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vious compensation was in full, and the inference of fact would rather be that it was partial only, simply because the decedent himself so treats and declares it. Such a declaration is certainly some evidence that there was an obligation which the decedent regarded as binding upon him; and in consideration of his own sense of duty in the circumstances, no matter how it arose, he contracted with the plaintiff that he would give her a due-bill for the amount stated. In execution of this contract he did give her the due-bill in question upon which this suit is founded. If it be granted that the agreement to give the due-bill imposed no legal obligation, how can it be denied that it created at least a moral obligation to do so? The duty to perform a positive promise which is not contrary to law or to public policy, or obtained by fraud, imposition, undue influence, or mistake, is certainly an obligation in morals, and if so it is a sufficient consideration for an express promise. But in the due-bill the recital of the consideration of actual services rendered is repeated, and it is some proof that the services had been rendered, and had not been fully compensated. The decedent himself so admits and asserts, and it would be an unjust assumption in the law to infer the contrary in the face of such testimony. These features in the present case constitute a wide difference between it and the case cited for the plaintiff in error, in which it was either proved or properly assumed that the past consideration was entirely executed. Here there is, in the first place, a written agreement to give the due-bill, and the actual execution and delivery of the due-bill in performance of that agreement. There is in addition the undisputed declaration of the promise, or that both the agreement and due-bill were given as compensation for long and faithful services actually rendered by the plaintiff, and no distinct proof that those services had been fully paid for. In such circumstances we cannot say there was no evidence of any obligation, legal or moral, to give the due-bill in question; and such being the case, there being nothing else to impeach the right of recovery, the court below was right in directing a verdict for the plaintiff. Penn. Sup. Ct., April 26, 1886. Bentley v. Lamb. Opiniou by Green, J. [4 Atl. Rep. 200.]

CRIMINAL LAW-NEW TRIAL-NEWLY DISCOVERED EVIDENCE-After a conviction of murder, the defendant discovered that the deceased had made dying declarations tending to reduce the offense to manslaughter. This was known to the State's attorney, but not to the defendant or his attorney at the time of the trial. Held, that a new trial should be granted. The general rule is that a new trial will not be granted merely for the purpose of admitting cumulative evidence, or to impeach a witness. The rule however is subject to exemptions. Cochran v. Ammon, 16 Ill. 316. In Fabrilius v. Cock, 3 Burr. 1771, Lord Mansfield granted a new trial because of the discovery, subsequent to the trial, that the judgment was rendered upon the testimony of a witness whose testimony was suborned. In Peagram v. King, 2 Hawks, 605; S. C., 11 Am. Dec. 793, a court of equity decreed a new trial at law because of the discovery, subsequent to the trial, that the judgment was rendered upon perjured evidence. In Wright v. State, 44 Tex. 645, where the principal witness for the State, in an affidavit, stated that her evidence given on the trial was incorrect, and her mother, by affidavit, stated that she was unreliable, it was held to be grounds for new trial as subequently discovered evidence. So in Great Falls Manuf'g Co. v. Mates, 5 N. H. 574, it was held sufficient ground for new trial that one of the witnesses on whose evidence the verdict was rendered, was convicted of perjury in his testimony, on his own confession. In Durant v Ashmore, 2 Rich. Law, 184, a new trial was granted on

after-discovered written evidence which might have affected the witness' credit with the jury. And to the same effect is Ecfert v. Des Coudres, 1 Mill, 70. It cannot be objected to granting a motion for a new trial on the ground of newly discovered evidence, that such evidence is cumulative if it is of a different kind or character from that adduced on the trial. Whart. Crim. Pl. & Pr. (8th ed.), § 870; Long v. State, 54 Ga. 564; Guyot v. Butts, 4 Wend. 579. A majority of the court are of the opinion that the facts here disclosed, under the peculiar circumstances of the case, exempt this statement from the operation of the general rule referred to, and that a new trial ought to have been granted to Merritt Fletcher. Ill. Sup. Ct., May 15, 1886. Fletcher v. People. Opinion per Curiam. [7 N. E. Rep. 80.]


-Where the public acquiesce in the occupation of a part of a road by the adjoining land-owners for miles along the line, in such a manner as to narrow it, for more than twenty years, an abandonment will be presumed, and no criminal prosecution can be maintained, for obstructing the highway, against one who in good faith sets his fence on the line with his neighbors. Manifestly if none but the appellant, or if only an isolated person here and there along the line, had intruded or encroached upon the Michigan road, by merely extending the line of fence into or upon it, no presumption of an abandonment could have arisen from the fact. Something more than the encroachment merely of one person will be required to work an abandonment. No one would have the right to assume, under ordinary circumstances, that a highway had been abandoned along his field or farm, while as to all other adjacent fields and farms, it was being maintained the width at which it was laid out and established. On the other hand, if through a given district or neighborhood, or along a particular line, a highway had been maintained, substantially of a uniform width, less than that at which it was established, for twenty years or more, an abandonment by lawful authority might well be presumed, so far as the excess is concerned along that part of the line. We think this is the fair result of the cases, and a reasonable view of the subject. Where the public authorities had permitted the owners of property along the line of a highway to occupy and improve their property in such a way, and had acquiesced for such a length of time as that to involve such owners in criminal consequences, although acting in good faith on the appearance of things, would be manifest injustice, an abandonment will be presumed. Where the owner or occupant of lands along a highway does nothing more than to maintain the highway at a general uniform width at which it has been maintained by adjoining owners for twenty years or more, it would be manifest injustice to maintain a criminal prosecution against such owner. Whatever else the public may do, it cannot assert its right to re-open the highway by that method. In such a case as we have assumed, a presumption of abandonment will be indulged; and when to disturb long-established lines would involve criminal consequences, or work serious injustice to valuable improvements made in good faith, such presumption will be conclusive. Brooks v. Riding, 46 Ind. 15; Jeffersonville, etc., R. Co. v. O'Connor, 37 id. 95; Sims v. City of Frankfort, 79 id. 446; Louisville, etc., Ry. Co. v. Shanklin, 98 id. 573; Amsbey v. Hinds, 46 Barb. 622; Aug. Highw., § 323; Dill. Mun. Corp. 667-675. While it is true that the statute of limitations, operat. ing alone, may not bar the right of the public to insist upon the use of a highway, yet if such appearance is created by non-user as that acts are done by an adjoining proprietor which indicate that he is in good faith claiming as his own that which is in fact a part

of the highway, and is expending money on the faith of his claim, by adjusting his property to the highway as he supposes or claims it to be, the public will be estopped. Cheek v. City of Aurora, 92 Ind. 107. Ind. Sup. Ct., May 18, 1886. Hamilton v. State. Opinion by Mitchell, J. [7 N. E. Rep. 9.]


EVIDENCEIRRELEVANT PORTIONS.-On an order for the production of account books, the court may give leave to seal up irrelevant portions. It was made to appear that the stocks in question, as is the usage with stock brokers in Chicago, were bought and sold by appellees through their agents in New York, on the New York Exchange; that the books of appellees do not, and the

books of stock brokers in Chicago, as customarily

kept, would not show some of the said facts said to be needful for testing the accuracy of appellant's personal account; and that they can only be shown by the books of the New York correspondent. It seems therefore that'in this case the inspection of appellees' accounts with other persons would not serve the purpose of determining as to the correctness of appellant's account; and that for the court to have gone further than it did in its ruling, and to the extent asked by appellant, would have been but a needless exposure of appellees' trasactions with their other customers. The court's action was in conformity with the authorized practice in respect of the production of books generally. In Greenl. Ev., § 301, it is laid down: "And where books are to be produced, the defendant will have leave to seal up and conceal all such parts of them, as according to his affidavit previously made and filed, do not relate to the matters in question." In Dias v. Merle, 2 Paige, 494, the court say: "While the course of judicial investigation frequently requires a party to produce parts of his books in which the adverse party has an interest, for the inspection of the latter, it may frequently be of great importance to the former that his accounts and transactions with other persons should not be exposed to the examination of strangers, and particularly of an enraged adversary. Where his books are subjected to inspection, it is the uniform practice of the court to permit a party to seal up those parts which do not relate to the subject of litigation." In Gerard v. Penswick, 1 Swaus. 533, an agent had books of account which contained some accounts relating to his agency, and others relating to his own private business, and the order was that the defendant should leave the books with his clerk in court, sealing up those parts which did not concern the plaintiff, and pledging himself by oath that he had sealed up those parts only. Ill. Sup. Ct., May 15, 1886. Pynchon v. Day. Opinion by Sheldon, J. [7 N. E. Rep. 65.]

sought to establish its case. It was necessary to es-
tablish the fact that at least those who signed as com-
missioners were such at the date of the lease, and to
prove their handwriting. The certificate of the secre-
tary did not aid in this. If the records of his office
enabled him to state who were the commissioners at a
former time, when the lease was executed, he may
properly certify the record which shows this, but he
cannot certify that this fact appears by the record. A
certificate from a public officer that certain facts exist.
or appear by the records of his office, is not competent
evidence of such facts. Bobbins v. Townsend, 20
Pick. 345; Wayland v. Ware, 109 Mass. 248; Hanson v.
South Scituate, 115 id. 336. Nor is the certificate of
the signatures to the original lease are genuine. He is
the secretary competent upon the question whether
not authorized by law to attest them. As to matters
which he is not authorized by law to attest, his certi-

ficate is extra-official, can have no higher weight than
that of a private citizen, and is therefore inadequate
to make the proof required. Oakes v. Hill, 14 Pick.
442-448. The lease offered as an original required some
additional proof of its authenticity, and was therefore
improperly admitted. Mass. Sup. Jud. Ct., May 12,
1886. Commonwealth v. Richardson. Opinion by Dev-
ens, J. [7 N. E. Rep. 26.]

REGISTER OF MARRIAGE IN ANOTHER STATE. -A register of a marriage, kept in a sister State, by a clerk of a court of record, or a certified copy thereof, is inadmissible to prove a marriage unless it appears that such register is kept pursuant to a statute. There was no evidence whatever of any law or usage of Minnesota upon the subject. We have a statute making the register of marriages in this State evidence of a marriage. It not only does not appear that there is any such statute in Minnesota, but it does not appear that by the law of Minnesota there is any provision for the keeping of a register of marriages. It is laid down in 1 Greenl. Ev., § 484, that registers of births and marriages made pursuant to the statutes of any of the United States are competent evidence. It is because of their being made by public authority, and under the sanction of official duty, that they, and exemplified copies of them, are received in evidence. It does not here appear that the registry in question was made by any such authority or sanction; it appearing merely that there were in the clerk's office such a marriage license and certificate of marriage copies of which were given. We are inclined to hold there was error in admitting the certificate of the register in evidence. Ill. Sup. Ct., May 15, 1886. Tucker v. People. Opinion per Curiam. [7 N. E. Rep. 51.]


was about to be married to B., offered to have a policy
of insurance upon his life taken out in her name. This
FICERS. A certificate of a public officer that certain she declined to accept if so taken out. A. then had
facts exist, or appear by the records of his office, is not the policy issued in his own name, and later married
competent evidence of such facts; and at the trial of a B. The policy was placed with other papers of A. and
complaint against the defendants, charging them with B. in a safety-box, which A. handed to B. to give to
unlawfully fishing in a pond alleged to have been her mother to keep for her. No actual assignment of
leased to the complainant, a certificate of the secre- the policy was ever made to B., but A. a number of
tary of the Commonwealth, attached to what pur- times mentioned that the insurance it evidenced had
ported to be a lease of the pond in question to the been effected for the benefit of B. A. died intestate
complainant, certifying that certain signatures borne and without creditors. In a contest between B. and
upon the lease were genuine, and that two of the per- certain relatives of A., as to whether the amount due
sons named were "commissioners of inland fisheries upon the policy belonged to B. or to the estate of A..
at the date of the lease," the lease not being in the held, that under the circumstances it should be con-
custody of the public officers, is extra-official, and in-sidered the separate property of B. Had A. executed
adequate to make the proof required of the validity of
the lease. The lease offered in the case at bar was not
in the lawful custody of those persons who are now
the commissioners of inland fisheries. It had been
left in the custody of the town officers, and it was by
putting the original in evidence that the government

an assignment of the policy in question to his wife,
there could have been little, if any doubt as to her
right to the proceeds, though the delivery of that as-
signment had been evidenced by nothing more than
its deposit in a box, or other receptacle, common to
the use of both husband and wife. But, says Mr. Jus-

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tice Sharswood, in Bond v. Bunting, 78 Penn. St. 210: "Is not a gift an assignment, perfected by delivery, which debars the donor from revocation?" Undoubtedly it is, and this doctrine is recognized in Grey's Estate, 1 Barr. 326. It is however hardly necessary to refer to authorities in support of a principle now so well established. Certainly this delivery was quite as complete as that in the case of Crawford's Appeal, 61 Penn. St. 52, where a husband directed a clerk to enter on his books a credit to his wife in the sum of $3,000, and annually added the interest thereto until his death. There was in this case no delivery which was good for any thing either as against the husband or his creditors, yet as against volunteers it was held to raise a valid trust in favor of the wife. We would indeed regard it as a very ungracious task were we compelled to take the gift of a kind, though perhaps careless husband to his confiding wife, and transfer it to those for whom he never intended it. It is true.we would do so did the law and facts of the case so determine, and so doubtless would the court below have done under like circumstances, but as the matter now stands, as facts and law are with the appellee, we are the rather pleased to affirm the decree of the Orphan's Court. Penn. Sup. Ct., Feb. 15, 1886. Appeal of Madeira. Opinion by Gordon, J.


People v. Barker (Mich. Sup. Ct.), 27 N. W. Rep. 549, we find the following vigorous dissenting opinion by Judge Morse:

MORSE, J. (dissenting). I cannot assent to confirm the conviction in this case. Every man under the Constitution of our State and Nation is entitled to a fair trial, which the respondents have not had. The treatment of these men after they were arrested, and before trial, by the prosecuting attorney and sheriff of Van Buren county was an outrage upon justice, for which there can be given no possible excuse, and the results of which, as intended, were used against them, without right, upon the trial of the cause. It is true that the community were satisfied generally of their guilt, and apprehensive that justice might be defeated by some slip or technicality, but this cannot excuse unjust, unfair or treacherous dealing with the accused, who were imprisoned and at the mercy of the law and its executors. The more aroused and the higher the feeling against them, the more necessity that in the due and orderly administration of justice the safeguards of the Constitution and the laws should not be removed or kept from them, and the more reason why ample opportunity should have been afforded them to employ and receive the advice and assistance of attorneys of their own choice and seeking. A more shameful and disgraceful method of depriving men accused of any opportunity of employing counsel and acting under their advice; a more oppressive and deceitful course of conduct to prevent their enjoyment of their constitutional privileges, and a more mean and wicked betrayal and suppression of their rights under the law by these two officials, I have never read in the history of American jurisprudence. It seems like going back into the dark ages of the administration of criminal law, when a person accused of crime was allowed no counsel to speak or act in his behalf, and was subjected to the examination and browbeating of the prosecutor, assisted often by the judge, without any right or privilege worth naming to protect himself. It is to be hoped that such proceedings as are shown by the record in this case are not to be repeated or made a precedent in our State. I for one am not disposed to tolerate such action, even if the consequences of my judgment should go further than the reversal of an otherwise just conviction.

As related by their own oaths, the scheme worked out by agreement between the prosecuting attorney, the sheriff and one Matt Pinkerton, a detective, was to keep away from the respondents in this case all attorneys, to introduce Pinkerton as a lawyer, get him employed by them, and then, as their pretended counsel, worm out a confession from one or both of them, and by a betrayal of their confidence use the confession in evidence to convict them.

Acting upon this preconcerted scheme, the prosecut. ing attorney and sheriff kept a letter written by Marshall G. Barker to Howard & Roos at Kalamazoo, and also refused Mr. Roos an interview with the respondents when he came to Paw Paw for the purpose of seeing them. They also keep all other counsel from them until a letter from the Circuit judge informs them that the Barkers are entitled and have the right to see attorneys of their own choice.

A detective passing under the name of Stearns is sent by Pinkerton from Chicago to meet the prosecuting attorney, and act under his direction. The prosecuting attorney swears in substance that the man Stearns, under his advice and direction, forged a note and went to the bank and attempted to pass it. The prosecuting attorney then drafted a complaint, and arrested Stearns for forgery, and placed him in jail where he could have access to the respondents. Another detective, Matt Pinkerton, then arrived upon the scene, ostensibly as the attorney employed to defend Stearns, and passing under the name of A. S. Trude, a prominent lawyer of Chicago. The sheriff swears that he introduced Pinkerton to the Barkers as an attorney, and as A. S. Trude, from Chicago, in Paw Paw, for the purpose of defending Stearns against the pretended charge of forgery, and while he detains the letter written by Marshall to Howard & Roos, and prevents the Barkers from seeing or employing counsel, he advises the respondents to employ Pinkerton, alias A. S. Trude, as their attorney, which advice they accept and follow.

The detective, Pinkerton, personating Trude, becomes their attorney, and thereby secures the faith and confidence of the accused. He, as their attorney, advises them what story each shall tell in order to get Marshall off with a light sentence, and to acquit William of any offense whatsoever. He gains a confession from each of them in accordance with his theory, which he writes down. The whole object of this scheme was to obtain such a confession, and then to use it against them, as admitted by the prosecuting attorney and sheriff.

The sheriff very frankly says upon the witness stand that "Pinkerton was introduced there for the purpose of gaining the confidence of the Barkers by the representations he might make to them; the object was to get a confession from them; that at the time he kept the letter from Marshall to Howard & Roos he did not want Barker "to have an attorney until Pinkerton had got through his part with him."


When these confessions had been secured, the detective, Stearns, who had been allowed the liberties of the jail upon a charge of forgery, was released, and disappeared. The Barkers are thereupon informed of the bogus Trude that Stearns was discharged in court, because he followed the advice of his attorney, "Trude."

While the respondents were thus confined in jail, denied the assistance or right of counsel save this pretender, by whom they were being deceived and betrayed into admissions of guilt, the officials heretofore named employed another party in the jail, who got into his possession notes and letters from Marshall to William and from Marshall to his wife, and from William to Marshall, and handed them as received to the wife of the sheriff.

The written confessions obtained by Pinkerton in the character of Attorney Trude were procured for the express purpose of being used as evidence upon the trial, and were offered by the prosecuting attorney after the circumstances of their procuration had been detailed in court. They were properly ruled out by the court, the Circuit judge evincing throughout the whole trial a very manifest disposition to give, as far as it was in his power, these men a fair and impartial trial; yet I cannot but think that he committed a very grave error in admitting the notes and letters in the keeping of the sheriff's wife in evidence. It had the effect of partially, at least, carrying out the conspiracy of the detectives and officials against the lives and liberties of the respondents, as well as against the law. These notes and letters were written, many of them during the time Pinkerton was acting as the pretended but trusted attorney of the Barkers, who were blindly and implicitly following his advice. Others were written after his real character was known to them, and bore evidence upon their face of the great wrong he had done them in his dual capacity as lawyer and detective. Nearly every one of them was taunted with the poison of this vile conspiracy against their rights as citizens, unless it be held that the mere fact of arrest for crime shall make a man a felou, and serve as an antidote against any and all wrongs that may be perpetrated upon the accused before trial.

Some of these notes made reference to the supposed lawyer, and what he had advised them to do. Here are two of them:

Exhibit A, 17. "Bill, the way your woman and mine is swearing, that is the only way to get out clear. Don't be afraid, for we are innocent; but I want to get clear, and can't no other way. Now, Bill, don't wait too long, for he (Pinkerton) says he can clear you anyway, and me too. If you don't you will go over the road by the way your woman says. Tell me what is the reason you don't say so. Don't wait now. "M. G. BARKER."

Exhibit A, 18. "The lawyer wants my brother to say, to help me as a brother, to carry off the body; and for me to say I did kill him in the house-choked him to death, and went and got my brother to help as a brother to conceal and get him out of the way; and seeing the woman swears to a lie, we had to do the same thing to clear us in it. He says not to be afraid, in the least, of nothing."


This detective, acting as attorney, made these men believe that their wives were testifying against them, or would do so, and that the only way to get out of the matter was for Marshall to confess that he choked Keith to death in the bedroom, and that William had no part in the killing, but as a brother, after the deed was done, helped Marshall to conceal the body to cover up the traces of the crime.

The alleged admissions or confessions of William Barker to Depuy, and of Marshall Barker to DePuy in the presence of the witness Coukle, were made while the men were under the influence and acting on the advice of Pinkerton, and should have been excluded. It also appears that all the notes were written after Pinkerton had gained the confidence of the deponents, and some of them, especially one, written by Marshall to William, told the story of the killing, as was advised by Pinkerton, and urged William to follow the same story, as the lawyer said it was the only way to get clear. In fact every admission, written or verbal, introduced against the Barkers was in corroboration of the theory mapped out by Pinkerton.

These respondents, under his advice and dictation, followed the lines marked out by him in these admissions, and as soon as they found out that he had deceived them, and was not an attorney, but a spy, they denied them. It needs but a glance at the record to

show that if it had not been for the work of Pinkerton there would have been no admissions or confessions by these men. It is not disputed but they were made while Pinkerton was acting as their attorney, and in accord with the theory which he impressed upon them as their only means of salvation. This was known and shown in court before any of them were admitted. The court left it to the jury to deter mine whether they were voluntary or not. This was a grave and substantial error that I cannot overlook. As a matter of pure law, they were plainly not voluntary, and the court should so have decided. Not only was the hope and promise of favor held out to them, but they were obtained by the grossest fraud and deceit. What any person confides to his attorney, even in a civil cause, is most zealously guarded and kept secret by law; but by a trick in this case the confessions made to a pretended attorney, under his advice, are also in substance verbally communicated to others in furtherance of the plan devised by him, as he claimed, for their escape, and then allowed to be used against them. Every element of law cries out against these proceedings, and human nature is outraged at this exhibition of official treachery and duplicity upon the part of the prosecuting attorney and sheriff, who joined and aided in the detective's plan, and it does not seem to me that the excuse "that any end justifies the means should be supported by the courts in Michigan.


* ** There can be no excuse for the employment of such means to obtain a conviction as were used here. If the law cannot be enforced or crime puuished without depriving the accused of counsel, and foisting upon them a detective as an attorney, with the purpose of advising action on their part to betray and convict them, it would be as well and less expensive to dispense with courts and juries, and authorize the prosecuting attorney and sheriff at once to pass judgment upon persons arrested, and if convicted in the minds of these officials, or of the community, convey them without further trouble to State prison. If men who are supposed to be guilty can be treated in this way, then may an innocent man also be subjected to the same usage.



HE following decisions were handed down Friday, June 25, 1886:

Order affirmed with costs-Paddock v. Kirkham;

Judgment affirmed-People v. Clark.—Judgment affirmed with costs-Gould v. N. Y. C. E.; Third National Bank of Buffalo v. Carnes; Polley v. City of Buffalo; In re will of Lyou; In re will of Decker; Stoughty v. East River Ferry Co.; Watson v. Rome, Watertown & Ogdensburg R. Co.--Appeal dismissed with costs-Hoyt v. Continental L. Ins. Co.; Claim of Averill Berg v. Grace; Levy v. Solomon.- -Order affirmed with costs-People v. State Bank of Fort Edward; Olmstead v. Olmstead; In re Attorney-General v. Western New York L. Ins. Co.; Claim of Glowacke, Mayor, etc., of New York v. Eden Musee American Co.; In re accounting of Gomprecht, assignee, etc.-Order affirmed with costs, but with liberty to the purchaser to be relieved from his purchase if he so elects-Protestant Episcopal Lay v. Stevens. -Motion to advance cause denied, with leave to submit a brief-Strucker v. Manhattan R. Co.Judgment affirmed with costs-Coffin v. Scott.

It was ordered that the court take a recess until July 27, at Saratoga Springs, for the purpose of rendering decisions, and that thereafter the court will take a further recess to October 4 next, at the Capitol, in Albany, then to proceed with the call of the present calendar.

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The Albany
Albany Law
Law Journal.

ALBANY, JULY 10, 1886.

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E had hoped that we should not be called on to say any thing more about codification until next winter's campaign, but if lawyers will keep on talking about it we must keep track of them. Just now we are in receipt of the transactions of the first annual meeting of the South Carolina Bar Association, in which we find a paper by Mr. W. A. Lee on the Common Law, pronouncing a glowing eulogy on it, and then-mirabile dictu! recommending codification as follows: "What is codification? If it consists in extracting, classifying and digesting those leading principles which lie at the basis of all decided cases, and give them harmony and consistency; if it consists in giving order and symmetry to the ill-sorted material which lies at our hands, rejecting this and selecting that, but erecting the new edifice substantially out of the old material, in the spirit of a wise master-builder, and the temper of a just conservatism; in fine, if it consists in giv-pated ing clearness, certainty and facility of reference to the half-buried treasures of the law, eliminating the husks and retaining the life-giving germ, then codification is a thing to be desired, and would seem to be justified alike by reason, by precedent and by authority. * * * Language has its rules, and logic the panoply of the schools; and shall the law, which from the immensity of its stores, and the varied and complex character of its material, needs above all others the labors of the collator and codifier, alone fail to aspire to the name of a liberal science? * We have abundant precedent in the work of codification on a small scale in every treatise and digest which issues from the press. They are but the precursors, the avant couriers of a wider and more complete work, which the necessities of the hour and the demands of the future are pressing upon us. In every State of the Union there has been a revision of the statutes, and every revision is codification. We have penal codes and codes of civil and penal procedure, and why not codify the body of the law? Its antiquity, complexity and immensity, whilst increasing the difficulty of the task, make it more necessary. It is no longer a question of utility and practicability, since both have been established in the history of legislation and jurisprudence. Some years ago we codified our military law and the law relating to county officers; this was followed by that revision of our law and Code of Procedure, which again revised, now form our General Statutes. This is only work upon a small segment of the law, but it is a beginning, and an attempt upon a small scale of a work, which if extended to embrace the whole system of jurisprudence, in its varied and complex relations, and executed with the care, learning and VOL. 34-No. 2.

skill which its importance demands, would indeed give clearness, certainty and facility of reference to that which is now confusion, uncertainty and obscurity. * * But the opponents of codification, with our own venerated Legaré at their head, tell us in the spirit of the Caliph Omar, that to cod ify that which is fixed and certain in the principles of the law would be useless, and that which is doubtful and obscure would be hurtful -- would be to substitute the legislative will for the distilled wisdom of centuries, and to chain down to the procrustean bed of the statute law the varying and accommodating forms of the common law - to discard our books, and to substitute questions of construction, for the far more philosophical search after analogies in the multitude of decided cases. But admitting that novel questions of construction arise, they are yet questions to be decided in the light of adjudicated cases, and a knowledge of the old will be necessary to explain the new, and the legislative will will be best interpreted in the light of past and contemporaneous construction. The opponents of codification seem to assume that it is to fix the law sure and fast for all time; that it is to be circumscribed in the bounds of the present, without the reflected lights of the past, or the anticiwisdom of the future. But this is to assume

what no friend of codification has contended for

that whilst the world moves legislation is to stand still. This is not so. and to crystallize the fruits of past research, to simThe design is to condense plify the complex, to bring to light the obscure; to reconcile opposing doubts, and to bring order out of confusion; and rejecting what is obsolete and retaining all that is useful, to digest the whole into symmetrical and harmonious proportions. But the work is not to remain in the old moulds of past wisdom, but is to be revised as revision becomes necessary to accommodate it to the varying wants of a complex and advancing civilization. Some of us may not live to see the day, but some of us may, when the common law, embellished by the lights of learning and philosophy, will yet surpass the Code of Justinian as well in the harmony and symmetry of its proportions, as now it does in the vigor and spirit of its unpruned luxuriance, and may merit the title of being the noblest body of laws

that the world has ever seen."

"Charity suffereth long" in the English courts in these days. The London Law Times says: "What is a charity? That is a question more easily asked than answered, and on which judges have differed. It is of course impossible to give a definition, and little more can be done than to enumerate the sevcharitable. In the recent case of Pease v. Pattinson, eral objects, gifts to which have been held to be 54 L. T. Rep. (N. S.) 209; 32 Ch. Div. 154, ViceChancellor Bacon decided that a friendly society partly supported by the subscriptions of its memcharity, and allowed the application of the cy près bers, and partly by donations from outside is a

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