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new act. Ex parte Yerger, 8 Wall. 105. In Wood v.
U. S., 16 Pet. 362, Mr. Justice Story, speaking for the
court upon a question of the repeal of a statute by
implication, said: "That it has not been expressly or
by direct terms repealed is admitted, and the question
resolves itself into the narrow inquiry whether it has
been repealed by necessary implication. We say by
necessary implication, for it is not sufficient to estab-
lish that subsequent laws cover some, or even all, of
the cases provided for by it, for they may be merely
affirmative, or cumulative, or auxiliary. But there
must be a positive repugnancy between the provisions
of the new laws and those of the old, and even then
the old law is repealed by implication only pro tanto
to the extent of the repugnancy." In State v. Stoll,
17 Wall. 430, the language of the court was that "it
must appear that the latter provision is certainly and
clearly in hostility to the former. If by any reason-
able construction the two statutes can stand together,
they must so stand. If harmony is impossible, and
only in that event, the former law is repealed in part MINNESOTA SUPREME COURT ABSTRACT.
or wholly, as the case may be." See also Ex parte
Crow Dog, 109 U. S. 570; S. C., 3 Sup. Ct. Rep. 396;
Arthur v. Homer, 96 U. S. 140; Harford v. U. S., 8
Cranch, 109. The entire argument in support of the
judgment below proceeds upon the erroneous assump-
tion that Congress intended to exclude all Chinese la-
borers of every class who were not in the United
States at the time of the passage of the act of 1882, in-
cluding those, who like the plaintiff in error, were here
when the last treaty was concluded, but were absent
at the date of the passage of that act. We have stated
the main reasons which in our opinion forbid that
interpretation of the act of Congress. To these may
be added the further one, that the courts uniformly
refuse to give to statutes a retrospective operation,
whereby rights previously vested are injuriously af-
fected, unless compelled to do so by language so clear
and positive as to leave no room to doubt that such
was the intention of the legislature. In U. S. v.
Heth,
3 Cranch, 413, this court said that "words in a statute
ought not to have a retrospective operation unless
they are so clear, strong and imperative that no other
meaning can be annexed to them, or unless the inten-
tion of the Legislature caunot be otherwise satisfied;"
and such is the settled doctrine of this court. Mur-

ray v. Gibson, 15 How. 423; McEwen v. Den, 24 id.
244; Harvey v. Tyler, 2 Wall. 347; Sohn v. Waterson,
17 id. 599; Twenty per cent cases, 20 id. 187. Chew
Heong. Opinion by Harlan, J.
[Decided Dec. 8, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

FROM BOTH

AGENCY-MIDDLEMAN-COMMISSIONS PARTIES.-One who in the sale or exchange of property, acts merely as a middleman to bring the parties together, they making their own contract, may recover compensation from both parties. Herman v. Martineau, 1 Wis. 151; Stewart v. Mather, 32 id. 344; Barry v. Schmidt, 57 id. 172; Rupp v. Sampson, 16 Gray, 398; Mullen v. Keetzleb, 7 Bush, 253; Siegel v. Gould, 7 Lans. 177; Shepherd v. Hedden, 29 N. L. 334. But where the person so doubly employed is more than a mere middleman, and acts as broker or agent in effecting the sale or exchange, he cannot recover; especially where the party sought to be charged was at the time ignorant of the employment by the other party. Meyer v. Hanchett, 39 Wis. 419; S. C., 43 id 246; Shirland v. The Monitor, 41 id. 162; Scribner v. Collar, 40 Mich. 375; Rice v. Wood, 113 Mass. 133. Here the evidence on the part of the plaintiff showed that Sweet acted as a middleman merely. Orton v.

Scofield.
Rep. 37.]
[Decided Nov. 6, 1884.]

Opinion by Cassoday, J. [See 46 Am.

RAILROAD-FENCES-INJURY TO CATTLE-ONUS ON PLAINTIFF-NONSUIT PROPER.-Under section 1810 of the Revised Statutes (ch. 193, L. 1881), in order to recover for the killing of an animal upon a railroad track at a point where it was unfenced, the owner must show that such animal got upon the track at a point where the company is bound so maintain a fence, and had neglected to do so. So where there was nothing in the evidence to show that the animal did not go upon the depot grounds, which the company was not hound to fence, and thence along the track to the place where it was killed, a nonsuit should have been granted. Bremmer v. Green Bay, etc., R. Co. Opinion by Cassoday, J. [Decided Sept. 23, 1884.]

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SHIP AND SHIPPING—ADMIRALTY JURISDICTION— PART OWNERS OF STEAMBOAT-ACCOUNTING SALE

STATE COURT.-S. owns one-third of a steamboat plying upon the navigable waters of the United States, and K. the other two-thirds. K. had for several years run the same for himself and S. There being a difference between them as to the state of the accounts of her earnings and expenses, and S. being dissatisfied with K.'s management of the boat and its business, and apprehensive of loss from its continuance, S. may maintain an equitable action in a District Court of this State for a partition of the boat by sale, and for an accounting, and upon a proper showing the court may properly direct an accounting, a sale, and the appointment of a receiver to effect it. The directing of an accounting between persons occupying the relations of plaintiff and defendant, the appointment of a receiver and the partition of personal property by sale or otherwise, are not common-law, but equitable remedies. Judd v. Dike, 30 Minn. 380; Freem. Co-tenancy, §426: Pom. Rem., § 221; 3 Pom. Eq., § 1329. They are therefore properly sought in the present action (Judd v. Dike, supra), and properly given by the judgment appealed from, unless relating as they do to a vessel plying upon the navigable waters of the United States, they are such as are afforded in "civil causes of admiralty and maritime jurisdiction," or what must be an equivalent expression in "civil causes," in the words of the Federal Judiciary Act (Rev. Stat. U. S., § 563), or "civil cases," in the synonymous expression of the Federal Constitution (art. 3, § 2) in courts of admiralty. If the remedies sought in this action are not afforded in admiralty then the subject-matter of the action is not within admiralty jurisdiction. Spear Fed. Jud. The following propositions appear to be well settled: First. A court of admiralty will not direct the sale of a vessel for the purpose of effecting a partition between different owners, except (1) as between two persous, each of whom owns one-half of the vessel, in which case, since the rule giving control to a majority interest cannot operate, the court will interfere out of regard for the public interest, in commerce or navigation; or except (2) (as some authorities hold), upon the application of a majority interest in the vessel under special circumstances. Steamboat Orleans v. Phoebus, 11 Pet. 175; Tunno v. The Retsina, 5 Am. Law Reg. 406. Second. A court of admiralty will not order an accounting as a separate and independent mode of relief, but only as incident to other matters of which it has admitted cognizance. Curt. Pr. 273; Tunno V. The Betsina, supra; Kellum v. Emerson, 2 Curt. C.C. 79; Steamboat Orleans v. Phoebus, supra; Davis v.

Child, Davies (2 Ware), 78; The Larch, 3 Ware, 28. Third. It hardly need be added the appointment of a receiver in this case is a mere incident of the sale, and hence of course something of which a court of admiralty would have no jurisdiction, in the absence of jurisdiction to order the sale itself. From these three propositions it follows that the subject-matter of the present action - the remedies sought and afforded in it-do not fall within the purview or scope of civil causes in cases in admiralty and maritime jurisdiction. Swain v. Knapp. Opinion by Berry, J. [Decided Nov. 25, 1884.]

NEGLIGENCE-SUBMISSION OF QUESTION TO JURYEVIDENCE-FAILURE TO RING BELL.-In an action to recover damages for injuries from a collision at a railway crossing with the wagon in which plaintiff was riding, her evidence tended to show that the team was driven with care, and that plaintiff and the driver were watching the road, and looking and listening for indications of danger as they approached the crossing; that they heard no signal, and had no warning of the approach of an engine from the west, but were unexpectedly overtaken by a switch engine from that direction, running backward down grade at a high rate of speed, with steam shut off, and without signals of its approach, which they did not discover till too late to avoid a collision. They were going east, the railroad being on their left, and approaching the street at a sharp angle, and above there was a cut which partially obscured the vision, terminating about 200 feet from the crossing. The evidence also shows that they had previously looked several times up the road in that direction, the last time when at a point from 50 to 70 feet from the crossing, and in the interval of about 10 seconds they were listening for signals or indications of a coming train, their attention being also arrested by the presence of another switch engine standing below the crossing apparently ready to move. Held, that whether the plaintiff was in the exercise of that degree of care which persons of ordinary prudence and intelligence would exercise in a similar situation depends upon the consideration of a variety of circumstances and inferences of fact which were proper for the judgment of a jury. And for substantially the same reasons that controlled the decision of this court in Loucks v. Railroad Co., 31 Minn. 530, we think this case was properly submitted to the jury. French v. Railroad, 116 Mass. 540; Chaffee v. Railroad Corp. 104 id. 116; Stackus v. Railroad Co., 79 N. Y. 467; Ochsenbein v. Shapley, 85 id. 224; Baldwin v. Railroad Co., 18 N. W. Rep. 884; Butler v. Railroad Co., 28 Wis. 504; Gaynor v. Railway Co., 100 Mass. 212. Exceptions were taken by defendant's counsel to certain instructions given by the court, to the effect that the failure to ring the bell or sound the whistle, and to keep a lookout for the crossings, if so the jury found the fact to be, was evidence of negligence, as it also was to run the engine at a dangerous rate of speed. Under the circumstances these exceptions were properly overruled, both because such evidence was proper to establish defendant's negligence, and also as bearing upon the question of plaintiff's conduct in the premises. Plaintiff in the discharge of her own duty to proceed with caution, and exercise due diligence to avoid danger, was, as we have before observed, entitled at the same time to expect the exercise of like reasonable care, and not culpable negligence, on the part of the defendant. Loucks v. Railroad Co., supra; Continental Co. v. Stead, 95 U. S. 161; Gaynor v. Railroad Co., 100 Mass. 213; Wylde v. Railroad Co., 53 N. Y. 161; Eppendorf v. Railroad Co., 69 id. 197; Owen v. Railroad Co., 35 id. 518; Shear. & R. Neg., § 31. Hutchinson v. St. Paul, etc., R. Co. Opinion by Vandenburgh, J.

[Decided Oct. 13, 1884.]

CORRESPONDENCE.

DENIALS ON INFORMATION AND BELIEF. Editor of the Albany Law Journal:

The communication of "H." (31 A. L. J. 159) suggests the remark that the language of the old Code as to the contents of an answer is the same as that of the new. They both say that the answer must contain a denial of the controverted allegations or (a denial) of any knowledge or information thereof sufficient to form a belief (of such allegations). The answer has nothing to do with such knowledge or information as may be sufficient to form a disbelief. It follows that denials and belief are superfluous, denials of knowledge or information being what are demanded. Where the answer denies any knowledge or information of a fact alleged sufficient to form a belief of it, such fact is not admitted and the plaintiff is put to his proof, and that conforms to the old chancery practice, and is all that the Code requires or intends. Respectfully,

B. W. HUNTINGTON.

NEW YORK, April 7, 1885.

PROVING WILLS IN TESTATOR'S LIFE-TIME. Editor of the Albany Law Journal:

In view of the discussion lately carried on in the newspapers and Legislature of New York about a proposed law for establishing wills during the life-time of testators, there may be some interest for your readers in a decision just rendered by the Supreme Court of this State, declaring inoperative the Michigan statute relating to that subject. Public Acts, 1883, p. 17.

In opinions by Judges Cooley and Campbell, the law is criticised as making no sufficient provision for its own enforcement, without conflict with other statutes not meant to be repealed. This first attempt in our jurisprudence to compel a living person, as a condition of relief, to enter upon a contest with those who until his death can have no recognition anywhere, and who after his death are presumed to represent him and not any hostile interest, is said to remove none of the difficulties aimed at, but rather to make them worse. It is not conceived possible that a proceeding can be dealt with as judicial, when the chief party to it will not be precluded by the decree from doing exactly as he might have done had the court never been called on to act at all. The result is that the courts cannot be called on to administer the law.

While it was to be expected that this new and singular statute might be faulty, the learned judges point out difficulties more radioal than have before been publicly suggested; and it may well be doubted if the law will ever recognize that new anomaly-what shall we call it a living testator with will annexed?

Yours truly, JAMES C. SMITH, JR. DETROIT, MICH., April 11, 1885.

THE INTEREST QUESTION. Editor of the Albany Law Journal:

If "Inquirer" will consult the statutes of the computation of time, and of the interest of money, he will find a complete auswer to his "interesting inquiry "in to-day's issue. By the first statute (1 R. S. 606) time shall be computed in this State by the Gregorian or new style. By that style years vary in length from 365 to 366 days, and the years are divided into twelve calendar months which vary in length from 28 to 31 days. Consequently from any day of one month to the corresponding day of the following or of any suc| ceeding month is one, two, or more calendar mouths. And in the case supposed from October 28 or any later day in the same month to February 28 (not bissextile)

www

is four calendar months; and to March 19, 4 months and 19 days.

By the second statute (1 R. S. 773, § 9) for the purpose of calculating interest, a month (by force of first statute a calendar month) shall be considered the twelfth part of a year * * * and interest for any number of days less than a (calendar) mouth, shall be estimated by the proportion which such number of days shall bear to thirty. It would seem then that the only correct and legal method for Inquirer to compute his sum "in interest by is to reckon interest for a year, and for the time supposed, take fourtwelfths plus nineteen-thirtieths of one-twelfth of it. The time supposed from October 25 to March 19 (no intercalated day intervening) would by the same rule be 4 months and 22 days. If our early answer helps Inquirer we are gratified; only next time "give us something a little harder."

"6

PRO TEM.

ELMIRA, N. Y., April 11, 1885.

NEW BOOKS AND NEW EDITIONS.

A very useful little pocket manual containing the rules and calendar practice of the Court of Appeals of the State of New York, and the United States Supreme Court; also the rules for the admission of attorneys and counsellors at law, and other useful information in relation to the courts, has been compiled aud published by Thomas W. Stevens, attendant upon the Court of Appeals, in a neat form, selling at fifty cents per copy. The book is well printed and neatly bound, and for completeness and accuracy the book is unequaled.

All orders addressed to Thomas W. Stevens, Albany, N. Y.

COURT OF APPEALS DECISIONS.

THE following decisions were handed down Tues

day, April 14, 1885:

Order granting new trial affirmed, and judgment absolute entered against the defendant on the stipulation, with costs-Edward Ellsworth, executor, etc., respondent, v. St. Louis, Alton & Terre Haute R. Co., appellant.Order of county judge and of Supreme Court at General Term reversed as to the judgment debtor, with costs-James A. Buchanan, respondent, v. L. Victor Hunt, appellant.-Judgment reversed, new trial granted, costs to abide the event-Richard Burke, administrator, respondent, v. Silas H. Witherbee and others, appellants; Robert R. Westover, executor, respondent, v.Etna Life Ins. Co., appellant.Judgment affirmed with costs-Maria J. Myres, exec'x, appellant, v. Mutual Life Ins. Co., judgment affirmed, and judgment absolute for defendant on stipulation, with costs; Alice J. Tiers, appellaut, v. Alex. H. Tiers, executor, respondent; Malinda Mangan, administratrix, appellant, v. City of Brooklyn, respondent; Chas. G. Alvord, administrator, appellant, v. Syracuse Savings Bank, impleaded, respondent; Stephen Lee and another, respondent, v. Lewis A. Stegman, sheriff, appellant; Randolph Burt, respondent, v. Hugh J. Jewett, receiver, appellant; John F. Peppard, v. Albert Daggett, sheriff; Minerva J. Dudley, administratrix, appellant, v. N. Y., L. E. & W. Railroad, respondent; Wm. H. Ellis, administrator, etc., respondent, v. N. Y., L. E. & W. Railroad, appellant; Isaac I. Cole, general assignee, appellant, v. Germania Fire Ins. Co., respondent; Mary C. Langley, respondent, v. Richard Wadsworth, executor, appellant; Cyrus H. McCormick, jr., executor, respondent, v. Pennsylvania Cen

tral Railroad, appellant; Frank A. Miner, administra tor, etc., respondent, v. City of Buffalo, appellant; Joseph Audrade and others, administrators, appellants, v. Samuel M. Cohen, administrator, respondent; People ex rel. Joel W. Mason, appellant, v. John McClave, respondent; Elizabeth J. Graham, executrix, appellant, v. Lewis H. Meyer, respondent; In re Settlement of account of Martin H. Yates, executor; Peter J. Ferris, appellant, v. Roswell R. Burrows, executor, respondent; Heury S. Dermott, executor, appellant, v. State, respondent; Susan A. Wheeler, administratrix, respondent, v. Delaware & Hudson Canal Company, appellant.Appeal dismissed without costs-Ansonia Brass & Copper Co., appellant, v. Wm. C. Connor and others, executors, respondent; George H. Converse, by guardian, appellant, v. Artemas B. Walker, respondent.-Order of Gener Term reversed, judgment of Special Term affirmed, with costs, payable out of the funds in the hands of the executors Edgar Williams and others, executors, respondents, v. Laura R. Freeman and another, appellants; Edm. M. Freeman and others, respondents.- -Judgment of General Term modified by striking out provisions relating to the "brick-house" property, and restoring as to that the judgment of the Special Term, and by changing the option for two years for one of six months, with permission during that period to apply to the Supreme Court for leave to deal with the tax titles or protect them from destruction, and as so modified affirmed, without costs to either party in this court-Jefferson Jackson, executor, respondent, v. Benjamin Andrews and others, appellants.- -On appeal of plaintiff; judgment of General Term affirmed with costs. On defendant's appeal, judgment of General Term reversed, new trial granted, costs to abide the event-Daniel R. Lyddy, executor, v. Selah Chamberlain, respondent. -Judgment affirmed, without costs to either party on this appeal-George Hyland and another, administrators, appellauts, v. Bernard Baxter and others, respondents.- -Order affirmed-Petition of the N. Y., L. E. & W. R. Co. lands of steamboat company. Order of General Term reversed, that of Special Term affirmed, with costs-Henry D. Kuight, respondent, v. N. Y., L. E. & W. R. Co., appellant.-Judgment affirmed and judgment absolute ordered against defend. ant, with costs-Mary L. Peck, respondent, v. William Vandemark, executor, appellant. Judgment of General Term affirming judgment of trial court affirmed, with costs-People ex rel. Edward T. Wood, appellant, v. E. Henry Lacome, respondent. Judgment reversed and complaint dismissed, with costs-Elisha Carpenter, executor, etc., respondent, etc., v. N. Y., L. E. & W. Railroad, appellant. Judgment affirmed and judgment absolute ordered against the plaintiffs, with costs-Sarah H. Peck, executrix, appellant, v. Andrew J. Peck, respondent.-Judgment of General Term, so far as it reversed the decree of surrogate, reversed and decree of surrogate affirmed, with costs to the appellants against the respondents, Mr. and Mrs. Stimson, In the Supreme Court and in this court. Dennis v. Stimson, executor, and others, respondents, v. Frederick C. Vrooman and others, appellants.Judgment modified without prejudice to the rights of any party in any subsequent proceeding to determine rights of Lucinda Comstock, whether upon an accounting before the surrogate, or otherwise, and as so modified affirmed, with costs, to be paid by the appellants, Bolton and Scriber, to the respondent, Gray-Ezra Caulkins, respondent, v. Danforth D. Bolton and others, administrators, appellants.Order of General Term affirmed and judgment absolute ordered against the defendant on the stipulation, with costsHenry D. Babcock, assignee, respondent, v. George R. Read, appellant.- -Appeal dismissed-People, appellant, v. Charles E. Poucher, respondent.

The Albany Law Journal.

ALBANY, APRIL 25, 1885.

CURRENT TOPICS.

A

CORRESPONDENT presents a novel scheme for the relief of our Court of Appeals. It is to make the judges do more work — i. e., write shorter opinions. The sufficient answer to this is that the judges do not write long opinions, except perhaps the Chief, who has not yet written opinions long enough to be able to make them short. In no other instance have we lately observed any undue tendency toward the reviewing and comparing of cases, and the like. It may also be remarked that the length of the opinion is not the criterion of the time necessarily spent in the examination of the

case.

It occurred to us while reading our correspondent's letter, that if the judges should write a very short opinion in a case in which his interlocutor was concerned, the critic would be as ready as any one to go about cursing the court. Our correspondent also suggests the compulsory shortening of arguments. We think he exaggerates the length of arguments in this court. Very seldom do counsel take their two hours in any case- never a whole session as he declares. But the idea that the court can, as he intimates, possess themselves sufficiently of the points in the average case in five minutes, and that they then yawn and look at the clock, is quite incorrect, and at. once gives too much credit to the judges' quickness of apprehension, and too little credit to their courtesy. The suggestion for filing briefs preliminarily is in our opinion unwise. The court learn more of the case from a few min

utes oral statement accompanied by the brief than from a long and tedious preliminary reading. There is no escape from the conclusion that the judges are not numerous enough to do the work. But who is going to do any thing about it, or about ameliorating our wretched and ridiculous "system" of law? The Legislature care very little for these weighty matters. Is it because there is no money in them? The welfare of the State is not always most dependent on bills with money in them. We would gladly see somebody in the Legislature evince a little positive interest in promoting the State's legal welfare. To those who oppose codification we address this appeal-let us see if you cannot suggest something better than what we have, and do not content yourselves with a mere short sighted opposition to what has been proposed.

The late Isaac N. Arnold, of Chicago, was a very distinguished lawyer, a patriotic and active citizen, and an accomplished man of letters. His Life of Lincoln has been published since his death, and has received high praise. We were pleasantly reminded of him by the view of a portrait of him now on exhibition at Annesly & Vint's picture gallery VOL. 31-No. 17.

in this city, painted by Mr. Penny, a work of exceptional merit, not only in its fidelity as a likeness, but in its strength, brilliancy, and absence of conventionalism as a painting.

Those who like ourselves believe in the system of the popular election of judges find occasion for regret now and then for the capriciousness of the electors. The recent defeat of Judge Cooley in Michigan furnishes such an occasion, and not only for regret but for astonishment. Judge Cooley is certainly one of the most learned and celebrated lawyers of this country. His legal writings have made him an authority and oracle in the department of Constitutional law; his works on Taxation and Torts are of standard excellence; his numerous

opinions are not surpassed in learning and good judgment by those of any of his contemporaries. We have been led to entertain the highest opinion of his integrity and impartiality. His name would unquestionably be included among the dozen leading jurists of this country by those best qualified to name them. And yet this eminent man has been fairly "snowed under " in a recent popular election. The result will take the whole country by surprise. It must of course be presumed that there is some alleged reason for this result, and consistency would lead us to concede that the citizens of Michigan ought to know best about the matter. But it will be very hard to make the citizens of other States believe that there has not been a great mistake of judgment. A veteran judge ought not to be discarded in his old age on account of any popular caprice or clamor, and it is probable that those who have done this thing will regret their course within a short time. We do not even know who Judge Cooley's successor is, but we do know that whoever he is he must suffer in comparison with his great predecessor, for granting him equal in all mental qualities, he cannot have had that long experience which has made Judge Cooley strong, and cannot have attained that reputation which has made his judgments authoritative at home and respected abroad.

The session of our Legislature is presumably drawing rapidly to a close, and we want to know what they are going to do about the Code. They owe it to the people of this State to do something about it—to pass it, or reject it, or constitute a commission to amend it. The last disposition was what the last Legislature did with it, but the gov

ernor for some reason (or no reason) failed to appoint the commissioners. We believe, and so do about one-half the lawyers, and a great majority of the laymen, that the best thing to be done is to pass the Code, to take effect a year or two hence. This is the only way to get a Code that will approximate to satisfying everybody, Even this will not satisfy the small body of New York city obstructionists who are hostile to all codificațion a small body, but highly respectable, quite influential, ad

mirably organized, and very much in earnest — and who have many advantages over their antagonists. Our Legislature must some day wake up to the fact that other people than lawyers have rights and interests in this matter.

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NOTES OF CASES.

IN

We give place with pleasure to Mr. Cowen's elaborate essay against the Code in another column. We are always ready to give our antagonists a hearing, to show them that we are not afraid of them, If we are not afraid of Mr.

N City of Rochester v. Close, 35 Hun, 208, it was held that a city charter authorizing ordinances "to regulate the ringing of bells and the crying of goods, and other commodities for sale at auction or otherwise, and to prevent disturbing noises in the streets," does not authorize an ordinance for

if for no other reason.

Cowen we certainly need not be afraid of any body. bidding all sales of watches, jewelry, silver and His communication forcibly demonstrates how little the greatest wit of the New York bar can find to silverplated ware, diamonds, pearls, and other jewelers' goods by auction after sunset of any day. say against the Code. The passage of the Code The court said: "We think it is manifest from a will increase the number of law reports, and subsecareful reading of this statute that taken together quent codifiers will tinker with it - this is the it was intended to authorize the common council to substance of Mr. Cowen's argument. We have pass such ordinances relating to the matters emnever denied that the enactment of the Code will braced therein as would insure the peace and quiet temporarily increase the number of law reports. But it will not do so to the same extent as the enof the public, and prevent such noises and disturbactment of the Code of Procedure, because that ances in the streets of the city as would tend to deinaugurated an entirely new and strange system, stroy the same. It has been, and is an almost universal custom to employ persons known as criers while this will simply enact the law as now settled. to announce sales of property at auction, such crier Then again, in considering the number of law reports, two things must always be borne in mind; a going about the streets ringing a bell for the purpose of attracting attention, and then making procnew system is not responsible for the vast number lamation of the place where, and of the kind of of unnecessary and unauthorized reports spawned Webster by the booksellers, and the enormous increase of goods or property to be sold at auction. defines the word cry as follows: 'To make oral and litigation in our time will necessarily account for a considerable increase. We thank Mr. Cowen for his public proclamation of, to notify or advertise by outcry, especially things lost or found, goods to be -the stock argu-sold, etc., public advertisements by outcry, procla

reference to the Statute of Frauds.
ment of duller wits and ask him not that we
expect an answer - is it not about time to re-enact
the statute in language that shall tell what it means,
as the sum of all the constructive judicial legislation
upon it? As to subsequent codifiers, sufficient unto
the day is the evil thereof. We must do right,
although others may do wrong. But it is quite
possible— nay, altogether certain, that revisions of
any Code will be demanded and needed. Whatever
may occur in this way, we may be sure that the
law makers will not be changing the law every day,
as the judges are now doing.

mation, as by hawkers of their wares.' The statute
authorizes the council to regulate the 'ringing of
other commodities for sale at auction or otherwise,
bells, and the crying (not selling) of goods and
that is, the advertising of any sale of goods by oral
this manner of advertising a sale that the statute
and public proclamation, by outcry, and it is to
refers, and to regulate which it confers authority
upon the common council. It will be observed
that the statute authorizes the council to regulate

the crying of goods and other commodities for sale in any other manner than at auction, which, if the sale is authorized to be made the subject of regulation, would extend to every sale made at retail over the counter in the ordinary course of business. It will not be contended that the statute would apply in such a case, or confer any authority upon the council to in any manner regulate such a sale, yet the language of the statute includes such a sale as completely as a sale at auction. Should a merchant adopt the plan of advertising his goods for sale by oral and public proclamation by outcry, such manner of advertising could be regulated by ordinance of the common council. This was the authority intended to be conferred by the Legislature in passing the statute under consideration, and the language employed being apt for that purpose, it cannot be extended to embrace other subjects not within the legislative intent. The ordinance in

are now, with remarkably few exceptions, unanimous in its commendation."

But after all, Mr. Cowen and all the rest in this State are mere theorists. Testimony as to the practical working of the Code is much more valuable than the most ingenious theories. This Code is substantially the law of California, and has been for several years, and here is what ex-Chief Justice Wallace, of that State, says of it: "I think the Civil Code the most important and beneficial piece of legislation that has ever been enacted in California. It has effected more for our people than all other legislation taken together since the foundation of the State. I have never seen an unfavorable criticism of it which was in my judgment well founded. I believe that while at first there was some inclination in our profession to hesitate about the propriety of its adoption, our bench and bar

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