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from the recollection. Every lawyer has experienced Editor of the Albany Law Journal :
the difficulty of proving the character of the occupaIn reply to my query published on page 300 of your
tion of land after the lapse of comparatively a few issue of April 11, 1885, relative to the correct legal years. The book is handsomely printed, and we are method of computing time between two given dates glad to see that it has none of the portraits of self-made for the purpose of subsequently computing interest,
men which usually disfigure such works. We would the two answers, viz., page 319, April 18, and that of whisper to Mr. Farmer that Shakespeare never could Mr. Fontes, page 340, April 25, do not solve the prob-have said " native here and to the manor born." What lem. Both cite the Revised Statutes, pt. 2, ch. 4, tit. 3,
he said was
manner." $$ 9, 10. But I want to know how to apply the above oitation and above all the authorities, or even one au
CAREYS' FORMS AND PRECEDENTS. thority ou the subject.
Forms and Precedents, embracing the following subjects : As my theory resulted from an attempt to calculate Pleading and Practice in courts of equity, admiralty and an actual payment of interest on over-due notes, I common law; proceedings in orphans' courts; statutory sought to ascertain the authorized method for my own proceedings, patents, trade-marks, and copyrights; conprotection.
tracts and conveyancing; wills, etc. Compiled and There are three ways of computing, to mention no edited by James Carey, Jr., and Francis King Carey. Balmore, that I beg to instance to make my query clear. timore: M. Curlander. 1885. Pp. x, 1084.
The question is: What time has elapsed between This seems to be a very complete collection, but October 25, 1884, October 29, 1884, October 31, 1884, re- many of the forms might well be boiled down and spectively, and March 19, 1885 ?
modernized. A compiler of forms ought to find By method 1. The actual number of days is 145. Di- something newer than “made oath on the Holy Evanvide this by 30, and the result is 4 months and 25 days gels of Almighty God." The book is too coarsely for the first note; 4 months and 21 days for the sec- printed; it ought to have been much less bulky. ond; 4 months and 19 days for the third.
By method 2. Calling October the tenth month, and March the third mouth, and subtracting as below, we
MURFREE'S OFFICIAL BONDS. get:
A Treatise on the Law of Official Bonds and other penal 1885.
bonds. By W. L. Murfree, Sr. St. Louis: Review Pub1884.
lishing Co. 1885. Pp. viii, 646.
The practitioner will here find all the learning on 4-24
this subordinate subject, conveniently arranged, and This gives 4 months and 24 days, 4 months and 20 concisely expressed. The book is very handsomely
printed. The author's industry has enabled him to days, 4 months and 18 days for the three notes re
cite cases filling a double-columned table of thirtyspectively.
six pages. By method 3. From October 25 to November 25 is one month; to December 25, two; to January 25, three; to February 25, four; leaving 22 days to March
BUSWELL ON INSANITY. 19. This gives 4 months aud 29 days, 4 months and 19 The Law of Insanity in its application to the civil rights and days, 4 months and 19 days for the three notes re- capacities and criminal responsibility of the citizen. By spectively.
Henry F. Buswell. Boston: Little, Brown & Co. 1885. Which of the three methods is authorized, and what Pp. xxxviii, 595. authority can be cited ? Although I seek information,
A cursory examination leads us to think well of this I would venture the following statement: I cannot see
work. It seems very comprehensive, and is a model that the above citation authorizes the third method.
for text-book writers in one respect-it wastes no I can see authority however for the other two, but of
words. The subject well deserves independent treatthese two the first seems to me wrong, while the sec
ment such as it receives from Mr. Lawson and the ond, in my opinion, will meet every possible emer
present writer. gency. Thanking you for this space, I am, Very truly yours,
COURT OF APPEALS DECISIONS. NEW YORK, April 28, 1885.
HE following decisions were handed down Tues
day, April 28, 1885: NEW BOOKS AND NEW EDITIONS.
Judgment modified, and as modified affirmed, with.
out costs to either party in this court-Margaret C. FARMER'S HISTORY OF DETROIT AND MICHIGAN.
Remington, respondent, F. William H. Walker, execThe History of Detroit and Michigan, or the Metropolis illus- utor, etc., appellant.-Judgment reversed, new trial
trated. A chronological cyclopædia of the past and pres- granted, costs to abide the event-Charles C. Motel, ent. Including a full record of territorial days in Michi
infant, etc., respondent, v. Sixth Avenue R. Co., apgan and the annals of Wayne county. By Silas Farmer, pellant. — Judgment affirmed, with costs—Edward J. Historiographer. Detroit : Silas Farmer & Co. 1884.
McGeau, receiver, etc., appellant, v. Thomas MackelThis is a very elaborate and copiously illustrated lar et al., respondents. -Order affirmed, with costs work, which must be of great interest to the inhabit--Charles G. S. Baker, appellant, v. Jarvis S. Baker, ants of Michigan. It is in plan and execution about respondent.- Order of General Term reversed, that ou a level with the many local histories which have of Special Term affirmed, with costs-Robert F. Litbeen issued during the last quarter of a century. tle, receiver, etc., appellant, . Theresa Lynch, reWhile much of it is of no general interest, there are spondent.
-Appeals dismissed, with costs-Bolton chapters on the legislatures, laws and courts, which Hall et al., respondents, v. United States Reflector are undoubtedly valuable to Michigan lawyers. One Co., appellant; Peter Rowe, sheriff, eto., appellant.“ of the most valuable characteristics of this history is Order modified and affirmed as to the appointment of the large number of cuts of ancient buildings, perpetu- a trustee only, with costs-In re petition of Edmund ating the appearance of old localities which easily fade Waring and another.
the mark than any we could get in another generaThe Albany Law Law Journal.
tion. ALBANY, MAY 9, 1885.
One reason against codification has not been stated by tbe gentlemen of the New York City Bar
Association, and we do not scruple to give them a CURRENT TOPICS.
live reason. That reason is, that after we get a Code
the courts, having run so long in the ruts of the N last week's Nation we find a long editorial on
common law, will not pay any attention to it. For "The Lawyers and the Field Code.” It is by example: the Code of Civil Procedure, section 3345, no means so heavy as we expected. On the con
enacts that the rule of the common law that a stattrary it is in spots amusing. For example, it would
ute in derogation of the common law is strictly be difficult to imagine any thing "cooler” than
construed, does not apply to this act.” This was the following: “Since it is unquestionably the the provision of the old Code, $ 467. Now in the general opinion among lawyers that the adoption of
case of Noyes v. Davidson, an abstract of which is the Field Code will, for a time at least, greatly in
given in another column, our Court of Appeals say, crease litigation, the spirited resistance offered by
the chief judge himself writing the opinion: "Sec. the leaders of the profession to this measure cannot tions 1421 et seq. of Code of Civil Procedure, aube explained by a reference to selfish motives."
thorizing the 'substitution of the indemnitors of a This is taking things for granted with a vengeance. sheriff as defendants in an action brought to recover The opposition say so, therefore so it is. Now we
personal property levied upon him by virtue of an do not assert or believe that the opposition are ac- attachment or execution, or to recover damages for tuated by mercenary motives, although we suspect
such a levy are new, and constitute a serious and they are selfish. Prejudice, laziness, obstinacy, important innovation upon the law as it stood pique, have a good deal to do with the matter,
previous to their enactment. This statute is clearly But the funniest thing the Nation says is this: “It
in derogation the common law and common is the product neither of the judges nor of the pro
right, and by settled rules of interpretation must be fession, and the profession will therefore refuse to take the responsibility of giving it a meaning until strictly construed, and not extended beyond its ex
press provisions and clear import. McCluskey v. it has passed through the process of assimilation
Cromwell, 11 N. Y. 593; Sprague v. Birdsall, 2 which they require. No Code, we may safely predict,
Cow. 419; 4 Mass. 145, 473." If courts are not gowill be successfully applied unless it first secures the
ing to pay any more attention than this to Codes general approbation of the bar.” This is rank non
and statutes, of course we may just as well let sense. We suspected until just now, that some mem- them go on making the law to suit themselves. We ber of the city bar association wrote these things for wonder if the court would not have granted a rethe Nation, but it is hard to believe that any lawyer
argument in this case on the ground that they had ever wrote such whimsical opinions as this. Not misapprehended the law. one of the present Codes "secured the general approbation of the bar,” yet they are universally acknowledged to be successful.
The Pennsylvania Supreme Court, in April, 1884,
But we find no fault with the Nation and Mr. Cowen. The nonsense of
were called on, in Carroll .v. Burns, to construe this the former, unalleviated by Mr. Cowen's wit and provision in a will: “All the rest, residue and regood feeling, and the unsoundness of the latter,
mainder of my estate, real and personal, I devise uninfected by the Nation's editorial cataract, are
and bequeath unto my said three daughters, to have alike amusing, and enable us, we trust, to season
and to hold to them during their natural lives, and
after their death then to the lawful issue of my the insipidity of Current Topics. But we find no argument sufficient to defeat the will of the people,
said three daughters and the heirs and assigns of and the repeated action of the Legislature.
such issue." They unanimously held that “the clear intent of the testatrix was to give each of her
daughters a life estate only, and on their death to We have read 'Mr. Pomeroy's and Mr. Miller's give to their children and their heirs the estate in pamphlets against the Code, and do not find much fee.” Soon after this decision was rendered, leadstartling or new. Mr. Pomeroy was a learned | ing conveyancers and real estate lawyers, although teacher and a good author, but he was a professor, without any standing in court as to the case, united and he was bounded by the spirit of the professor; | in a memorial to the court, praying for a rehearing, be lacked the breadth of a man of affairs. We on the ground that the decision, as it stood, would would rather pin our faith to the opinion of Chief unsettle half the real estate titles in the city; and Justice Wallace. It is no disparagement to Mr. it was contended that the decision was contrary to Miller to say that his opinions are not even so the “rule in Shelly's case,” the ancient and accepted weighty as Mr. Pomeroy's, although if we could rule for interpreting the principle involved. A resee general merit in luis minute criticisms we would | hearing was granted, and the court, three judges admit it. Our answer to all these criticisms is that I dissenting, held that “perhaps the testatrix init is hopeless to get a Code without fault or above tended to give a life estate to her daughters, and the criticism, and that this Code probably comes nearer
remainder in fee to their children; but she has Vol. 31 - No. 19,
used words which definitely vest in her daughters there is sufficient on this case to show that the coran estate tail, and the courts are not at liberty to oner had the right and power to hold one. No wrest them so that they may mean any thing else." case absolutely in point has been referred to, but And so reversed their former decision. Fine com- there are many cases which show that interfering mentary on the precision and elasticity” of the with and preventing the performance of duties imcommon law! This is cited as a remarkable instance posed upon officers by statute is a misdemeanor at of a court's reversing itself, but we recollect that common law. Now the holding of an inquest is a this same court turned a similar somersault a few matter of great public importance, and it is most years ago.
important that where a coroner has reasonable
grounds for holding an inquest, he should not be The constitutional question in the case of General prevented from doing so, otherwise the conseLawton's appointment by the president is not so quences would be most formidable. Child murder easy to dispose of as the party newspapers on both especially would be more likely to go unpunished, sides deem it. Attorney-General Garland is a good if by disposing of the bodies by burning the only lawyer, and he holds that President Johnson's par- evidence perhaps of the crime could be destroyed. don made General Lawton a new man, and quite The very object of a coroner's inquest is to ascercompetent to hold office under the government in tain the cause of death, and it certainly is not the spite of bis previous rebelliousness. Others think law that the coroner must be certain of the cause that the subsequent constitutional amendment re- of death before he can hold an inquest, which quiring the removal of disability by Congress ap- would be the effect of the argument that the pris. plies to the General's case, and that the pardon ex- oners cannot be convicted, although the coroner tended only to criminal responsibility. But it is acted reasonably in determining to hold the inquest, replied that one of the consequences of rebellion or if the inquest should prove to be unnecessary. Untreason was incompetency to hold office, and that der the statute of Edward I, the coroner's duty is this disability was cured by the pardon. But then to act on information, and the inquest is held to on the other hand it is said that while an act of test the information. It is said in Bracton 3, chapCongress alone could not revive the disability, the ter 5, and Horne's Mirrour, page 38, that the statconstitutional amendment did have that effect, that ute is in affirmance of the common law, and merely the change of the fundamental law could and did directory. Now the statute says 'the coroner, if effect any thing that the sovereign law makers, the he be certified by the king's bailiffs or other honest people, intended or desired. It is much easier to men of the country, shall go to the place where any state the question than to solve it, and we shall not be slain, or suddenly dead or wounded,' nothing at present undertake to express an opinion, because being said about murder. An examination of the we have no right, upon present reflection, to have body is required by the statute, and the whole any. It is a good question for our law-school moot wording shows that an inquiry into the cause of courts to discuss, and settle off-hand. We think that death is intended, which would be useless had the General Lawton showed excellent sense in not ac- coroner to satisfy himself by evidence as to the cepting the appointment. We will suggest however cause of death previously to holding the inquest." that it is a question that will need to be settled some time, and no time is better than now.
In City of Chicago v. O'Brien, 111 Ni. 532, it was The London Law Times, in a review of Mr. Kelly's held that a city has not the constitutional power to “French Law of Marriage,” criticises the author require the owner or occupant of premises to keep for using the phrase "pass upon,” in the sense of the sidewalk and gutters in front thereof free from decide or adjudge, and calls it an “unpleasant snow and ice, or to sprinkle the same with ashes or American phrase.” And yet it is used by Shakes- sand where the snow and ice cannot be removed peare and Jeremy Taylor, and we venture to say
without injury to the pavement, and inflict a fine on never until now has been condemned except by soine
him for a neglect or failure to do so. Referring to philological pedant. Most “Americanisms” are
contrary cases the court said: “These cases go to traceable to good English origin.
the length of sustaining the doctrine contended
They announce the doc
trine that such improvements may be compelled NOTES OF CASES.
under the general police power. If this be so, by
an exercise of the same power we presume that the INRC. M. Sey 207, it was held that it is an in- repair public roads, bridges and culverts fronting dictable misdemeanor willfully to prevent an in- upon or running through his lands, or the owner of quest appointed by the coroner, or to destroy the a city or village lot could be compelled to make body in question. Grove, J., said: “The two and repair the street in front of his property. A points submitted for our consideration and decision sidewalk is a portion of a public highway, appro, are: " Whether it is an indictable misdemeanor priated, it is true, to pedestrians alone, but still willfully to prevent the holding of an inquest of open and free to all persons desiring to use and enwhich the coroner has given notice, and whether joy it as a public highway. It is as much a
highway in the mode of its use as the street itself. be responsible for the safe keeping and return of The difference in the manner of their use does not the carriages. Held, that the principal was not render one public more than the other. They are bound. The court said: “It is said in the brief of both free to be properly used and enjoyed by the plaintiffs' counsel that it is a matter of common entire public, and are constructed alike for their knowledge that no well regulated hotel could do
That the Legislature may afford the neces- business and accommodate the public without maksary power of constructing such improvements, so ing some such arrangement as this, and that it is a essentially necessary to the comfort and conven- well-known occurrence for a guest who wishes a ience of the community, is apparent; but under our horse and carriage to apply at the desk, and an orconstitution we think the mode authorized in this der is sent to the livery stable keeper, who fur: case is not sanctioned.
Even the police nishes the equipment to a man he does not see, and power, comprehensive as it is, has some limitations. so has no means of ascertaining his responsibility. It cannot be held to sanction the taking of private He therefore says that a contract like the one found property for public use without making just com- by the court is a natural and necessary one for the pensation therefor, however essential this might be, protection of the liveryman. Suppose this be adfor the time, to the public health, safety, etc. Andmitted, and it be for the purposes of this argument upon like principle, a purely public burden cannot assumed that this is such a familiar transaction be laid upon a private individual, except as author- that it rests within the cognizance of every one ized in cases to exercise the right of eminent do- without proof of the fact, yet I do not think it main, or by virtue of proper proceedings to en- makes in favor of the plaintiff's case. It only force special assessments or special taxation. The shows that the hotel, for the convenience of a guest, drainage of malarial swamps would surely largely communicates with some one who furnishes the carcontribute to promote the public health; but could riage. So also the communication is made with it be contended that therefore the burden of such an express company or railroad company to take drainage may be laid upon some single person to charge of a guest's luggage. So in both instances be arbitrarily selected, or upon those who happen the charges are paid at the desk of the hotel for to own the adjacent dry land, in disregard of the the guest and put in his bill. In neither is it principles applicable to special assessments and known that the proprietor of the hotel assumes the special taxation? Undoubtedly, the allowing of character of an expressman or hirer of a vehicle, or ice and snow to remain upon a sidewalk may be de- any responsibility for the performance of the duties clared a nuisance, but it must be a public nuisance, of either. And this usage, as claimed to exist and one, too, not caused by the act of the adjacent within the knowledge of every one, makes the property holder, but solely by the action of the ele- guest and not the hotel keeper the bailee. If this ments. No one questions the right of the munici- be so, then if the hiring in this case was, as is pality to prevent such use of property, and such ac- claimed, a hiring to the hotel keeper, it was not tion of the citizen as may be injurious to the pub- within the scope of his business, and so did not lic; but the adjacent lot owner has no ownership bind the principal. If it was a hiring to the guest, or control of the adjacent street, and this ordinance
then the contract of the husband encounters a leseeks to control the action of no one while on the gal difficulty in the shape of the statute of frauds. street. The lot owner is held responsible solely It was a verbal contract to answer for the default and simply for the accident of owning property or miscarriage of another. Kirkham v. Marter, 2 near the nuisance. He may have no more actual
Barn, & Ald. 613; Brown Stat. Frauds, § 155. control of the street, or necessity to use it, than if
Therefore to recover at all it was essential for the his property were miles away; still he is held re- plaintiff to stand upon a usage for hotel keepers to sponsible for a result he could not control, and to
hire horses to their guests. For it is perceived the production of which he did not even theoreti
that if he was the bailee, the letting to the guest cally contribute. The gist of the whole argument.
was a new bailment in which he was the bailor. If is merely that it is convenient to hold him respon
a part of the business of a hotel keeper is to let sible. It is not perceived why it would not be horses to his guests, and by reason of this the hotel equally convenient to hold him responsible for the proprietor is bound for a hiring of a horse for that entire police government of so much of the street." purpose, with a contract extending the liability of The court reaffirmed Gridley v. City of Bloomington,
the hirer to an absolute insurance, it is difficult to 88 Ill. 554; S. C., 30 Am. Rep. 566. Dickey, Shel- perceive the limit to the agent's authority in this don and Craig, JJ.
, dissenting. We believe this direction. If he can hire, he can purchase. He doctrine prevails nowhere else.
can establish a stable with an unlimited number of
animals, and for their price and food and attendIn Brockway v. Mullin, 46 N. J. L. 448 (Supreme ance, the proprietor, although ignorant of the act, Court), an agent was authorized to manage a hotel, will, by reason of the general authority to manage and without the knowledge of the principal en
the business of the hotel given to the agent, betered into an arrangement with a livery stable come responsible. I think, as the case stands upon keeper that the latter should furnish carriages for the record, with no proof that the transaction conthe guests of the house, and that the house would cerning which this contract was made was incident
to the hotel business, and with the fact that the distinctions and collateral authorities, and thus
nections, but just superfluous rubbish for the pur-
We would laugh at the
savant, who having to call to his aid the law of A SHORT PLEA FOR A CODE.
gravitation, should for that purpose remount to
Newton's original experiments, and work his way F laws “the most to be desired are those that from them downward to the matter in hand, and
eral; and I am further of opinion that we were Further, is it not probable that if our scientific better to have none at all than to have them in so men pursued this round-about course they would prodigious numbers as we have.” Thus concluded go wrong in many an observation, simply for want old Montaigne. It is hardly necessary to observe of having the necessary law right to their hands? that were be living to-day he would see no reason The length and difficulty of the reference would for changing his opinion. He knew that “there is lead to many an oversight of the law. And so little relation between our actions that are in per- here, if this old maxim, couched in fair, modern petual mutation and fixed and immobile laws,' terms, formed part of a handy, well conned code, and he expresses with his usual pungent quaintness would not its force be invoked in many a case where the futility of the attempt to provide for all con- it is now passed over in inadvertent silence? tingencies by statute and by precedent. It is like Nor let it be objected that what we ask for is simtrying to hold quicksilver. It is, in short, unscien- ply a new version of the Decalogue. In the best tific, and this is to our mind the fatal objection to sense it is a moderu Decalogue we ask for. “For che common law in its present state. We think there are in nature certain fountains of justice that the supporters and advocates of a code are, in whence all civil laws are derived, but as streams, effect, seeking to adopt in law the same method and like as waters do take tinctures and tastes from that prevails in every other branch of human know the soils through which they run, so do civil laws ledge-to strip away the scaffolding, and show vary according to the regions and governments the actual state of the structure.
where they are planted, though they proceed from If, in any of the physical sciences, the workers of the same fountains." (Advancement of Learning.) the present day had at their command only the ac- We believe that the constant tendency of modern cumulated, undigested experiments of their prede- law is toward union with morality. Hard cases do cessors, what progress could they make? It is by not make bad law, it is bad law that makes the method that they advance. Each man's discovery hard cases. The perfect consonance of law and or experiment becomes part of a distinct and defi- conscience is no impossibility. The goal is still nite whole, so that the trained specialist can state far off, but how much nearer than fifty years ago! precisely the position up to date of his particular Already in England, equity and common law “have science. Why should law alone be exempted from met and kissed each other,” and “Meeson and this process? Because, we are told, law is not a sci- Welsby” slumber in disused oblivion. Now what
Most assuredly amongst ourselves at present hinders that we should put on record the exact it is not, but if it is wished by the assertion to con- present state of our corpus juris, so that we may see vey that it is intrinsically incapable of being made where we stand? Will not defects be more quickly a science, we have proof positive that the assertion remedied when they stare us in the face in black is wrong. Wherever a code exists there law has and white, challenging the attention of every assumed the rank and dignity of a science; there reader? jurists and jurisconsults exist in fact as well as Nor do we think it reasonable to fear that the name, and the study of the law is a truly liberal mere fact of codification would tend to arrest restudy. Law is the essence of all other sciences, form. The day of reverence for authority, as auand shall it be unscientific only when applied to hu- thority, has gone by. We are not at all likely to man affairs, its most immediate function?
sit down and worship the idol our own hands have not all discern with more or less distinctness the fun- made. The danger, if any, lies in a contrary direcdamental principles which underlie the endless mu- tion — that of too hasty and ill-considered attempts tations of our cases? Often misapprehended and to remove apparent blemishes. misapplied, still the principles are there, just as In one respect the law would gain in authority, capable of exact and definite statement as the laws viz., in public estimation, and how much such a of gravitation or molecular force.
gain is needed no American requires to be told. Take one simple instance. Sic utere tuo ut alienum Just as much as the reproach of obscurity is renon lædas is onc of the bottom truths, as old as the moved from our “jurisprudence" (save the mark!) hills, which must have been recognizable as a prin- just so much will that jurisprudence gain in moral ciple of right by the first judge who ever tried a influence. Who can respect a shifting umbra that
And yet where is it in our law? We must its very professors cannot define? The influence of go and dig it out of Fletcher v. Rylands or some the lawyer to-day is still something like that of similar case, and accompany it with a long train of the magicians of times gone by. He is a professor