the subpoena, and that 10 days previous he was with the respondent at his office in New York and had supper with the respondent and one of the latter's friends over there; that respondent knew witness had then been subpoenaed; and that, while witness' evidence was not discussed, they did talk about Mr. Weller and these proceedings. Granelli did testify on crossexamination, when shown Exhibit P4, which was his release of the months of July and August before mentioned, that it contained his signature and was correct. He then admitted that he remembered having talks with the respondent with regard to permission to assign salary to other persons than himself after the salary had already been assigned to him. He guessed it was done in some other cases, but he could not say at any particular time or at any one time, and, being further questioned, said that the paper in question did refresh his mind, and he certainly did give respondent permission in that case. He was then asked: "Q. Now, didn't you on other occasions give him permission so to do when it was not evidenced in writing? A. I wouldn't like to say so unless I saw the writing." And after admitting that respondent used to come and ask him (witness) whether he could do it, he further testified: "Q. And you know you did give him permission? A. I did at that time, but I don't remember any other time." We think this testimony is against respondent's contention, rather than in his favor. The case shows that no release for October was made in writing by Granelli, nor was it asked for

by respondent, nor was any explanation made to Mr. Smith by respondent of his failure to do so. Cranelli drew the salary promptly when it was due. Mr. Smith thereupon brought suit against the respondent in the Second district court of Jersey City on February 3, 1902, and received judgment for the amount of the loan, but nothing has been recovered or paid thereon. As before stated, our conclusion is that charge No 1 is sustained.

As to the second charge, Mr. Eitzen testified that at his saloon in Hoboken in July, 1896, he made a loan to the respondent of $185. He did not know exactly the amount just then, but he thought it was about $185. He loaned the money in two payments, one for $60, for which respondent gave him a check at the time of the loan, dated ahead three days, which he collected through the bank. The other was for $125, for which he received a check which was produced and shown to witness, dated July 13, 1896. Witness identified the check produced, and said it was dated six days ahead by respondent, and that this check for $125 has never been made good. He further testified that respondent said, when applying for the loan, that he was very short of money, and that he had security for the money; that he told respondent that he (witness) was very short of money himself, and then respondent produced this paper (two papers, railroad stocks), and said the value of this stock would cover the amount about three or four times. Witness then produced two stock certificates, one for 6 shares of the Somerset Publishing Company, of the par value of $25 each, with blank assignment on the back signed by the respondent, the other for 26 shares of stock of the Avenue C Railroad Company, a New York corporation, dated March 18, 1870, the par value being $100 each, and testified that these were the two stock certificates the respondent gave him. Witness testified further that he had not endeavored to find out whether the two stock certificates had any value; that he never tried to sell them; that all he knew was what he had heard a person in his saloon say, and also a lawyer say, which was 10 years before; that he had obtained a judgment on the check in a civil suit, but received nothing upon it; that respondent had borrowed money of him before this occasion. Upon the question of scienter, the attorney of Eitzen testified that the respondent was examined under oath in supplementary proceedings upon the judgment before a commissioner in December, 1896, and with the aid of a copy of the notes of the testimony taken in longhand to refresh his memory, and as the witness remembered it then, respondent said as to the value of the Avenue C Railroad stock it was no good. Witness could not remember that respondent testified particularly as to his Somerset Publishing Company stock, and could only remember in a general way that the result of

his testimony was that he was worth not ing. The notes of the testimony of the respondent referred to by the witness, purporting to be subscribed and sworn to by respondent before the commissioner, were offered in evidence, but the paper was objected to, it being a typewritten copy of the original, which was not produced or proved. The objection must be sustained and the contents of the supposed affidavit will not be considered. The respondent says in his testimony in this proceeding that he did not give to Eitzen the certificates of stock named as security for the loan made to him, as he had done before for loans made to him by Eitzen; that the stock in the Somerset Publishing Company represented cash he had paid into the company before its incorporation, and that he took the Avenue C stock from a person he had defended for a fee; that at the time of this transaction he took the publishing company stock to be of the value of its face, but he did not know actually; that whether or not the Avenue C Railroad Company was an active company at that time, he did not know anything about it, and told Eitzen so; that they discussed this certificate each time, and he told Eitzen that he did not know anything about its then value or prospective value. Mr. Eitzen was not called in rebuttal to contradict this testimony of the respondent. Where charges are made against an attorney at law, looking to his disbarment, involving a criminal offense or alleged moral obliquity, the court should not act upon them unless the evidence is clear. We think the proofs of fraud in this second charge fail to reach that standard, and considering also the staleness of the charge, especially as bearing upon the weight to be attached to evidence depending upon the memory of witnesses, our conclusion is that the Eitzen charge is not sustained.

As to the third charge, Mr. Weller, who is an attorney at law of this state, has testified that he was induced to take the bond and mortgage in question on behalf of himself and Mr. Lichtenstein, his partner, and pay for the same to the respondent the sum of $525, the deduction of $75 of the face value being allowed to cover the making of a search, etc., under the circumstances; that the respondent was a neighboring attorney of theirs on the same floor of the Hudson Trust Company; that on the date named, August 22, 1900, he came to witness' office and said that he owned a mortgage for $600, which he had gotten for a fee from a woman named Catharine Schuchardt, and it was just as good as gold; that Mr. Lichtenstein, witness' partner, wanted to accommodate respondent, but he did not, and told the respondent that he did not wish to buy the mortgage; that respondent came again and again, and was urgent, stating, among other things, that he just wanted the money to tide him over, and that he would take the mortgage back himself at any time if wit