CORRESPONDENCE.

ANTI-CODIFICATION.

Editor of the Albany Law Journal:

It seems to me that the advocates of the "Civil Code" are singularly unfortunate in the illustrations they choose for the purpose of showing the superiority of statutory law over common law. Thus we find Mr. C. Goepp writing to your JOURNAL, and complaining that he cannot find authorities on "the question of how far are admissible the declarations of a murdered man expressing fear, etc." Hence, he argues, we should have a Code. But a Code of what? Surely, he will not find any such question discussed in the "Civil Code." As we already have a "Penal Code" and a "Code of Criminal Procedure," the failure of Mr. C. Goepp to find the question discussed would seem to result, either from the ignorance of Mr. Goepp as to the existence and contents of those Codes, or else from the incompleteness of the Codes themselves. As there is no Code of Evidence, either civil or criminal, now pending before the Legislature, Mr. Goepp's illustration is about as far fetched and inappropriate as can well be devised. But even if there were a Code of Evidence proposed, no such Code would attempt to go into the minutiae of the subject, and give such exceptions and qualifications and special illustrations as would be necessary to give Mr. Goepp practical help on the question. It would merely state the general principles as to "dying declarations," which may be found in any text book on criminal law or on evidence. And this illustrates one of the grossest misapprehensions as to the "Civil Code." It does not undertake to go into details, but merely to state general principles. But practical litigation deals with details and with the qualifications and applications of general principles; and just here, where this difficult and perplexing work of the lawyer commences, the Code fails him; just as a Code of Evidence would fail Mr. Goepp on the point he is inquiring about.

But I am devoting more space to Mr. Goepp's illustration than I think it deserves. Nor do I think that Mr. E. S. Whittemore's illustration deserves any more space. He actually, in his letter in your issue of March 15th, refers to "the laws growing out of the Statutes of Frauds," as "somewhat contradictory, all tending toward confusion and uncertainty;" and hence he concludes we ought to have more statutes, in the shape of a code. His conclusion may or may not be correct; but his illustration of the advantages of statutory law is certainly most unfortunate. If any thing in the history of jurisprudence tends to prove the disadvantages of statutory law, as breeding confusion, arbitrary distinctions, and expensive litigation, it is the Statute of Frauds.

Mr. Frankenheimer's views deserve more careful consideration. He is an unusually intelligent man, who seems to be sincere in his zeal for the "Code," and who is one of the very few among the advocates of codification, who have felt it necessary to acquaint themselves with the contents of this "Code," before assuming to champion it. Yet Mr. Frankenheimer's chief illustration of the necessity of codification is derived from the litigation over the rights and liabilities of married women in this State, which litigation is still raging furiously. But what has caused this litigation? The uncertainties of the commonlaw? Not at all. The uncertainty caused by statutes, the Married Women's Acts. And yet we are gravely told that the litigation and uncertainty caused by these statutes, show us how superior statutory law is over common; and hence we should have more statutes. Mr. Frankenheimer's conclusion may be right; but his illustration proves the direct contrary. The Married

Women's Acts were a necessity. Grave evils had survived from feudal and semi-barbarous times as to the rights and liabilities of husband and wife, notwithstanding the ameliorations produced by the progressive and beneficent decisions of Courts of Equity. The evils to be remedied justified and required legislation; but this legislation involved minor evils; and among these minor evils was an increase of litigation. And yet we are gravely told that this increase of litigation is itself a reason why we should have new statutes and a new crop of litigation.

But Mr. Frankenheimer will answer, that whatever may be the effect of the Code as a whole in the way of increasing or decreasing litigation, the particular subject under discussion will certainly be clarified and simplified; because the law of married women is entirely swept away by the Code, and there is no longer any thing left to litigate about on this subject. Waiving, for the present, the sufficiency of this answer, it leads me to make another observation and call attention to another misapprehension as to the character of this Code.

It is commonly understood that theCode merely states the existing law, and this understanding is industriously encouraged by the champions of the Code, whenever they desire to ward off discussion. They say, it is merely a question of whether we shall have common law or statutory law; unwritten law or written law; the latter is sure to come sooner or later, hence, we might as well have it now. It is only a question of the form in which our law shall be embodied; a question on which visionary doctrinaires or prejudiced and interested lawyers have impracticable or obsolete notions; but on which the people at large, and we codifiers in particular, take a common sense and practical view. At all events it can do no harm and may do good.

Now, the fact is that this so-called "Civil Code" is not codification at all; it is revolution. It does not state the law as it is; but the law as its author thinks it ought to be. The law of married women affects every household in this State; every husband and every wife of high and low degree. Yet this Civil Code revolutionizes the whole law; abolishes all the distinctions between the rights and liabilities of married women and men. This may be right, but it is none the less revolution. I am not prepared to say that it is not right; but I am prepared to say that to force it on the people of this State without discussion and under the guise of codifying the existing law, is utterly and entirely wrong.

Suppose a bill were introduced into the Legislature providing that "all persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights;" would not such an act receive careful consideration, searching criticism, earnest discussion pro and con? Would not the battle wage hot, as to whether a married woman should be allowed to contract in all respects as if she were sole? Would not the policy, wisdom and expediency of the law be vigorously championed and attacked? And yet when these precise words appear as section 972, of what purports to be a Code," the section excites neither discussion, comment nor observation; and those of us who object to this method of wholesale legislation, and who consider it our duty to open our eyes and to read, reflect upon and discuss the contents of this "Code," are warned off by its advocates as meddlers and interlopers. Notwithstanding the warning, we must continue to protest against " going it blind." We insist upon knowing, at the risk of being intrusive and impertinent, what is hidden in this mystic volume labelled a "Code." And we insist that each member of the Legislature owes a duty to the State and to his conscience under his official oath to examine into the

"Code," and to satisfy himself that the changes it ef-
fects in the law are wise and beneficial. And until he
has so satisfied himself, he has no right to vote for
this "Code."
WM. B. HORNBLOWER.

NEW YORK, March 17, 1884.
PROVISION THAT LEGATEE CONTESTING WILL SHALL
FORFEIT HIS LEGACY?

Editor of the Albany Law Journal:

The bar in my vicinity is about evenly divided on a question of law presented by a clause in a will providing that in case any of the legatees should be dissatisfied, and contest the will, such contestant to thereby lose his legacy, which was to pass to the residuary legatees.

After a most careful and diligent search, I found no authorities bearing directly on this question with the exception of a few early English cases, and believing them to be founded on just principles, I accordingly expressed an opinion that a party contesting would forfeit his legacy.

Those who would not accept my opinion as law, have also searched for authorities, and find none whatever, which I consider a fact entitling me to a firmer belief in my law.

Will you be kind enough to insert this in the LAW JOURNAL, and permit one of your many readers, to give me a brief answer citing cases?

This question must have arisen in the practice of many members of the bar, and I will be under great obligations if you will aid me in fully settling the controversy. A READER.

POUGHKEEPSIE, N. Y., March 17, 1884.

THE ROGER AMERO CASE.

Editor of the Albany Law Journal:

The case of Roger Amero, is now undergoing an examination before a committee of the Massachusetts Legislature, for the purpose of indemnifying him in some way, for the hardship which he has endured, in his arrest and confinement, pending the finding of the indictment and subsequent imprisonment, on the charge for the alleged murder of Mrs. Etta Carlton. This case presents some unique phases in the history of criminal procedure.

On the evening of the 18th of March, 1883, Mrs. Etta Carlton, was murdered in her front entry by being struck on her head, by a paving-stone, at her home in Watertown, seven miles from Boston. The whole community, and throughout the State, the excitement became general, and all vigilance was exercised to discover the murderer. A reward of $3,500 was offered for the apprehension of the true murderer. Finally suspicion rested on Roger Amero, a youth of twenty, from Nova Scotia. At the preliminary examination, it was testified to by a lady in the waiting room of the depot of Mount Auburn station, of the Fitchburg railroad, on the evening of March 18th, that she identified the prisoner as the one she saw there, which depot is within a short distance of the residence of Mrs. Carlton, and as cumulative evidence, another witness testified that he saw Roger Amero, on the same evening on the railroad track near the depot, and he had some conversation with him.

Between the time of the preliminary examination, and the finding of the indictment by the grand jury, the detectives, the district attorney and others, were busy in the search of further evidence. They tracked almost every step that Amero had taken since the day of the murder, and along this trail of evidence, Amero had repeatedly told divers persons, that he was afraid of being arrested, for some terrible thing that he had done to a woman. He was known to take different trains of cars than the ones that led to the Provinces, where he was bound; that he offered extrava

gaut sums of money to conductors of trains, to stop and drop him at stations where such cars did not stop.

Finally papers for his extradition were issued, and the hearing was had before Judge Savory at Digby, N. S., and after some delay and hesitation Amero was remanded to the United States authorities for trial. The grand jury for the county of Middlesex, at Fast Cambridge, found an indictment against Amero for murder in the first degree, and he was remanded to jail to await his trial. At this juncture of the case, it began to be whispered about that Roger Amero belonged to a family in which insanity prevailed, and that Roger himself was subject to the same. They summoned an expert, and he declared he hardly knew, but thought he might be feigning insanity; but when another expert was brought, he pronounced him positively insane. Just at this point a suspicion of murder pointed in another direction. At any rate the attorney-general and the district attorney were so well satisfied of Amero's innocency that they discharged him.

Now the question is to come before the Legislature, whether or not Roger Amero, with all the hardship he has endured at the hands of the government, is to be compensated in any way, more than an ordinary criminal, who suffers unjustly.

E. S. WHITTEMORE.

SANDWICH, MASS., March, 1884.

NEW YORK STATE BAR ASSOCIATION.

A transcript of the minutes of a meeting of the Executive Committee of the Association, held at Albany, February 26, 1884.

Present, the Chairman, Mr. Burt, Messrs. Smith, Forsyth, Kernan, Putnam, the President (Mr. Shepard), Olney, Hickman, Nelson and Buchanan, a

quorum.

The minutes of the last meeting read and approved, and on motion the same were adopted.

On motion, Rule V. of the Executive Committee was amended by adding thereto the following:

"Provided such resolution receives a majority of the votes cast, and at least four affirmative votes." The Secretary shall submit with every resolution so sent by him a copy of this clause of said Rule V. Adopted, unanimously.

On motion

Resolved, That the penalty of the by-law in respect to those persons already elected members of the Association, be and hereby is remitted, provided they shall pay their dues to the Treasurer by June 1, 1884, and that the Treasurer so notify them. Adopted, unanimously. On motion

Resolved, That the offices of clerk and assistant to the clerk of the New York State Bar Association, respectively, be and the same hereby are and each of them hereby is abolished from and after March 1, 1884. Adopted, unanimously.

On motion

Resolved, That the Recording Secretary of the Association, and the Secretary of the Executive Committee thereof be and they hereby are authorized to hire a clerk for the present year at a salary of not exceeding $250 per annum, the same to be paid by the Treasurer upon the certificates of both of said Secretaries. Adopted, unanimously.

A number of bills were presented, audited, and ordered paid by the Treasurer.

On motion the meeting adjourned.

C. J. BUCHANAN, Secretary Ex. Com.

The Albany Law Journal.

ALBANY, APRIL 5, 1884.

CURRENT TOPICS.

New York Mail gives the following information as to the extent to which our New York Codes have been adopted in other communities. In most instances the codes have been adopted substantially in detail, and in others in principle: "The first New York Code, the Code of Civil Procedure, went into effect on the 1st of July, 1848. It was adopted in Missouri in 1849; in California in 1851; in Kentucky in 1851; in Ohio in 1853; in the four provinces of India between 1853 and 1856; in Iowa in 1855; in Wisconsin in 1856; in Kansas in 1859; in Nevada in 1861; in Dakota in 1862; in Oregon in 1862; in Idaho in 1864; in Montana in 1864; in Minnesota in 1866; in Nebraska in 1866; in Arizona in 1866; in Arkansas in 1868; in North Carolina in 1868; in Wyoming in 1869; in Washington Territory in 1869; in South Carolina in 1870; in Utah in 1870; in Connecticut in 1879; in Indiana in 1881. In England and Ireland by the Judicature Act of 1873; this Judicature Act has been followed in many of the British Colonies; in the Consular Courts of Japan, in Shanghai, in Hong Kong and Singapore, between 1870 and 1874. The Code of Criminal Procedure, though not enacted in New York till 1881, was adopted in California in 1850; in India at the same time with the Code of Civil Procedure; in Kentucky in 1854; in Iowa in 1858; in Kansas in 1859; in Nevada in 1861; in Dakota in 1862; in Oregon in 1864; in Idaho in 1864; in Montana in 1864; in Washington Territory in 1869; in Wyoming in 1869; in Arkansas in 1874; in Utah in 1876; in Arizona in 1877; in Wisconsin in 1878; in Nebraska in 1881; in Indiana in 1881; in Minnesota in 1883. The Penal Code, though not enacted in New York until 1882, was adopted in Dakota in 1865 and in California in 1872. The Civil Code, not yet enacted in New York, though twice passed by the Legislature, was adopted in Dakota in 1866 and in California in 1872, and has been much used in the framing of substantive laws for India. The Political Code, reported for New York but not yet considered, was adopted in California in 1872. Thus it will be seen that the State of New York has given laws to the world to an extent and degree

unknown since the Roman Codes followed Roman conquests."

The Sun says: "The Senate Judiciary Committee at Albany has made a favorable report upon Mr. David Dudley Field's Civil Code, against the dissent of three members of the committee. Something which is described by our correspondent as the 'Throop revision' has also been reported favorably by the same committee. If this piece of legislation, whatever it is, be the work of Mr. VOL. 29-No. 14.

Montgomery H. Throop, we advise the Legislature to deal with it carefully. If any thing in the world will make a lawyer or litigant sick of codification it is the attempt to interpret and construc the contents of that monstrosity now known as the Code of Civil Procedure, which in its present form is largely the work of Mr. Throop. He is an estimable gentleman, but he should not be allowed to tinker at our laws any more." In great measure we agree with this. We do not strenuously object to Mr. Throop as a reviser, but we do not think he has the right conception of the framing of a code, and his glosses upon the Code of Procedure have generally been ill advised, and have done much to prejudice codification among lawyers. Mr. Throop would do the profession much better service if he would stop codifying and revising, and complete his promised and promising work on "Verbal Agreements"- although we should prefer to have him call it oral agreements.

It is a positive pleasure to be able to agree with Gen. and ex-Gov. Butler on any thing. Whatever else may be said of him—and whatever is said of him must be generally against him-it must be admitted that he is a capital lawyer, one of the very ablest of the present time. He is favorable to general codification of the laws of Massachusetts, and he strongly, clearly and concisely gives his reasons as follows: "There have been so many changes in the common law by our statutes and the decisions of our courts, some of which need to be corrected in the codification, and there is now such a mass of books accumulated, in which hundreds of conflicting opinions are to be worked over before the lawyer can come to the conclusion what is the law, that an imperative want now appears for such codification, quite equal to what there was for a change in the practice when the system of pleading was codified nearly forty years ago. It is in vain for any one to look in our statutes and ascertain what the law is on any subject, and it is equally in vain to look into the book of common law to ascertain what is the law upon a given subject. Both have to be studied and compared, and as there are no means of reference from one portion of the law to the other portion there is a consequent liability to very vicious mistakes, entailing great costs of litigation. I do not think it would take more changes in the law to correct the code year by year in the Legislature than now is had in correcting and modifying the statutes."

Senator Titus' bill abolishing imprisonment on final judgments in civil actions, which has passed the Senate, ought to prevail. Let us wipe out this whole system of helping people collect their debts and damages by incarceration of the debtor. there is any thing deserving imprisonment let the criminal law deal with it.

If

So too of the bill permitting husband and wife, in action for divorce, to testify in their own behalf,

to disprove allegations of adultery, which has passed the Senate. We are approaching, step by step, the inevitable abrogation of all restrictions on the competency of witnesses. Marriage ought not to discredit a man or a woman as a witness, and we go so far as to say that death of an adverse party ought not to shut out the survivor.

The short but terrible reign of riot in Cincinnati suggests several serious reflections. First, it is a strong reminder of the danger of a lax administration of criminal justice. The inadequate punishment of Berner alone probably would not have led to these results, but the community have been sullenly considering the fact that there are too many murderers in jail, and Berner's case was simply the last straw on the patient camel's back. These things must be amended all over the country, or there will be more trouble of the same sort. Second, it is evident that the good and order-loving citizens of Cincinnati went to work in a very foolish way to right matters. They should have waited till Berner was safely lodged in prison before holding their mass meeting. They ought to have foreseen the result of such a meeting at such a critical moment. Perhaps they designed the outcome; if so it served them right. People who fool with the mob spirit ought to suffer from it. Much better reform their magistracy and juries. Third, the composition and conduct of the mob show what a worthless set of creatures they were, and how preposterous it is to claim for them that they were inspired by any better impulse than a love of mischief. With very few exceptions no mob ever contained a decent man, and generally those who come out to look on for curiosity would be about as well dispensed with as the rioters themselves. This mass of lawbreakers was mainly made up, we take it, of "hoodlums" and foreign communists and socialists. The press are doing poor service to the cause of order and justice by publishing the opinions of their survivors as indicative of public sentiment. Fourth, we are again taught that there is only one sensible and merciful way of dealing with mobs, and that is to kill as many as possible at the first fire. They deserve no better fate; sympathy is wasted on them; they are just as bad, and even more dangerous than the criminals whom they would lynch. If the Cincinnati politicians could have plucked up courage to deal with these wretches as the New York authorities dealt with the rioters in 1863 and 1877, there would have been far less loss of life and property. Mercy to a mob is an ill-timed virtue. We only hope this terrible lesson will be worth what it has cost, and that other communities will take it to heart. Enforce the laws, purify the laws, respect the laws this should be the lesson of the moment to magistrates, to legislators, and to the public.

The present issue has assumed the aspect of a "Code" number. We make no apology for this. It will occasionally happen, and it happens because

the profession evidently consider this subject of paramount importance; we would call special attention to the first answer to Mr. Carter's pamphlet, as one of the most admirable statements of the defects of unwritten laws.

IN

NOTES OF CASES.

́N Barrett v. Hart, Ohio Supreme Court, March 4, 1884, 5 Ohio L. J. 244, where a chattel mortgage permitted the mortgagee to take possession if he should "deem himself in danger of losing," it was held that he might take possession, acting in good faith and upon facts arising after the making of the mortgage. The court said: "To fulfill this condition, Hart cannot simply say he so thinks; nor can he act from malice or caprice. Still the state of his mind as to his danger of loss, is the determining fact agreed upon to decide whether or not he has a right to take possession. The mortgagee is made the judge, his mind is to be moved to a certain state, his judgment is to arrive at a certain conclusion, and his mind must be moved by facts — not opinions on questions of law and the facts must be those arising after the giving of the mortgage. The mortgagor trusts the mind of the mortgagee, such as that mind is, whether that be active, clear, strong and correct, or dull, weak and nearly certain to go wrong. And being thus trusted, the mortgagee must act in good faith and when he thus acts and 'deems himself in danger of losing said debt or any part thereof, by delaying the collection thereof until the expiration of the time above limited for the payment thereof,' he may take possession of the property in accordance with the terms of the mortgage. The facts of danger alone cannot determine the breach of this condition. To a judge or jury on the trial, such facts may show only apparent, and not real danger, and yet the mortgagee deem and know the danger real; or to such judge or jury the facts may show real danger, and the mortgagee deem and know the danger only apparent. The true standard must be, whether or not the mortgagee, acting in good faith, at the time deems himself in danger." Scott and Sheldon, JJ., dissented. See Gibson v. Cranage, 39 Mich. 49; S. C., 33 Am. Rep. 351, and note, 353; Gray v. Cent. R. Co. of N. J., 11 Hun, 70; Spring v. Ansonia Clock Co., 24 id, 175; Werner v. Bergman, 28 Kans. 60; S. C., 42 Am. Rep. 152, and note, 153.

In Perry v. Dicken, Supreme Court of Pennsylvania, February 4, 1884, 14 Week. N. C. 245, it was held that an attorney may contract for a contingent fee, and may testify in the case on behalf of his client. The court said: "It is doubtless true that such a practice may sometimes lead to speculative litigation or result in oppression from an unconscionable bargain; and so far as its tendency is to the perpetration of these abuses, it does not tend to promote the highest standard of professional

ethics. Yet it is certainly true, as stated by Judge Lewis in his Abridgment of the Criminal Law, that 'Many of the most eminent and upright gentlemen of the bar have felt no repugnance to this method of compensation; it has been practiced without the slightest censure by gentlemen who have risen to the highest legislative and judicial stations in the Commonwealth, and who have been distinguished ornaments of the profession.' * * * * Since the act of 1869, no interest or policy of law, except as provided in that act, will exclude a witness from the stand; the law of evidence as it had been previously understood, affecting the admissibility of witnesses, was by that act revolutionized, the former policy of the law was abandoned, and a new one adopted. If no interest or policy of law will exclude even the parties from testifying, upon what principle can we hold that it is immoral and tends to perjury to admit the attorney to testify? We are ignorant of the fact that there is any thing in the nature of the profession or in its tendencies, which will justify any such imputation. If the interest of the attorney is disclosed, as it was in this case, it affects his credibility and his testimony becomes a proper subject of discussion to the jury on that ground. We do not hesitate to say, that an attorney, who has a just sense of propriety, will so far as is consistent with his duty, decline to testify in behalf of his client, as the question of his own credibility and of the accuracy of his statements affords for him most indelicate questions for discussion. Absolute necessity may however in some cases disclose a duty which an attorney cannot disregard. Aside from this, if called as a witness, he is bound to testify, and certainly it cannot be against public policy for a member of the bar to do voluntarily that which by the law he is obliged to do. We are disposed to adopt the language of Woodward, J., in Strohecker v. Hoffman, 7 Harris, 227, where he says: 'Agreements fairly made between counsel and clients, are as obligatory as between other parties; and when a desperate claim has been successfully asserted by counsel on the faith of an agreement that one-half of the recovery shall reward his skill and diligence, it is an ungracious plea to urge that the agreement was without consideration and void.'" Three judges dissented.

* * *

It could not be

also, very strongly, Mayor, etc., v. Marriott, 9 Md. 160. If it were unquestionable that coasting upon a public highway was always a nuisance, there would be much plausibility in this contention, and perhaps it should be accepted as sound. But in Hutchinson v. Concord, 41 Vt. 271, and again in Faulkner v. Aurora, 85 Ind. 130; S. C., 44 Am. Rep. 1, it was taken for granted that coasting upon a public way, when not expressly prohibited by law, might be entirely innocent, and we do not see how the contrary could well be held. It has been decided in several cases that a municipal corporation, charged by statute with the duty of kceping the public ways in repair, cannot be held charged with the consequences of coasting upon its roads, on the ground of this use of them constituting a defect. Shepherd v. Chelsea, 4 Allen, 113; Pierce v. New Bedford, 129 Mass. 534; S. C., 37 Am. Rep. 387; Hutchinson v. Concord, 41 Vt. 271; Faulkner v. Aurora, 85 Ind. 130; S. C., 44 Am. Rep. 1; Ray v. Manchester, 46 N. H. 59. seriously contended that for the municipal authorities to permit coasting upon such a street would be to license a public nuisance. On the contrary, as the sport itself is healthful and exhilarating, it seems eminently proper, if the street is not put to other public use, that this diversion be allowed, if not expressly sanctioned. The sport itself is not entirely foreign to the purposes for which public ways are established; for the use of these ways for pleasure riding is perfectly legitimate, and coasting is only pleasure riding in a series of short trips repeated over the same road, not differing essentially from the riding in sleighs, of which so much is seen on some of the streets of northern cities, when suitable weather and proper condition of roads invite to this enjoyment. The case presented, then, would seem to be this: The common council, having full control of the streets, has licensed the use of a particular street in a particular way differing from the ordinary use. In doing so it must be supposed to have determined that the use in that way will not interrupt or interfere with such customary use of it for passage or travel as the public may have occasion for. The decision to this effect is made in the exercise of its discretionary and governmental authority over a subject confided by the State to its judgment, and is presumptively correct."

*

*

CONSTRUCTIVE NOTICE.

II.

ble precisely as it would be if the nuisance had been caused under its command and by its agents. Schultz v. Milwaukee, 49 Wis. 255; S. C., 35 Am. Rep. 779, is supposed to support this view; as does

A

CTUAL notice to an agent being constructive notice to his principal, and each partner being in relation to the concerns of the partnership the au

ner is constructive notice to all. Watson v. Wells, 5 Conn. 468. Two firms having a'common partner are chargeable with the knowledge of such common partner which knowledge affects all his associates in both