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cal impediment to the due administration of justice, lessens the authority and therefore the usefulness of the judge, fetters the free and conscientious exercise of that discretion, which in right hands and rightly used is one of the most precious as well as the most powerful weapons in the armory of justice, and adds to the difficulties and expenses of the suitor, already grievous to be borne. I was brought up under a system in which discretion when given was practically absolute. It was the unbroken tradition of Westminster Hall. I believe that system worked justice and saved expense. I hope I may be forgiven if with what energy remains to use I strive, after many years' experience, and drawing near the close of my judicial career, to preserve this unfettered discretion, which, in my opinion, was given me by Parliament, and which I have never, at least unintentionally, abused." In three cases under review there had been verdicts for fifty pounds in one case and one farthing in each of the others. His lordship had declined to make any order in the first, on the ground that the later decisions of the Court of Appeal had rendered the principles of the jurisdiction "wholly unintelligible." There was an appeal, and the Court of Appeal held that the plaintiff might properly have been deprived, and so on a rehearing his lordship denied costs, remarking that "it is very possible that on a second appeal, and on further argument, the Court of Appeal may change its mind and hold that there was no good cause for making the order." And he denied costs in the other cases, warning the defendant that "the Court of Appeal will very likely arrive at a totally different conclusion." It seems to us that the exercise of the discretion in question should be set aside only where a verdict would be, for manifest passion, prejudice or corruption; that the trial judge must be much better able to determine the matter than the appeal judges; and that the opinion of the trial judge is intended to be the primary and erally conclusive test.
The growing tendency to submit all questions of fact to the test of expert judgment is widely increasing, and in our opinion is very much to be deprecated. It is a tendency similar to that which would substitute the judgment of the magistrate for that of the jury in determining questions of fact. There is scarcely a conceivable, practical question on which an ingenious lawyer will not produce an "expert witness," who professes to have made the particular matter a study, and to know much better about it than the average of the community can know. The most absurd instance of this that has ever arisen to our knowledge was in Re Harden, which we reported last week, where Professor Morley was proffered as an "expert" to testify that "Hand Grenade Fire Extinguisher" is "fancy term," with a view to a trade-mark monopoly. The judge refused to be convinced by this learned gentleman's affidavit to such apparent non
sense, although he wished to treat him "with respect." The term is clearly no more fancy" than "horse rake," or than "snowflake crackers," a term which comes home to our bosoms and business in regard to our townsman Mr. Larrabee's production, which were the subject of litigation in Larrabee v. Lewis, 67 Ga. 561; S. C., 44 Am. Rep. 735. But a professor can always be found so learned that any desired nonsense can be commended to his intellect. We do not despair of one who will yet swear that it is by no means certain that the moon is not made of green cheese. Much learning doth make some mad.
Volumes 75 and 76 of the American Decisions are at hand, shortly to be followed by volumes 73 and 74, the derangement having been caused by the great fire in the publishing house. The publishers announce that the series will be completed in one hundred volumes, July 4, 1888. This number is about what we originally expected. The work, especially under the present editorial charge of Mr. Freeman, has been very well done, so far as we can judge without a critical examination, and will prove a welcome and useful substitute for the wearisome mass of adjudications from which it has been culled. We are glad to know that it is successful and appreciated. We also desire to acknowledge our constant reliance on Mr. Williams' most excellent Annual Digest, of which the volume for 1885 is at hand. It seems to us as nearly right as a digest can be, opinions of course sometimes differing as to classification and arrangement, which are necessarily arbitrary. The Annual Digest is one of the lawyers' indispensable books, and will remain so until the era of general codification, and perhaps always.
NOTES OF CASES.
N Louisville, N. A. & C. Ry. Co. v. Thompson,
Supreme Court, 17, 1886, it was
held that a carrier of passengers is not liable for negligence to a passenger injured while fraudulently travelling on a pass issued to another person, but the presumption of honesty and innocence is one of the strongest, and will overcome an inference that a passenger was wrongfully on a train, where the only foundation for such an inference is the fact that a pass issued to another person was found in his pocket after death. The court said: "We accept as good law the doctrine of the decided cases, that one who fraudulently attempts to ride on a non-transferable pass issued to another person is not a passenger to whom the carrier owes a duty to carry safely. A person who enters a train on a pass to which he has no right cannot, therefore, maintain an action for injuries caused by the carrier's negligence. Chicago, etc., Co. v. Michie, 83 Ill. 427; Toledo, etc., Co. v. Brooks, 81 id. 245; Toledo, etc., Co. v. Beggs, 85 id. 80; Brown v. Mis
souri, etc., Co., 64 Mo. 536.
This rule is founded on sound principle, since it is a fundamental doctrine of the law that one who is guilty of a fraud cannot enforce any rights arising out of his own wrong. It is also in close agreement with the rule that a carrier owes no duty to an intruder. Indianapolis, etc., Co. v. Pitzer, 9 N. E. Rep. 310 (November term). The difficult question is whether the evidence can be justly said to prove that Eichler was attempting to fraudulently use the pass issued to Whaling. There is, as we have intimated, no evidence that he procured the pass fraudulently, or was attempting to travel on it, except such as is supplied by the fact that after his death the pass was found in his pocket. For any thing that appears he may have been the mere custodian of it for Whaling. The presumption always is in favor of honesty and fair dealing, and he who asserts the contrary must prove it. A presumption, like a prima facie case, remains available to the party in whose favor it arises until overcome by countervailing evidence. Bates v. Pricket, 5 Ind. 22; Adams v. Slate, 87 id. 573, see page 575; Cleveland, etc., Co. v. Newell, 104 id. 264; S. C., 3 N. E. Rep. 836. The presumption in favor of Eichler's good faith and honesty was not overcome. It cannot, indeed, be justly said that there was any evidence impugning it, for the conductor's testimony does not show that Eichler did not pay his full fare, nor does it show that he was fraudulently in possession of the pass issued to Whaling. There are many ways in which he may have honestly and fairly obtained possession of the pass. It may have been intrusted to him by Whaling, or he may have found it. We cannot consent to characterize an act as fraudulent from the single fact that on a dead man's body is found a pass issued to another person. If there were attendant circumstances making it probable that the pass had been wrongfully used the case would be different; but here there are no such facts, for the conductor says that he did not know the man who presented the pass. It seems much more reasonable that the appellant, who issued the pass, should explain why and to whom it was issued, and secure the testimony of the man to whom it was given, or else show what had become of him, than to presume from the fact that it was found in a dead man's pocket that it had been dishonestly obtained, or fraudulently used. The appellant had the coupon in its possession, and if it was true that it had been dishonestly used it could have produced it, and given some evidence at least to prove that fact. It is said by counsel that after the wreck the conductor accounted for all the passengers by the tickets, papers and coupons taken up; that his report showed eight persons to be missing, among them the man supposed to be J. M. Whaling.' The testimony of the conductor is that 'eight persons were missing; among them was the man I supposed to be J. M. Whaling.' We have carefully searched the record to ascertain, if possible, how many bodies were recovered, but we can find no evidence showing that more than two were recov
ered. We find evidence proving that Blue river was very high; that the body of Eichler was swept two miles down stream, and the fair presumption is that Whaling's body was not recovered. This leads to the further presumption, since it is the one consistent with good faith and honesty on the part of Eichler, that Whaling was on the train, and had himself used the pass. Nor is there any thing unnatural or unreasonable in this inference, for it is not at all improbable that Whaling may have intrusted his pass to Eichler for safe keeping. It is perfectly reasonable to infer that if Whaling was on the train he himself used the pass. Any other inference would be a strained and unnatural one. At all events, this inference is the one that best comports with the theory of honesty and good faith, and the jury did no wrong in adopting it; for any other theory would require the presumption that Eichler had stolen the pass, or that both he and Whaling were guilty of fraud. The inference
for it cannot, with justice or accuracy, be called a 'presumption' arising from the fact of finding the pass in Eichler's pocket after his death, is a special one, while the presumption of good faith is a general one. The court may instruct the jury that the presumption is in favor of good faith and honesty, but it could not rightfully instruct, as matter of law, that the fact that the pass was found in Eichler's pocket created a presumption that it was fraudulently used, and this proves that the inference must give way before the general legal presumption. But if we grant that the fact that the pass was found in Eichler's pocket creates a presumption, and that there is a conflict of presumptions, still the one in favor of good faith is the stronger, and will break down the other. In Potter v. Titcomb, 7 Me. 309, there was a conflict of presumptions, and it was held that a presumption in favor of good faith would outweigh a presumption of payment. Where a party is found in possession of a document the presumption is that he came by it fairly. Hazen v. Henry, 6 Ark. 86. The general principle runs through all the law that where the facts of a case are consistent with both honesty and dishonesty the courts will adopt the construction which is in favor of honesty. Greenwood v. Lowe, 7 La. Ann. 197; Bradish v. Bliss, 35 Vt. 326. It cannot therefore be justly held that the jury erred in acting upon the general presumption in favor of honesty and good faith, since a presumption, until overcome, makes a prima facie case.
In Am. Solid Leather Button Co. v. Anthony, Rhode Island Supreme Court, Jnly 3, 1886, it was held that numbers arbitrarily chosen may be taken as trade-marks, and will be protected as such, but numbers already in use and known to the trade in connection with given styles of goods cannot be appropriated to his exclusive use by a maker of such styles of goods. The court said: "Within limits, which are well defined, a combination of letters or figures, arranged for convenience or to at
tract attention, may serve the purpose of a trademark as well as a device invented or arbitrarily selected. So a person may have different symbols for different grades of goods, which in the same way will indicate both quality and origin with respect to the goods so marked. A manufacturer may adopt such symbols not simply to mark a style or quality, but his style and his quality as well. He is entitled to have his style and his quality protected from misrepresentation, and to have the benefit of any favorable reputation they may have gained. The doctrine applicable to cases of this character is clearly set forth in Shaw Stocking Co. v. Mack, 21 Blatch. 1, 6, as follows: 'It is very clear that no manufacturer would have the right exclusively to appropriate the figures 1, 2, 3 and 4, or the letters A, B, C and D, to distinguish the first, second, third and fourth quality of his goods, respectively. Why? Because the general signification and common use of these letters and figures are such that no man is permitted to assign a personal and private meaning to that which has, by long usage and universal acceptation, acquired a public and generic meaning. It is equally clear however that if for a long period of time he had used the same figures in combination, as 3214,' to distinguish his own goods from those of others, so that the public had come to know them by these numerals, he would be protected. The courts of last resort in Connecticut, in Massachusetts and in New York have distinctly held this doctrine. Boardman v. Meriden Britannia Co., 35 Conn. 402; Lawrence Co. v. Lowell Mills, 129 Mass. 325; Gillott v. Esterbrook, 48 N. Y. 374. The numerals sustained being respectively '2340,' '523' and 303.' In this case the numerals '830' had been adopted to mark a style of hose made by the complainant, viz., a mottled drab, and although the label used by the defendants bore their own and not the complainant's name, an injunction was granted against their use of the numerals, upon the ground that the complainant had used these numerals long enough to convey to any one versed in the nomenclature of the trade a precise understanding of what goods were intended when the numerals were used alone, disconnected from any intrinsic information.' The defendants in the case last quoted, as in the case before us, were dealers and not manufacturers. In Manufacturing Co. v. Trainer, 101 U. S. 51, strongly relied on by the defendants, the court based its decision upon the fact that the letters A. C. A.' denoted quality simply, and not origin. Judge Clifford dissented from this conclusion of fact. If, as stated in that case, indication of origin is 'entirely overborne by the patent fact that the label discloses the name in full of the manufacturers, we do not see why any trade-mark, coupled with the name of the real manufacturers, might not be used, for according to the language of the opinion the indication of origin by the use of the trade-mark would be overborne' by the disclosure of the maker's name. We do not think that the court meant that
the case should go to this extent. It simply found that the letters in that case did not indicate origin, and hence dismissed the bill. Applying the rule, which we have here recognized, we come to the questions of fact in this case. It appears from the testimony that the numbers '60' and '70' were used by T. F. N. Finch, and had become known to the trade as applied to the same styles before the complainant used them. If this be so the complainant cannot appropriate these numbers to its exclusive use. The only other numbers proved to have been used by the defendants, Anthony, Cowell & Co., are 30' and '111. We think these numbers indicate origin as well as style. The fact that orders for goods refer to numbers, which have become associated with a particular style of nail only by the complainant's association of the number with the style, raises a natural inference that persons ordering by that number suppose they are ordering goods of a style made by the complainant. We therefore think that in the use of these numbers, as against the defendants, Anthony, Cowell & Co., the complainant is entitled to protection according to the prayer of the bill. As to the other defendants, in the absence of testimony to show their use of any numbers claimed by the complainants other than '60' and '70,' the bill must be dismissed.”
were universally infected with superstition, and the poets and historians with barbarism, the lawyers, who in other countries are seldom models of science and politeness, were yet able by the constant study and close imitation of their predecessors, to maintain the same good sense in their decisions and reasonings and the same purity in their language and expression." Hist. of Eng., vol. 3, p. 300.
Justinian appreciated the task of codification, he says in his preface addressed to Tribonian: "We have been encouraged by the success of the Code to undertake the full and complete revision of the whole law, and to correct and reform the entire Roman jurisprudence, and to compile in one volume, all the scattered writings of the jurisprudents; a work which has been considered impossible, aud which no one has heretofore dared to undertake; but with uplifted hauds invoking Divine assistance, we have entered on this work, trusting to God, who enables men to accomplish the most desperate enterprises, to help us by his infinite power to complete it. And when it is completed, we wish it to be regarded as the temple and sanctuary of justice," par. 5.
He called the proposed compilation or digests a Code, for he says in the same preface, “ideo jubemnus duobus istis codicibus omnia gubernari uno constitutionum altero juris enuclaeti et in futurum codicem compositi," par. 11.
In his preface to the digests, when published as the laws of the Empire, he speaks thus of the work which has been accomplished: "One of the most admirable effects of the work which has been done is, that our compilation coutains more in its brevity, than can be found in the multiplicity of the ancient laws, for although heretofore a great many laws were made, nevertheless very few of them were cited by litigants in support of their causes, either for the want of books, which ends with the last report, for the socalled laws of Edward the Confessor, of William I, and of Henry I, have been shown by modern criticism to be unofficial and informal collections.
Mr. John Stuart Mill in his essay on Bentham tells how the common law grew and was formed in the struggle between the feudal aristocracy of conquerors, and the conquered effecting their emancipation.
The conquered was the growing power but was never strong enough to break its bands through; ever and anon some weak point gave way. Hence the law came to be like the costume of a full grown man, who had never put off the clothes made for him, when he first went to school.
Band after band had been burst, and as the rent widened them without removing any thing, except what might drop off of itself, the hole was darned or patches of fresh law were brought from the nearest shop and stuck on.
shines only by the power of history; they also forget that Chief Justice Glanville as well as Justinian said, "that the pleasure of the prince is just what constitutes law and has the force of law." Glanville Prol.
In the common law there is an immense mass of scattered but invaluable matter, as a repository of decided cases. Mr. Benthem says: "It affords for the manufactory of real law a stock of materials which is beyond price. All the libraries of Europe would not afford a collection of cases equal in variety, in amplitude, in clearness of statement, in a word in all points taken together, in instructiveness. Vol. 4, p. 460.
The statutory encroachments on the common law, its myriads of precedents, its wilderness of single instances, seem to require orderly arrangement and scientific classification to say the least. But the needs of modern civilization, and the higher conceptions of legal principle, which characterize the philosophiction. spirit of the age, demand a more radical codification, which will efface the patches of centuries, that now disfigure the common law, and which will render it more simple, more beautiful, and more symmetrical, and bring it more in accord with the jurisprudence of the civilized world.
The need of codifying is growing with this accumulation of cases and the difficulty increases in proportion to the need. Tacit codification which is constantly going on, and which results from the acceptance of a formula sanctioned by decided cases, does not satisfy the eager demands of an active era. The arranging hand directed by the logical mind of the codifier is required to write, in clear, terse and accurate language, what now exists in a confused state, leaving to a more advanced reformer, the task of introducing those elements, which codification would develop as necessary to the harmony and completeness of the law.
It is not true that codification will impede the growth of the law.
Justinian, in his proemium above referred to, expressly declares that divinity alone is perfect, and therefore human jurisprudence cannot be stationary.
No attainable skill in the preparation of a Code can provide for every contingency, nor can it prevent the extension of law by judicial interpretation, but the extension is slow and insensible. No Code can immobilize the law, or deprive it of the successive im. provements which follow the progress of science. But progress is accomplished by a different method; without a Code it is the work of lawyers and judges, under a Code it is mainly the work of a legislation; the courts and the lawyers cannot Innovate, nor can they correct or reuder the Code more perfect: they point out its imperfections, its defects, its gaps; they prepare the progress which the legislator executes. After all the Legislature does not create, it only formulates a law, which is the phase of a life of a Na
A Code will diminish what Paley calls the competitive analogies; one inviting the judge to decide the case, and therefore model the new rule analogously to old rule A., and the other to old rule B., this competition is the difficulty which the judge has to surmount by comparison, adjustment and reconciliation of analogies. Such competition will arise less in statute than in judiciary law, still less in the application of a consistent and harmonious Code.
The Louisiana Code assumes that cases may occur which are not anticipated by it. Article 21 declares, "that in all civil matters where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably an appeal is to be made to natural law and reason, or received usages, when positive law is silent.”
Yet the power thus conferred has not been exercised, except for the purpose of furnishing a remedy or method of procedure. The Code has sufficed as a rule for the adjudication of rights.
Those who are most recalcitrant, and who manifest the most zeal in opposition to the reformation of the law, imagine that liberty is at stake, and that it can only be nurtured in the cradle of their ancestors; they worship the hierarchy of the past, as do those who worship the hierarchy of birth, the memorials of an old glory which has traversed centuries, and which
Although adopted in the year 1824, the Louisiana Civil Code did not take effect till 1825. What is called the Revised Code of 1870 is nothing more than the Code of 1825, expurgated of its slavery provisions; it includes however amendments made in the interval between 1825 and 1870.
With the exception of three amendments made in the years 1844, 1850, and 1852, the Code has remained
substantially intact. The most radical change was that introduced in the year 1850, which enabled one of the married couple to give to the other all that he or she might give to a stranger; prior to that time, if children were born of the marriage, the power of married persons to make gifts to one another was limited to one-tenth of the property of the donor.
In the year 1869 the tacit mortgage system was abolished. A tacit mortgage was a lien on immovable property created by law in favor of minors and married women. No registration was required to preserve it and hence it was called tacit. The change did not destroy the mortgage but rendered it inoperative as to third persons unless registered and thus made public.
Since 1870 the only serious amendment was that enacted in 1882 respecting donations between spouses in case of second marriage; prior to that time, a man or woman contracting a second marriage, having children by a former one, could give to the new spouse only the least child's portion in usufruct; the ameudment allows the donation to embrace one-third of the donor's property. No other amendment affecting the legal system of the State has been made, except perhaps one enacted in 1884, which permits forced heirs to annul simulated contracts of those from whom they inherit, a right before that time enjoyed by creditors only, or by forced heirs, to the extent of their legitime, that is to say of the share reserved to them by law in the estate of the deceased.
The Civil Code is regarded in Louisiana as a sacred temple, and whenever the sacrilegious hand of the innovator is raised to change it, the attention of the bar and of the bench is at once aroused, and no alteration is permitted without careful scrutiny and thoughtful consideration of its effects on the structure.
This is one of the principal effects of a logical Code. It cannot be changed in one part without affecting other parts and the guardians of the sacred deposit are ever on the alert to protect if from desecra tion.
The great Codes of ancient and modern times were the work of eminent jurists.
Justinian placed at the head of his codification commission the most eloquent and learned lawyer of his day. He allowed Tribonian to select his own 'associates, some of whom were professors of law in the celebrated schools of Constantinople and Byritus, others, distinguished advocates who practiced in the Praetorian courts; no less than twenty-nine cultivated minds were engaged in the production of the corpus juris; three on the Institutes, sixteen on the Pandects and ten on the Code. Justinian has carefully embalmed the names and officers of those men in the proemia to his compilations, and they in turn have as carefully preserved the names of the various Roman Jurisconsults, from whose writings the Pandects were extracted.
Well might Justinian say to the Senate and people of the Roman Empire, that in giving them his Institutes, his Code, and his Pandects, in exchange for the confused, uncertain and inaccessible law of their ancestors, it was like the exchange between Glaucus and Diomede in the Iliad of Homer.
The Pandects are composed as a piece of mosaic of fragments, taken from thirty-nine of the most illustrious jurisprudents, each fragment bears the name of the author and of the work from which it is taken. But such is the coherency of Pandect law made in succession by a series of jurisconsults for two centuries, so completely master of the same mode of reasoning, their successive works apparently belong to one mastermind, so that Leibnitz said, "it was impossible from internal evidence to distinguish them."
"Gold for brass, a hecatomb for wine."
The "Siete Partidas " projected by Ferdinand III, were completed under his successor, Alfonso the Wise; unfortunately the names of the four jurists, who commenced the task in 1256 and finished it in seven years, have not been transmitted to us; the character of their work is the monument to their genius and learning.
The French Code is the idea of the revolution of 1789, although Louis XI, as Commines relates, had desired that there should prevail in his kingdom but one custom, one weight and one measure; and that all the customs should be put in one book, written in French, to get rid of cunning lawyers.
A decree was adopted in 1790, providing for a general Code to be framed in simple and clear language. Provision to the same effect was inserted in the Constitution of 1791 and 1793. But the convention formed the gigantic design of codifying all parts of the law. On August 9, 1793, Cambaceres presented in the name of the Commission a Civil Code prepared by himself.
This did not satisfy the Convention, so they established a commission composed of philosophers who did nothing.
No one pretends that codification will dispense with the necessity for future legislation; it however sets the law on a solid foundation, and casts it into a form, which succeeding legislators will not venture lightly to alter; the completeness of the work secures the in-chet was a profound lawyer, Portalis a distinguished estimable blessing of a legal system so judiciously ar- jurist and philosopher. Bigot P'reamenen and Maleranged as to reduce the necessity of future change ville were experienced advocates. to a minimum.
Then the work of codification really commenced. On 24 Thermidor year 8, a commission was organized, whose members were Tronchet, president of the court of Cassation. Bigot P'reamenen, solicitor general, Portalis, advocate general of the Prize Court and Maleville a member of the Court of Cassation. Tron
The project prepared by this commission was printed by the government; it was submitted to the criticism of the Court of Cassation and the Courts of Appeal, and an invitation was extended to every one to comment thereon. The first consul then selected orators to explain it to the corps legislatif; it was nevertheless rejected.
Cambaceres presented a new project in 1794. It contained 297 articles of general principles. During the discussion of this project the Directory came into power. Cambaceres prepared a third project which he submitted to the Council of Five Hundred. Before any discussion could be had a coup d'état elevated the first consul to power.
On 22 Fructidor year 10, the work of codification was resumed; the discussion continued for two years. The different titles of the Code were presented and adopted as separate laws; when all the parts had become law, the government united them in one body under the title of the "French Civil Code."
It was revised when Napoleon became emperor, in
The Grand Chancellor De Cocceji was charged by
A project was then prepared by Dr. Carmer aud Dr.
This Code had an immense result, for the first time