stated. Bigelow, Estoppel, 302. Tested by these definitions, we think there is nothing in this deed to estop even the grantor, and if not, certainly not the grantee. We have been referred to no case, and have found none, the principle of which would sustain this as an estoppel. In most of the cases cited there was a direct recital and recognition of the existence and execution of the other instrument. In other cases the court was considering the competency or sufficiency of the evidence tending to prove the fact of the existence, execution or ratification of the recited instrument. We do not question but that the fact that the grantor in the present case took the precaution to except this mortgage from his covenant against incumbrances might be competent evidence tending to prove that he had either authorized its execution or ratified it. But that is not now the question in this case. Those cases which hold that the mere fact that the conveyance was made subject to a mortgage would estop the grantee from denying its validity, probably go as far as any toward sustaining the contentions of respondent. But we think there is a broad distinction between expressly making a conveyance subject to an incumbrance, and merely excepting it from the covenant against incumbrances.

Order overruling demurrer reversed, and cause remanded.

NEW YORK COURT OF APPEALS ABSTRACT.

BILL OF LADING --LIABILITY OF CARRIER FOR REPRESENTATIONS IN CONSTRUCTION WRITTEN

AND PRINTED STATEMENTS.- A person unknown to the plaintiffs, holding himself out as a member of the firm of E. W. Peck & Co., delivered to the defendant railroad company at Kansas City, Mo., for transportation to New York by way of its railroad and connecting lines thirty packages or barrels. The defendant on receipt of the packages issued a bill of lading partly printed and partly written, certifying that it had received of Eli Peck & Co. consigned to their order, New York, the following described packages in apparent good order (contents and value unknown) consigned as marked in the margin." Following this clause were the terms in which the property was to be carried and immediately thereafter and before the signature of defendant's agent was inserted in writing as follows: "Articles-30 bbls. eggs. O. R. F., E. W. P. & Co., N. Y." The clause first quoted was printed as were all the other parts of the bill except the date, the name of the shippers, the statement of the articles and the signature of the agent of the defendant. The barrels were filled with sawdust and contained no eggs. The person receiving the bill indorsed it in blank under the name of Eli Peck & Co., and annexed it to a draft drawn upon the plaintiffs, who accepted and paid the draft upon the faith of the bill of lading without knowledge of the fraud. There was no bad faith on the part of defendant. Held, that the description of the articles in the bill of lading was not a representation by the carrier that the barrels contained eggs, and defendant was not liable to plaintiffs for loss by reason of the fraud. The rule that in case of repugnancy between written and printed clauses of an instrument the written will prevail (Harper v. Albany Ins. Co., 17 N. Y. 194, is one which is only resorted to from necessity when the clauses cannot be reconciled, as is the case of a will, where between the repugnant clauses the last one will be taken as indicating the final intention. Van Nostrand v. Morse, 52 N. Y. 12. But courts must give effect if possible to all the terms of an agreement, and this principle applies as well to instruments partly printed and partly

written as to those wholly printed or written. Barhydt v. Ellis, 45 N. Y. 107. Where two clauses apparently repugnant may be reconciled by regarding one as a qualification of the other that construction must be given. In this case defendant did not make any representation as to the contents of the packages. Its agent simply certified in effect that they were described as containing eggs, accompanying this with the statement that the contents were not in fact known. The question involved in this case has been substantially adjudicated. See Haddon v. Parry, 3 Taunt. 303; Shepherd v. Naylor, 5 Gray, 591; Jessel v. Bath, L. R., 2 Exch. 267. See also Vaughn v. Six Hundred Casks of Sherry, 7 Blatch. 506; Clarke v. Barnwell, 12 How. 282; The Columba, 3 Blatch. 521. Judgment of General Term reversed and of Special Term affirmed. Miller v. Hannibal & St. Joseph Railroad Co. Opinion by Andrews, C. J. [Decided Nov. 28, 1882.]

DAMAGES-UPON UNAUTHORIZED SALE OF STOCK BY BROKER.- Defendants purchased and agreed to carry for the plaintiff until instructions were given by him to sell or for a period of six months, a quantity of stock. No money was paid by plaintiff nor was he liable to pay, but a guaranty was given to defendants by another party against loss. The guarantor notified the defendants that he withdrew his guaranty, upon which they gave notice thereof to plaintiffs and that unless he placed a margin in their hands at a time named upon the next day, they would close out the stock at that time. This not being done the stock was sold. In an action for the breach by defendants of their agreement, it appeared that for thirty days after the sale the same stock could have been purchased in the market for the price at which it was sold or for a less sum. Held, that assuming the sale to have been unauthorized, plaintiff was entitled to recover only nominal damages. In Baker v. Drake, 53 N. Y. 211, it was held that where a broker purchases stock upon a margin for a customer and makes an unauthorized sale of the same, the principal has a right to disaffirm the sale and to require the broker to replace the stock, and upon failure or refusal to do this the remedy of the principal is to replace it himself and the advance in the market price from the time of the sale up to a reasonable time to replace it after notice of the sale, affords complete indemnity and is the proper measure of damages. This rule applies to the case at bar. See also Baker v. Drake, 66 N. Y. 523; Gruman v. Smith, 81 id. 25. There was no question as to reasonable time to go to the jury. Judgment affirmed. Colt v. Owens. Opinion by Miller, J. [Decided Nov. 21. 1882.]

UNITED STATES SUPREME COURT ABSTRACT.

NOVEMBER 20, 1882.

FORECLOSURE - REDEMPTION -WAIVER.- The error of an absolute foreclosure of the right of redemption, without allowing fifteen months for that purpose by the decree, is not waived by the failure of the defendant to tender the redemption money within that time, when the case is brought to this court by an appeal taken within the two years allowed by the act of Congress. The cases of Brine v. Insurance Co., 96 U. S. 627; Burley v. Flint, last term of this court; and Suitterlin v. Insurance Co., 90 Ill. 491, considered and explained. Decree of U. S. Circ. Ct. N. D. Illinois, reversed. Mason v. Northwestern Mutual Life Insurance Co. Opinion by Miller, J.

MUNICIPAL CORPORATION PUBLIC PURPOSE GRIST-MILL.-A steam grist mill is not a work of internal improvement within the meaning of a statute of Nebraska authorizing counties, cities and precincts of organized counties to issue bonds "to aid in the construction of any railroad or other work of internal improvement." The cases Township of Burlington v. Beasley, 94 U. S. 312; Commissioners of Leavenworth v. Miller, 7 Kan. 479, distinguished. Judgment of U. S. Circ. Ct. Nebraska, affirmed. Osborne v. County of Adams. Opinion by Harlan, J.

PRACTICE- -SUITS AGAINST REVENUE OFFICERCERTIFICATE OF REASONABLE CAUSE UNDER UNITED STATES REVISED STATUTES, SECTIONS 909 AND 970. Sections 909 and 970 United States Revised Statutes, provide in reference to suits where there are seizures of goods by custom officers that the burden of proof shall be upon the claimant, "provided that probable cause is shown for such prosecution to be judged of by the court," and that in case of judgment for the claimant he shall not be entitled to, nor the seizing officer liable for costs, if "it appears to the court that there was a reasonable cause of seizure," when "the court shall cause a proper certificate thereof to be entered." Held, that a refusal of the District Court to grant a certificate of reasonable cause is not a matter which can be reviewed in the Circuit Court or in this court. This court has decided that a refusal to enter an exoneretur on a bail bond, that judgments awarding or refusing to award or setting aside writs of restitution in actions of ejectment, that a judgment on a writ of error coram nobis, that a judgment refusing a writ of venditioni exponas, that a refusal to quash an execution or to quash a forthcoming bond, were not final judgments to which a writ of error would lie. Morsell v. Hall, 13 How. 212; Smith v. Trabue, 9 Pet. 4; Barton v. Forsyth, 5 Wall. 190; Gregg v. Forsyth, 2 id. 56; Pickett's Heirs v. Legerwood, 7 Pet. 144; Boyle v. Zacharie, 6 id. 648; Evans v. Gee, 14 id. 1; McCargo v. Chapman, 20 How. 555; Amis v. Smith, 16 Pet. 303. See also Barker v. Hollier, 8 M. & W. 513. Judgment of U. S. Circ. Ct., S. D. New York, aflirmed. States v. Frerichs. Opinion by Woods, J.

United

PRACTICEFINAL DECREE.

APPEALSECOND MORTGAGE (1) In August, 1870, a first mortgage on a railroad was made. In January 1873, a second mortgage on the same railroad was made. Both mortgages covered after-acquired property. A default on the first mortgage occurred in November, 1873, and on the second mortgage in January, 1874. In August, 1874, the second mortgagee filed a bill to foreclose the second mortgage, making the first mortgagee a party, acknowledging the priority of the first mortgage, not praying any relief against the first mortgagee, and praying for a receiver, and for the payment of his net revenue to those entitled to it. On the same day an order was made appointing one Schuyler receiver, and directing that a copy of the order be served on the first mortgagee, a corporation, requiring it to appear “on or before" the first Monday of November then next, and authorizing the receiver to pay the arrears due for operating expenses for a period in the past not exceeding ninety days. A copy of the order was served on the first mortgagee three days afterward, and proof of that service was filed two days after the service. In October following, the receiver, on his petitions filed, was authorized by order to purchase certain rolling stock, and to pay indebtedness not exceeding $10,000 to other connecting lines for materials and repairs, and for ticket and freight balances, a part of which was incurred more than ninety days before the order appointing the receiver was made, and to expend a sum named in building six miles of road and a bridge, which were

cates.

part of the main line of the road, and the expenditures were charged as a first lien on the earnings of the road. The first mortgagee appeared and answered on the first Monday of November, and not before. The answer objected to the creation of fresh indebtedness. Nothing more was done in the suit for eleven months. Then the receiver reported that he had built the six miles and the bridge, and purchased rolling stock and incurred debts therefor. He also filed a petition showing that his trust owed $232,000, and asking leave to borrow that amount and $90,000 to put the road in order, on receivers' certificates to be made a first lien. The petition set forth a meeting of both classes of bondholders, at which on the report of a committee the receiver was directed by a resolution passed to obtain authority to borrow $322,000 on receivers' certifi$201,000 on receivers's certificates, payable out of An order was made authorizing him to borrow income, and to be provided for in the final order of the court in the suit, if not paid out of income. Soon after four holders of first mortgage bonds were made defendants, with leave to answer and to file a cross bill. They answered and filed a cross-bill in November, 1875, to foreclose the first mortgage. The cross-bill claimed that the six miles of road, and the bridge and the rolling stock, and the other property acquired by the receiver, were subject to the lien of the first mortgage, and that the mortgagor had been insolvent from October, 1873, and affirmed the foregoing statement as to the meeting of the bondholders and their resolution, and stated that the plaintiffs in the crossbill had desired and sought for more than a year to have the first mortgage foreclosed; that the $201,000 ought not to be borrowed and made a first lien on the road; and that the receiver ought to be removed and another receiver appointed under the cross-bill. In December, 1875, a reference was made to take evidence on the subject of the appointment of a new receiver. More than four months after that the first mortgagee answered the cross-bill, and the two suits being ready for hearing, they were consolidated and heard. decree was made in them in May, 1876, declaring that both mortgages covered all the property held by the mortgagor when the original suit was brought and all subsequent additions thereto, and providing for a foreclosure of the right of the second mortgagee to redeem, and for the presentation to a master of claims against the property and the receiver. In July, 1876, one Claybrook was appointed additional receiver in the original suit. He acted after August 11, 1876, as sole receiver until August 25, 1876, after which he and Schuyler were joint receivers until December, 1876, when Schuyler resigned. Claybrook on August 12, 1876, took possession of the entire property which Schuyler had, including a railway twenty-three miles long, used under a lease from another company. The master reported as to claims against the property and the receiver from time to time. The plaintiffs in the cross-bill interposed objections to making any of the claims prior in lien to the lien of the first mortgage. In January, 1879, the court by order allowed certain claims, many of them not over $5,000, specifying the names of the claimants and the amounts allowed, and giving the claims allowed preference in payment out of the income and proceeds of sale, over the claims of the mortgagees. In this order the plaintiffs in the cross-bill prayed an appeal to this court. In July, 1879, the court made a decree for the sale of the road as an entirety, and for the payment out of the proceeds of sale of the claims allowed, before paying any principal or interest of the mortgage debts. In this decree the plaintiffs in the cross-suit prayed an appeal from it to this court. On a hearing of the appeals, held (1) The appeals were appeals in open court, not requiring citations, and the order and the decree appealed from

One

sufficiently designated all the appellees by name. The case The Protector, 11 Wall. 82, considered. (2) The first mortgagee was a proper party to the original bill of foreclosure, because a receiver was prayed for; and the order appointing the receiver having been served on the first mortgagee three days after it was made, such mortgagee was bound to protect promptly the interests of the first mortgage bondholders. (3) The original bill did not seek to create a receivership for the sole benefit of the second mortgage bondholders. (4) The property in court under the original bill was the entire mortgaged property, and not merely the equity of redemption of the mortgagor, as against the second mortgagee. (5) The exclusive right of a second mortgagee to the income of a receivership created under a bill filed by him is limited to a case where the first mortgagee is not a party to the suit. Howell v. Ripley, 10 Paige, 43. (6) The first mortgagee having been entitled, by the terms of the first mortgage, to take possession of the mortgaged property and operate the road, and the cross-bill not having been filed for more than a year after the receiver was appointed and the first mortgagee had appeared and answered in the original suit, and it having been, in judgment of law or in fact, fully known all the time to the first mortgage bondholders what was being done by the receiver in creating the claims, it was inequitable for the appellants to lie by and see the receiver and the court dealing with the property in the manner complained of, and merely protest generally and disclaim all interest under the receivership, and yet assert in the cross-bill that the property acquired by the receiver was subject to the lien of the first mortgage, and claim the proceeds of that property without paying the debts incurred for acquiring it. Second. The power of a court to create claims through a receiver, in a suit for the foreclosure of a railroad mortgage, which shall take precedence of the lien of the mortgage, considered and upheld. See Wallace v. Loomis, 97 U. S. 146. Third. The provisions allowing the receiver to pay the arrears due for operating expenses for a period in the past not exceeding ninety days, and to pay indebtedness not exceeding $10,000 to other connecting lines for materials and repairs, and for ticket and freight balances, a part of which was incurred more than ninety days before the order appointing him was made, and to purchase rolling stock, and to build six miles of road and a bridge, part of the main line of the road, and making such expenditures a lien prior to the lien of the mortgages, upheld. See Barton v. Barbour, 104 U. S. 126. Fourth. The mortgagor held a leased road, under a written lease, providing for rent and for payment for depreciation, and for the payment of a monthly rent by the lessor to the lessee for the use of a part of the road. The successive receivers took possession of the leased road and ran it as a continuation of the mortgaged road. Part of the rent which accrued before Claybrook became receiver was unpaid. Claybrook, after he beame receiver, paid the rent as it accrued. The successive receivers collected the rent monthly from the lessor for the use of a part of the road. The court allowed to the lessor, as a claim preferred to the first mortgage, a sum for the use of the road, based on the actual value of its use by the receivers, and for depreciation, and allowed, with a like preference, claims for operating supplies and materials furnished for the road while so run. Held, that the allowances were proper. Fifth. The final decree was not erroneous in not requiring the accounts of the receiver to be settled before paying out of the proceeds of sale the debts allowed against him, nor in ordering the sale of the property as an entirety, without separating that acquired by the receiver. The question of the jurisdiction of this court, in respect of the claims not over $5,000 was not considered. Decree of U. S. Circ. Ct.

Indiana, affirmed. Miltenberger v. Logansport, Crawfordsville & Southwestern Railway Co. Opinion by Blatchford, J.

MICHIGAN SUPREME COURT ABSTRACT, OCTOBER, 1882.

DEFINITIONS -WILL-"HEIRS WHERE ESTATE PERSONAL. 1 A testator after making disposition of a portion of his property directed thus: "All the residue of my estate, after all charges are paid, to be divided among my legal heirs according to the laws of Michigan." The residue was personal property. Held. that the statute of distribution and not the statute of descents should govern in the distribution of the residue. Cases are numerous in which the word "heirs" in a will has been construed as designating the persons who should take as next of kin. In Gettings v. McDermot, 2 My. & K. 69, the will gave to persons named "and their heirs" certain legacies. Three of the persons named died in the testator's life-time. It was held that the legacies did not lapse, but that they passed, not to the heirs of the persons named, but to their next of kin respectively; and Sir John Leech in disposing of the case said: "The word 'heir' must, in respect to personal property, be taken to mean next of kin." Where, as in this case, the gift to the heirs is by way of substitution, the construction which implies that next of kin is intended generally prevails. Vaux v. Henderson, 1 Jac. & W. 388, note; In re Newton's Trusts, L. R., 4 Eq. 171; Re Gamboa's Trusts, 4 K. & J. 756; Price v. Lockley, 6 Beav. 180; Winfield v. Winfield, 9 Ch. Div. 658. But this construction is not limited to any particular class of cases; it is given in any case where the context seems to require it. In re Stevens' Trusts, L. R., 15 Eq. 110, a legacy of £500" to the heirs of my late brother Joseph Stevens" was held to intend his next of kin, and that his children and widow if any would share it. In re Jeaffreson's Trusts, L. R., 2 Eq. 276, there was a gift of personalty to trustees for the benefit of "the heirs of the body of E. L., first to educate at their discretion the said heirs, and lastly to pay to the said heirs the said residue at their respective ages of 21." By this it was held that the next of kin descended from E. L. was intended. Other cases are Pattenden v. Hobson, 7 Jur. 406; Re Porter's Trust, 4 K. & J. 188; Parsons v. Parsons, L. R., 8 Eq. 260; Finlason v. Fetlock, L, R., 9 Eq. 258; Re Thompson's Trusts, 9 Ch. Div. 607. In Ferguson v. Stuart's Ex'rs, 14 Ohio, 140, the wife, who would be entitled as distributee, was held intended by a gift of money to the husband's "heirs." A similar conclusion was reached in Eisman v. Poindexter, 52 Ind. 401, and also in the recent case of Welsh v. Corter, 32 N. J. Eq. 177. Hascall v. Cox. Opinion by Cooley, J.

MUNICIPAL CORPORATION - NOT LIABLE FOR INJURY TO NEIGHBORING BUSINESS BY ESTABLISHMENT OF PUBLIC MARKET.-A city established a public market on premises belonging to it. Held, that the city was not liable to the owner of property in the neighborhood for injury to such property caused by the gathering of people and teams there in transacting market business, though such gathering to some extent obstructed the streets. Market places in large towns are a convenience, if not an absolute necessity, and their establishment is an act of legislation. An act of legislation can never be counted on as a legal wrong, however injurious it may prove to be to private interests. Detroit v. Beekman, 34 Mich. 125; McCutcheon v. Homer, 43 id. 483. If there is any wrong on the part of the city in the premises, it must arise from failure to establish or enforce due regulations to protect and preserve the right of passage. But this would be a failure in duty of a political nature and could give no right of action. Wheeler v. Cincinnati, 19 Ohio St.

19; Patch v. Covington, 17 B. Mon. 722; Davis v. Montgomery, 51 Ala. 139; Fisher v. Boston, 104 Mass. 87; Hill v. Boston, 122 id. 344; Grant v. Erie, 69 Peun. St. 420; Hutchinson v. Concord, 41 Vt. 271; Atwater v. Baltimore, 31 Md. 462; Heller v. Sedalia, 53 Mo. 139; Rivers v. Augusta, 65 Ga. 376; Howard v. San Francisco, 51 Cal. 51; Hill v. Charlotte, 72 N. C. 55; Hewison v. New Haven, 37 Conn. 475. What the city has done it has the discretion to do, and the court finds no abuse of discretion made out. The whole matter is one of market regulation (Commonwealth v. Brooks, 109 Mass. 355; Commonwealth v. Mathews, 122 id. 60; Bowling Green v. Corson, 10 Bush, 64; New Orleans v. Stafford, 27 La. Ann. 417); and the court could not, if it would, supervise the municipal action. Gale v. Kalamazoo, 23 Mich. 344. Henkel v. City of Detroit. Opinion by Cooley, J.

PRACTICE JOINT PARTY NOT SERVED MAY APPEAR AND PLEAD.-An action was brought against two defendants jointly. One defendant only was served; the other appeared voluntarily and offered to plead. Held, that the one not served was entitled to plead. There is no doubt of the right of any defendant at common law or in equity against whom process has issued to appear without service. Whether it could be done generally before any process issued does not seem very clearly settled, as the rules of court adopted by the King's Bench and Exchequer have limited power, and very little appears on the subject.

But in any

case where such an appearance was put in to save a right or protect an interest, it seems to have made no difference whether process was out or not. See 1 Salk. 64; Comyn Dig. "Pleader B., 1;" 1 Tidd, Pr. 238. And an appearance before the writ was returned or when it has expired without service has been held good. Richardson v. Daley, 7 Dowl. Pr. 25; Moore v. Watts, 1 Ld. Raym. 616; Fanshaw v. Morrison, 2 id. 1138; Wynne v. Wynne, 1 Wils. 39; 1 Tidd, Pr. 238; 1 Wait, Pr. 500, 559. The right of joint defendants in equity and at law is well recognized. Waffle v. Vander Heyden, 8 Paige, 45; Higgins v. Rockwell, 2 Duer, 650; Wellington v. Clawson, 9 Abb. 175. And defendants whether joint or not may always protect their right by appearing without service. Hoffmann, Ch. Pr. 170; Fell v. Christ's College, 2 Brown, Ch. 279; Bowlin v. Grills, Dick. 38; Jennison, Ch. Pr. 41; 1 Daniell, Ch Pr. 559, 590, 593; 1 Barb. Ch. Pr. 81. Ralston v. Chapin. Opinion by Campbell, J.

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
SEPTEMBER, 1882.

CONSIDERATION

- AGREEMENT TO FORBEAR SUIT.It seems to have been assumed in this Commonwealth that an agreement to forbear bringing suit for a debt due, even although for an indefinite time, and even although it cannot be construed to be an agreement for perpetual forbearance, if followed by actual forbearance for a reasonable time, is a good consideration for a promise. Prouty v. Wilson, 123 Mass. 297; Robinson v. Gould, 11 Cush. 55; Boyd v. Frieze, 5 Gray, 553; Ellis v. Clark, 110 Mass. 389; Pratt v. Hedden, 121 id. 116; Manter v. Churchill, 127 id. 81. How v. McTaggart. Opinion by Field, J.

EMINENT DOMAIN - DAMAGE TO LICENSEE OCCUPYING LAND.-L. owned land, and gave C. a license to erect a well and hydraulic ram therein. Afterward the city of B. took the land from L. for a highway and interfered with the well and ram. Held, that C. was not entitled to damages from the city for such interference. When the city took the land, the right to maintain upon it the hydraulic ram was in L. and not in C.; and in using the land for the purpose for which it was taken no right of C. was interfered with, and no damage was done to his property. Cook v. Stearns, 11 Mass. 533; Cheever v. Pearson, 16 Pick. 266; Drake v. Wells, 11 Allen, 141. Clapp v. City of Boston. Opinion by W. Allen, J.

MR. CURTIS ON CODIFICATION.

ROGER FOSTER, ESQ. :

My Dear Sir-When you mentioned to me a few weeks ago the wish of yourself and your friends to have me accept the position of president of a law reform association, I had some doubt then whether I had any spare time to devote to it. But being assured that nothing more would be expected of me than to preside at the meetings, I agreed to accept the position of president of the contemplated association, if elected to it. I write however in a good deal of uncertainty about being present this evening at the organization, on account of a bronchial affection that has resulted from a recent cold, and I must therefore say in the form of a letter what I would have said orally if able to attend and to use my voice.

I understand the object of the association to be whatever relates to the reform and codification of the law of this great State. There can be no doubt of the utility of such an association, provided it shall be joined by a sufficient number of the members of our profession to make an efficient working institution. A short time will suffice for the determination of this important point. There is certainly work enough for such a body of lawyers, who may be disposed to devote a part of their energies to the improvement of our statute law, both civil and criminal.

In regard to the subject of codification there is a peculiar state of things in this community at the present time. A civil code which was prepared under the authority of the Statee with very great care and labor, has been twice passed by the Legislature and twice vetoed by the executive. A wide difference of opinion on the subject of this code prevails among the members of our profession. Perhaps something can be doue; at all events it is well to ascertain if something cannot be done, to reconcile these conflicting views on a measure of vast consequence to the well-being of society. I have been led to believe that a close examination of the subject would lead to the conclusion, that on the one hand, a good deal of the opposition to the enactment of this code springs from an opposition to all codification of the common law, and that, on the other hand, the friends of this code have hitherto failed to meet the opposition to it by a radical discussion of the merits of codification, and by a careful discrimination of the extent to which portions of the common law can be safely reduced to a written text. No one imagines, at least I do not suppose that the friends of this code imagine, that it ought to be adopted by the Legislature and made the law of the land, without undergoing revision. Whether that revision can be best made, and the amendments needful, if any are needed, can be best prepared by a committee or committees of the Legislature, or whether it would be well to send it to a new and different commission, by whom its friends

and its objectors could be impartially heard, and the needful changes pointed out, is a matter to be determined by the wisdom of the Legislature. But it seems to me very plain that this important digest and codification of certain parts of the common law ought not to be summarily put aside upon the suggestion that all codification is impracticable or inexpedient.

There has recently been republished here the report made in the year 1836 by Mr. Justice Story and other learned commissioners to the Legislature of Massachusetts on the subject of codification of the common law. I was admitted to the bar of Massachusetts in that year, and having been a pupil of Judge Story and honored by his intimate friendship, I had opportunities to know how much care and learning he bestowed upon that report. It is the most important document that exists in the English language on this subject. Its reasonings and conclusions are just as true to-day as they were forty-six years ago, and they will not cease to be important in any state of society that continues to be governed by a mixed system of statute and customary or traditional law. Judge Story did not suppose, and no one now supposes, that the whole body of the common law can be safely or wisely reduced to a positive written text. His great learning, which ranged over a very wide field, had informed him that in no state of society, either where the civil or the common law has prevailed, had it been found practicable to have nothing but a positive text as the rule of decision on all civil rights. At the same time his varied experience as a judge enabled him to see that in any society there are parts of its customary or traditionary law that can be prudently and safely put into the form of a written text, and that to a certain extent, there are great advantages in having such a text. The chief value of all his reasoning on the subject consists in his exposition of this truth-that when a great body of the law that governs any society has come to be found only in the precedents afforded by decided cases, and especially where such precedents run back into a remote antiquity and even into the jurisprudence of a mother country, as is the case with our common law, there are many particular titles and subjects on which the law can be and ought to be expressed in a wellconsidered and carefully framed text.

Let me now advert to a topic which will afford a good illustration of the value of a code, such as has been proposed by the commissioners who reported in 1865. Every one who has practiced the law for any considerable period is aware of the general principle that the first settlers of this country brought with them and meant to adopt and live under so much of the common law of England as was adapted to their situation and circumstances. The Constitution of New York, adopted in 1846, made the colonial common law and the colonial legislation, as they existed in 1775, with the resolutions of the colonial Congress and the State Convention, as they existed in 1777, and which had not expired or been repealed, and the statute law, as it stood in 1846, the law of the State, subject to alteration by the Legislature. All the residue of the common law which might be repugnant to the new Constitution was abrogated. So that upon any question that is at all obscure or doubtful we have first to ascertain what was the law on the subject in 1846, as evinced by the sources of law referred to, then to ascertain whether that law has been subsequently changed by the Legislature, and finally to ascertain how the courts, in a period of forty years, have construed either the colonial law or the subsequent legislation. Now, I will not say that any good lawyer, young or old, who has a proper sense of professional duty, ought to shrink from the labor of ascertaining for his client what the law is that is to govern his rights, even if he does have to grope his way through all these sources. But I do say that

if the Legislature, exercising the authority confided to it by the Constitution, sees fit to employ a body of learned commissioners to explore these manifold sources of law, and to prepare a written code that shall express in exact and lucid terms the existing law on any particular subject or class of subjects, and to suggest such modifications as the progress of society demands, the State will do an unwise thing if it rejects the work in toto. For be the differences of opinion on particular provisions or texts what they may, there can be no doubt of the utility, apart from the idea of making a labor-saving machine, in having a specific and certain text as the rule of decision, instead of leaving the judge to extract from conflicting decisions or obscure sources the rule that he will apply to the case in hand. I am well enough aware that a court may misconstrue a Code, and that human language must necessarily be inadeqate to the comprehension in an exact text of all possible cases. But I have bad experience enough in litigation and in the action of courts to satisfy me that ful one-half of all the delay and expense, caused by the necessity for resorting to an appellate tribunal, arises from the probable error on part of the trial judge to ascertain and rightly apply the proper rule of decision. The danger of this can never be wholly avoided, but can be greatly diminished by a code, provided all proper care has been taken in its preparation.

But I did not intend to write an essay on the advantages of codification or a vindication of this particular code, but merely to express my sympathy with a body of generous young men who are about to embark in a laudable work, and to thank them for the honor which they have done me in asking for such co-operation as I can give them.

I am, dear sir, yours respectfully,

NEW YORK, Jan. 3, 1883.

GEO. TICKNOR CURTIS.

CORRESPONDENCE.

A CORRECTION.

Editor of the Albany Law Journal:

I see by the concluding part of my article on mortgagee in possession, published in the JOURNAL to-day, that I made the mistake of treating Shriver v. Shriver as having been decided before Dunning v. Leavitt. The mistake of course arose from my notes having been disarranged, and then when I came to write them out close attention was not paid to the numbers of the volumes, and the transposition was not observed. W. J. G.

BROOKLYN, January 6, 1883.

NEW BOOKS AND NEW EDITIONS.

THE GEORGIA CODE.

The Code of the State of Georgia. Revised and Annotated by George N. Lester, C. Rowell and W. B. Hill. James P. Harrison, & Co., Atlanta, Ga., 1882.

The Code of Georgia is an elaborate codification of the law of the State; comprising in Part I, the Political Code; in Part II, the Civil Code; in Part III, the Code of Practice, and in Part IV, the Penal Code. This edition is very elaborately annotated; a new feature being added to the usual annotations of State Reports by Mr. Hill, who has prepared for each section or paragraph references to illustrative cases and notes in the American Reports, American Decisions, to cases in the Reports of the Supreme Court of the United States, to the books of Leading Cases, and to at least one text