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cal impediment to the due administration of jus- sense, although he wished to treat him “ with re-
Volumes 75 and 76 of the American Decisions opinion, was given me by Parliament, and which I are at hand, shortly to be followed by volumes 73 have never, at least unintentionally, 'abused.” In and 74, the derangement having been caused by three cases under review there had been verdicts
the great fire in the publishing house. The pubfor fifty pounds in one case and one farthing in lishers announce that the series will be completed each of the others. His lordship had declined to
in one hundred volumes, July 4, 1888. This nummake any order in the first, on the ground that the ber is about what we originally expected. The later decisions of the Court of Appeal had ren
work, especially under the present editorial charge dered the principles of the jurisdiction “wholly of Mr. Freeman, has been very well done, so far as unintelligible.” There was an appeal, and the
we can judge without a critical examination, and Court of Appeal held that the plaintiff might prop wearisome mass of adjudications from which it has
prove a welcome and useful substitute for the erly have been deprived, and so on a rehearing his lordship denied costs, remarking that "it is very
been culled. We are glad to know that it is sucpossible that on a second appeal, and on further cessful and appreciated. We also desire to acargument, the Court of Appeal may change its knowledge our constant reliance on Mr. Williams' mind and hold that there was no good cause for most excellent Annual Digest, of which the volume making the order." And he denied costs in the for 1885 is at hand. It seems to us as nearly right other cases, warning the defendant that “the Court
as a digest can be, opinions of course sometimes of Appeal will very likely arrive at a totally differ- differing as to classification and arrangement, ent conclusion." It seems to us that the exercise which are necessarily arbitrary. The Annual Digest of the discretion in question should be set aside is one of the lawyers' indispensable books, and only where a verdict would be, for manifest passion, will remain so until the era of general codification, prejudice or corruption; that the trial judge must
and perhaps always. 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
NOTES OF CASES.
generally conclusive test.
Indiana Supreme Court, June 17, 1886, it was The growing tendency to submit all questions of held that a carrier of passengers is not liable for fact to the test of expert judgment is widely in- negligence to a passenger injured while frauducreasing, and in our opinion is very much to be de- lently travelling on a pass issued to another person, precated. It is a tendency similar to that which but the presumption of honesty and innocence is would substitute the judgment of the magistrate one of the strongest, and will overcome an inferfor that of the jury in determining questions ofence that a passenger was wrongfully on a train, fact. There is scarcely a conceivable, practical | where the only foundation for such an inference is question on which an ingenious lawyer will not the fact that a pass issued to another person was produce an "expert witness,” who professes to found in his pocket after death. The court said: have made the particular matter a study, and to
* We accept as good law the doctrine of the deknow much better about it than the average of the cided cases, that one who fraudulently attempts to community can know. The most absurd instance
ride on a non-transferable pass issued to another of this that has ever arisen to our knowledge was
person is not a passenger to whom the carrier owes in Re Harden, which we reported last week, where
a duty to carry safely. A person who enters a train Professor Morley was proffered as an "expert” to on a pass to which he has no right cannot, theretestify that “Hand Grenade Fire Extinguisher” is fore, maintain an action for injuries caused by the a “ fancy term,” with a view to a trade-mark mon-carrier's negligence. Chicago, etc., Co. v. Michie, 83 opoly. The judge refused to be convinced by this m. 427; Toledo, etc., Co. v. Brooks, 81 id. 245; learned gentleman's atlidavit to such apparent non- Toledo, etc., Co. v. Beggs, 85 id. 80; Brown v. Mis
souri, etc., Co., 64 Mo. 536. This rule is founded
ered. We find evidence proving that Blue river on sound principle, since it is a fundamental doc- was very high; that the body of Eichler was swept trine of the law that one who is guilty of a fraud two miles down stream, and the fair presumption cannot enforce any rights arising out of his own is that Whaling's body was not recovered. This wrong. It is also in close agreement with the rule leads to the further presumption, since it is the one that a carrier owes no duty to an intruder. Indian- consistent with good faith and honesty on the part apolis, etc., Co. v. Pitzer, 9 N. E. Rep. 310 (Novem- of Eichler, that Whaling was on the train, and had ber term). The difficult question is whether the himself used the pass. Nor is there any thing unevidence can be justly said to prove that Eichler natural or unreasonable in this inference, for it is was attempting to fraudulently use the pass issued not at all improbable that Whaling may bave into Whaling. There is, as we have intimated, no trusted his pass to Eichler for safe keeping. It is evidence that he procured the pass fraudulently, or perfectly reasonable to infer that if Whaling was was attempting to travel on it, except such as is on the train he himself used the pass. Any other supplied by the fact that after his death the pass ) inference would be a strained and unnatural one. was found in his pocket. For any thing that ap- At all events, this inference is the one that best
may have been the mere custodian of it for comports with the theory of honesty and good Whaling. The presumption always is in favor of faith, and the jury did no wrong in adopting it; honesty and fair dealing, and he who asserts the for any other theory would require the presumption contrary must prove it. A presumption, like a that Eichler had stolen the pass, or that both he prima facie case, remains available to the party in and Whaling were guilty of fraud. The inference whose favor it arises until overcome by countervail- - for it cannot, with justice or accuracy, be called ing evidence. Bates v. Pricket, 5 Ind. 22; Adams
a ‘presumption '— arising from the fact of finding v. Slate, 87 id, 573, see page 575; Cleveland, etc., the pass in Eichler's pocket after his death, Co. v. Newell, 104 id. 264; S. C., 3 N. E. Rep. 836. is a special one, while the presumption of good The presumption in favor of Eichler's good faith faith is a general one.
The court may inand honesty was not overcome. It cannot, indeed, struct the jury that the presumption is in fabe justly said that there was any evidence impugn- vor of good faith and honesty, but it could ing it, for the conductor's testimony does not show not rightfully instruct, as matter of law, that that Eichler did not pay his full fare, nor does it the fact that the pass was found in Eichler's pocket show that he was fraudulently in possession of the created a presumption that it was fraudulently pass issued to Whaling. There are many ways in used, and this proves that the inference must give which he may have honestly and fairly obtained way before the general legal presumption. But if possession of the pass. It may have been intrusted we grant that the fact that the pass was found in to him by Whaling, or he may have found it. We Eichler's pocket creates a presumption, and that cannot consent to characterize an act as fraudulent there is a conflict of presumptions, still the one in from the single fact that on a dead man's body is favor of good faith is the stronger, and will break found a pass issued to another person. If there down the other. In Potter v. Titcomb, 7 Me. 309, were attendant circumstances making it probable there was a conflict of presumptions, and it was that the pass had been wrongfully used the case held that a presumption in favor of good faith would be different; but here there are no such would' outweigh a presumption of payment. Where facts, for the conductor says that he did not know a party is found in possession of a document the the man who presented the pass. It seems much presumption is that he came by it fairly. Hazen v. more reasonable that the appellant, who issued the Henry, 6 Ark. 86. The general principle runs pass, should explain why and to whom it was is- through all the law that where the facts of a case sued, and secure the testimony of the man to whom are consistent with both honesty and dishonesty it was given, or else show what had become of him, the courts will adopt the construction which is in than to presume from the fact that it was found in favor of honesty. Greenwood v. Lowe, 7 La. Ann. a dead man's pocket that it had been dishonestly 197; Bradish v. Bliss, 35 Vt. 326. It cannot thereobtained, or fraudulently used. The appellant had fore be justly held that the jury erred in acting the coupon in its possession, and if it was true that upon the general presumption in favor of honesty it had been dishonestly used it could have pro- and good faith, since a presumption, until overduced it, and given some evidence at least to prove come, makes a prima facie case.” that fact. It is said by counsel that after the wreck the conductor accounted for all the passen- In Am, Solid Leather Button Co. v. Anthony, gers by the tickets, papers and coupons taken up; Rhode Island Supreme Court, Jnly 3, 1886, it was that his report showed eight persons to be missing, held that numbers arbitrarily chosen may be taken among them the man supposed to be J. M. Whal- as trade-marks, and will be protected as such, but ing. The testimony of the conductor is that 'eight numbers already in use and known to the trade in persons were missing; among them was the man I connection with given styles of goods cannot be supposed to be J.M. Whaling.' We have carefully appropriated to his exclusive use by a maker of searched the record to ascertain, if possible, how such styles of goods. The court said: “Within many bodies were recovered, but we can find no limits, which are well defined, a combination of letevidence showing that more than two were recov- ters or figures, arranged for convenience or to at
tract attention, may serve the purpose of a trade- the case should go to this extent. It simply found
EXTRACT FROM TIIE ANNUAL ADDRESS BE
FORE THE AMERICAN BAR ASSOCIATION, Boardman v. Meriden Britannia Co., 35 Conn. 402;
AT SARATOGA, AUG. 19, 1886, BY Lawrence Co. v. Lowell Mills, 129 Mass, 325; Gillott
THOMAS J. SEMMES, OF v. Esterbrook, 48 N. Y. 374. The numerals sustained
LOUISIANA. being respectively 2340, 523' and 303.' In this case the numerals “830' had been adopted to
THERE is no doubt that common-law lawyers are mark a style of hose made by the complainant, viz., slowly, perhaps unconsciously, becoming accusa mottled drab, and although the label used by the
tomed to the same modes of legal thought, and to the defendants bore their own and not the complain
same conceptions of legal principle, which character
ize the compilations of Justinian, and which have made ant's name, an injunction was granted against their
the Roman law the lingua franca of Modern Europe, use of the numerals, upon the ground that the and the two systems will be alike. Every legislative complainant had used these numerals long enough change of the common law in modern times is but an to convey to any one versed in the nomenclature of unconscious introduction of some civil law ingredient the trade a precise understanding of what goods
or conception. were intended when the numerals were used alone, tions, arrived at results which the Roman juriscon
Bentham, by his laborious analysis
of legal concepdisconnected from any intrinsic information.' The sults, 1,600 years before, had assumed to be well estabdefendants in the case last quoted, as in the case lished propositions. before us, were dealers and not manufacturers. In In this respect at least, Bentham was not pillaged, Manufacturing Co. v. Trainer, 101 U. S. 51, strongly although Talleyrand speaks of him as “pillaged by all
the world yet always rich," and Sir Henry Maine relied on by the defendants, the court based its de
says: “I do not know a single law reform effected cision upon the fact that the letters 'A. C. A.' de
since Bentham's day, which cannot be attributed to noted quality simply, and not origin. Judge Clif- his influence." ford dissented from this conclusion of fact. If, as The Roman law is for the modern jurisconsult, what stated in that case, indication of origin is entirely
the chef d'oeuvres of antiquity are to the artist; it is overborne by the patent fact that the label discloses
a masterpiece of foresight, of justice and of composi
tion, and the elements of this vast structure bare the name in full of the manufacturers, we do not
built into the legislation of the civilized world. see why any trade-mark, coupled with the name of What is there then in the origin, the history or the the real manufacturers, might not be used, for ac- development of the common law which renders its cording to the language of the opinion the indi- codification impracticable? What the Roman lawcation of origin by the use of the trade-mark would
yers did in the time of Justinian, we can surely do,
and more. be overborne' by the disclosure of the maker's
Hume says of them, “it is remarkable that in the name. We do not think that the court meant that decline of Roman learning, when the philosophers
were universally infected with superstition, and the shines only by the power of history; they also forget
cided cases. Mr. Benthem says: “It affords for the Justinian appreciated the task of codification, he manufactory of real law a stock of materials which is says in his preface addressed to Tribonian: “We beyond price. All the libraries of Europe would not have been encouraged by the success of the Code to afford a collection of cases equal in variety, in ampliundertake the full and completo revision of the whole tude, in clearness of statement, in a word in all points law, and to correct and reform the entire Roman jur- taken together, in instructiveness. Vol. 4, p. 460. isprudence, and to compile in one volume, all the scat- The need of codifying is growiug with this aocumutered writings of the jurisprudents; a work which has lation of cases and the difficulty increases in proporbeen cousidered impossible, and which no one has tion to the need. Tacit codification which is constantly heretofore dared to undertake; but with uplifted going on, and which results from the acceptance of a hauds invoking Divine assistance, we have entered on formula sanctioned by decided cases, does not satisfy this work, trusting to God, who enables men to ac- tbe eager demands of an active era. The arranging complish the most desperate enterprises, to help us by hand directed by the logical miud of the codifier is his infinite power to complete it. And when it is required to write, in clear, terse and accurate language, completed, we wish it to be regarded as the temple what now exists in a coufused state, leaving to a more and sanctuary of justice," par. 5.
advanced reformer, the task of introducing those eleHe called the proposed compilation or digests a ments, which codification would develop as necessary Code, for he says in the same preface, “ideo jubemnus to the harmony and completeness of the law. duobus istis codicibus omnia gubernari uno constitu It is not true that codification will impede the tionum altero juris enuclaeti et in futurum codicem growth of the law. compositi,” par. 11.
Justiniau, in his proemium above referred to, exIn his preface to the digests, when published as the pressly declares that divinity alone is perfect, and laws of the Empire, he speaks thus of the work which therefore human jurisprudence cannot be stationhas been accomplished: “One of the most admirable ary. effects of the work which has been done is, that our No attainable skill in the preparation of a Code can compilation coutains more in its brevity, than can be provide for every contingency, nor can it prevent the found in the multiplicity of the ancient laws, for extension of law by judicial interpretation, but the although heretofore a great many laws were made, extension is slow and insensible. No Code can imnevertheless very few of them were cited by litigants mobilize the law, or deprive it of the successive im. in support of their causes, either for the want of provements which follow the progress of science. But books, which ends with the last report, for the so- progress is accomplished by a different method; withcalled laws of Edward the Confessor, of William I, and out a Code it is the work of lawyers and judges, under of Henry I, have been shown by modern criticism to a Code it is mainly the work of a legislation; the be unofficial and informal collections.
courts and the lawyers cannot innovate, nor can they The statutory encroachments on the common law, correct or reuder the Code more perfect: they point its myriads of precedents, its wilderness of single in- out its imperfections, its defects, its gaps; they prestances, seem to require orderly arrangement and scien- pare the progress which the legislator executes. tific classification to say the least. But the needs of After all the Legislature does not create, it only formodern civilization, and the higher conceptions of mulates a law, which is the phase of a life of a Nalegal principle, which characterize the philosophiction. spirit of the age, demand a more radical codification, A Code will diminish what Paley calls the compewhich will efface the patches of centuries, that now titive analogies; one inviting the judge to decide the disfigure the common law, and which will reuder it case, and therefore model the new rule analogously to more simple, more beautiful, and more symmetrical, old rule A., and the other to old rule B., this competiand bring it more in accord with the jurisprudence of tion is ihe difficulty which the judge has to surmount the civilized world.
by comparison, adjustment and reconciliation of analMr. John Stuart Mill in his essay on Bentham tells ogies. Such competition will arise less in statute than how the common law grew and was formed in the in judiciary law, still less in the application of a construggle between the feudal aristocracy of conquerors,
sistent and harmonious Code. and the conquered effecting their emancipation.
The Louisiana Code assumes that cases may occur The conquered was tbe growing power but was never which are not anticipated by it. Article 21 declares, strong enough to break its bands through; ever and *that in all civii matters where there is no express apon some weak point gave way. Hence the law came law, the judge is bound to proceed and decide accordto be like the costume of a full grown man, who had ing to equity. To decide equitably an appeal is to be never put off the clothes made for him, when he first made to natural law and reason, or received usages, went to school.
when positive law is silent." Band after band had been burst, and as the rent Yet the power thus conferred has not been exerwidened them without removing any thing, except cised, cxcept for ühe purpose of furnishing a remedy what might drop off of itself, the hole was darned or or method of procedure. The Code has sufflced as a patches of fresh law were brought from the nearest rule for the adjudication of rights. sbop and stuck on.
Although adopted in the year 1824, the Louisiana Those who are most recalcitrant, and who manifest Civil Code did not take effect till 1825. What is called the most zeal in opposition to the reformation of the
the Revised Code of 1870 is nothing more than the law, imagine that liberty is at stake, and that it can Code of 1825, expurgated of its slavery provisions; it only be nurtured in the cradle of their ancestors; they includes however amendments made in the interval worship the hierarchy of the past, as do those who between 1825 and 1870. worship the hierarchy of birth, the memorials of an
With the exception of three amendments made in old glory which has traversed centuries, and which the years 1814, 1850, aud 1852, the Code has remained
substantially intact. The most radical change was Well might Justinian say to the Senate and people
“Gold for brass, a becatomb for wine."
seven years, have not been transmitted to us; the the mortgage but rendered it inoperative as to third character of their work is the monument to their persons unless registered and thus made public.
genius and learning. Since 1870 the only serious amendment was that The French Code is the idea of the revolution of enacted in 1882 respecting donations between spouses 1789, although Louis XI, as Commines relates, had in case of secoud marriage; prior to that time, a mau desired that there should prevail in his kingdom but or woman contracting a second marriage, having chil
one custom, one weight and one measure; and that all dren by a former one, could give to the new spouse the customs should be put in oue book, written in only the least child's portion'in usufruct; the ameud- | French, to get rid of cunning lawyers. ment allows the donation to embrace one-third of the
A decree was adopted in 1790, providing for a gendonor's property. No other amendment affecting the eral Code to be framed in simple and clear language. legal system of the State has been made, except per- Provision to the same effect was inserted in the Couhaps one enacted in 1884, which permits forced heirs stitutiou of 1791 and 1793. But the convention formed to annul simulated contracts of those from whom they
the gigantic design of codifying all parts of the law. inherit, a right before that time enjoyed by creditors Ou August 9, 1793, Cambaceres presented in the only,or by forced heirs, to the extent of their legitime,
name of the Commission a Civil Code prepared by that is to say of the share reserved to them by law in
himself. the estate of the deceased.
This did not satisfy the Convention, so they estabThe Civil Code is regarded in Louisiana as a sacred lished a commission composed of philosophers who temple, and whenever tho sacrilegious hand of the in. did nothing. novator is raised to change it, the attention of the bar
Cambaceres presented a new project in 1794. It and of the bench is at once aroused, and no alteration
contained 297 articles of general principles. During is permitted without careful scrutiny and thoughtful the discussion of this project the Directory came into consideration of its effects on the structure.
power. Cambaceres prepared a third project which This is one of the principal effects of a logical Code. he submitted to the Council of Five Hundred. BeIt cannot be changed in one part without affectivg fore any discussion could be had a coup d'état elevated other parts and the guardians of the sacred de the first consul to power. posit are ever on the alert to protect if from desecra
Then the work of codification really commenced. tion.
On 24 Thermidor year 8, a commission was organized, No one pretends that codification will dispense with whose menubers were Tronchet, president of the court the necessity for future legislation; it however sets of Cassation. Bigot P'reamenen, solicitor general, the law ou a solid foundation, and casts it into a form, Portalis, advocate general of the Prize Court and which sucoeeding legislators will not venture lightly Maleville a member of the Court of Cassation. Tronto alter; the completeness of the work secures the in
chet was a profouud lawyer, Portalis a distinguished estimable blessing of a legal system so judiciously ar
jurist and philosopher. Bigot P'reameven and Maleranged as to reduce the necessity of future change ville were experienced advocates. to a minimum.
The project prepared by this commission was printed The great Codes of ancient and modern times were
by the goverument; it was submitted to the criticism the work of emiuent jurists.
of the Court of Cassation and the Courts of Appeal, Justinian placed at the head of his codification com- and an invitation was extended to every one to commission the most eloquent aud learned lawyer of his ment thereon. The first consul then selected orators day. He allowed Tribonian to select his own ‘asso)
to explain it to the corps legislatif; it was nevertheciates, some of whom were professors of law in the
less rejected. celebrated schools of Constantinople and Byritus,
On 22 Fructidor year 10, the work of codification others, distinguished advocates who practiced in the
was resumed; the discussion continued for two years. Praetorian courts; no less than twenty-uiue cultivated | The different titles of the Code were presented and minds were engaged in the production of the corpus adopted as separate laws; when all the parts had be. juris; three on the Institutes, sixteen on the Pandects
come law, the government united them in one body and ten on the Code. Justinian has carefully em- under the title of the French Civil Code." balmed the names and officers of those men in the It was revised when Napoleon became emperor, in proemia to his compilations, and they in turu have as
order to make the necessary changes caused by pocarefully preserved the names of the various Roman
litical events, and was republished as the “Code NaJurisconsults, from whose writings the Pandects were
The Grand Chancellor De Cocceji was charged by The Pandects are composed as a piece of mosaic of Frederick II, with the duty of codifying the law of fragments, taken from thirty-nine of the most illus- Prussia; he died in 1735. The seven years' war arrested trious jurisprudents, each fragment bears the name of the work till 1780. the author and of the work from which it is taken.
A project was then prepared by Dr. Carmer and Dr. But such is the coherency of Pandect law made in suc- Volmar, which was submitted to the savans of Europe cession by a series of jurisconsults for two centuries, and to the royal courts. It was not put in force till so completely master of the same mode of reasoning, June 1, 1794 by Frederick William. their successive works apparently belong to one mas- This Code had an immense result, for the first time termind, so that Leibnitz 'said, “it was impossible in Europe; all legal subjects were united iu one from internal evidence to distinguish them."