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a book for C. under a certain agreement. After the work was done C. accepted the books, but sued G. for damages, alleging that the book was printed on an inferior quality of paper, and a judgment of $300 was recovered. C. now asks to have his note held by G. for $250, on which $130 is due, surrendered to him without his giving credit therefor on the judgment. Held, "that he who asks equity must do equity;" that the note should be surrendered upon C. giving credit for the $130 on the judgment. N. J. Ch., July 17, 1886. Crandall v. Grow. Opinion by Bird, V. C.

CRIMINAL LAW - GOOD CHARACTER OF ACCUSED EFFECT OF.-Proof of previous good character held not sufficient to rebut the presumption of guilt arising from the possession of stolen property under the circumstances of this case. Counsel arguing in support of this appeal concede that the possession of recently stolen property raises a presumption against the person so found in possession of such property, to the extent of requiring him to give at least a reasonable account of the manner in which he came into such possession, but insist that proof of previous good character is sufficient to rebut the presumption of guilt thus raised, and that under that rule of evidence, the defendant became entitled to an acquittal in this case, citing Clackner v. State, 33 Ind. 412, in support of their position. Whatever the case thus cited may be construed as really deciding, we regard the doctrine contended for above as against the great weight of authority. Proof of previous good character is admissible, in this State, on behalf of the defendant in all criminal prosecutions, as tending to have, or as likely to have at least a mitigating influence in some re- spects favorable to the defendant; but the value of such proof, and especially its relative value, must always depend upon the circumstances of each partic ular case. Such proof may in some cases create a doubt in favor of the defendant where the circumstances, in other respects, tend to establish his guilt: but as to when such proof ought to be accepted as creating such a doubt no definite rule can be stated. 1 Tayl. Ev., § 326; Whart. Crim. Ev., $$ 60-67; Kistler v. State, 54 Ind. 400; Rollins v. State, 62 id. 46; McQueen v. State, 82 id. 72. In the cause in hearing the defendant did not admit his possession of the stolen property, and hence offered nothing in explanation of such a possession. If in fact he had possession of the horse in the woods, as claimed by Stibbe and Pike, his hastening away and abandonment of the possession of the animal, was under the circumstances seemingly inconsistent with an honest possession, and with previous good character. The theory of his defense was, that as to him, the case was one of mistaken identity, and in support of that theory, evidence tending to prove an alibi was introduced. The proof of previous good character, relied upon by counsel, was not consequently, in legal contemplation, admitted to rebut the presumption arising from the possession of the stolen property, but was rather to strengthen the evidence tending to prove an alibi, and in this way to increase the probabilities that the case was one of mistaken identity. Ind. Sup. Ct., June 18, 1886. Wagner v. State. Opinion by Niblack, J.

EVIDENCE HANDWRITING-COMPARISON OF HANDS. -Upon a trial of an issue as to the genuineness of a writing, other instruments admitted to be genuine, but not otherwise relevant, may be received in evidence for the purpose of comparison of hands. At common law, and generally in the United States, it has been the rule that where other writings, admitted to be genuine, are already in evidence for other purposes in the case, comparison may be made between such writings and the instrument in question. If such a comparison is conducive to the ends of truth,

and is allowable, there would seem to be but little reason for refusing to allow a comparison with other writings admitted to be genuine, although not in evidence for other purposes. The objections which have been urged to receiving other instruments, for the purpose of comparison, have been the multiplying of collateral issues; the danger of fraud or unfairness in selecting instruments for that purpose, from the fact that handwriting is not always the same, and is affected by age, and by the various circumstances which may attend the writing; and the surprise to which a party against whom such evidence is produced may be subjected. When the writings presented are admitted to be genuine, so that collateral issues are not likely to arise, nor the adverse party to be surprised by evidence which he is unable to meet, these objections seem to us to be insufficient as reasons for excluding the evidence. If such evidence has apparent aud direct probative force, it should not be excluded unless for substantial reasons. In general, and from necessity, the authenticity of handwriting must be subject to proof by comparison of some sort, or by testimony which is based upon comparison, between the writing in question and that which is in some manner recognized or shown to be genuine. This is everywhere allowed, through the opinions of witnesses who have acquired a knowledge, more or less complete, of the handwriting of a person; as by having seen him write, or from acquaintance with papers authenticated as genuine. In such cases the conception of the handwriting retained in the mind of the witness becomes a standard for comparison, by reference to which his opinion is formed, and given in evidence, It would seem that a standard generally not less satisfactory, and very often much more satisfactory, is afforded by the opportunity for examining, side by side, the writing in dispute and other writings of unquestioned authenticity; and this, we think, is in accordance with the common judgment and experience of men. The evils that may be suggested as likely to arise from the selection of particular writings for the purposes of comparison, may be left, as all unfair or misleading evidence must be, to be corrected by other evidence, and by the intelligent judgment of the court or jury. In our opinion, such evidence is conducive to the intelligent ascertaining of the truth, and the receiving of it in this case was not error. We cite authorities sustaining this view, some of which go further in this direction than does our present decision. Tyler v. Todd, 36 Conn. 218; Moody v. Rowell, 17 Pick. 490; State v. Hastings, 53 N. H. 452; Adams v. Field, 21 Vt. 256; State v. Ward, 39 id. 225; Fariners' Bank v. Whitehill, 10 Serg. R. 110; Travis v. Brown, 43 Penn. St 12; Chance v. Indianapolis & W. G. R. Co., 32 Ind. 473; Macomber v. Scott, 10 Kan. 335; Wilson v. Beauchamp, 50 Miss. 24. Minn.Sup. Ct., July 13, 1886. Morrison v. Porter. Opinion by Dickinson, J.

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EXECUTORS AND ADMINISTRATORS JUDGMENT AGAINST ESTATE-BY DEFAULT LIABILITY OF SURETIES WHEN ESTATE INSOLVENT.-An administrator of the estate of a deceased person, who is defaulted in an action brought by a creditor of the deceased, is not to be conclusively presumed to admit assets by failure to make a defense, where the estate afterward proves to be insolvent, and the creditor does not gain any priority over other creditors, and does not gain the right to call upon the administrator or his sureties to pay the judgment. The plaintiff contends that such defense is not open after a judgment is obtained; that by allowing such judgment to be rendered, the administratrix conclusively admits credits sufficient to pay the judgment, and the sureties in a suit upon the bond are bound by this admission. It may be assumed that a judgment against the administratrix is conclu

sive as to any defense which was or could have been pleaded in the action, except the defense of the special statute of limitations, which stands upon grounds peculiar to itself. Robinson v. Hodge, 117 Mass. 222, and cases cited. But the defense relied upon was not, and could not have been pleaded in the original suit in this case. No account had been settled showing that all the assets were exhausted. The defendant does not now attempt to impeach the judgment, but he proves that since the judgment was rendered facts have occurred which show that there are no assets of the estate with which to pay it. Under our system, where a creditor sues an administrator for a debt due from the estate, the question of the amount of assets is not ordinarily involved in the suit, and it is difficult to see why an administrator who is defaulted in such a suit should be held to admit assets so as to bind himself and his sureties personally if the estate afterward turns out to be insolvent. A creditor may sue at any time after the expiration of a year from the filing of the bond, but an administrator is not obliged, at his peril, to ascertain within the year whether the estate is solvent. The amount of the property and of the debts may both or either be thus unascertained and uncertain; and if after the year has expired, he ascertains that the property is not sufficient to pay the debts, it is his duty to represent the estate insolvent. If in the mean time any creditor has obtained a judgment, he can prove the amount of it in the insolvency proceedings. By obtaining judgment he does not obtain any priority over other creditors, and we can see no good reason why he should gain the right to call upon the administrator or his sureties to pay the judgment, although the estate is insolvent. The principal obligation of the bond is that the administratrix shall faithfully administer all the assets which come to her hands, and we are of opinion that it is open to the sureties in this suit to show that she has applied all the assets to the payment of preferred charges and claims, by showing the settlement of an account under the statute. It seems to us that this conclusion is supported by reason and by the weight of the authorities. There are two modes in which the personal liability of an administrator, upon a judgment against him in his representative capacity, can be established aud enforced by the judgment creditor, by scire facias upon the judgment, and by a suit upon the bond. It was held in the early and well-considered case of Coleman v. Hall, 12 Mass. 570, that in scire facias on a judgment recovered against an administrator, it was a defense to show that after the judgment, a representation and adjudication of the insolvency of the estate was made. This was approved in Shillaber v. Wyman, 15 Mass. 322, and extended to a case where the estate was represented insolvent after the scire facias was brought. It was also approved in Walker v. Hill, 17 Mass. 380. The other remedy of a judgment creditor is by a suit upon the bond. It cannot reasonably be contended that the liability of the executor or his sureties is greater in a suit upon the bond than it is in scire facías upon the judgment, and therefore the cases we have referred to are applicable to the case at bar, and show that the defense is maintained. The case of Newcomb v. Goss, 1 Metc. 333, is opposed to this view, but it is irreconcilable with the earlier decisions, which seem to us to be founded upon better reasons. Jud. Ct., July 3, 1786. Fuller v. Connelly. Morton, C. J.

Mass. Sup.
Opinion by

INJUNCTION RIGHT OF FRAUDULENT GRANTEEHOLDER OF LEGAL TITLE.—Ân injunction to restrain the defendant from proceeding in an action of ejectment against a tenant of land, which such defendant has legally purchased in an attachment sale, will not be issued at suit of an adverse claimant to the land,

whose title was knowingly acquired through a conveyance in fraud of creditors. N. J. Ct. of Errors and App. Nov., 1885. Powers v. Canada. Opinion by Scudder, J.

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MARRIAGE DOWER-TAXES DEED - WIFE NOT JOINING-ESTATE OF GRANTEE-IMPROVEMENTS — AS

SESSMENTS.-The grantee in a deed of lands executed by the husband alone, becomes with regard to the wife, who did not join, tenant pur autre vie. Hence after the husband's death, dower should be assigned free of taxes, on the principle that tenants for life in possession are bound to meet the annual charges upon the estate, so that they may not become a charge against those entitled in remainder. Cairns v. Chabert, 3 Edw. Ch. 312; Deraismes v. Deraismes, 72 N. Y. 154; Cadmus v. Combes, 37 N. J. Eq. 164. But the assessments stand on a different footing. They represent permanent improvements of the property made after the husband conveyed. If these betterments had been constructed by the alienee, the dowress would not have been allowed to derive any advantage from them, and therefore would not have been allowed to derive any advantage from them, and therefore would not have been chargeable with any part of their cost. "If the husband make a feoffment in fee of lands, and the feoffee build thereon, and improve the same greatly in value, yet the wife of the | feoffer shall have dower only according to the value it was of in the husband's time; for if such feoffment were with warranty, the heir would be bound to render only the value as it was at the time of the feoffment." Bac. Abr. "Dower," B. 5; Van Dorn v. Van Dorn, Penn. (N. J.) 697; Chiswell v. Morris, 14 N. J. Eq. 101. But the improvements were not constructed by the alienee; they were made by the government, which must be regarded as acting with the assent and for the benefit of all persons interested in the property. Wadham v. Marlowe, 8 East, 314, 317, note; Griswold v. Waddington, 16 Johns. 438, 447. The betterment therefore should inure to the advantage of all parties, but of course upon condition that they equitably share the expense. Pratt v. Douglas, 38 N. J. Eq. 516. On assignment of dower the widow will become tenant for life of one-third of the property, including, as already indicated, one-third of its betterments, and she should pay an equivalent for the advantage which she will thus gain beyond what her mere dower right would afford. The improvements were purchased, and are represented by the principal of the assessments, and the enjoyment of them for any time is worth the interest upon that principal. Plym ton v. Boston Dispensary, 106 Mass. 544. N. J. Ct. of Errors and Appeals, Nov., 1885. Jonas v. Hunt. Opinion by Dixon, J.

NOTE FROM HUSBAND TO WIFE CONSIDERATION. A promissory note given by a husband to his wife, or to a third party for her benefit, to help take care of the wife and her child, does not change their relative rights and obligations, and hence is not supported by a legal consideration. The vital question is what was the consideration for the notes. The wife had some income of her own. She had by her income and her labor supported herself and her child for some time. The defendant, her husband, had not contributed for some time to their support. What thing, or right or claim did the wife give up for these notes? What gain or relief did the husband gain by giving them? The wife had no cause of action against her husband for what she had done in the past for the support of herself and child. She would have had no legally charge him as her debtor with sums so excause of action for future self support. She could not pended. Third parties furnishing such support might have claims therefor, enforceable by action against the

husband, but the wife herself would not have such a claim. Her remedy for non-support was by divorce, which remedy she availed herself of. The husband was legally bound to support his wife and child before giving the notes, and he was equally so bound afterward. He obtained no release from any obligation. It does not appear that she agreed to support herself or child thereafter, or to relieve him of any part of his legal obligations. The notes were only to help. He obtained no advantage, and she gave up no advantage. Had she written to him at Bangor for money for the same purposes for which the notes were given and he replied that he would send the money the next week, such a promise would not be a debt against him nor against his estate after his decease. Property conveyed by him to her to satisfy such a promise could not be held by her against his creditors. Probably a husband often promises money to his wife for her past and future expenses, but such promises are never thought to constitute the wife the legal creditor of the husband. These notes were only similar promises more formally evidenced. They were not gifts, but only promises. The consideration can be inquired into as they have not been transferred. The writing and delivery of these notes caused no change in the situation, or in the relative rights or duties of either party. Nothing was acquired by the one, or surrendered by the other. The wife's account of the transaction shows it was not a businesss one, and that the notes were not given for a legal consideration. Me. Sup. Ct., June 25, 1886. Fuller v. Lumbert. Opinion by Emery, J.

MASTER AND SERVANT-LIABILITY OF MASTER FOR SERVANT'S TORT AGAINST ANOTHER SERVANT.- The master is not liable to third persons for the servant's torts or willful acts, done without his authority. The plaintiff was a "rouster" on a boat running between Memphis and Arkansus City, under the defendant. His duties were to assist in loading and unloading freight, under the direction of the first mate. While 80 engaged some words passed between plaintiff and the mate, and the latter struck him, and for this plaintiff brings his suit against the company to recover damages. The part of the charge to which exception is taken is as follows: "If you find the mate was employed or directed by the defendant to do this wrong, or that it was within the ordinary course of the duties which he was employed to do," the defendant is liable; if not, the defendant is not liable. No other part of the charge is copied in the record, or excepted to, and the presumption is that it was in all respects correct. It is in substance, if the mate was directed to commit the assault, or if it was committed in the course, and within the scope, of his employment, defendant would be liable, if not, he would not be liable. There is certainly no error in the charge. But the argument is, that the mate being an employee of defendant, the latter is liable for the torts of the former, committed while so employed. The immediate cause of the difficulty was that the mate required the plaintiff to walk faster in carrying in bags of freight, from which words followed, and the blow or blows were struck. In Puryear v. Thompson, 5 Humph. 397, Judge Green, delivering the opinion of the court, said: "No principle is better settled than that a master is liable for the injuries done to others by his servant's negligent conduct while in his employment; and it is equally well settled that he is not liable for his servant's torts, or willful acts, done without his authority;" citing Story Ag. 470, note, 474, 475; Story Bailm. 266; Kirby v. State, 7 Yerg. 267; and in Cantrall v. Colwell, 3 Head, 474, and Lowe v. State, 14 Lea, 204, the same doctrine is held and authorities cited. It is clear that in this case the act complained of was not done

within the scope of the servant's employment, and the defendant is not liable. The report is approved, and the judgment will be affirmed. Tenn. Sup. Ct., June 5, 1886. Smith v. Memphis & A. C. Packet Co. Opinion by Deaderick, C. J.

MUNICIPAL CORPORATION-BOARD OF PUBLIC WORKS -ILLEGAL CHANGE OF GRADE-PERSONAL LIABILITY.

-When a board of public works, without the proper authority, changed the established grade in a street, they are personally liable for any damage occasioned thereby. Cooly Torts, 317, 319; Dill. Mun. Corp. 600; Cuming v. Prang, 24 Mich. 514; Tearney v. Smith, 86 Ill. 391; Brown v. Howard, 14 Johns. 119; Coventry v. Barton, 17 id. 142; Fiedler v. Maxwell, 2 Blatch. 552; Tracy v. Swartwout, 10 Pet. 80; Smith v. Colby, 67 Me. 169; Buskirk v. Strickland, 47 Mich. 389; Cubit v. O'Dett, 51 id. 347. Mich. Sup. Ct., July 15, 1886. Larned v. Briscoe. Opinion by Champlin, J.

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NEGOTIABLE INSTRUMENT CONSIDERATION -OPTIONS IN GRAIN.-No recovery can be had on a promissory note, executed in the State of Illinois, where the consideration on which it is based arises from op. tion deals in grain, even though the note may be owned and held by an innocent bona fide holder. The only defense interposed is that the consideration on which the notes were based was an illegal one, the same having been given in furtherance of a gambling contract -better known perhaps as an option deal" in grain. The jury, by their special findings, fully sustained the truth of the matters on which the defendant relies for his defense. The only question necessary to consider here is, do the facts relied on by the defendant constitute a defense to notes given under such circumstances, when the same have been transferred, before due, to an innocent bona fide purchaser, who brings suit here to enforce the payment thereof? The payees in the note induced the defendant to embark in "option dealing" with them, and without any intention on the part of either to deliver any grain, as provided by their contracts. The transactions, as they were carried on from time to time, led to the payment of profits and the repayment of losses sustained by the defendant. The venture however in the end proved quite disastrous to the defendant, and finally culminated in bis giving the notes in suit. At the time the notes were given the laws of the State of Illinois declared that notes given for such consideration should be deemed and held void. If the payees in these notes had brought suit in the State of Illinois, to enforce payment of the same, the result could not have been considered doubtful. There would have been no question of good faith on the part of any one for the court to consider. As the laws of the State of Illinois denounce such vicious transactions, and declare to be void notes given in connection therewith, it is not perceived how an innocent purchaser stands in any better attitude than the payees, who knew all about the facts and participated in the wrongs. If the notes were void when given, they were void for all purposes and for all time, and any number of transfers would not avail an innocent holder. If the plaintiff has any remedy against any one, and if he is really an innocent purchaser, for value, as he claims, he must seek his redress against the parties who have most likely sought to use him to accomplish a purpose in which they were bound to fail had they sought relief in their own names. U. S. Cir. Ct., Dist. Neb., June 26, 1886. Root v. Merriam. Opinion by Dundy, J.

RAILROAD - NEGLIGENCE -RIGHT OF WAY OVER TRACKS. In an action of tort against a railroad company for injuries sustained by plaintiff, who went upon the tracks of defendant from a path leading to said

tracks, which was not shown to be a defined pathway extending from one public road or place to another; which had not been used by the public for twenty years, was not a right of way appurtenant to the estate occupied by the plaintiff, and was not laid out by the railroad company, or used for its convenience; held, that the plaintiff was a trespasser-the facts stated not amounting to an invitation, express or implied, by the railroad company to the public to use the path for the purpose of crossing its tracks; and that she could not maintain an action against the company for injuries sustained in consequence of being hit by a train of freight cars while crssing the tracks, in the absence of evidence that there was reckless or willful misconduct on the part of the defendant. The fact

Mich. Sup. Ct., July 15, 1886. Gates v. Nelles. Opinion by Morse, J.

IN

STATUTE OF FRAUDS GUARANTY EMBODIED LEASE CONSIDERATION.-Where a contract of guaranty is entered into contemporaneously with the prin cipal contract, and is either incorporated in the latter, or so distinctly refers to it as to show that both agreements are parts of an entire transaction, the statute of frauds does not require a consideration to be expressed in the guaranty distinct from that expressed in the principal contract. This principle applies to a guaranty embodied in a written lease. In such case the consideration of the guaranty is apparent upon the face of the whole agreement, and that is enough. Wilson S. M. Co. v. Schnell, 20 Minn. 40, 46 (Gil. 33);

that a person living on a street has acquired a private Bailey v. Freeman, 11 Johns. 221; Church v. Brown, 21

right of way from said street over a railroad cannot avail another person, living on the same street, who desires to make use of the way. The plaintiff contends that the evidence showed that the defendant held out to the public an inducement and invitation to use that path by the peculiar construction and adaptation of the premises, as well as by the acts or declarations of its agents. There was no express invitation by the defendant or its agents. The plaintiff was not using the way for the purpose of transacting any business with the defendant or its agents, or of crossing upon the property of the defendant for the purpose of doing any thing except to cross its road-bed to go to school. The way across the switch tracks was not planked or prepared for use in any manner except that a clear passage had been left through the ridge formed by throwing up dirt from the ditches on the side of the track. A mere permission or license from the defendant to cross the track is not an invitation. Whether the construction of a crossing over a railroad is such as of itself to amount to an invitation, or evidence for the jury of an invitation by the railroad company to the public to use the crossing for the convenience of the public, must be determined by considering whether the construction was such as reasonably to induce the public to believe that the crossing was a public way. Murphy v. Boston & Albany R. Co., 133 Mass. 121. The want of a planking over the switch track, the absence of public ways or public places on each side of the track with which the crossing was immediately connected, the different directions taken by persons using the path, and the irregular course of the path used by plaintiff after it crossed the switch track from the north, all tend to show that it was not prepared by the defendant corporation with the intention that it should be used as a public way. As the plaintiff was on the track without right, and as there is no evidence of willful or reckless misconduct on the part of the defendant or its agents, the court properly ruled that the action could not be maintained. Johnson v. Boston & M. R., 125 Mass. 75; Wright v. Boston & M. R., 129 Mass. 440; Morrissey v. Eastern R. Co., 126 id. 377. Mass. Sup. Jud. Ct., July 3, 1886. Wright v. Boston & Albany R. Co. Opinion by Field, J.

SALE-MUTUAL ASSENT PARTNER OFFERING "TO GIVE OR TAKE"-ACCEPTANCE-CONDITIONS.-An offer by one partner to give a certain sum for the other partner's interest in the firm, or to sell his own interest for the same sum, concluding with the words, "the party purchasing to give sufficient security for the payment of company indebtedness, and for purchase price," which offer was accepted by the other partner, "to sell on the terms mentioned," held, not to be a complete sale, and that the first offer was only one of the steps leading to a sale, which contemplated that parties should meet, and complete transaction.

N. Y. 315: Simons v. Steele, 36 N. H. 73; Nabb v. Koontz, 17 Md. 283; Culbertson v. Smith, 52 id. 628, 634; 1 Reed St. Frauds, 433, 436. This principle controls this case. The judgment is affirmed. Minn. Sup. Ct., July 1, 1886. Highland v. Dresser. Opinion by

Dickinson, J.

OTHER.

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PROMISE TO ANSWER FOR DEBT OF ANAn oral promise to pay of the debt another, as to which there is nothing indicated to take it out of the statute of frauds, cannot be enforced. Mich. Sup. Ct., July 15, 1886. Opinion by Campbell, C. J.

MEMORANDUM-LEASE-AGENT-TELEGRAM.

In an action of contract for breach of an agreement to take a lease, it appeared that the defendants' agent wrote to the defendants a letter containing a description of the premises, and stating the annual rent for a term of five years; the questions of the letter being whether the premises and amount of rent were satisfactory to the defendant, but the letter did not state or refer to the particular terms or conditions of a lease. The defendants in answer sent the following telegram: "If basement included at four thousand, secure five years' lease." A letter sent by the agent to the defendants on the day the telegram was received by him stated that the lease at $4,000 included the basement, and that he would close the matter the next day. The agent had no authority to accept a lease. Held, that there was not a sufficient memorandum in writing to satisfy the statute of frauds; held also, that letters written by the defendants subsequently, referring to an incomplete lease, had no bearing on the question. Mass. Sup. Jud. Ct., July 2, 1876. Hastings v. Weber. Opinion by W. Allen, J.

CORRESPONDENCE.

FIGHT IT OUT, IF IT TAKES ALL SUMMER.
Editor of the Albany Law Journal:

Just one word more: The title of chapter 672, Laws of 1886, is "An act to amend the Code of Civil Procedure." The margin of the published laws opposite section 5 reads: "§111 amended." When section 5 of that act was passed there was no section 111 to "read." It had been bodily stricken out of the Code three years before, and it was nonsense for the Legislature on the 15th of June to say that students of the Code thereafter "shall read a section which had no existence for three years. Where your correspondent "J. T. C. finds in connection with this matter his last quotation, I cannot discover.

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The Albany Law Journal.

ALBANY, SEPTEMBER 11, 1886.

CURRENT TOPICS.

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that we shall be only formally governed by legislation, and really by some one, two or more learned lawyers who draw out the code." Grant this; but would Mr. Parker think any the less of our various bodies of revised statutes, many of which, as notably in this State, are really so far as they go, in great part a code written by a few learned lawyers? Mr. Parker closes by quoting Mr. Phelp's eloquent but harrowing vaticinations of woe in view of the adoption of codes.

"A Legal Mummy" is the very appropriate title of an address by Aldace F. Walker, of Rutland, Vt., as president of the Vermont Bar Association, in October last. The "mummy" is the Dartmouth College case, which in the orator's judgment, as well as in our own, has outlived its usefulness and has become "more honored in the breach than in the observance." Although its principles have been overruled substantially over and again, our courts continue to prostrate themselves before it as the Hindoo before an ugly idol in which he has ceased to believe, merely from force of long habit, and as Cicero says the Roman augurs went about smiling to one another at the oracles which they themselves had delivered, so the judges protest the sacredness of the once honored decisions in the same breath in which they "knock the stuffing out of it." In this "courtesy " of the judges we discover another cause of the “uncertainty of the law." When a case is thoroughly overruled, why cannot judges say so? Chief Justice Marshall has been so long in his grave that he would not care. Indeed, nobody would care except the ancients of the American Bar Association who would lose one of their most fertile texts. There never was a case more marked by back-stairs influence than this. Even the "god-like Daniel," whose feelings on the argument became too "many for him," originally had a retainer of twenty dollars on the other side! Justice Story also openly announced himself on the other side at the outset. "Chancellor Kent was converted to the plaintiff's side, and his expression of revised opinion was conveyed to the Supreme Court judges. Pamphlet literature was circulated, in the preparation of which Webster had a hand." All this pressure and much more was brought to bear during the year of consideration during which the judges were unable to agree. The most disgraceful incident was at the last. The case had been very lamely argued on the other side, and Pinkney had been employed to move for a re-argument. About November 1, he gave notice that he should move for a re-argument, and on the opening day of the court in February he was present, in readiness to commence proceedings. But although the court was undoubtedly aware of his purpose, "the instant the judges had taken their seats the

MR. R. CORTLANDT PARKER, in his minority report to the American Bar Association on the Delay and Uncertainty in Judicial Administration, starts out with averring that most of the delay is the fault of the lawyers, judges and suitors. Parties being determined to have the best lawyers, select the busiest he says. Of course there is something in this argument, but not every thing, or it would go hard with the sixty-five thousand lawyers who are not the best. He also thinks that more debts were collected when collection laws were slower. He also praises the system of New Jersey, especially its separation of law from equity, and declares that there is no delay there. It seems however that there is a loud cry for fusion there, and it is certain that no other State of equal population has so little litigation, judging from the reports, and so many judges in the appellate courts. And yet with all his admiration for the jurisprudence of his State, in which to a large extent we join, he must admit that there is something radically wrong in a system of laws under which the ultimate court of fifteen frequently unanimously reverses the inferior courts, on questions of common law, and where the oracles of the sacred chancellor are sustained sometimes only by a divided vote, and sometimes ruthlessly set aside. Mr. Parker would adhere to jury trial, believing that "a verdict satisfies the community tenfold more thoroughly than merely judicial decisions." He might well add that it satisfies the suitors better. He approves in the main the report of the majority as to the "contingent fee business." Mr. Parker, as is well known, is opposed to codification. He is in error, we believe, in saying that the New York code fills six volumes. Mr. Field's four well known codes make but four slender volumes. It is true that Mr. Throop infected the Code of Civil Procedure with dropsy, but still one volume may comprise it. Mr. Parker asks if there are no lawyers in France, Germany or Italy, or in Louisiana or California? We answer, comparatively few in the foreign countries, at least. Mr. Parker concedes that one method of establishing the common law is, "when doubt is dispelled or when the majority agree, in statutes," subject to judicial exposition. In these words are to be found all that the advocates of codification strenuously contend for; "so far as its substantive principles are settled," says the resolution, it should be reduced to the form of a statute. One of the most effective arguments at Saratoga against codification was the averment that legisla-Chief Justice turned his 'blind ear' toward Pinkney, tures are not fit to make a body of laws. Of course the evident answer to this is that they are not to be called on to do it, but that work is to be done by expert legal scholars judges if you please. Mr. Parker seizes on this evident fact as an argument VOL. 34 No. 11.

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shut off his motion by commencing to read the opinion, and so disposed of the case," Mr. Walker in this interesting pamphlet shows how the case has been criticised, distinguished, doubted, disregarded, every thing but overruled by the same court, and

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