« AnteriorContinuar »
HOMICIDE-DRUNKENNESS-MISTAKE IN IDEN- there is and was a similar provision. But it is held TITY.- The only reason assigned for the cruel that notwithstanding this penal statute for punishing and reckless murder is that at the time of the parties who attempt to defraud creditors by killing the accnsed was under the influence of liquor. transfer of the property of the debtor, such conThis is no excuse for crime; and to hold that the com. tracts are good as between the parties. If there mission of one wrongful act is an excuse or mitigation were no law regarding such contracts except the penal of a still greater offense would be to license the reck- act, the rule stated by this court in the case above less violators of the law to seek revenge in taking the quoted would apply, though the penal act does not ex. lives of those who had inflicted upon tbem either act- pressly prohibit the making of the contract, on the ual or imaginary injuries. Insanity, when established, presumption that the Legislature intended to absoconstitutes a defense when one is charged with crime, lutely prohibit the making of such contraet, and so because the accused is in such a condition as not to render them void as to the parties; but the same Legknow right from wrong, or that it was wrong to take islature which passed the penal act says that such conhuman life; but when using stimulants that inflame tracts, when made, shall be void only as to credthe passion for the time being, and embolden one to itors of the grantor, and by the strongest implication, do that which he would not do if sober, affords no ex- that they shall be valid as to all other persons. The cuse, nor does it lessen the degree of the offense. It is courts have, in the interest of morality and a sound argued by counsel for the accused that he supposed he public policy, refused to enforce contracts made in was shooting at the one man when he killed the other, violation of law; and generally have refused to and for that reason the offense was manslaughter, and enforce them when the law simply punishes the not murder; or that his intoxicated condition reduced making of certain contracts, upon a presumption the degree of the offense, as the killing of either that the law-making power intended that all Anglin or the conductor was not contemplated by the such illegal and punishable acts should be void accused. Taking any view of the questions raised by when there is nothing in the law showing a contrary counsel, the crime committed was that of murder, intent. In this case however the law-making power and the accused could only have been acquitted on has declared that contracts of the nature in question the ground of insanity. Ky. Ct. App., Sept. 18, 1886. shall be void only as to creditors, and good as between Burchett v. Commonwealth. Opinion by Pryor, C. J. all other parties; and the act punishing the parties to EXECUTORS AND ADMINISTRATORS-TITLE TO ASSETS
the fraudulent contract ought not therefore upon a -ACTS BEFORE APPOINTMENT.-An administrator is a mere presumption to change the intent of the Legige mere officer of the law, and his title to tbe assets of the
lature which declares the contract valid as to the parestate is official, and not personal, and cannot be af- ties. Construing the two acts together, it is the same fected to the prejudice of the estate by any acts of his
as though there were a provision in the penal act by prior to his appointment. Any other rule would be a
which it was expressly declared, that although the very dangerous one. It would put it in the power of
parties shall be punished for attempting to defraud the widow or other person, by first wrongfully inter
creditors, still any transfer or sale of property made for meddling with or disposing of the assets, and then oh
that purpose shall be valid between the parties making taining letters of administration, to squander the
it. This is the construction which has been given to whole estate, arid defraud both creditors and next of
this law whenever the attention of the courts bas kip out of their rights. 1 Pars. Cont. 132; Doe v.
been called to the effect which the penal act should Glenn, I Adol. & E. 49; Wilson v. Hudson, 4 Harr. 168;
have upon it. Carpenter v. Moclure, 39 Vt. 9-13. In Gouldsmith v. Coleman, 57 Ga. 425; Leber v. Kauffelt,
this case the court says: “If such transactions were 5 Watts. & S. 445; Gilkey v. Hamilton, 22 Mich. 282. made punishable as oflenses, and the statute did not Minn. Sup. Ct., July 7, 1886. IV iswell v, Wiswell. contain this section (referring to the section declaring Opinion by Mitchell, J.
the contract void as to creditors only), it could more FRAUDULENT CONVEYANCES—WHEN
properly be urged that they were iu all respects to be GOOD AS TO
governed by the laws relating to prohibited transacPARTIES.- Where by statute a sale or assignment of
tions; but while one section prohibits the covinous property by a debtor to defraud his creditors is de
contract, the other limits the resulting invalidity clared void as to such creditors, and it is made a penal
to the impocent parties against whose interest it is dioffense for any person to be a party to such transac
rected." We think this is the true construction to be tion, such a transaction is yet good as between the
given to the two acts, and that consequently the penal parties to it. It is suggested that the attention of this
statute referred to does not invalidate the contract as court was not called to this provision of law, which between the parties. Wis. Sup. Ct., Sept. 21, 1886. was then in force when the case of Clemens v. Clem
Darey v. Kelley. Opinion by Taylor, J. ens, 28 Wis. 637, was decided, and it was urged by the learned counsel for the'appellant that this section is INFANTS — GOODS SOLD TO PARTNERSHIP -- AVOIDinconsistent with the ruling in that case, and that this ANCE.-In an action upon contract for goods sold and statute brings the case within the rule stated in Mel. delivered to a partnership, one member of which is a choir v. McCarty, 31 Wis. 252, and Clark v. Lincoln | minor, the plea of infancy may be interposed by him Lumber Co., 59 id. 655. The rule there laid down is in bar of any claim of personal liability upon the con"that a contract made in violation of a statute is tract. Conrad v. Lane, 26 Minn. 389. The goods hav. void, although the statute fails to provide expressly ing been furnished to a partnership of which defendthat coutracts made in violation of its provisions shall ant was shown to be a member, the court ruled that not be valid.” It is also held that the imposition of a he was liable, on the ground, substantially, that by penalty for doing an act is in general equivalent to a engaging in business as a member of the firm he held prohibitory act. Benjamin, in his work on Sales (vol. himself out as competent to bind bimself by contract, 2, p. 707 [4th Am. ed.] ) says: “Whereever the law im- and hence is estopped to set up his infancy as a sole poses a peualty for making a contract, it impliedly defense. The rule is not however changed by the fact forbids parties from making such a contract." See that he was a member of a partnership. His contracts cases cited in note 26. It will be seen by an examiva- are voidable, as in other cases. Mason v. Wright, 13 tion of the statutes of the States in which the courts Metc. 308; Smith v. Kelley, id. 309; Todd v. Clapp, 118 have beld contracts of the nature in question valid as Mass. 495; Schouler Dom. Rel., SS 424, 4:25. In Kemp to the parties, many of them have also a statute simi- v. Cook, 18 Md. 130, Lord Mansfield is quoted as havlar to the penal statute above quoted, and in England ing said in Gibbs v. Merrill, 3 Taunt. 307, “that an infant, by engaging in a partnership with an adult, holds tract to the remaining subject matter mentioned in himself fraudulently to the world;" but we find 10 it, and to which the parties intended the contract to such language in the case referred to as applied to the apply. The reason assigned for thus limiting the reinfant partner. In some States the common-law rule formation of a contract required by the statute of is changed by statute, in order to protect persons frauds to be in writing, is that parol evidence in that dealing with infants under circumstances likely to in- case does not conflict with the statute of frauds, since duce the belief that they are over age. Jaques v. Sax, the relief does not make a parol contract required by 39 lowa, 367. How far, or in what cases, an infant may the statute of frauds to be in writing, but simply naror may not be bound by actual fraud, it is not neces- rows a written one already made. The courts of the Bary to cousider here, since this case clearly falls within States that put the most stress on this doctrine bad no the rule laid down in Conrad v. Lane, supra. It general equity jurisdiction, but only such limited would be a similar innovation upon the common-law equity jurisdiction as the statutes of the State courule, if in cases where his appearance and business ferred upon them. This view of the question therewere such as to induce the belief that he was over age, fore grew out of that fact. A few other States howan infant would in consequence be held bound as ever with general equity jurisdiction followed in the though of full age. The hardships which may arise in same line of thought. On the other hand, a large ma. particular cases must yield to the operation of a gen- jority of the courts of the States have held that coneral rule, founded in public policy, intended to pro- tracts required by the statute of frauds to be in writtect persons in fact under age from the danger of im- ing may be reformed by the courts of equity so as to prudent contracts. 2 Kent Comm. *241. Mino. Sup. enlarge or restrict the terms or the subject-matter of Ct., Sept. 6, 1886. Folds v. Allardt. Opinion by Vau- the contract, whenever it is clearly shown that the derburgh, J.
written contract, by fraud or mistake, does not emMARRIAGE-WIFE'S TORTS-EXEMPLARY DAMAGES.-
brace either the terms or the subject-matter of the Exemplary damages are recoverable against husband
contract as it was intended and understood by the aud wife in an action against them for the malicious
parties to it. The courts of equity go upon the ground trespass of the wife, though the husband is without
that the statute of frauds is no real obstacle in the blame. When two persons have so conducted as to
way of administering equitable relief so as to promote be jointly liable for a tort, each is responsible for the
justice and prevent wrong. They do not overrule the injury committed by their common act. But when
statute, but to prevent fraud or mistake, confer rememotive may be taken into consideration, the improper
dial rights which are not within the statutory probibimotive of one cannot be made the ground of aggravat
tion. In respect to such needful remedies, the statute ing the damages against the other if he is free from
as to them is uplifted. Ky. Ct. App., Sept. 21, 1886. such motive. In such case the plaintiff must elect
Noel's Ex'r v. Gill. Opinion by Bennett, J. against which party he will seek aggravated damages. Clark v. Newsam, 1 Exch. 131. So a master sued for the trespass of his servant is not liable for exemplary
OUR NEW YORK LETTER. damages, however evil the motive of the servant, if he is himself without malice. The Amiable Nancy, 3 THE fourth of October is the lawyer's New Year Wheat. 546; Cleghorn v. New York Cent. & H. R. R.
day here. He makes his usual new resolutions to Co., 56 N. Y. 44. In all cases it is to be observed that
ask for no unnecessary adjouruments, to be always the plaintiff has his election to proceed against all or ready with his cases, and not to charge his client more any of the wrong-doers; and in such case it would be than he thinks he can get. The volume of litigation unjust to make the malicious motive of one party the here, as indicated by the calendars, is larger than last ground of enhancing damages against another who is
year, there being upwards of eight thousand actious free from such motive, if the plaintiff proceeds against and proceedings pending against the city alone. The all, he thereby deprives himself of the right he other- General Term of the Supreme Court is more than wise would have had to claim exemplary damages. seven months behind in its work, although it has But the case is different when suit is brought for a tort caught up vot a little during the last two years. This of the wife for which the husband is liable solely by has been accomplished however only by rendering reason of her coverture; for then the plaintiff has no numerous decisions without opinions, a most fruitful election, but must proceed against both; and herein method of protracting litigation, Counsel will not be lies the distinction between this case and
the likely to advise clients to abandon their contentions cases relied upou by the defendant, for the busband is where there bas been a favorable and well considered liable, not as master, but as husband, and because of opinion by an able judge, for the reason that the Genthe oneness of the twain in the eye of the law. We eral Term has reversed without opinion. have not been referred to, nor have we found much An exposition of the views of our General Term not authority for this distinction, but we think it must infrequently terminates the suit, where a failure to exist in principle. Vt. Sup. Ct., Aug. 18, 1886. Lom- express itself sends the case to the Court of Appeals. buril v. Batchelder. Opinion by Rowell, J.
Recognizing the sometimes dangerous and expensive MISTAKE--REFORMING DEED.--A court of equity ! delays caused by a failure to secure the prompt conwill reform a written instrument of conveyance so as, sideration of the General Term, where decisions reby enlarging or narrowing its terms, to make it con- lating to demurrers and orders are appealed from, form to the original intention of the partieg as ex- Edward B. Whitney, Esq., introduced a most excelpressed in their verbal contract, notwithstanding the lent resolution at the last meeting of the Bar Associastatute of frauds. The courts of a few of the States tion. It provides for the holding of a General Term have held that contracts required by the stat- every month in the judicial year, that is to say from utes of frauds to be in writing could only be cor- October to June, instead of three time a year as at rected in the single instance of a mistake in reference present, and the assignment by the governor of an adto the subject matter of the contract, where the error ditional justice from some interior district of the consisted in including more-for instance, land-inthe State (where he could easily be spared) which would written contract than the parties intended, in which make four justices assigned to the work of review in case parol evidence might be used to show that the this Judicial District. By the powers conferred upon surplus should be omitted or eliminated from the con- them by statute they would then be enabled to entract as written, and confine the operation of the con- large their number so as to run two General Terms
at the same time, and thus keep quite abreast of the The importance attained by the game of base ball is work.
realized where it is known that in a recent dispute The Court of Appeals nominations naturally call between two league clubs, it was necessary to use the forth considerable discussion by members of our bar. machinery of the Supreme Court to compel a certain I speak entirely without prejudice or favor, when I phenomenal pitcher to leave his position on the field, state that if the election were to be decided by the and desist from further disregarding the terms of an votes of the New York lawyers, Judge Daniels would alleged contract with the rival club. Counsel for the exchange the ermine of the Supreme Court for that of parties procuring the injunction, in an argumeut opthe Court of Appeals. He is universally respected by posing a motiou to vacate the same, stated that the members of our bar. No judge who sits upon our defendant phenomenon was an in and out, up and local bench is more conspicuous for “the judicial tem down, ambi-dexter pitcher with ten separate and disperament” than he. Deliberate, patient, command-tinct corkscrew curves. At this point he was interingly able and invariably just, surely was he born for rupted by Judge Donohue, before whom the motion the highest judicial houors. Removed for many was argued, who stated that he had never seen a game years from the atmosphere of political contention, of base ball in his life, that he used to play tbree-oldlitigants and lawyers throughout the State rest assured cat when a boy, and then thought there was one too that no odor of partisanship clings to his gown. The many. After elaborate argument and the examinaability and uprightness of Judge Peckham we all con- tion of the rules of the various associations, the incede, but did he not wear this polished armor and junction was vacated, the suit discontinued, and the equipment of the advocate so long that it is even now multi-curve pitcher sent on his way rejoicing. difficult for him to thoroughly divest himself of the I had occasion some time since to retain Judge tendency to regard one side or the other by light other | Hough, of St. Louis, in a suit which I desired to bring than that shed by the cold judicial reason? Would be there. The judge will be remembered by many of assume his seat on the bench of the highest court of your readers for his able opinions, written while he the Commonwealth with his robes entirely free from was chief justice of the court of last resort in the State the dust created by many a fierce and not very remote of Missouri. A more polished gentleman or abler struggle in the political arena? These are questions lawyer there is not in the State. While dining together pertinent to the comparison between the two men, one day, we were speaking of the many kinds of and should be answered by every one participating in knowledge useful to a praticing lawyer. Yes, said the the choice of candidates. Was there ever a better op- judge, there is no kind of knowledge that sooner or portunity for the people of this State to declare that later will not be useful to a busy lawyer. To illustrate they they do not want and will not tolerate partisan. he said: Some years ago a man in the southern part ship as a quality in any candidate for judicial prefer- of the State was tried for killing some wild pigs which meut, and tbat the honors of the bench are to be re- belonged to a neighbor. The only witness of the prosserved for those members of our profession whose ecution, who swore to the killing, said he saw the dehabits of mind, thought, and purpose lead them to fendant in the act. The young lawyer for the deachieve greater success in the court-house than in the fendant, in cross-examining the witness, asked if the
swine made much noise when they were stuck. The The flight of Ex-Alderman Sayles, and the transfer witness to nake a most profound impression turned of the property of his bondsman, who happens to be in his chair and said: “Jedge, I never heard such all his brother, caused great discomfort in the district | fired squealin' in my life.” Defendant's counsel at attorney's office.
this point addressed the court and said: “I ask your It is reported that the brother, a well known | Honor to take judicial notice of the fact that a wild butcher, has retained Gen. Butler, as counsel, a new hog never squeals.” He did, and the prisoner was acedition of Benjamin on Sayles, as it were, with the quitted. chapter on delivery omitted, bound in half calf, and
. adapted for use in Canada. Mr. Sayles transferred his
NEW YORK, Oct. 18, 1886.
INCONSISTENCIES IN THE CODE OF CRIMINAL PRO
Editor of the Albany Law Journal:
has been twice requested to renjove. Au article was In a case as notorious as any and all of the boodle written for the Law JOURNAL in 1882, and another in aldermen cases are, where it is publicly known that a
1886, which set forth this and various other absurdirelative has become surety on a bond, is it the duty of
ties of the Code. The last article was supplemented a lawyer to enquire as to whether the property in- by a very interesting one by Mr. Dunn, of Champlain. cluded in the proposed transfer is covered by the jus- At the request of many of the prosecuting attorneys tification, or shall he prepare the deeds without ques- of the State, a bill was prepared last winter with tion or comment? The claim of the attorney who great care, correcting many of the plain and unquesperformed the service that any lawyer would have tionable inconsistencies of the Criminal Code. This done the same, is disputed by a good many lawyers bill was introduced March 25th (Senate bill, No. 475). who read the code of ethics with a somewhat more It was referred to the Judiciary Committee, reported
for consideration to the Senate and committed to the I have learned that an effort is being made to induce committee of the whole and ordered when printed, to the Bar Association to investig:ite the charge made by be recommitted to the committee on judiciary, and a certain ex-judge, with great emphasis, that six law- then it slept the sleep of all pigeonholed bills. Subpers in this city received upwards of $370,000 for al- sequent inquiry showed that not a senator had given leged services in the Broadway railroad job.
the bill sufficient consideration to understand, or for
a moment discuss its provisions. The Legislature Mission Society, appellant; Jared Webster, respondseemed to have time enough to consider a fresh sup- ent, v. Seth W. Nichols, executor, etc., appellant; In ply of Mr. Field's Codes, but too little time to con- re estate of Jesse Hulse, deceased; Mary McCall, ad. sider the plainest absurdities, inconsistencies, and in- | ministratrix, respondent, v. Silas H. Witherbee et al., congruities of the ('odes we have. In justice to Mr. appellants; Dayton Hillyer, ancillary administrator, Field it should be said that most of the defects men- appellant, v. United States Trust Company of New tioned are produced by crude amendments to the York, respondent; Thomas Fox, respondent, v. MatCode, for which Mr. Field is not responsible. If | thew Byrues, appellant; Michael Tracey, administraMr. Daily can write enough, scold enough, or draw tor, appellant, v. New York Central and Hudson River bills enough to push the next Legislature into correct- Railroad Company, respondent.--Judgment of Gening the Codes we have before adopting more, he will eral Term reversed, and that of Special Term sffirmed perform a service for which the bar having to deal with costs-People, appellants, v. John O'Brien, rewith criminal law will be under great obligation. If ceiver, etc., respondent; Robert Willetts et al., execuMr. Daily will get up a cry from Greene, Mr. Dunn tors, respondents, v. Sarah A. Willetts et al., appelwill join from Clinton, and by that time I may have lants.-Order affirmed with costs, People, ex rel. summoned sufficient new courage in St. Lawrence, Richard Ryan, respondent, v. Civil Service Superinand among us we may make enough noise to attract tendent and Examining Board of New York City et the attention of the law makers at Albany.
al., appellants; People, ex rel. Lake Shore and Michi
L. C. LANG. gan Southern Railroad Company et al., appellants, F. BRASHER FALLs, N. Y., Oct. 16, 1886.
Common Council of Dunkirk (two cases): People, ex.
rel. Cornelia E. Rosa, appellant, v. John C. Streeter WHO WROTE THE BENCH AND THE BAR?" et al., assessors of Watertown, respondents.-Judg. Editor of the Albany Law Journal:
ment of the General and Special Terms reversed, and "The Bench and the Bar," by the Author of “Ran
the proceedings of the respondents reversed, with costs dom Recollections of Lords and Commons," was writ
to the relator in this court and the court below-Peoten by James Gravt. It was published in London in
ple, ex rel. Frank Smith, appellant, v. Commissioners 1837 by Henry Colburn and republished in this coun
of Fire and Buildings Department, Brooklyn, respondtry by Carey & Hart.
ents.-Judgment of General Term affirmed as to the Allibone's Dictionary of Authors, title Grant,
probate of the will, and reversed as to award of costs James. There is another work entitled “Law and
to the contestants, with costs to the executor, to be Lawyers," two volumes, octavo, published in London,
paid out of the estate-In re Probate of Will of John 1840, by Longman, Orme, Green & Longmans, the au
Wilson, deceased. — Appeal dismissed with coststhor of which is no. given in the volumes. Who he Joseph Corner, appellant, v. Frank Wrisley, respondwas bas puzzled many. It was probably written by appeal to this court and $10 costs of opposing motion
ent. -Order of General Term reversed, with costs of Archer Polson. Allibone's Dictionary of Authors, title Polson, Archer, where it is said to have been
at the General Term-Anton Schwartz, appellant, v. published in 1858. My copy was published in 1840.
Louise Weber, administratrix, respondent. — Motion Paul, Timbs & Fitzgerald (“Modern Anecdotes,” p.
to restore cause granted, on payment by appellant to 183), cite it as Polson's. Mr. Woolrych (2 Lives of respondent's attorney of $10 costs of motion and serEmineut Serjeants, p. 553) cites it as Polsou's, though
vice of three printed copies of case-Willis McDonald in a note (p. 642) he says: “This is a very interesting A. R., appellant.
et al., respondents, v. Department of New York, G. and amusing book of two volumes attributed to Mr.
-Motion to dismiss appeal granted, Polson." The italics are Woolrych's. Neither Low
with $10 costs of appeal and $10 costs of motion-Wil. des nor Brunét mentions Polson.
bur S. Peck et al., respondents, v. Isaac Powers, ap
pellant. NATHANIEL C. MOAK.
- Motion to dismiss appeals granted without ALBANY, Oct. 25, 1886.
costs-Gotthel Greiner v. Jettle H. Hamburge; Na
than Hutkoff, respondent, v. William Jennings DemoEditor of the Albany Law Journal:
rest et al., appellants; Emily R. Caldwell, executrix, The author of “The Bench and Bar” was James
v. Franklin J. Wall, appellant. -Motion to advance Grant, a London journalist, who was born in Elgin,
cause-Margaret E. Richardson et al., appellants, v. Worayshire, in 1805. In 1864 he was connected with Henry R. Jackson et al., respondents.- -Motion to the Morning Adierliser. He wrote several unsecta
advance cause denied without costs-Hester J. Todd rian religious books.
and another, appelants, v. Isaac Nelson, respondent. DETROIT, Oct. 24, 1886.
-(1) Motion to substitute granted. (2) Motion to discontinue granted upon payment of costs of
appeal to this court, and costs of motion-PerEditor of the Albany Law Journal :
rin H. Sumner, respondent, V. Hannah AlexanIn answer to Biblion's inquiry in your last number der, administratrix, appellant.-Motion to vacate orI would say, that the author of "The Bench and the der dismissing appeal granted on payment of $10 costs Bar,'' London, 1837, was James Grant, editor of the
of motion-In re accounting of John C. Conner, asLondon Morning Advertiser.
signee of John F. Smyth, an insolvent debtor.-MoTRENTON, N. J., Oct. 25, 1886.
G. D. W. V. tion for substitution and to advance cause granted
without costs-John M. D. McIntyre et al., appellants,
v. McIntyre Coal Company, respondents.—Motion COURT OF APPEALS DECISIONS.
to prefer and advance cause denied without costs
Throop Grain Cleaning Company, respondent, v. H. following decisions were handed down Tues.
Cornelius Smith, appellant.- Motion to dismiss. day, Oct. 26, 1886:
Ordered that the executor, appellant, serve upon the Judgment affirmed with costs--People, respondents, attorney, Aletla A. Akin, three copies of the return v. Oscar F. Beckwith, appellant; People, respondents, now on file with the clerk of this court, embracing her v. Roxalana Druse, appellant: In re Proving last will notice of appeal within ten days after the notice of of Stephen F. Beekman, deceased; Fannie S. Petrie, this order, and in default thereof that this appeal be administratrix, respondent, v. Ogdensburgh and Lake dismissed with costs-In Settlement of accounts of Champlain Railroad Company, appellant; Miles B. Asa B. Kellogg, executor of Benjamin Akiu, deRiggs, administrator, respondent, v. American Homeceased.
The Albany Law
torical reasons upon which the wide distinction beJournal.
tween these two systems of law were once grounded
have for centuries ceased to have any weight. Now, ALBANY, NOVEMBER 6, 1886. the law as to personalty practically admits of all
the modes of disposition which are in use with re
spect to realty. Leaseholds are personai estate, but CURRENT TOPICS.
they are commonly settled upon trusts correspond
ing to the uses of the settled realty, and these limiUDGE read at the annual meeting of the Vermont
holds all that can be desired with respect to realty, Bar Association, in 1885, a paper on “English Law and stocks, and funds, and personal estate generand its Early Books,” which is now issued in a
ally may be settled in like manner. We are told pamphlet, and which gives an instructive and con
by a learned writer on this subject that the law as cise account of the original sources of our law, prin
to personal property, as it now stands, is just as facipally Glanville, Bracton, Fleta, Britton, Mirrour of vorable to the preservation of important establishJustices, De Hengham, etc. He observes in con
ments, and to making provision for unborn chilclusion: “The first book of English law known to
dren, as the law as to real property, and it is free have been printed was an abridgment of the ancient
from the objections of technicality and mystery to law in Norman French, by Nicholas Statham, Baron
which the law of real property is open.' Of course of the Exchequer in 1468. It was printed, as is
the assimilation of the law of real property to that supposed, between the year 1470 and 1490. As is
of personalty would put an end to primogeniture; usual with those early books, there is no date, no title
but this would be no hardship. The owner of a page, and no paging, and the author's name does
real estate who desires that his eldest son should not anywhere appear. It contains many original possess it, to the exclusion of his other children, authorities which are not extant in the ycar books
need only to make a will to carry out his desires; of those days. In the century after the year 1500
and it will be the consequence of his own neglect, there were many law treatises published, among them
if, by dying intestate, his estate is divided among the abridgment of Fitzherbert, his Natura Brevium;
his children equally, just as it is now the result of *The Doctor and Student,' by St. Germain; Term's
his own neglect, if by dying intestate, his real esDe La Ley, by Rastelle; “The Boke for a Justyce of
tate goes - contrary to his wish — to the eldest Peace;' «The manner of Kepynge a Court Baron
son, to the exclusion of his other children. To sugand a Lete;' and the Carta Feodi, a book of prece
gest a scheme for eflecting the necessary reform in dents of feoffments. During the same century there
the direction advocated would occupy much more were several volumes of the year books printed, and
than could be afforded within the limits of an the reports of Plowden, Brooke, Bellewe and Dyer.
address. In assimilating the law of realty to that The united number of printed volumes of decisions
of personalty, it would no doubt be necessary to of the English Courts in 1645 can be seen from the
preserve so much of the law relating to realty as comments of the Legal Bibliography' upon the
arises out of its immovable character, and from the paper read by Senator Hoar, before the American
fact that the possession and the ownership are genAntiquarian Society, in which he states there were
erally distinct; but the modifications necessary but fourteen. In commenting upon this statement would be exceptions only to the general law of perit is shown that there were twenty-eight volumes
sonal property, and the detail of these modifications of reports then in existence. But to make this
would be readily contrived by the ingenuity of number each part of Coke's reports must be treated
conveyancers. If the fundamental alteration in our as a separate volume. Happy year 1280, when two
law thus advocated were made, then (to use the volumes contained all the law that was known.
words of Stephen, J., writing on this subject) 'simHappy 1645, when all the law reports might be
plicity would be substituted for intricacy, and packed in a small traveling trnnk. Soule's Refer
light for darkness, in this great department of law, ence Manual, published in 1883, gives nearly seven thousand volumes of reports of cases of English
and thus all which is artificial and technical in con
veyancing would be swept away.' No doubt we law, Africa and the islands of the distant seas furnishing their contingent, with several thousand vol
should part from our antique learning and veneraumes of clementary treatises.” And about one
ble methods with regret. No one who has drunk hundred volumes a year are now produced in this
from the fountains of real property law as contained country alone, three-fourths of which is of no per
in 'Littleton's Tenures,' with Butler and Harmanent, and of but little present interest.
greaves' Notes; ' 'Shepherd's Touchistone;' "Saunders on Uses; ' “ Fearnes' Contingent Remainders,'
and 'Sugden on Powers,' and who has revelled in At the annual meeting of the Incorporated Law the artificial and paradoxical learning which they Society, held at York, Eng., the president, Mr. H. contain, can contemplate without a feeling of sadWatson Parker, in his opening address expressed ness the breaking up of the idols he once worvery decided opinions in favor of abolishing the old shipped; but if ever the law of real property is to rules of land tenure, and assimilating the law of be radically and properly reformed, the sacrifice realty to that of personalty. He said: “The bis- should be made, and we must commence by a jetti.
VOL. 34-No, 19.