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others, raised a conflict in evidence which we cannot, as an appellate court, declare to be insufficient to show that the assumption was unfounded. June 1, 1886. Harbeck v. Harbeck. Opinion by Danforth, J.

NEGLIGENCE-CONTRIBUTORY-TRIAL-CHARGE OF COURT.-The only ground of error alleged by defendant is the exception taken to the following phrase in the judge's charge: "If the train appeared to have stopped, then for all practical purposes and for the consideration of this case, it had stopped." This phrase was followed and explained by this language: "If from the evidence you shall say that when this woman stepped out upon the platform, the train had stopped, or appeared to persons of ordinary intelligence and observation to have stopped, following, as it did, the conceded announcement, the fact that an announcement had been made that the station had been approached, and by a sudden jerk, of which she had no warning, she was precipitated and received this injury, she has a right of action." There was no error in the portion of the charge excepted to. The plaintiff was in a strange place in the night-time, and upon her inquiry, as the train neared Rochester, the conductor informed her that she must change cars at the first place at which the train was stopped; that "Rochester" would be called, and she must take the second right-hand train. Some time after this the brakeman called "Rochester; change cars." The train was then either stopped or slowed down, so that to her, in the inside of the car, it appeared to have stopped. She was bound to act upon appearances, and after making the announcement, if the train was run so slow as to appear to a person of ordinary intelligence and observation to have stopped, ordinary care for 'the safety of the passengers required the train to be so run and managed as not to endanger their lives, and a sudden jerk or start without any warning, when the passengers were upon their feet, moving toward the platform of the cars, was sufficient evidence of carelessness to impose liability upon the defendant. As to any one in the cars when the train appeared to have stopped, it was the same as if it had stopped, and the same duty rested upon the defendant to care for the safety of passengers. June 1, 1886. Bartholomew v.

New York Cent. R. Co. Opinion by Earl, J.

SPECIFIC PERFORMANCE-DISCRETION OF COURT— TRESPASS SUBCONTRACTOR BUILDING ROAD.-Defendant purchased land of plaintiff in Orange county, adjoining the Hudson river, and agreed always to keep a passage-way under the railway for the use of plaintiffs. Held, that in view of the difficulty of constructing it, and its inutility, when constructed, it was within the discretion of the court in its equitable jurisdiction to deny specific performance of the contract, and leaves plaintiffs to their remedy for damage for its breach. (2) Defendant let a contract for building a road, and it was sublet, and the subcontractor trespassed on plaintiff's land; but as it did not appear that the contract which defendant made with the contractor could not have been executed as made, without any interference with plaintiff's land where trespassed upon, held, that defendant could not be said to have caused the trespass. June 1, 1886. Murtfeldt v. New York, W. S. & B. Ry. Co. Opinion by Earl, J.

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

ATTORNEY AND CLIENT-ATTORNEY FRAUDULENTLY INDUCING CLIENT ΤΟ SIGN DEED-MORTGAGE BY FRAUDULENT GRANTEE.-Where an attorney induced

his client to sign a deed of real estate under the impression that it was a duplicate of a lease which had been read to him, held, that the conveyance was void, and that a mortgage given by the fraudulent grantee was also void. It is very evident that the deed of these premises was not in fact the deed of the complainant. He never meant to execute a deed, and never knew that he had executed one till confronted with his signature to the same. As was well said by Chief Justice Ryan, in Griffiths v. Kellogg, 39 Wis. 294, the deed, "if not a forgery, was akin to forgery." That was a case where a lightning-rod agent induced a woman to sign a promissory note for a greater sum than she owed, by reading the instrument to her as of the less and real sum of her agreed obligation. The court said: "The note in suit was as little hers as if the transaction between her and the lightning-rod man had not taken place, and he had forged the note." The person who relies upon the records for the authenticity and validity of a deed does not stand in as favorable a position as a good-faith holder of negotiable paper. In this case, if the name of complainant had been forged by Navin (the attorney) without the presence or knowledge of McGinn, and placed upon the record, the abstract of title upon which defendant Tobey and his copartner relied would not have disclosed the forgery any more than it did the fraud of Navin. It seems to us that in order to make them bona fide holders of this mortgage, as against the lands of McGinn, they were bound to go further than the abstract, and to examine the deed. This they did not do. But we consider this deed clearly a forgery, under the best definitions of that offense. Bishop defines "forgery" to be "the false making or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." 2 Bish. Crim. Law (7th ed.), § 523. It is the "fraudulent making and alteration of a writing to the prejudice of another man's rights." 4 Bl. Com. 247. The signature to this instrument is genuine, but the body of the deed is false, and the signing of complainant's name, without knowledge of such falsity, cannot cure it, and make it a true and valid instrument in the hands of any one. A genuine signature cannot change the character of an instrument of this kind, unless the intent to do so goes with the signature. The question of the complainant's negligence in signing this supposed copy of the lease, without reading it, if this is a forgery, as I think it is, cannot be considered in this case; for if the deed is in law a forgery, the question of good faith cannot arise. Camp v. Carpenter, 52 Mich. 375; Austin v. Dean, 40 id. 386; De Wolf v. Haydn, 24 Ill. 525; Griffiths v. Kellogg, 39 Wis. 293; Crawford v. Hoeft, 24 N. W. Rep. 645, 653. Mich. Sup. Ct., July 1, 1886. McGinn v. Tobey. Opinion by

Morse, J.

PLEDGE OF ALIMONY FOR COUNSEL FEES.-A contract made between the wife and her solicitor, in advance of a decree for divorce and allowance of alimony, to pay one-half of what she should be awarded to her solicitor, is void as against public policy. The law has provided that allowance may be made to carry on the suit, which includes whatsoever reasonable sums the services of the solicitor may be worth, and also the other expenses, as well as for her support, so that she shall stand before the tribunal, which administers one law alike to the husband and wife, on an equal and common ground with him. It would be a fraud upon the court who makes these allowances, based upon the facts before him of the husband's ability and the wife's necessity, and also upon the husband who is called upon to pay, if the fund so decreed to the wife as her temporary alimony should be bartered away to her solicitors under the guise of "compensation" un

der a private contract with the wife. The allowance or temporary alimony is discretionary with the court, and it cannot be for a moment imagined that an allowance would be made if the court was apprised that one-half the sum allowed for her sustenance had been agreed to be paid over to her solicitors under a contract like that set up in this case. It was held in Perkins v. Perkins, 10 Mich. 425, that a decree for alimony vests an absolute right in the wife thereto. The power to decree alimony is statutory and incident to the jurisdiction in suits for divorce, and the statute prescribes the entire powers and regulations on the subject. In fixing the amount and time of payment, the court is entitled to have all the facts which would influence its decision laid before it. Can it be supposed

that the court would make an allowance to the wife of a gross sum for permanent alimony, to be paid by the husband out of his estate, if it was possessed of the fact that the wife had contracted to pay one-half or any other portion of what she should be awarded to her solicitor? Such contracts are against public policy for another reason. Public policy is interested in maintaining the family relation. The interests of society require that those relations shall not be lightly severed; that families shall not be broken up for inadequate causes or from unworthy motives, and that where differences have arisen which threaten disruption, public welfare and the good of society demands a reconciliation, if practicable or possible. Contracts like the one in question tend directly to prevent such reconciliation, and if legal and valid, tend directly to bring around alienation of husband and wife by offering a strong inducement, amounting to a premium, to induce and advise the dissolution of the marriage ties as a method of obtaining relief from the real or fancied grievances, which otherwise would pass uunoticed. Mich. Sup. Ct., July 1, 1886. Jordan v. Westerman. Opinion by Champlin, J.

--

CONTRACT AGES - PROFITS.—(1) A provision in a building contract that disputes with respect to the value of extra work, or of work omitted by directions of the owner, should be determined by arbitrators, is no bar to an action by the contractor for damages for a breach of contract by the owner in refusing to allow the contractor to do the work contracted for, and letting the work to another. (2) On the breach of an executory contract for erecting a building the contractor may recover as damages the profits he would have realized if he had been allowed to complete the contract, and the difference between the cost of executing the contract and the contract price furnishes the means of estimating such damages. N. J. Sup. Ct., June, 1886, Boyd v. Meighan. Opinion by Depue, J.

PROVISION FOR ARBITRATION-DAM

himself in forwarding the transaction. Md. Ct. App., May 14, 1886. Stewart v. Schall. Opinion by Ritchie, J.

ANNUITY-DISTINGUISHED FROM COVENANT FOR SUPPORT.-In this case the grantor contracted for the payment of $200 on the first day of March in each and every year, commencing on the first day of March, 1872, and thereafter, during the natural life of the grantor, and the release by the grantee of the interest

he otherwise would have in the estate of the grantor upon his death as one of his heirs at law. This release was conclusive upon the grantee-Kershaw v. Kershaw, 102 Ill. 307-and the payment to the grantor of $200, according to the contract, would give him all In the construction of deeds courts will always incline that he bargained for and ever expected to receive. to interpret the language as a covenant rather than as a condition. Board Ed., etc., v. Trustees, etc., 63 Ill. 204. There is nothing in the form of the language here employed to indicate that it was intended the words "upon condition" do not occur, and there are conveyance was upon a condition subsequent. The no other words of equivalent meaning. There is no clause providing that the grantor shall re-enter, in any event; and these are the usual indications of an intent to create a condition subsequent. Shep. Touch. (6th ed.) 118. The rule is, a court of equity will never lend its aid to divest an estate for a breach of a condition subsequent. 4 Kent Comm. (8th ed.) 134, 130. But where a compensation can be made in money, courts of equity will relieve against such forfeitures, and compel the party to accept a reasonable compensation in money. 2 Story Eq. Jur., § 1315 et seq. The language here is reasonably susceptible of the construction that the parties only intended to secure the payment of the $200 during the life-time of the grantor, and it is clear that much was intended. That was the only pecuniary interest the grantor had in the question of whether the land should be alienated or not during his life-time. If alienated, the grantee might not be I able to pay the $200 per annum; but if it could not be alienated during his life-time, it was ample security for the payment of the $200. The duty to pay the $200 and the inability to alienate go together. It ac|complishes the same result, does injustice to no one, and is more in harmony with the general rules governing the alienation of real property to hold that the grantor here retained a lien on this land for the payment of the $200 annually, on the first day of March, during his life-time. The appellants took whatever rights they may have, with notice by the record of the deed of all its reservations in favor of the appellee (Willis v. Gay, 48 Tex. 463; S. C., 26 Am. Rep. 328) and so theirs are subordinate to his. Ill. Sup. Ct., May 15, 1886. Gallaher v. Herbert. Opinion by Scholfield, J.

CRIMINAL LAW RAPE EVIDENCE COMPLAINT MADE BY VICTIM AFTER THE ACT-EXCEPTION TO RULE

——— ILLEGAL-MARGINS.-In an action to recover for money advanced and services performed by a broker for a customer, in sales of stocks, etc., bought on margins, it is competent to show that though the con- YOUTH OF VICTIM.-In prosecutions for rape, the tract is apparently legal, it is in fact a mere guise un- rule of evidence admitting the fact that complaint was der which a gambling transaction may be conducted, made by the victim, and excluding the complaint and a recovery may thus be defeated. Grizewood v. itself, ought to yield in cases where such victim is of Blane, 11 C. B. 536; Benj. Sales, § 542; Irwin v. Wil- tender years, and her silence is the direct consequence liar, 110 U. S. 499. The plaintiffs seem to assume that of fears of chastisement induced by threats of the deif the plaintiffs acted merely as defendant's broker in fendant. The reason of the rule admitting the fact negotiating the contracts, and as they are suing, not that complaint was made, and excluding the comon the contracts themselves, but for services per-plaint itself, is founded, aside from its being hearsay, formed and money advanced for the defendant, they do not stand in the same position as if seeking to enforce the original agreement. But as laid down in Irwin v. Williar, 110 U. S. 499: "Where a broker is privy to a wagering contract, and brings the parties together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by

by those courts which do not treat it as part of the res gestæ, upon the danger of allowing a designing female to corroborate her testimony by statements made by herself to third persons, and the difficulty of disproving the principal fact by the accused. But some courts hold that the evidence that complaint was made is received merely as corroborative of the statement of the prosecutrix, but as a part of the res

gesta, where they are made immediately after the outrage complained of, and this is the holding of our own court. Lambert v. People, 29 Mich. 71; People v. Brown, 53 id. 533. If the complaint, made immediately after the occurrence constitutes a part of the res geste, it would seem that not only the fact that complaint was made, but the complaint made, should be admitted. Besides the reason upon which the rule of exclusion is based, namely, the difficulty of disproving the accusation, no longer exists in this State, where the accused is permitted to testify in his own behalf. Mich. Sup. Ct., July 1, 1886. People v. Gage. Opinion by Champlin, J.

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SEPARATE ESTATE

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LIABILITY FOR

which it is claimed that the land was dedicated would
manifestly be promoted. Lennig v. Ocean City Asso-
ciation. Opinion by the Chancellor.
MARRIAGE
HUSBAND'S DEBTS.-The separate estate of the wife
cannot be charged with the debts of the husband,
even though the money be advanced upon an express
promise, in writing, by her to pay out of a particular
fund. This is now the provision of our statute, and it
was the law in this State before the legislature so de-
clared. Perkins v. Elliott, 7 C. E. Green, 127; S. C. on
appeal, 8 id. 526; Peake v. La Baw, 6 id. 269; Arm-
strong v. Ross, 5 id. 109; Van Kirk v. Skillman, 5
Vroom, 109. N. J. Ct. of Chan., June 3, 1886.
rence v. Warwick. Opinion by Bird, V. C.

Law

INJUNCTION-EASEMENT IN CAMP-MEETING GROUND. -Defendants laid out a large tract of land in lots, and made a map thereof, exhibiting a plot marked "CampGround," whereon from time to time camp-meetings and other religious assemblages were held. The object of the enterprise of the association (which was of a religious character, and under the auspices of the Methodist denomination), was to furnish to religious people a place of summer resort and residence, where they could have religious advantages and be surrounded by religious influences. The plot contained a large building in the centre, called "The Auditorium," where the most of the meetings convened. The complainant bought a lot fronting this plot. Different parts of the plot were annually leased by defendants to persons attending camp-meetings, who erected tents thereon, to live in, which remained during the summer and were then removed. Held, that the court would not, at complainant's instance, restrain defendants from leasing any part of the plot to per-exercise of its jurisdiction over the person of the sons to erect thereon small cottages for greater con- debtor, and it did not thereby assume any power over venience and comfort while attending the camp meet- the real estate itself The debtor, in supplementary ings; and that complainant is entitled to no advan- proceedings, may, in a similar manner, be compelled tage from a map, whereon the plot is marked Park,' to make application of real estate beyond the jurisdicwhich map was made and filed after he bght histion. Sup. Ct Minn., May 26, 1886. Towne v. Goldproperty. It appears very clearly that the intention berge Orion by Gilfillan, C. J. of the association has been at all times to reserve the plot in question, for the purposes just indicated, for camp-meetings and other religious and philanthropic assemblies, and that while it intended to devote the plot to those purposes, it never intended to dedicate it to general public use as a park or open space for ventilation, prospect or ornament. If the map be regarded as evidence of dedication of the plot to public use, that use is special for holding camp-meetings there. The complainant does not allege that the defendants propose to divert it from that use, but he This is an admirably executed work, and deserves, complains that in such use the defendants intend to and no doubt will win its way to the front rank of use it in a manner different from that in which such books which are absolutely needed in a working lawgrounds were generally used at the time when he yer's library. The subject of contracts, covering as bought his lot. At that time the persons who re- it does, most of the transactions of everyday business sorted to that place to reside upon the ground dur-life, is one of the most important subjects in the law, ing the camp-meeting season, dwelt in tents which were erected there. It is now proposed, for the greater convenience of such persons as wish to attend the meetings, to substitute for tents small cottages to be built by the owners upon the camp-ground, upon land to be leased to them by the association. The objection made by the complainant to this plan is, that such buildings will remain permanently upon the ground while the tents would not be erected until at or near the beginning of the season, and would be removed at or near the end thereof. But the dedication of the land for camp-meeting purposes would not in itself preclude the use of it in any particular way consistent with the object. It surely would admit of the use of it in the most convenient and desirable way, and the complainant would have no ground of complaint so long as it was not diverted from the use to which it was devoted by the dedication. By the plan proposed, the purposes to

SUPPLEMENTARY PROCEEDINGS PROPERTY IN ANOTHER STATE.-Proceedings supplementary to execution not only perform the office of a creditor's bill, but have a somewhat enlarged scope and purpose. Flint v. Webb, 25 Minu. 263; Heroy v. Gibson, 10 Bosw. 591.. The court or judge before whom they are pending has as much power to apply the debtor's property to satisfy the creditor's demand as the court of chancery had upon a creditor's bill, and can enforce such application in a similar manner. To reach, for that purpose, real estate lying out of the jurisdiction, the court of chancery could appoint a receiver, and compel the debtor to execute to him such conveyances as would be effectual to pass the real estate according to the law of the State or country where it was situated Mitchell v. Bunch, 2 Paige, 606; Bailey v. Ryder, 10 N. Y. 363. This it could do by virtue and in the

NEW BOOKS AND NEW EDITIONS. JONES' CONSTRUCTION OF COMMERCIAL CONTRACTS. A treatise on the construction and interpretation of commercial and trade contracts. By Dwight Owen Jones, of the New York Bar. Baker, Voorhis & Co. New York, 1886. Pp. xl, 554.

and one which the lawyer is constantly upon for advice and counsel. The ten chapters on Parol Evidence, its admissibility and effect as an aid to construction, will, if consulted, save much time and labor, and this feature alone will make the book a desideratum.

CORRESPONDENCE.

A COMEDY OF ERRORS.

Editor of the Albany Law Journal:

DEAR SIR-Solinus, duke of Ephesus, remarked as his eyes fell upon the two Dromios: "One of these men is genius to the other; * ** * which is the natural man and which the spirit? Who deciphers them?" And with like astonishment, I ask concerning the case of Curter v. Wallace, reported once in 32. Hun, 384, and again in 35 Hun, 189, which is the nat

ural case and which the spirit? Who deciphers ever known the like. For here we have a foreignerthem?

As first reported the judgment went for the plaintiff on the opinion of Barker, J., in which Smith and Hardin, JJ., concurred. This was in March, 1884, at the General Term of the fourth department. As last reported, the case was decided for the defendant at the General Term in the fifth department in January, 1885, on the opinion of Lewis, J., in which Barker and Haight, JJ., concurred. Here are two appeals from the same report of the same referee, and two conflicting decisions, while Justice Barker has, in Wall street parlance, a "Straddle" on the case. "Who deciphers them?" G. H. C.

LIBERTY, July 17, 1886.

THE

COURT OF APPEALS DECISIONS.

IE following decisions were handed down Tuesday, July 27, 1886:

Judgment affirmed with costs-People ex rel. Mayor of New York, appellants, v. Dennis McCarthy, et al., resp'dts. Judgment affirmed without costs-John A. Ricker, executor, etc., respondent, v. St. Luke's hospital, appellant.--Judgment affirmed with costs -Delia E. Pittman v. Henry Johnson, executor, etc. -Judgment affirmed with costs-Margaret Kennedy, administratrix, etc., appellant, v. Manhattan Ry. Co., respondent.

Adjourned to meet in the Capitol in Albany the first Monday in October.

NOTES

The Tribune powerfully asks, "When, oh, when will decent citizens put their shoulders to the wheel and sweep away in a body these corrupt municipal leeches?"

Not only are railway conductors and brakemen expected to pronounce the English language distinctly, but in a recent Maryland case it was held that "they are presumed and required to have the ordinary senses, especially in so responsible a condition as the conductor of a railroad train. They certainly are presumed and required to have the ordinary eye-sight, so that they can distinguish between a man in the vigor of his life, and a woman in a state of pregnancy, and accompanied by young children."

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On Monday, in the course of the trial of an action be fore Mr.Justice Field, a witness, who spoke with a very strong American accent, declined to be sworn until he was paid for having been kept here in England awaiting this trial for two and a-half years. The learned judge asked, "What sum is it you claim?" Witness-" £450, judge.' Mr. Justice Field -" Will you give your evidence if the plaintiff's solicitors undertake to pay you such a sum as the court shall determine to be fair and reasonable?" Witness-"I guess that depends on what the court decides." A solicitor's clerk was here called and proved the service. The witness, addressing the clerk in indignant tones, said: "Is that the way you serve subpœnas in a British court? Coming up and shoving a bit of blue paper into my face, the contents of which I don't know, and which I have not read. Do you wear no badge to show your authority? Why, Mr. Judge, I didn't know who he was. Didn't know him from a row of beans!" After some discussion, Mr. Justice Field retired to consult another judge. On his return he said: "This is a most exceptional case; neither my learned brother nor I have

in the sense that he resides without our jurisdictionrefusing to give evidence as agreed, and he evidently has been detained in this country for a long time, at the request of the plaintiffs, and so has been prevented from earning, he states, £15 a month. This is his story, and I have here no means of trying such a question, nor do I intend to do so. If I thought for a mo ment (addressing the jury), gentlemen, that this man was refusing to give his evidence for any contemptuous reasons I should not hesitate, but would follow the usual course in such cases, and commit him. But I do not think that he is so acting, and under all the peculiar circumstances of this case, I decline to imprison this man unless counsel can give me some authority upon which I can act. As counsel could not cite any authority, the witness escaped. -London Law Times.

It will be remembered that several letters recently appeared in these columns under the heading, “Kissing the Book." They arose from the circumstance that a medical witness, when giving evidence in the Divorce Court, objected to kiss the book presented to him, on the grounds, that as the two previous witnesses were common prostitutes, he might incur a risk of infection. Simultaneously, several medical witnesses in different parts of the country made a similar objection, the difficulty in each case being eventually got over by the witness being permitted to kiss the open book. Mr. John Patterson, J. P., of Liverpool, has recently addressed a letter to one of the local daily papers, in which he calls attention to the act of Parliament which is still in force, and which runs as follows "1 & 2 Vict., ch. 105, 14th Aug. 1838. Be it declared and enacted That in all cases in which an oath may lawfully be and shall have been administered to any person, either as a juryman, or a witness or a deponent in any proceeding, civil or criminal, in any court of law or equity in the United Kingdom, or on appointment to any office, employment, or on any occasion whatever, such person is bound by the oath administered, provided the same shall have been administered in such form and with such ceremonies as such person may declare to be binding; and every such person, in case of willful false swearing, may be convicted of the crime of perjury in the same manner as if the oath had been administered in the form and with the ceremonies most commonly adopted." Mr. Patterson contends from this that any Presbyterians may claim to be sworn as their coreligionists in Scotland and Ireland are, with uplifted hand. We have taken some pains to ascertain the law upon this point, and find that not only is this true, but also that any native of Scotland or other country where the oath is administered with uplifted hand may claim to be sworn in a similar manner. And moreover any person who declared that that is the method of taking the oath which he considers binding may claim to be sworn, be his or her nationality or religion what it may. All that is required by the court is that an oath shall be taken before it. It will thus be seen that all those witnesses who object to the kissing of the same book can avoid doing so, provided they declare that by holding up the right hand while the words of the oath are repeated they consider themselves duly sworn. Whether this may lead to the universal adoption of the Scotch oath remains to be seen, but there can be no second opinion as to its being preferable to the present mode adopted in England. Even if the | risk of infection were remote, the successive handling and kissing the book by a number of witnesses is, to say the least, an uncleanly practice. Should any objection be taken by the court to a wholesale preference for the uplifted hand, perhaps each witness will be permitted to bring his own testament.-Lancet.

The Albany Law Journal.

ALBANY, AUGUST 7, 1886.

CURRENT TOPICS.

setts Code prescribe? * * * Every new code, whenever adopted, in my opinion, ought to have a special enactment contained in it, requiring the judges to recede from the words of the law whenever they lead to injustice or great inconvenience; for it seems presumptuous in any body of men to attempt to regulate by absolute terms future affairs and rights respecting things, the existence and relations of which The italics are our

THE Chicago Leyal News publishes an answer by they cannot possibly foresee."

Mr. E. T. Merrick, of New Orleans, to the circular of the committee of the American Bar Associ ation on the delay and uncertainty of judicial administration. Mr. Merrick is opposed to codification; not much in favor of juries; and is in favor of dividing the Supreme Court into three sections of five each. On all points but the last we differ from him. We agree with him however that nine jurors should pronounce the verdict in civil cases. On codification he says: "But according to my reading and observation the transition from the elastic system of principles, resting on pure reason, to a system of positive law, is marked at first by a liberal interpretation corresponding more to the equity of the older system. But little by little, from veneration or some other motive or cause, the words of the statute law are considered of more sanctity, and come to be more rigorously executed, until at last it is thought that it is of more importance that the law should be strictly observed than that equity should be done. You tie your timid or least learned judges with toughened withes, which they neither have the wisdom to untie nor courage to break. How often have the judges felt constrained to enforce statutory laws, against which their sense of justice revolted? Ita lex scripta est is a broad shield for indolent and unlearned men. It seems to me that during the present age of investigation and invention, in which new industries are developed and new discoveries are being made almost daily, and immensely numerous and valuable objects are brought within the domain of jurisprudence for adjudication, it is much better to leave it to wise judges to select from the great storehouse of principles which admit of an infinitude of exceptions, such as are fitting the new subjects brought for their determination, than to leave it to less experienced men who happen to have the power as legislators to freeze principles into rigidity. But the important reason why the great body of our common law should not, in my opinion, be reduced to codes, is that it would ultimately produce a greater divergence in the jurisprudence of the different States than now exists. At present we have the judges of all our States building up one homogeneous system. The opinions of the courts of every State are exerting an influence, more or less, on the courts of every other State on all questions arising under the common law, and hence the uniformity of the law as administered everywhere. This condition of things would cease to exist so soon as each State should reduce its laws to a code. Instead of inquiring what principle of law controls this case, it would be what does the New York or MassachuVOL. 34-No. 6.

|

own. It seems to us incorrect to talk about a present "homogeneous system," for not only do the various States differ widely between one and another, but they are inconsistent and varying with themselves. The italicized recommendation seems to us the worst we ever heard. Would the writer or any one else dream of making such a recommendation in reference to a statute? Then why in respect to a code? And what about the boasted doctrine of stare decisis?

Appended to the Forty-ninth Annual Report of the managers of the State Lunatic Asylum at Utica, for the year 1885, is a remarkably interesting paper on "Insanity: its frequency, and some of its preventable causes." We do not discover the authorship, but infer that it is Doctor Gray's. The au thor gives the following case interesting to lawyers: "A lawyer telegraphed me from Syracuse that he would be at the asylum at a certain hour. I was absent in the city when the telegram came, and when he called, being told this, he left. Two days afterward I got a telegram from him at Albany saying he would call again at a given hour, and requesting me to have Governor Seymour and Judge Denio meet him. He came at the appointed hour, and said to me, 'I called yesterday to consult you because I have for some time past felt so strangely that I thought I might be out of my mind, but I have just been to Albany and argued an important case before the Court of Appeals, and feel satisfied that I do not need advice.' I saw from his manner and speech that he was very insane, and said to him, 'you seem to me to be very insane now.' He said, 'well, perhaps I am excited. I have been at times irrational, I know, but for the most part I am rational.' Soon afterward he was brought to the asy. lum, and declared himself to be president of the United States, and finally said that he was the ruler of the Universe. Judge Grover, of the Court of Appeals, said to me that he had heard his argument,' which was partly a fourth of July oration, and partly an attack on the courts, and that he was an insane man. Rarely indeed at this point will efforts to reason with them change their ideas. No matter what philosophy may teach as to consciousness and recognition of surroundings, the majority of men and women in a state of insanity are inclined to believe what they see and feel and think in ordinary life." The writer ranks the use of alcohol and opium by adults, and tobacco and over-study among the young, as the chief promoters of insanity. thinks that "religion or religious fervor does not

He

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