« AnteriorContinuar »
a book for C. under a certain agreement. After the and is allowable, there would seem to be but little work was done C. accepted the books, but sued G. for reason for refusing to allow a comparisou with other damages, alleging that the book was printed on an in- writings admitted to be genuine, although uot in eviferior quality of paper, and a judgment of $300 was re- dence for other purposes. The objections wbich have covered. C. now asks to have his note held by G. for been urged to receiving other instruments, for the $250, on which $130 is due, surrendered to him without purpose of comparison, have been the multiplying of his giving credit therefor on the judgment. Held, collateral issues; the danger of fraud or unfairness in "that he who asks equity must do equity;" that the selecting instruments for that purpose, from the fact note should be surrendered upon C. giving credit for that handwriting is not always the same, and is affected the $130 on the judgment. N. J. Ch., July 17, 1886. by age, and by the various circumstances which may Crandall v. Grow. Opinion by Bird, V. C.
attend the writing; and the surprise to which a party CRIMINAL LAW GOOD CHARACTER OF ACCUSED
against whom such evidence is produced may be subEFFECT OF.--Proof of previous good character held not
jected. When the writings presented are admitted to sufficient to rebut the presumption of guilt arising
be genuine, so that collateral issues are not likely to from the possession of stolen property under the cir- arise, nor the adverse party to be surprised by avicumstances of this case. Counsel arguing in support
dence which he is unable to meet, these objections of this appeal concede that the possession of recently
seem to us to be insufficient as reasons for excluding stolen property raises a presumption against the per
the evidence. If such evidence has apparent and dison so found in possession of such property, to the ex
rect probative force, it should not be excluded unless tent of requiring him to give at least a reasonable ac
for substantial reasons. In general, and from necescount of the manner in which he came into such pos
sity, the authenticity of handwriting must be subsession, but insist that proof of previous good charac-ject to proof by comparison of some sort, or by testiter is sufficient to rebut the presumption of guilt
mony which is based upon comparison, between the thus raised, and that under that rule of evidence, the
writing in question and that which is in some manner defendant became entitled to an acquittal in this case,
recognized or shown to be genuine. This is everyciting Clackner v. State, 33 Ind. 412, in support of
where allowed, through the opinions of witnesses who their position. Whatever the case thus cited may be
have acquired a kuowledge, more or less complete, of construed as really deciding, we regard the doctrine
the handwriting of a person; as by having seen him contended for above as against the great weight of au.
write, or from acquaintance with papers authenticathority. Proof of previous good character is admis
ted as genuine. In such cases the conception of the sible, in this State, on behalf of the defendant in all
handwriting retained in the mind of the witness becriminal prosecutions, as tending to have, or as likely
comes a standard for comparison, by reference to to have at least a mitigating influence in some re
which his opinion is formed, and given in evidence. It spects favorable to the defendant; but the value of
would seem that a standard generally not less satissuch proof, and especially its relative value, must
factory, and very often much more satisfactory, is always depend upo: the circumstances of each partic afforded by the opportunity for examining, side by ular case. Such proof may in some cases create a
side, the writing in dispute and other writings of undoubt in favor of the defendant where the circum- questioned authenticity; and this, we think, is in acstances, in other respects, tend to establish his guilt;
cordance with the common judgment and experience but as to when such proof ought to be accepted as
of men. The evils that may be suggested as likely to creating such a doubt no definite rule can be stated. 1
arise from the selection of particular writings for the Tayl. Ev., $ 326; Whart. Crim. Ev., 88 60-67; Kistler v.
purposes of comparison, may be left, as all unfair or State, 54 Ind. 400; Rollins v. State, 62 id. 46; McQueen
misleading evidence must be, to be corrected by other v. State, 82 id. 72. In the cause in hearing the defend
evidence, and by the intelligent judgment of the court ant did not admit his possession of the stolen prop
or jury. In our opinion, such evidence is conducive erty, and hence offered nothing in explanation of such
to the intelligent ascertaining of the truth, and the rea possession. If in fact he had possession of the horse
ceiving of it in this case was bot error.
We cite auin the woods, as claimed by Stibbe and Pike, his has
thorities sustaining this view, some of which go further tening away and abandonment of the possession of the
in this direction than does our present decision. Tyler animal, was under the circumstances seemingly in
v. Todd, 36 Conn. 218; Moody v. Rowell, 17 Pick. 490; consistent with an honest possession, and with pre
State v. Hastings, 53 N. H. 452; Adams v. Field, 21 Vt. vious good character. The theory of his defense was,
256; State v. Ward, 39 id. 225; Farmers' Bank v.Whitethat as to him, the case was one of mistaken identity,
hill, 10 Serg. R. 110; Travis v. Brown, 43 Penn. St 12; and in support of that theory, evidence tending to
Chance v. Indianapolis & W. G. R. Co., 32 Ind. 473; prove an alibi was introduced. The proof of previous Macomber v. Scott, 10 Kan. 335: Wilson v. Beauchgood character, relied upon by counsel, was not con
amp, 50 Miss. 24. Minn.Sup. Ct., July 13, 1886. Morsequently, in legal contemplation, admitted to rebut
rison v. Porter. Opinion by Dickinson, J. the presumption arising from the possession of the
EXECUTORS AND ADMINISTRATORS JUDGMENT stolen property, but was rather to strengthen the evi
AGAINST ESTATE-BY DEFAULT - LIABILITY OF SUREdence tending to prove an alibi, and in this way to in
TIES WHEN ESTATE INSOLVENT.- An adminis:rator crease the probabilities that the case was one of mis
of the estate of a deceased person, who is defaulted in taken identity. Ind. Sup. Ct., June 18, 1886. Wag
an action brought by a creditor of the deceased, is not ner v. State. Opinion by Niblack, J.
to be conclusively presumed to admit assets by failEVIDENCE-HANDWRITING-COMPARISON OF HANDS. ure to make a defense, where the estate afterward -Upon a trial of an issue as to the genuineness of a proves to be insolvent, and the creditor does not gain writing, other instruments admitted to be genuine, any priority over other creditors, and does not gain but not otherwise relevant, may be received in evi- the right to call upon the administrator or his sureties dence for the purpose of comparison of hands. At to pay the judgment. The plaintiff contends that such conimon law, and generally in the United States, it defense is not open after a judgment is obtained; that has been the rule that where other writings, admitted by allowing such judgment to be rendered, the adto be genuine, are already in evidence for other pur- ministratrix conclusively admits credits sufficient to poses in the case, comparison may be made between pay the judgment, and the sureties in a suit upon the such writings and the instrument in question. If
bond are bound by this admission. It may be assumed such a comparison is conducive to the ends of truth, that a judgment against the administratrix is conclu
sive as to any defense whioh was or could have been whose title was knowingly acquired through a con• pleaded in the action, except the defense of the spec- | veyance in fraud of creditors. N. J. Ct. of Errors and ial statute of limitations, which stands upon grounds App. Nov., 1885. Powers v. Canada. Opinion by peculiar to itself. Robinson v. Hodge, 117 Mass. 222, Scudder, J. and cases cited. But the defense relied upon was not, MARRIAGE DOWER--TAXES - DEED - WIFE NOT and could not have been pleaded in the original suit in
JOINING-ESTATE OF GRANTEE--IMPROVEMENTS - AS this case. No account had been settled showing that
SESSMENTS. -The grantee in a deed of lavds executed all the assets were exhausted. The defendant does
by the husband alone, becomes with regard to the not now attempt to impeach the judgment, but he
wife, who did not join, tenant pur autre vie. Hence proves that since the judgment was rendered facts after the husband's death, dower should be assigred have occurred which show that there are no assets of free of taxes, on the principle that tenants for life in the estate with which to pay it. Under our system, possession are bound to meet the annual charges upon where a creditor sues an administrator for a debt due
the estate, so that they may not become a charge from the estate, the question of the amount of assets
against those entitled in remainder. Cairns v. Chais not ordinarily involved in the suit, and it is diffi
bert, 3 Edw. ('h. 312; Deraismes v. Deraismes, 72 N. cult to see why an administrator who is defaulted in
Y. 154; Cadmus v. Combes, 37 N. J. Eq. 164. But such a suit should be held to admit assets so as to
the assessments stand on a different footing. They bind himself and his sureties personally if the estate
represent permanent improvements of the property afterward turns out to be insolvent. A creditor may made after the husband conveyed. If these bettersue at any time after the expiration of a year from the
ments had been constructed by the alienee, the dowfiling of the bond, but an administrator is not obliged,
ress would not have been allowed to derive any adat his peril, to ascertain within the year whether the vantage from them, and therefore would not have estate is solvent. The amount of the property and of
been allowed to derive any advantage from them, and the debts may both or either be thus unascertained
therefore would not have been chargeable with any and uncertain; and if after the year has expired, he
part of their cost. "If the husband make a feoffment ascertains that the property is not sufficient to pay the in fee of lands, and the feoffee build thereon, and imdebts, it is his duty to represeut the estate insolvent.
prove the same greatly in value, yet the wife of the If in the mean time any creditor has obtained a judg-feoffer shall have dower only according to the value ment, he can prove the amount of it in the insolvency
it was of in the husband's time; for if such feoffmeut proceedings. By obtaining judgment he does not ob
were with warranty, the heir would be bound to rentain any priority over other creditors, and we can see
der only the value as it was at the time of the feoffno good reason why he should gain the right to call
ment." Bac. Abr. “ Dower," B. 5; Van Dorn v. Van upon the administrator or his sureties to pay the
Dorn, Penn. (N. J.) 697; Chiswell v. Morris, 14 N. J. judgment, although the estate is insolvent. The prin- Eq. 101. But the improvements were not constructed cipal obligation of the bond is that the administratrix by the alienee; they were made by the government, shall faithfully administer all the assets which come to
which must be regarded as acting with the assent and her hands, and we are of opinion that it is open to the
for the benefit of all persons interested in the propsureties in this suit to show that she has applied all
erty. Wadham v. Marlowe, 8 East, 314, 317, note; the assets to the payment of preferred charges and
Griswold v. Waddington, 16 Johns. 438, 447. The betclaims, by showing the settlement of an account under
terment therefore should inure to the advantage of the statute. It seems to us that this conclusion is sup- all parties, but of course upon condition that they ported by reason and by the weight of the authorities.
equitably share the expense. Pratt v. Douglas, N There are two modes in which the personal liability of
J. Eq. 516. On assignment of dower the widow will an administrator, upon a judgment against him in his
become tenant for life of one-third of the property, inrepresentative capacity, can be established aud en
cluding, as already indicated, one-third of its betterforced by the judgment creditor, by scire facias upon ments, and she should pay an equivalent for the adthe judgment, and by a suit upon the bond. It was
vantage which she will thus gain beyond what ber held in the early and well-considered case of Coleman
mere dower right would afford. The improvements v. Hall, 12 Mass. 570, that in scire fucius on a judgment were purchased, and are represented by the principal recovered against an administrator, it was a defense
of the assessments, and the enjoyment of them for any to show that after the judgment, a representation and time is worth the interest upon tbat principal. Plymadjudication of the insolvency of the estate was made.
ton v. Boston Dispensary, 106 Mass. 514. N. J. Ct. of This was approved in Shillaber v. Wyman, 15 Mass.
Errors and Appeals, Nov., 1885. Jonas v. Hunt. Opiu322, and extended to a case where the estate was rep- ion by Dixon, J. resented insolvent after the scire fucias was brought. It was also approved in Walker v. Hill, 17 Mass. 380.
NOTE FROM HUSBAND TO WIFE CONSID. The other remedy of a judgment creditor is by a suit ERATION.- A promissory note given by a husband to upon the bond. It cannot reasonably be contended his wife, or to a third party for her benefit, to help that the liability of the executor or his sureties is take care of the wife and her child, does not change greater in a suit upon the boud than it is in scire facias their relative rights and obligations, and hence is not upon the judgment, and therefore the cases we have supported by a legal consideration. The vital question referred to are applicable to the case at bar, and show is what was the consideration for the notes. The wife that the defense is maintained. The case of Newcomb
bad some income of her own. She had by her income v. Goss, 1 Metc. 333, is opposed to this view, but it is and her labor supported herself and her child for some irreconcilable with the earlier decisions, which seem
time. The defendant, her husband, had uot contributo us to be founded upon better reasons.
ted for some time to their support. What thing, or Jud. Ct., July 3, 1786. Fuller v. Connelly. Opinion by right or claim did the wife give up for these notes ? Morton, C. J.
What gain or relief did the husband gain by giving
them? The wife had no cause of action against her INJUNCTION RIGHT OF FRAUDULENT GRANTEE husband for what she had done in the past for the HOLDER OF LEGAL TITLE. --An injunction to restrain
support of herself and child. She would have had no the defendant from proceeding in an action of ejectment against a tenant of land, which such defendant legally charge him as her debtor with sums so ex
cause of action for future self support. She could not has legally purchased in an attachment sale, will not pended. Third parties furnishing such support might be issued at suit of an adverse claimant to the land, have claims therefor, enforceable by action against the
husband, but the wife herself would not have such a within the scope of the servant's employment, and
NEGOTIABLE INSTRUMENT CONSIDERATION - OPmore formally evidenced. They were not gifts, but TIONS IN GRAIN.- No recovery can be bad on a promonly promises. The consideration can be inquired issory note, executed in the State of Illinois, where into as they have not been transferred. The writing the consideration on which it is based arises from opand delivery of these notes caused no change in the
tion deals in grain, even though the note may be situation, or in the relative rights or duties of either owned and held by an innocent bona fide holder. The party. Nothing was acquired by the one, or surren
only defense interposed is that the consideration on dered by the other. The wife's account of the trans
which the notes were based was an illegal ove,the same action shows it was not a businesss one, and that the having been given in furtherance of a gambling contract notes were not given for a legal consideration. Me. - better known perhaps as an “option deal” in grain. Sup. Ct., June 25, 1886. Fuller v. Lumbert. Opinion by The jury, by their special findings, fully sustained the Emery, J.
truth of the matters on wbich the defendant relies for
his defense. The only question necessary to consider MASTER AND SERVANT-LIABILITY OF MASTER FOR here is, do the facts relied on by the defendant conSERVANT'S TORT AGAINST ANOTHER SERVANT. - The stitute a defense to notes given under such circummaster is not liable to third persons for the servant's stances, when the same have been transferred, before torts or willful acts, done without his authority. The due, to an innocent bona fide purchaser, who brings plaintiff was a “rouster” on a boat running between suit here to enforce the payment thereof? The payMemphis and Arkansus City, under the defendant. ees in the note induced the defendant to embark in His duties were to assist in loading and unloading " option dealing ” with them, and without any intenfreight, under the direction of the first mate. While tion on the part of either to deliver any grain, as pro80 engaged some words passed between plaintiff and vided by their contracts. The transactions, as they the mate, and the latter struck bim, and for this plain- were carried on from time to time, led to the payment tiff brings his suit against the company to recover of profits and the repayment of losses sustained by the damages. The part of the charge to which exception defendant. The venture however in the end proved is taken is as follows: “If you find the mate was em- quite disastrous to the defendant, and finally culmiployed or directed by the defendant to do this wrong, nated in bis giving the notes in suit. At the time the or that it was within the ordinary course of the duties notes were given the laws of the State of Illinois dewhich he was employed to do,” the defendant is clared that notes given for such consideration should liable; if not, the defendant is not liable. No other be deemed and held void. If the payees in these notes part of the charge is copied in the record, or excepted had brought suit in the State of Illinois, to euforce to, and the presumption is that it was in all respects payment of the same, the result could not have been correct. It is in substance, if the mate was directed considered doubtful. There would have been no to commit the assault, or if it was committed in the question of good faith on the part of any one for the course, and within the scope, of his employment, de- court to consider. As the laws of the State of Illinois fendant would be liable, if not, he would not be liable. denounce such vicious transactions, and declare to be There is certainly no error in the charge. But the void notes given in connection therewith, it is not perargument is, that the mate being an employee of de- ceived how an innocent purchaser stands in any betfendant, the latter is liable for the torty of the former, ter attitude than the payees, who knew all about the committed while so employed. The immediate cause facts and participated in the wrongs. If the notes of the difficulty was that the mate required the plain- were void when given, they were void for all purposes tiff to walk faster in carrying in bags of freight, from and for all time, and any number of transfers would which words followed, and the blow or blows were not avail an innocent holder. If the plaintiff has any struck. In Puryear v. Thompson, 5 Humph. 397, remedy against any one, and if he is really an innoJudge Green, delivering the opinion of the court, said: cent purchaser, for value, as he claims, he must seek "No principle is better settled than that a master is his redress against the parties who have most likely liable for the injuries done to others by his servant's sought to use him to accomplish a purpose in which negligent conduct while in his employment; and it is they were bound to fail had they sought relief in their equally well settled that he is not liable for his ser- Own names. U. S. Cir. Ct., Dist. Neb., June 26, 1886. vant's torts, or willful acts, done without his author- Root v. Merriam. Opinion by Dundy, J. ity;" citing Story Ag. 470, note, 474, 475; Story Bailm. 206; Kirby v. State, 7 Yerg. 267; and in Cantrall v. Col- RAILROAD well, 3 Head, 474, and Lowe v. State, 14 Lea, 204, the TRACKS. --In an action of tort against a railroad comsame doctrine is held and authorities cited. It is clear pany for injuries sustained by plaintiff, who went that in this case the act complained of was not done upon the tracks of defendant from a path leading to said
NEGLIGENCE - RIGHT
WAY OVER IN
tracks, which was not shown to be a defined pathway | Mich. Sup. Ct., July 15, 1886. Gates v. Nelles. Opinextending from one public road or place to another; ion by Morse, J. which had not been used by the public for twenty years, was not a right of way appurtenant to the estate
STATUTE OF FRAUDS GUARANTY EMBODIED occupied by the plaintiff, and was not laid out by the
LEASE-CONSIDERATION.- Where a contract of guarrailroad company, or used for its convenience; held, anty is entered into contemporaneously with the printhat the plaintiff was a trespasser—the facts stated cipal contract, and is either incorporated in the latter, not amounting to an invitation, express or implied,
or so distinctly refers to it as to show that both agreeby the railroad company to the public to use the path
ments are parts of an entire transaction, the statute of for the purpose of crossing its tracks; and that she
frauds does not require a consideration to be expressed could not maintain an action against the company for in the guaranty distinct from that expressed in the injuries sustained in consequence of being hit by a
principal contract. This principle applies to a guartrain of freight cars while crssing the tracks, in the anty embodied in a written lease. In such case the absence of evidence that there was reckless or willful
consideration of the guaranty is apparent upon the misconduct on the part of the defendant. The fact
face of the whole agreement, and that is enough. that a person living on a street has acquired a private
Wilson S. M. Co. v. Schnell, 20 Mion. 40, 46 (Gil. 33); right of way from said street over a railroad cannot
Bailey v. Freeman, 11 Johns. 221; Church v. Brown, 21 avail another person, living on the same street, who
N. Y. 315; Simons v. Steele, 36 N. H. 73; Nabb v. desires to make use of the way. The plaintiff contends Koontz, 17 Md. 283; Culbertson v. Smith, 52 id. 628, that the evidence showed that the defendant held out
634; 1 Reed St. Frauds, 433, 436. This principle conto the public an inducement and invitation to use
trols this case. The judgment is affirmed. Minn. Sup. that path by the peculiar construction and adaptation Ct., July 1, 1886. Highland v. Dresser. Opinion by of the premises, as well as by the acts or declarations
Dickinson, J. of its agents. There was no express invitation by the defendant or its agents. The plaintiff was not using | OTHER.
of the way for the purpose of transacting any business another, as to which there is nothing indicated to
An oral promise to pay the debt with the defendant or its agents, or of crossing upon
take it out of the statute of frauds, cannot be enthe property of the defendant for the purpose of do-forced. Mich. Sup. Ct., July 15, 1886. Opinion by ing any thing except to cross its road-bed to go to
Campbell, C. J. school. The way across the switch tracks was not planked or prepared for use in any manner except that
- MEMORANDUM—LEASE-AGENT-TELEGRAM. a clear passage had been left through the ridge formed In an action of contract for breach of an agreement to by throwing up dirt from the ditches on the side of take a lease, it appeared that the defendants' agent the track. A mere permission or license from the de- wrote to the defendants a letter containing a descripfendant to cross the track is not an invitation. tion of the premises, and stating the annual rent for a Whether the construction of a crossing over a railroad term of five years; the questions of the letter being is such as of itself to amount to an invitation, or evi- whether the premises and amount of rent were satisdence for the jury of an invitation by the railroad factory to the defendant, but the letter did not state company to the public to use the crossing for the con- or refer to the particular terms or conditions of a lease. venience of the public, must be determined by consid- The defendants in answer sent the following telegram: ering whether the construction was such as reasona- “If basement included at four thousand, secure five bly to induce the public to believe that the crossing years' lease." A letter sent by the agent to the dewas a public way. Murphy v. Boston & Albany R. fendants on the day the telegram was received by him Co., 133 Mass. 121. The want of a planking over the stated that the lease at $4,000 included the basement, switch track, the absence of public ways or public and that he would close the matter the next day. The places on each side of the track with which the cross- agent had no authority to accept a lease. Held, that ing was immediately connected, the different direc- there was not a sufficient memorandum in writing to tions taken by persons using the path, and the irregu- satisfy the statute of frauds; held also, that letters lar course of the path used by plaintiff after it crossed written by the defendants subsequently, referring to the switch track from the north, all tend to show that an incomplete lease, had no bearing on the question. it was not prepared by the defendant corporation with Mass. Sup. Jud. Ct., July 2, 1876. Hastings v. Weber. the intention that it should be used as a public way. Opinion by W. Allen, J. As the plaintiff was on the track without right, and as there is no evidence of willful or reckless misconduct on the part of the defendant or its agents, the court
CORRESPONDENCE. properly ruled that the action could not be maintained. Johnson v. Boston & M. R., 125 Mass. 75; Wright v. Boston & M. R., 129 Mass. 440; Morrissey v.
FIGHT IT OUT, IF IT TAKES ALL SOMMER. Eastern R. Co., 126 id. 377. Mass. Sup. Jud. Ct., July Editor of the Albany Law Journal : 3, 1886.
Wright v. Boston & Albany R. Co. Opinion Just one word more: The title of chapter 672, Laws by Field, J.
of 1886, is “An act to amend the Code of Civil Proced
ure.” The margin of the published laws opposite secSALE--MUTUAL ASSENT - PARTNER OFFERING “TO tion 5 reads: "$ 111 amended." When section 5 of GIVE OR TAKE-ACCEPTANCE-CONDITIONS.- An of
that act was passed there was no section 111 to "read." fer by one partner to give a certain sum for the other
It had been bodily stricken out of the Code three partner's interest in the firm, or to sell his own in
years before, and
was nonsense for the Legislature terest for the same sum, concluding with the words,
on the 15th of June to say that students of the Code “the party purchasing to give sufficient security for thereafter “shall read a section which had no existthe paynient of company indebtedness, and for pur
ence for three years.
Where your correspondent chase price," which offer was accepted by the other
“J. T. C. finds in comection with this matter his last partner, “to sell on the terms mentioned,” held, not quotation, I cannot discover. to be a complete sale, and that the first offer was only
Yours, etc., one of the steps leading to a sale, which contemplated
M. E. LEE. that parties should meet, and complete transaction. CAPE VINCENT, N. Y., Aug. 28, 1886.
THE ALBANY LAW JOURNAL.
The Albany Law Journal.
that we shall be only formally governed by legislation, and really by “some one, two or more learned
lawyers who draw out the code." Grant this; but ALBANY, SEPTEMBER 11, 1886. would Mr. Parker think any the less of our various
bodies of revised statutes, many of which, as notably CURRENT TOPICS.
in this State, are really so far as they go, in great
part a code written by a few learned lawyers? Mr. R. CORTLANDT PARKER, in his minority Parker closes by quoting Mr. Phelp’s eloquent but report to the American Bar Association on harrowing vaticinations of woe in view of the adop
tion of codes. the Delay and Uncertainty in Judicial Administration, starts out with averring that most of the delay is the fault of the lawyers, judges and suitors. "A Legal Mummy” is the very appropriate title of Parties being determined to have the best lawyers, an address by Aldace F. Walker, of Rutland, Vt., select the busiest he says.
Of course there is some- as president of the Vermont Bar Association, in thing in this argument, but not every thing, or it October last. The "mummy” is the Dartmouth would go hard with the sixty-five thousand lawyers College case, which in the orator's judgment, as well who are not the best. He also thinks that more debts as in our own, has outlived its usefulness and has were collected when collection laws were slower. become " more honored in the breach than in the He also praises the system of New Jersey, especially observance.” Although its principles have been overits separation of law from equity, and declares that ruled substantially over and agair, our courts conthere is no delay there. It seems however that there tinue to prostrate themselves before it as the Hindoo is a loud cry for fusion there, and it is certain before an ugly idol in which he has ceased to believe, that no other State of equal population has so little | merely from force of long habit, and as Cicero says litigation, judging from the reports, and so many the Roman augurs went about smiling to one another judges in the appellate courts. And yet with all his at the oracles which they themselves had delivered, admiration for the jurisprudence of his State, in so the judges protest the sacredness of the once which to a large extent we join, he must admit that honored decisions in the same breath in which they there is something radically wrong in a system of “knock the stuffing out of it.” In this “courtesy laws under which the ultimate court of fifteen of the judges we discover another cause of the " frequently unanimously reverses the inferior courts, certainty of the law.” When a case is thoroughly on questions of common law, and where the oracles overruled, why cannot judges say so? Chief Justice of the sacred chancellor are sustained sometimes Marshall has been so long in his grave that he would only by a divided vote, and sometimes ruthlessly set not care. Indeed, nobody would care except the aside. Mr. Parker would adhere to jury trial, be- ancients of the American Bar Association who would lieving that "a verdict satisfies the community ten- lose one of their most fertile texts. There never was fold more thoroughly than merely judicial decis- a case more marked by back-stairs influence than ions.” He might well add that it satisfies the this. Even the "god-like Daniel,” whose feelings suitors better. He approves in the main the report on the argument became too “many for him," origiof the majority as to the “contingent fee business." nally had a retainer of twenty dollars on the other Mr. Parker, as is well known, is opposed to codifica- side! Justice Story also openly announced himself tion. He is in error, we believe, in saying that the on the other side at the outset. “ Chancellor Kent New York code fills six volumes. Mr. Field's four was converted to the plaintiff's side, and his expreswell known codes make but four slender volumes. It sion of revised opinion was conveyed to the Suis true that Mr. Throopinfected the Code of Civil Pro- preme Court judges. Pamphlet literature was circucedure with dropsy, but still one volume may com- lated, in the preparation of which Webster had a prise it. Mr. Parker asks if there are no lawyers in hand.” All this pressure and much more was brought France, Germany or Italy, or in Louisiana or Califor- to bear during the year of consideration during nia? We answer, comparatively few in the foreign which the judges were unable to agree. The most countries, at least. Mr. Parker concedes that one disgraceful incident was at the last. The case hud method of establishing the common law is, “when been very lamely argued on the other side, and doubt is dispelled or when the majority agree, in Pinkney had been employed to move for a re-argustatutes,” subject to judicial exposition. In these ment. About November 1, he gave notice that he words are to be found all that the advocates of should move for a re-argument, and on the opening codification strenuously contend for; “so far as its day of the court in February he was present, in substantive principles are settled,” says the resolu- readiness to commence proceedings. But although tion, it should be reduced to the form of a statute. the court was undoubtedly aware of his purpose, One of the most effective arguments at Saratoga "the instant the judges had taken their seats the against codification was the averment that legisla- | Chief Justice turned his 'blind ear' toward Pinkney, tures are not fit to make a body of laws. Of course shut off his motion by commencing to read the the evident answer to this is that they are not to be i opinion, and so disposed of the case." Mr. Walker called on to do it, but that work is to be done by in this interesting pamphlet shows how the case has expert legal scholars — judges if you please.
Mr. been criticised, distinguished, doubted, disregarded, Parker scizes on this evident fact as an argument 'every thing but overruled by the same court, and
Vol. 34 - No. 11.