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this matter as an important one, and to confine their the wealth of judicial decisions has and is to a great opinions largely to cases reversed, where it is extent working a cure of the difficulties it occasions necessary to set out the grounds for granting a new by rendering it unnecessary to refer to the older trial. This plan has the additional merit of reliev- authorities, and confining citations not only to the ing the appellate tribunals, most of which are over more recent reports, but very largely to those deburdened with business, from much additional cided within the jurisdiction where the particular labor.

case is brought. Upon the whole, however, the condition of affairs While Mansfield is still recognized as the highest as to the multiplication of reported decisions, authority on all questions of commercial law, it is although discouraging is very far from desperate. most unusual to find a citation from the reports of

In the first instance it must be borne in mind his decisions, and Hale and Folt are but names of that the largely increased facilities for the examina- | great judges 10 conjure by, their opinions having tion of authorities have well nigh kept pace with been embodied in and superseded by modern autheir rapid multiplication.

thorities. The same is true of the great equity Digests of the law, giving the points of the de judges, and IIardwicke and Eldon are seldom recided cases, have long taken the place of the ferred to, except as the authority which has been abridgements like Bacon and Comyn, and by it relica


in more recent judicial utterances. combination of devices have made it comparatively | Indeed, the references to the first 100 volumes of easy, considering the mass of decisions to make an the reports of the United States Supreme Court are exhaustive investigation of any question. The comparntively few and far between, except as they collation and consideration of authorities in text are cited in support of a proposition fully discussed books and elementary works upon all the principal and determined in later volumes, and a like state of topics of the law go far to relieve the labor of the atlairs exists as to the reports of the appellate trilawyer, while the full annotations of authorities and bunals of the several States. A distinguished jurist elaborate decisions of mooted questious in the legal who has just retired from the appellate bench, in periodicals are no small aid. Nor is the system of

one of our largest States, where he sat ils chief or marginal annotations, showing what subsequent des associate for thirty years, recently remarked: “It cisions have referred to a given case, to be over

has become quite infrequent as compared with the looked in considering labor saving devices. By

custom in my early days on the bench, for counsel to these means the whole range of the cominon law,

cite an English authority, or even that of a sister as embodied in the reported decisions, is brought

State." much nearer to the practitioner, and he is enabled

The courts of almost every State have, in some to examine the authorities on a given question much

form or other, gruppled with the leading principles more readily and conveniently than heretofore.

of the law and their application to diverse and The most important element, however, tending peculiar facts, and litigation now arises princip:lly toward a remedy for the evils and inconveniences

from the new industrial conditions and changer

business methods, which are the marked feature of arising from the enormous volume of the unwritten

the times, law, is the gradual but certain evolution of the law. This evolution appears in both the unwritten and

The older reports thus became practically obsothe statute law, and in its relations to both has a

lete is to the bulk of legal lore spread on their most important bearing upon this question, since pages, and the common law, as it now exists tothe obselete provisions of the law, as found in the day, the result of centuries of change, improvereports, are only of historical value and being of

ment and evolution, as applied to the affairs of the very little utility, are seldom referred to, cites or

day, is to be found, to a very great extent, in the even examined.

later volumes of the reports of every jurisdiction. It was this element of which Hale said: "The The littest principles have been either enlarged, regreat wisdom of Parliament have taken off or

stricted or moditied, and, as thus improved, survive abridged many of the titles about which it was con

in the latest utterances of the courts. It has thus versant, usage and disusage hath antiquated others, come about that the language of a recent writer, and some that were anciently useful are now less used in a somewhat different connection, well exuseful."

presses the situation when he says, “Adjudged The effect of modern litigation, discussion and

(ases are the milestones which mark the pathway of decision has been to resettle and dispose of most of judicial progress.“ the questions which have been regarded as open,

More marked, and fully so important, changes and undetermined, and to again determine and re have been going on in the statute law, and with iterate, as well as to apply the rules and principles qual, is not greuter, effect, in riddling the reports gathered from the earlier reports. In other words, of decisions which have become useless and un


necessary. The change in this regard has been of lawyers and judges, as well as to decrease largely mainly in the direction of simplifying the law and the volume of reported decisions. procedure. Possibly the most forcible illustration It only remains to add, that while the suggestions of this statement is to be found in the statutes rela- presented do not remedy the evils complained of, tive to real estate, more particularly the abolition of and in nowise tend to lessen the burden of expense uses and simplification of trusts.

arising from the number of reports, they to a conThe highly artificial system of the mother coun siderable extent mitigate a burdensome condition, try, gave rise to numberless decisions, which by and alleviate a situation which would otherwise be reason of statutory enactments beginning about intolerable. 1830, and continuing up to this time have become

CONCLUSIONS. of no value except to the student and the antiquarian. Almost equally great is the volume of

I. The duplication of reports of opinions, can authority rendered superfluous by the simplication and doubtless will be remedied, by the official reof the legal relation of husband and wife, as

porters and publishers. They will find the bar gards property. As statute after statute has swept cager to patronize an official series to the exclusion away the common law rights of the busband, vol

of all others, whenever it is edited with ability ume after volume of reports have fallen into innocu- and promptness, and furnished at a reasonable ous desuetude.”

price and in a convenient form. The changes in procedure even where most con

This is true of a single series of a combination

of the different series, in the same jurisdiction, servative have rendered obsolete, scores of decisions based upon the mere technicalities, which

and equally true of a combined series of several were once the pride of the common law practice, jurisdictions, properly edited on behalf of the ofiand even in those jurisdictions where it is still

cial reporters of those jurisdictions. retained, the increased liberality based upon

II. The character of the reports as edited by the statutory enactment, and rules of the court renders official reporters, should be more nearly uniform. valuless, the opinions sustaining the refinement and The syllabus and index should be prepared upon a subtieties of common law pleading.

commonly accepted basis, combining the scientific The effect of statutory changes nece

cessarily raises and practical views, as the result of the experience the question as to the probable operation of codi- of the reporters of the country. And the bar fication upon the multiplication of reported deci.. should continue to demand, and the bench select, sions.

for the work, lawyers not only possessed of legal It must be conceded that the figures presented to ability, but of some degree of literary skill, and, this association last year, as to the proportion of moreover, imbued with :1 progressive spirit, and an decisions turning upon questions of practice in the appreciation of improved methods. States where reformed procedure is in vogue, as The preparation or careful revision of the syllacompared with those retaining the common law bus by the court so as to cover only the points actupractice seem to give but little aid to the argument ally decided by the case would be highly desirable. for codification as a remedy for the multiplicity of Very much of the difficulty arising from imperfect opinions.

or misleading head notes would be avoided if the It must not be overlooked, however, that code practice which is enforced by law in some jurisdicpractice, as it is now carried on, has abandoned its tions by which the judges prepare the head notes simplicity, and is losing its distinctive character, were adopted, or even if as in others the judges and unless return is made to first principles, will in uniformly carefully examined and revised the a very short time be subject to all the criticisms proof of the syllabus as drafted by the reporter, made on its predecessor, with but few of its re III. In the improved working tools, forming part deeming features.

of the Law Library, is to be found much assistance Still, much remains to be said in favor of statu in the almost interminable labor of the search tory revision by which well settled rules may be re among the authorities, but still more relief is to be duced to statutory form, as a relief from the exam had in the gradual evolution by which the imination, if not from the multiplication of reports, portant principles with their almost endless modifiand as providing a statement of the law in compact, cations survive in the later volumes, relieving much concise and convenient form. Very many elaborate of the necessity for examination of the older opinions result from conflicting enactments in va authorities ; and, perhaps, most of all, in the more rious statutes, which have never been revised or rapid growth of Statute Law, reducing to rules corrected, with a view to rendering them either well establisher principles and reconciling conflictcomplete or consistent, and the result of a careful ing decisions, so as to assimilate them to the curand systematic revision must be to lessen the labor | rent of recent authority, thus rendering obselete


much of learning displayed by the Courts, and Thickness : 2 1-2 inches in 2 States; 2 1-4 inches embalmed in the Reports.

in 3 States; 2 inches in 15 States; 1 7-9 inches in 2 IV. The hope for marked improvement in any 1 States; 15-8 inches in 1 State; 1 3-4 inches in 4 direction, lies in discussion, criticism and organi. ' States, and i 1-2 inches in 2 States. zation, and it lies largely with this and the several The measurements most general, it seems, are a State associations to arouse and keep alive an in volume 9 inches long (15 States), 6 inches wide (20 terest in the subject, which shall, through action | States), ind 2 inches thick (15 States). But cven by the official reporters and the courts, radically these measurements are common to any 15 improve the condition of law reporting in this States. country.

The number of pages varies from 550 to 1,000. Aug. 26, 1895.

But these figures give no actual or relative idea J. NEWTOX FICRO,

of the quantity of matter contained in the volumes. (hairman.

An examination of the last volume of the official EDWARD) OTIS VINILEY,

report of each court shows quite as great a variety FRANK C. SMITII,

in the type in which they are printed, as is shown WILLIAM E. TALCOTT,

by the measurements, above given, of the volumes Committee.

as bound. In many instances the type is quite

large, the spacing between the lines very wide, and SCHEDULES PREPARED BY SECRETARY OF (OMUT

the margins correspondingly liberal. In others the TEE TO ACCOMPANY REPORT.

type is compact and readable, while between these Tuble 1.

two extremes the assortment of type is as varied as This table shows the results of the committees that shown in the catalogue of a modern type: inquiries of the oficial reporters, its to the matters toundry. Ju interesting feature of this diversity incident to law reporting in their respective juris

is noted in the fact that, generally, the largest type, dictions, and may be summarized its follows: the widest spacing and margius, and the fewest Total courts whose decisions are reporter. 65 pages are found in the volumes edited by those Replies received from....

48 reporters whose compensation is derived solely from Of these, two, the District Court of Appeals of the copyright, the District of Columbia, and the Supreme ('ourt of In constructing the reports, it seems that in six Idaho, have no official reporters.

States the judges make the statement of facts; in Salary is paid in 10 States, ranging from $200 10 nineteen instance's the reporters state no facts not $6,000 per year, and î of these states allow, in ad given in the opinion; while in twenty States the dition to the salary, from $2,100 to $8,000 per reporter goes to the record or transcript for facts annum for assistants, while in 4 others the reporter not stater in the opinion, when he deems it neceshas, in addition to his salary, the copyright of the sary to give it accurate imderstanding of the case. volumes he edits.

Tables of cases are given by 30 reporters, while In 5 States the reporter is compensated solely by 11 had no such aid to the case-hunter in the volhis ownership of the copyright of his volumes. umes they construct.

The number of volumes of reports annually issued Sisteen reporters either summarize or print in full ranges from one in four years in Idaho, to 17 per the briefs and citations of counsel, while 20 give year in New York, and is indicated for each court no attention to this feature. reported, in ench State, in an appropriate column. The answers to the inquiry as to the system of in

The varying size of the volumes presents it rather | dexing followed are not subject to intelligent genehumorous feature, when it is recalled that the con ralization, although it may be said that what is tents of each is of a like character with that of its known as the Indies Digest system seems to prefellows, and that the use to which the volumes are dominate. to be put is precisely the same in all jurisilictions.

Tubli B. The length of the volumes are given as follows:

This table contains the results of an inquiry into 10 inches in ! state; 9 1-2 inches in 6 States; 91.1 the structure of the cases reported from all our inches in ņ States; 9 3-16 inches in 1 State; 9 1-5 courts during the year, June 1, 1894, to lay 31, inches in 1 State; 9 inches in 15 States, and sinches 189.7, and shows the number of cases reported from in 1 State.

each tribunal, and the name and number of the Il'idths : i 1-2 inches in ? States; i inches in 1 judicial authorities which eich court cited in its State; 6 1-2 inches in 1 State; 6 3-5 inches in 1 opinions in the cases, logether with the number of State; 6 1-2 inches in 4 States; 0 1-4 inches in 1 times test books were so cited. State: 6 inches in 20 States; 5 3-1 inches in ? Stitten, The table mult loe uummarized as follows: Total and 5 inches in 1 State.

cases examineil, 10, 116 : total number of citations


therein, 58,941; of which the several courts cited found that, of the citations they made of common their own prececlents 28,995 times, and all other law cases, 1,943 or 26 per cent were cited on procourts 29,946 times.

cedure points, while of the code State citations by In other words, over 49 4-5 per cent. of all the the code State tribunals, 4,172, or 69 per cent were judicial authority used by the courts of appellate upon points of practice and procedure. jurisdiction of this country, in making up their final How it happens that the common law courts rejudgments in the cases mentioned, was the authority quire over 57 per cent of their common law citations, of their own previous judicial utterances. To ex- and over 34 per cent of their code State citations; press the thought a little differently, it would seem, and that the code State courts require a little over from this showing, that each tribunal has, within 26 per cent of their common law State citations, the compass of its own decisions, all the authority and over 69 per cent of their code State citations, requisite for its determination of causes submitted upon the points of procedure involved in the litigato it, and that, on the average, our courts cite the tions, can be readily answered by thoughtful lawdecisions of other tribunals only in support of their yers. But the most significant, and the most conown like conclusions. And what is thus shown to spicuous fact disclosed by this computation, is be true of the country at large is, with the exception that the methods of procedure followed in this of the tribunals in the new States, whose litigation country, and known the codes, and the has not yet aggregated sufficient decisions to either common law system, modified as it everywhere cover the range of cases submitted to them, or to is by the practice acts and statutes, are in fact, justify the unsupported citation of their own meagre not so divergent as we have generally supposed, collection of cases, found to be generally true of but that they can and should be amalmagated each State, and is indicated in parallel columns. and shaped into a uniform system. This done,

From this date it is impossible to escape the and the volume of the labor and output of our thought that, if in those jurisdictions where it is courts of appellate jurisdiction reduced one-half true that they have, as a general rule, upon the by the elimination of disputes in litigation reported pages of their own reports, decisions covering all

to this association last year showed was possible the questions which they have to liscuss and de- and the adoption by the judges of our courts of termine, the courts thereof would confine their opin- last resort, of the suggestion afforded by our present ions to a succinct statement of facts and the rules of investigations, that they contine their opinions, law in their judgment applicable thereto, citing only when practicable, to a summary statement of fact cases from their own reports covering the same the and law, basing the application of the latter to the ground, much space would be saved, fewer volumes former upon precedents of their own courts, and be required, and yet no diminution of actual ju- the great problem, to study which this committee dicial authority result.

was appointed, will be shorn of the features which An interesting feature of this compilation, and to-day make it so ominous and disheartening. one that is not without significance, is the number

FRANK C. SMITH, of times that the common law courts are found to

Secretary. have cited the decisions of other common law tribunals, and the decisions of the code States, and,

Abstracts of Recent Decisions. on the other hand, the number of times the code

MASTER AND SERVANT-INJURY-CONTRIBUTORY States cited Code decisions, other than their own,

NEGLIGENCE.--Plaintiff was an elevator tender, and and the decisions of the common-law courts. By computation, and leaving out the citations

on starting to work in morning, was informed

that the elevator was out of order. Plaintiff, withwhich the common-law courts made of their own previous decisions, we find that our so-called com

out reporting the fact to his superintendent, went

underneath the elevator and pulled the rope, wheremon-law tribunals cited common-law cases 9,141 times, and code cases 1,861 times.

upon it came down on him. Held, that plaintiff The code State

was wanting in due care. tribunals cited] common-law cases 7,359 times, and

(Degnan v. Jordan the decisions of code States, other than their own,

(Mass. ], 41 N. E. Rep. 117.) 6,003 times.

NEGOTIABLE NOTE We ascertained, with reference to these citations,

A holder of a note who, upon transfer that, of the common law citations by common law of the same before maturity, places the address of courts, 5,238, or 57 per cent were cited in support the maker below his name on the face of the note of points of procedure, and that of the code State without the maker's knowledge, will be bound by citations by common law courts 1,671, or 4 per a demand of payment by a subsequent holder at the cent were cited to support decisions upon points of address so given. (Farnsworth v. Mullen (Mass.], procedure. Turning to the code State tribunals we 41 N. E. Rep. 131.)





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regards copyright, the chief question was to The Albany Law Journal. decide as to the desirability of establishing an

international tribunal to give judgment upon ALBANY, SEPTEMBER 14, 1895.

matters dealt with in the copyright convention.

The institute adjourned the question sine die Current Lopics.

as being a very delicate one, which had not

yet been specially considered in committee. (All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL.

The subject of the guardianship of persons of All letters relating to advertisements, subscriptions, or other full age has occupied the institute for a numbusiness matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

ber of years, and all the proposed articles have NE of the changes in the Constitution pro- been frequently remodelled. In several coun

posed by the recent convention is evidently tries of the Continent, such as France, the not in keeping with the ideas of many learned management of the property, not only of lunajurists, for from an exchange we are informed tics but also of spendthrifts, may be placed that Greek judges do not value human life so

under restraint. The subject has, therefore, a highly as the gentlemen who frequented the much greater material interest there than in Capital last summer and who removed the limit England. The main business was to decide which had existed for recovery of damages for which law should govern an application made death by negligence. The Vossiche Zeitung on

to a court to place the person and property of this subject says: “A Greek judge at Volisso, on a foreign person of full age under restraint. the island of Scio, the other day decided two The first point raised involved the old conflict claims against a railroad for damages caused by between the national law and that of the domia collision. One claimant was a man who lost cile. The institute, in spite of Professor Lyonhis arm, and the other was a widow whose hus- Caen, who sided with the English view in band had been killed. The judge awarded favor of domicile as regards personal property, 6,000 piasters to the man, but only 2,000 to the decided that in the cases in question the

When the spectators began to protest national law of the person against whose acts loudly, the wise judge explained:

or freedom of disposition judicial intervention “My dear people, the verdict must remain, was demanded should be applied. Another for you will see it is just. Nikola has lost an important decision was that the judgment of arm, and nothing can restore it, but you (turn- | the competent national tribunal should be ening to the woman) are still young and pretty forced in other countries without the necessity You have now some money and you will easily

of submitting it for ratification by the tribunals find another husband who may be as good, of these other countries; further, if proceedings perhaps even better, than your dead lord.” So

of the kind in question are taken against a

institute holds that saying, the judge left the hall, and the people foreigner, the

they cheered him.

should first be provisional only; that

the diplomatic or consular representative We have recently published part of the pro- of the State to which the person in question ceedings and debates at the Institute of Inter- belongs should be notified as to the proceednational Law which has incorporated in its ings; and that the court should decide only membership many of the most distinguished after hearing any observation made through legal authorities and particularly is fortunate such diplomatic or consular authority. The enough to carry on its rolls many jurists who chief discussion, however, took place when the have devoted their lives to the subject of Inter- project, as a whole, was submitted for adopnational Law. The Lazi' Journal gives the fol- | tion. The idea of its framers is to institute lowing summary of the discussions on August what is called “La tutelle unique" that is to 12th last.

say, that all questions connected with restricThe meetings of the institute at Cambridge tions on persons of full age, should be treated on August 12, were devoted to winding up the according to the same law. It was pointed out question of copyright and settling the rules as by an English member that the subject involved to the guardianship of persons of full age. As three things which should be distinguished

VOL. 52 — No. 11.



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