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the same brought suit for money had and received. Held (1), ihat the deposit of the collaterals under the terms of the trust indenture was a breach of the subscription contract; (2) that inasmuch as the defendant bad put it out of its power to perform an executory contract with the plaintiff, the latter had the right to treat the contract as terminated; (3) that the plaintiff could at his election sue upon the agreement and recover damages for a breach, or treat it as rescinded and recover back the money he had advanced. The defendant could maintain a suit against each subscriber upon his failure to pay the amount of the subscription; and it must follow that each subscriber has a corresponding right of action against the defendant for any breach of the contract on its part toward him. Similar contracts have been frequently adjudged to confer a several liability and a several right of action on the part of each subscriber. Thomp. Liab. Stockh., $ 114; Whittlesey v. Frantz, 74 N. Y. 456. It is a faIniliar rule that when one'party to an executory contract puts it out of his power to perform it, the other may regard it as terminated, and has an immediate right of action to recover whatever damages he has sustained. Ford v. Tiley, 6 Barn. & C. 325; Bowdell v. Parsons, 10 East, 359; Heard v. Bowers, 23 Pick. 455-460; Shaw v. Republic Life Ins. Co., 69 N. Y. 293; V. S. v. Behan, 110 U. S. 339; Lovell v. St. Louis Mut. Life Ins. Co., 111 id. 264. The plaintiff was under no obligation to tender bis receipts. They were merely vouchers. They were to be exchanged for formal certificates, but when the defendaut had put it beyond its power to deliver the proper certificates, the plaintiff was not bound to tender them. No demand of the certificates was necessary after defendant had incapacitated itself from giving them. Where money is advauced upon an executory contract, which the contracting party fails to perform, it is in the election of the other party either to sue upon the agreement and recover damages for a breach, or to treat the contract as rescinded, and recover back his money as paid upon a consideration which has failed. Hill v. Rewee, 11 Metc. 271; Brown v. Harris, 2 Gray, 359; Wheeler v. Board, 12 Johns. 363; Lyon v. Annable, 4 Conn. 350; Appleton v. Chase, 19 Me. 74; Shepherd v. Hampton, 3 Wheat. 200; Smethurst v. Woolston, 5 Watts & S. 106. If there had been a part performance of the contract by which the plaintiff received some benefit, and the defendant could not be restored to the previous situation, the plaintiff's only remedy would have been for breach of the agreement, and his damages would be measured by his loss. Hunt v. Silk, 5 East, 449; Fors 4. Richardson, 15 Gray, 306; Nash v. Lull, 102 Mass. 60. He has received nothing however under the contract, and the law implies a promise on the part of the defendant to pay back what it has received. Cir. Ct., S. D. N. Y., Dec., 1884. Reusens v. Mex. Nat. Const. Co. Opinion by Wallace, J.

carrier will exercise due care; but the degree of care to be exercised in any particular case is usually a question of fact for the jury. Where a passenger in a street car, while in the act of taking his seat, rested his hand on and partially over the base of an open window, and the same was immediately struck and injured by an upright sewer plauk standing in close proximity to the passing car, held, that the question of contributory negligence on his part was for the jury. A passenger is to be allowed a reasonable measure of liberty in the position assumed by him in taking or occupying his seat. He is expected to exercise care commensurate with the danger to which he may be exposed; but the decree of care to be exercised on a particular occasion is generally a question of fact for the jury. Stackus v. Railroad Co., 79 N. Y. 407. Thus whether the act of standing on the platform of a street car, or of getting on or off such car while in motion, is negligence, is beld usually to be for the jury under the circumstances of each case. Whart. Neg. 365, 370; Meesel v. Railroad Co., 8 Allen, 234; Eppendorf v. Railroad Co., 69 N. Y. 195 Shear. & R. Neg., $ 282. So in Brophy v. Germantown R. Co., Penn. Sup. Ct., 1883, it was held not negligence per se for a passenger to rest his arm on a window sill, “which is substantially the top of the back of the seat," whence by a jolt of the car his arm was thrown out of the window and injured; the court saying: “In the absence of collision with an external object his arm was in no danger of injury. He was under no legal obligation to assume or anticipate that the company would run another car against the one in which he was sitting." But if instead of resting his arm on the window-sill, he had taken hold of it as did the plaintiff, his hand extending, say, less than an inch beyond the car, the same suggestion might be made (notwithstanding the additional fact) in considering the question of negligence. Whart. Neg., § 362; Hutch. Carr., $ 659; Thomp. Carr. 258; Fordham v. Railroad Co., L. R., 3 C. P. 372; Ang. Carr. (5th ed.) 514, note; Seigel v. Eisen, 41 Cal. 109; Miller v. St. Louis R. Co., 5 Mo. App. 471; Spencer v. Railroad Co., 17 Wis. 487. That is to say, whether the position or conduct of the passenger in such cases is reasonably prudent considering the circumstances, and the probability that the carrier will exercise due care, is not necessarily a question for the court (though in clear cases it of course would be), but may be and ordinarily is for the jury. It must also be considered that in order to the successful operation of cars there must be a reasonable space on each side betweeu them, and any structures or obstacles in the street to accommodate their movements, caused by irregularities or impediments on the track, and that as respects danger from collision with such structures it is ordinarily easily averted in the case of street cars, which run at a moderate rate of speed, and are readily controlled. Lynam v. Union R. Co., 114 Mass. 88; Thomp. Carr. 258, 446. The question of the passenger's negligent conduct must be largely affected by the circumstances of each case, including any indications of danger from obstructions or interruptions, from whatever cause, which might influence the conduct of a prudent person. But in Todd v. Railroad Co., 3 Allen, 18; 7 id. 207, it was unqualifiedly ruled that voluntarily suffering an arm, or any part of it, by a passenger to extend beyond the external surface of a car was negligence per se. And in Pittsburg R. Co. v. McClurg, 56 Penn. St. 294, it is assumed by the court that such couduct by a passenger is wholly unauthorized and presumptively negligent. These cases growing out of accidents arising upon steam railways have been followed by the courts of several other States. The same rule was also applied in Lauderbach v. People's R. Co., Penn. Sup. Ct., 1881-a street car case.


NEGLIGENCE-HAND ON BASE OF OPEN WINDOW OF CAR-QUESTION FOR JURY.--A street railway company as a carrier of passengers is bound to exercise the highest care in the management of its cars in approaching and passing structures and obstacles in the street situated unreasonably close to the track. The position which a passenger in a street car may reasonably be allowed to

when taking or occupying a seat is subject to no arbitrary rule. He is to exercise a degree of care commensurate with the danger to which he may be exposed, and such as men of common prudence would exercise in a like situation, having regard to all the circumstances, and considering the probability that the


The hand of a passenger holding on to the window of a car was caught by a colliding car on a narrow street, where the cars necessarily grazed in passing. No reference is there made to any supposed distinction between the case of street and steam railroad cars. The court assume that the protruding hand or arm is in an unlawful place if in any degree outside of the car by the voluntary act of the party, thus cutting off discussion as to whether, in the absence of any regulations on the subject, such conduct in a passenger would be condemned as careless by men of ordinary prudence. The opposite doctrine is maintained as to street cars in Miller v. Railroad Co., supra; Seigel v. Eisen, supra. We do not undertake to speak as to the application of the rule to other than street railways, but confining ourselves closely to the facts of this case as presumptively found in plaintiff's favor by the jury, we are of the opinion that the case was properly submitted to them. Dahlberg v. Minneapolis, etc., R. Co. Opinion by Vandenburgh, J. [See 29 Alb. L. J. 222, 444. -ED. [Decided Nov. 12, 1884.)

PRINCIPAL AND AGENT-CONTRACT TO SELL LANDCOMPENSATION-RATIFICATION OF CONTRACT. - The plaintiffs seek to recover a stipulated compensation for their services as agents for the defendant in selling real property of the latter. At the trial, upon the plaintiff's case being closed, the court dismissed the action. The appeal is from an order refusing a new trial. It appeared upon the trial that the defendant, by a written memorandum, authorized the plaintiffs to sell for him a certain tract of land upon terms as to price and manner of payment particularly set forth; and promised upon the sale of the property to pay plaintiffs a stated commission. The evidence went to show that after this authorization the plaintiffs agreed with certain parties ! Avery and Walters) for the sale of the property to them, upon terms materially different from those prescribed by the defendant; and that the plaintiffs, as agents, executed with the purchasers a writing embodying a statement of the contract of sale and a specific agreement on the part of Avery and Walters to purchase the property on the terms stated therein. In the body of this instrument the plaintiffs are recited to have made the sale as "authorized agents,' and to their signature are added the words, “Agents of L. N. Stevens.” The plaintiffs having proved the execution of this contract, and having offered evidence going to show that the defendant had ratified it, offered the contract in evidence. This was rejected. We think the court erred. There was abundaut evidence to entitle the plaintiffs to go to the jury upou the question of ratification, going to show that the defendant, after he had been advised as to the terms of the contract which had been made by his agents in his behalf, acquiesced in and confirmed their acts. Since the agents might have been orally authorized to make the sale (Brown v. Eaton, 21 Min. 409; Dickerman v. Ashton, id. 538) their unauthorized acts done in defendant's behalf might be ratified in any manner expressing his assent thereto. It was uot necessary that the ratification be in writing. Brown v. Eaton, 21 Min. 409, 410. Ratification of the unauthorized sale would relate back to the acts of the agent and be equivalent to prior authority.

Stewart v. Mather, 32 Wis. 314; Nesbitt v. Helser, 49 Mo. 383. This contract, if ratified by the defendant so as to cure the variance from the prescribed terms of sale, would have been prima facie proof of the plaintiff's right to recover. It bound the purchasers to take the property upon the terms stated, and this constituted a sale of the property within the meaning of the agreement between the plaintiffs and the defendant. Goss v. Broom, 31 Mim. 481; Rice v. Mayo, 107 Mass, 550. The con

tract bears upon its face the character of a contract between the plaintiffs' priucipal, executed through them as agents, and the purchasers. In an action upou the contract parol evidence would be admissible if any proof was necessary to disclose the defendant as the principal in whose behalf the contract was made. Rowell v. Olson, 20 N. W. Rep. 227, and cases cited. Having bound the rties by an authorized contract, any inability or refusal of the principal to consummate the contract which he had authorized should not affect the agents' rights to compensation. Mooney v. Elder, 56 N. Y. 238; Delaplaine v. Turnley, 44 Wis. 31; Phelan v. Gardner, 43 Cal. 306; Nesbitt v. Helser, 49 Mo. 383. Goss v. Stevens. Opinion by Dickinson, J. [Decided Nov. 29, 1884.]

VENDOR AND VENDEE-FRAUDULENT REPRESENTATIONS AS TO VALUE.-An action will lie for fraudulent representations made by the vendor of land as to its value and situation, the land being at a distance from the place of sale, the vendee being ignorant as to the value and situation, and being purposely and by a fraudulent device induced to purchase, relying upon the truthfulness of such representations. Under ordinary circumstances an assertion by an owner of property offered for sale as to its value, although false, does not charge the vendor with legal responsibility, for the reason that it will rarely occur that a party to a contract of sale has been induced without culpable degligence on his own part to enter into it in reliance upon the expressed opinion of the adverse party as to the value of the property. Misrepresentations, in order to constitute actionable fraud, must be as to material facts of a nature to affect the conduct of others, and generally a mere statement of an opinion is not enough. But where one having, or assuming to bave, knowledge of the value of property, negotiates for the sale of it with one who is known to be ignorant of it, and without equal means of knowledge with the other party, and who is purposely induced by that other party to rely upon his fraudulent representations as to its value, an action will lie for the deceit. 2 Pom. Eq. Jur., § 878; Wilder v. De Cou, 18 Mimn. 470, 474 (Gil. 421); Haygarth v. Wearing, L. R., 12 Eq. Cas. 320; Simar v.Canaday, 53 N.Y. 298, 306; Chrysler y.Canaday, 90 id. 272; Cruess v. Fessler, 39 Cal. 336; Kost v. Bender, 25 Mich. 515; Picard v. McCormick, 11 id. 68. And especially is there liability, where by some trick or artifice the vendee has been induced to trust in such representations. Burr v. Willson, 22 Minn. 206; Chrysler v. Canaday, supra; Van Epps v. Harris011, 5 Hill, 63. The facts as determined by the verdict bring this case within the rule of liability. The circubistances warranted the jury in believing that the bring. ing in of this stranger was a fraudulent trick to deceive the plaintiff by means of apparently disinterested statements regarding the value of the land from one who was in reality an agent of the defendants, and that the representations of the defendants themselves were fraudulent. It is just that they should respond in damages. A further ground of liability is the misrepresentation as to the situation of the lot. Porter v. Fletcher, 25 Mino. 493; Perkins v. Partridge, 30 N. J. Eq. 82; Van Epps v. Harrison, supra.

Griffin v. Farrier. Opinion by Dickinson, J. (Ante, 287.] [Decided Nov. 29, 1884.]

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Kimball v. Kenosha, 4 Wis. 321, it was settled that in the rule of Bierbach v. Goodyear Rubber Co., 54 Wis.
this State a grantee of a 'lot bounded by a street in a 208-213. In that case the instruction which was held
village or city, laid out, platted, and recorded in con- erroneous was this: “Of course if the witnesses are
formity with the statute, takes to the center of the equally credible, and they so present themselves to
street on which the lot abuts, subject to the publio the mind of the jury, then the greater number of
easement. The fee of the street is in the abutting witnesses on one side or the other would be entitled
owner, and the interest of the public therein, which to the greater weight." In this case there was no
the city or village holds in trust for it, is not a fee, but question of positive and negative testimony, as in the
a mere easement. Goodall v. Milwaukee, 5 Wis, 32; present case. In that case Justice Lyon says of the
Milwaukee v. Milwaukee & B. R. Co., 7 id. 85; Ford instruction: “It makes no distinction between the
v. Chicago & N. W. R. Co., 14 id. 609. In Gardiner v. relative weight of positive aud negative testimony, a
Tisdale, 2 id, 153, and again in Weisbrod v. Chicago & distinotion well established in the law (3 Greenl. Ev.,
N. W. R. Co., 21 id. 602, it was held that the owner of $ 375; Ralph v. Railway Co., 32 Wis. 177), and it takes
the fee of a street might maintain ejectment against a no account of the possible fact that some of the wit-
permanent incumbrancer or occupier, incoasistent nesses may have had better facilities for knowing the
with or repugnant to the purpose of the public ease- facts than others, or remembered them more dis-
ment. The above rules have never been shaken, and tinctly. In the instruction excepted to in this case,
are firmly imbedded in the jurisprudence of this both these considerations are presented to the jury.
State. These rules are decisive of this action, for no We do not consider the instruction in couflict with
one will contend that an action of ejectment will lie the rule stated in the cases of Urbanek v. Railway Co.,
to recover a mere right of way. Such au easement is 47 Wis. 59; Eilert v. Railroad Co., 48 id. 606. Draper
incorporeal in its nature (Washb. Ease. 3), and eject- y. Baker. Opinion by Taylor, J.
ment lies only to recover things corporeal, which may [Decided Nov. 25, 1884.)
be the subjects of seisin, eutry, and possession. There
can be no seisin of an incorporeal hereditament, and it NUISANCE-KEEPING STOCK YARD-R. S., SS 3180,
cannot be the subject of entry or possession. It “lieth 3181-ACTION AT LAW – DAMAGE — CONTINUING.–No
in grant, and not in livery." Sedg. & W. Tr. Title party is liable to another as and for a nuisauce simply
Land, $$ 95.98, 146, and cases cited. The plaintiff has because he keeps a stock-yard, if it is kept in such a
an ample remedy under its charter. It may summa- place and in such a manner as not to contaminate the
rily remove obstructions to its streets, and doubtless atmosphere to such an extent as to substantially in-
has other remedies, but it cannot maintain ejectment. terfere with the comfort or enjoymeut of others, bor
Racine v. Crotsenberg. Opinion by Lyon, J.

impair the use of their property In other words, the [Decided Nov. 25, 1884.)

comfort, enjoyment, or use must be materially affected ASSAULT AND

or impaired. Pennoyer v. Allen, 56 Wis. 511; 8. C., BATTERY EVIDENCE REPUTED

14 N. W. Rep. 609. The same view is supported by WEALTH DEFENDANT INSTRUCTION

several cases not there cited. Sturges v. Bridgman, 32 POSITIVE AND NEGATIVE TESTIMONY.-In an action

Moak Eng. Rep. 837; Baltimore & P. R. Co. v. Fifth for assault and battery, where punitory damages are recoverable, the financial condition of the defendant

Baptist Church, 108 U. S. 317; Appeal of Penn. L. Co.,

96 Penn. St. 116; Fish v. Dodge, 47 Am. Dec. 254. It may be shown by evidence of his reputed wealth.

is conceded that the action was brought under secStanwood v. Whitmore, 63 Me. 209; Kniffen v. McCon

tions 3180 and 3181, Revised Statutes. Such action, by nell, 30 N. Y. 285; White v. Murtland, 71 III. 250-261; 1 Suth. Dam. 744, 745. See also Johnson v. Smith, 64

a private person), to recover damages for and to abate Me. 553. An instruction that “positive testimony of

the nuisance is necessarily an action at law. In so far a small number of witnesses that they saw or heard a

as these sections authorized judgment of abatement in giveu thing occur will outweigh the negative testi

such action at law by a private party, this court has mony of a greater number of witnesses that they did

frequently held that they had the effect to abrogate not see or bear it, provided the witnesses are equally

the remedy in equity to abate such private nuisance. credible; but in connection with this justruction

Remington v. Foster, 42 Wis. 608; Cohn v. Wausau should be considered the relative' means or opportu

Boom Co., 47 id. 314; S. C., 2 N. W. Rep. 546; Penvity of the several witnesses to see or hear the occur

noyer v. Allen, 51 Wis. 360; S. C., 8 N. W. Rep. 268 ; rence, and it should be carefully kept in mind that it

Lohmiller y. Indian Ford W. P. Co., 51 Wis. 688; only applies when the witnesses are equally credible,”

Denner v. Railway Co., 57 id. 221; S. (., 15 N. held to have been proper where several witnesses tes

W. Rep. 158. Such abatement under those sections tified that they saw the defendant spit upon the

was, in the absevce of the requisite certificate of the plaintiff, and several witnesses testified either that

court, a legal consequence of the plaiutiff's recovery they did not see him spit upon her, or that he did not

in the action at law, aud could be had only when the spit upon her. The evidence of the defendant's wit

plaintiff prevailed. · Evidently to obviate that diffinesses was essentially negative in its character, and

culty, the statute was amended by chapter 190, Laws the rule laid down by this court in the case of Ralph

1882. That amendment restores equitable jurisdiction v. Railway Co., 32 Wis. 177-181, is clearly applicable.

in the particular cases therein named. To bring the Justice Lyon in that case says: “The testimony of

cases within bucb jurisdiction the essential facts Todd is affirmative. He swears positively to the fact

should be affirmatively alleged in the complaint. Here that he delivered the rope in the freight-room of the

it is enough to say that the complaint fails to state depot by direction of Miss Brown. There is but little

facts sufficient to bring the case within any of the proroom in this testimony for failure of memory. He

visions for equitable relief in that amendment." Deneither did so or he has probably committed perjury.

ner v. Railway Co., 57 Wis. 221. It follows that this The testimony of Miss Brown, although somewhat

action must be treated as one at law and not in equity, positive in form, is negative in fact. It means but lit

In such action at law the plaintiff could only recover tle more than that she has vo recollection of the trans

for such damages as accrued before the commenceaction to which Todd testified.” So in the case at bar,

ment of the action. Such damages as might accrue the witnesses of the defendant who state that the de

after the commencement of the action, and before the fendavt did not spit upon the plaintiff reasou very lit

verdict, could only be recovered in an action subsetle more than those who testified they did not see

quently brought. Cobb v. Smith, 38 Wig. 22. This is him spit upon her. This case does not come within

on the ground that every continuance of a nuisance is,

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in law, a new nuisance. Ramsdale v. Foote, 55 Wis. of so much business, he answered: “The remedy is 557. Stadler v. Grieben. Opinion by Cassoday, J. easy. Let the judges do more work." Seeing my sur. [Decided Dec. 25, 1884.]

prise, he explained that he did not consider the judges NEGLIGENCE-CONTRIBUTORY-INFERENCE EITHER

to be lazy, but that they wasted their own time in WAY-QUESTION FOR JURY.-Plaintiff, who was in

writing long opinions, and allowed counsel to waste jured, while sitting upon a stairway leading to a base

their time with unnecessarily long arguments. ment, by a block of ice which fell from the shoulder of

A very limited experience of my own in this court defendant's servant, who was carrying it down to

inclines me to the belief that there is much truth in such basement, and the question of the negligence of

what the counsellor told me. If you go into the court said servant in carrying the ice, was properly submit- almost any day you will possibly find one counsel 00ted to the jury. The mere fact that the plaintiff on a

cupying the whole day with his presentation of his hot day left her place of business and sat down upon

side of a single case. More often you will find young the stairs near by in the shade to rest, does not au

counsel arguing cases presenting but a single point, but thorize us to say as a matter of law that she was guilty consuming the whole of their two hours in the arguof contributory negligence. Murray v. McShane, 52

ment of that point, laboring over propositions that Md. 217. When facts and circumstances, though un

nobody disputes, and reading long extracts from disputed, are ambiguous, and of such a nature that printed opinions that these same judges have themreasonable men, unaffected by bias or prejudice, may

selves written, and are perfectly familiar with. The disagree as to the inference or conclusion to be drawn judges listen attentively for about five minutes, or onfrom them, then the case should be submitted to the

til they are possessed of the point, and then some yawn, jury. Townley v. Railway Co., 53 Wis. 633; Hill v.

or even go to sleep, and the rest look at the clock. All Fond du Lac, 56 id. 246; Nelson v. St. Paul, etc., R.

suffer in silence, and permit the speaker to run ou with. Co., 19 N. W. Rep. 53; Abbett v. Railway Co., 30 Minn.

out questiou or interruption. 483. It is to be remembered that the servant of the

It seems to me (with all due deference to so learned defendants was the active agency, and had full con

a court) that if the judges would themselves take part trol and management of the cake of ice in question.

in the argument, and stop the speaker when they were This being so, and the accident being such as would fully possessed of his point, as courts in other jurisnot in the ordivary course of things have happened if

dictious do, they would save themselves not only time, the servant had been in the exercise of proper care,

but a vast amount of fatigue, for there is nothing so and in the absence of any evidence tending to show wearing as being bored. If the court should provide that a piece of the ice broke off while the cake was be- by rule that briefs should be filed a reasonable time being carried with ordinary care, we must hold that the

fore the argument, such a'rule would be of great assistjury were authorized to in fer, from all the facts and

ance to the court. circumstauces disclosed, negligence on the part


Then can any one doubt that the judges write too servant of the defendants. Scott v. London, etc.,

long and too many opinions? No one can read any Docks Co., 3 Hurl. & C. 596; Kearney v. Railway Co.,

volume of the Court of Appeals reports without seeing L. R., 6 Q. B. 759; S. C., 2 Thomp. Neg. 12:20; Mullen that the judges, instead of declaring what the law is, v. St. John, 57 N. Y. 567; Transportation Co. v. Dow

have wasted time and strength in the vain effort to ner, 11 Wall. 129; Murray v. McShane, supra; Rose v.

harmonize all the cases, to reconcile the irreconcilable Stephens, etc., Transp. Co., 11 Fed. Rep. 438; S. C., 13

and to distinguish the undistinguishable. This shows Rep. 421 ; Cummings v. National Furnace Co., 18 N. W. a most laudable conscientiousness on the part of the Rep. 744. In such case it is hardly accurate to say

judges; and if the calendar were smaller no one could that negligence is presumed from the mere fact of the complain that they burdened themselves with so much injury, but rather that it may be inferred from the

not wholly necessary labor, but when, as at present, facts and circumstances disclosed, in the absence of delay amounts to a denial of justice, the judges should evidence showing that it occurred without the fault of

not attempt to write opinions in so many cases, nor to the defendant. In such case the facts and circum

write such long opinions. stances speak for themselves, and in the absence of

I give you these views of my own for what they are

worth. such explanation or disproof, give rise to the inference

of negligence. Such a case comes within the principle
of res ipsa loquitur. Briggs v. Oliver, 4 Hurl. & C. 407";
Carpue v. London, etc., R. Co., 5 Q. B. 751; Cockburn,

C. J., and Kelly, C. B., in Kearney v. London, etc., R.
Co., supra. Since a jury may draw any legitimate in- Editor of the Albany Law Journal :
ference from the unqualified and unrestricted facts

Some time ago, I can't exactly recollect when, I saw aud circumstances disclosed in the evidence, it follows

a newspaper report of a lecture delivered by Mr. David that they would not be authorized to come to the same Dudley Field before a New York law school, in which conclusion if such inference had been wholly removed a civil code was, of course, the chief subject of discusby evidence. The case before us is certainly on the sion. border line, and close to the line at that. Kaples v. If I remember rightly, the main points made by Mr. Orth. Opinion by Cassoday, J.

Field were that the Code would greatly reduce the [Decided Nov. 25, 1884.]

number of law reports, and would enable the ordinary
business man to ascertain the law for himself, without
the aid of counsel. Upon the first point I suppose you

agree with Mr. Field, because I notice that the LAW

JOURNAL most generally does agree with Mr. Field in

whatever he has to say upon this subject. But inasRELIEF OF THE COURT OF APPEALS.

much as one of your numerous and useful occupations

is to edit law reports, which I have to buy, it is possiEditor of the Albany Law Journal:

ble that we may look at the subject from different Some time ago I was talking with one of the most

points of view, and it is for a few remarks from my eminent counsellors in the State on the subject of the point of view that I ask you to indulge me with a letrelief of the Court of Appeals. To my question what

tle space in your excellent journal. should be done to relieve the court from the pressure

Is it true then that a Civil Code will diminish the

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number of law reports? Patrick Henry is reported to unless such agreement, or some note or memorandum have said that we “have no way of judging of the fu- thereof expressing the consideration be in writing." ture but by the past." A very small portion of the

Is not the clause above quoted perfectly plain? Would law of this State - that relating to practice – has been Mr. Field's future expounder of the law, the “ordicodified, and by no less a person than Mr. David Dud- nary business man,” hesitate a moment as to its meanley Field himself.

ing? A promise to pay the debt of another must be in If since the adoption of the Code of Civil Procedure writing, and the writing must name, mention, or set there have been fewer law reports upon the subject of

forth the consideration for the promise. Could any practice than before, Mr. Field has proved his case. If thing be clearer? Yet as a matter of fact no question on the contrary such reports have greatly, immensely, has been more fiercely disputed in the courts of this increased, it is fair to presume that upon this point at

State than the meaning of the words, “ expressing the least Mr. Field may be mistaken.

consideration." Decisiou after decision of the SuWhat are the facts ? Prior to the adoption of the preme Court and the Court of Appeals diametrically Code of 1848 the State law and equity reports were

opposed to one another appeared from time to time, contained in about 96 volumes, covering the period and no lawyer in the State could tell with any cerfrom 1799 to 1849 or 1850, say fifty years. A few pages tainty what they did mean. Finally the Legislature in these reports were devoted to civil and criminal cut the Gordian knot by striking the words out of the practice. I calculate that if we say that the space as

Statute. signed to cases of civil practice alone was equal to six

It is hardly possible that Mr. Field has used lanvolumes of the ninety-six, it will be a liberal allow

guage in his Civil Code more plain and distinct than ance. No reports were limited to practice cases alone.

the language I have quoted, and if the Code shall be Many years of legal experience had made the practice adopted there will be hundreds and thousands of just familiar to bench and bar, and no such reports were

such conflicts as to its meaning. The evil would not necessary. But in 1848 the Legislature passed the Code

bo so extensive if a Code were ever allowed to remain of Procedure, in wbich Mr. David Dudley Field had

as settled by the courts. simplified the rules of practice and had made them cer

But the passage of one Code is always an invitation tain, so that an “ordinary business man” could un

for some one to try his hand at another. In some derstand them without diffioulty. The result must be twenty-five years, by the expenditure of vast sums of extremely gratifying to those who hold with Mr. Field

money, and the aid of the judicial decisions in the 113 that the multiplication of law reports is an evil.

volumes to which I have referred, the Field Code of Within the last thirty-five years, aside from the cases

practice became a most excellent system. of practice in the regular reports-at least three times

Then an inscrutable Providence raised up Mr. M. H. as numerous as in the precediug fifty years--and tak-Throop, who at once applied himself to the grateful ing only the volumes I find in our own library, there

task of unsettling the rules of practice, and for the have been issued 113 volumes of reports relating to

last eight years the courts have been engaged in a despractice alone as against ninety-six volumes of reports

perate and generally unsuccessful attempt at finding upon all subjects prior to 1850. Judging by this in

out what Mr. Throop meant. stance, which is certainly a fair test, it does not seem

In spite of these considerations, Mr. Editor, the to me that Mr. Field's plan for reducing the number | probability is that sooner or later we shall have a Civil of the reports has proved an unmixed success. It has

Code, and that it will be Mr. Field's Code. taken an average of over three volumes of reports a

The reason is that with a body like our Legislature, year to judicially establish Mr. Field's meaning in a

a single strong-willed, persistent, powerfully conbrief statement of the successive steps for enforcing

nected man like Mr. Field, who is willing to spend his the rights of a party in a court of justice, a very small

time and money for a particular object, is likely to be and comparatively unimportant part of the law of this

more influential than all the other members of the bar, State. How many will it take when he has collected

busy with their own affairs. The “malice prepense all the rules govering the numberless relations of an

with which Mr. Field, at the age of eighty, “hange advanced and complex civilization sawed off and

on" to his faculties, apparently for the sole purpose of stretched out to fit into his Procrustean bed of a pushing this Code through the Legislature, is in itself Code?

a menace to the peace of mind of the lawyers of the Nor is it true that the proposed Code, or any Code,

State. I would not shorten his valuable life, or will render the present reports unnecessary. In all

abridge for a single moment his time for repentance cases the courts will first consider what the law was

(a man who has written half a dozen Codes must have before the Code was adopted. They will then consider

a great deal to repent of), but why, I ask, it be means whether or not the Code has change the former rule,

fairly by the public, does he not show some signs of and if so, in what respect. Every section, sentence

old age ? and line will need judicial construction, and a knowl

Why is it that “his eye is not dimmed, nor his natuedge of the law prior to the Code will be an indispensa

ral force abated ?" ble requisite to such construction. Indeed the only Why is it that when, according to all the authorities difference between a legal system without a Code, and the “grasshopper” ought to be a “burden ” to him, with one, is this: Without a Code the judges decide no insect lighter than a policeman's “Jocust" seems what the law is; with a Code the Legislature attempts

able to affect in the least his iron endurance. I cannot to state what the law is, and the judges decide what repress the melancholy thought, Mr. Editor, that long the Legislature meant-in nine cases out of ten the years from now, when you aud I have "gone over to most difficult task of the two.

the majority," and the cold marble is recounting our If you do not agree with me, look at the decisions dubious virtues to an incredulous posterity, Mr. David of the courts construing the "statute of frauds." This Dudley Field will be cheerfully celebrating his hunsubject (the invalidity of contracts not attested by

dred and twentieth birthday, making speeches before certain formalities) has always been embodied in a

countless committees of the Senate and Assembly, and Code, and I know of no questions that have been more misleading the callow youth of the profession by lecdiscussed, or upon which courts have more widely dif

turing before all our law schools on the virtues of a fered, than upon those arising under this statute.

Civil Code. Against such an adversary the opposing “Every special promise to answer for, the debt, de

lawyers, who are more or less mortal, and subject to fault of miscarriage of another person shall be void natural decay, bave little chance of success.

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