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book did it not touch the great objective aim of all laws, private right, and by private right we mean property, a "burning question.”

The theories in "Man's Birthright" are not new, nay, they are better treated by men like the Belgian economist Laveleye, whose thoughtful utterances derive slender support from these ultra-rhapsodies of their American allies. No doubt there is a growing feeling that the world has not solved all the laws of property, and that in some respect the Roman institution of Quiritarian, or as Laveleye calls it, private property has been pushed too far by the civilizations which have arisen on the ruins of the Latin Ceasars. What thinking man can deny that in those countries where no small land-holdings are possible, there is a crying evil to be speedily redressed? We agree that the Swiss Allmend, as Laveleye paints it, where there is an annual redistribution of agricultural land, is a picture of contentment hard to equal, and long before this book under review was written, its effect on the future of agricultural tenures was foreseen by more temperate men than the writer of "Man's Birthright." We confess that we should like to see larger holdings of common lands in this country, and a better preservation of the public domain in the far West., for these are important checks on the proletariat of a populous nation.

It is a great mistake to take the investigations of Sir H. Maine and Laveleye as final. They are at best in the experimental stage of a new science, the science of comparative jurisprudence. Many of their theories must be ultimately modified by further research. Writers such as George and Clark welcome only that in the comparative jurists, which coincides with their conceptions of a state of nature, and they run riot in the deductive process. Will Mr. Clark show us any fact in the history of a civilized nation that points to the superiority of owning urban property in common? From the earliest times and even in primitive societies the facts point to the absolute ownership of the home and home lot in the burg or vil or town. With regard to the agricultural lands of any State we confess to some doubt as to whether certain parts of these lands should not be kept public and annually redistributed, as in the Swiss Allmend at the present day, and in this doubt we are in the company of the most illustrious thinkers of modern Europe. But to go farther than this and to concede that that which chiefly distinguishes modern civilization from barbarism, is a fundamental political error, seems to us as absurd as pronouncing the attraction of gravitation an

error.

That our political society is vulgar and plutocratic we concede; that corporate and political jobbery are rampant, we know, but that the political millennium is to come with any such vagaries as those suggested' in melo-dramatic fashion by Mr. Clark we deny.

Better government, better political theories, better laws, less favoritism to the rich corporation are in store for this America of our's, but they will not come by revolution, nor by the subversion of propertyprivate property that which makes every one, the poorest as well the richest, monarch of his own.

We have long advocated reform, reforms in law, restrictions of the corporation nuisance, advancement in legal studies from the technical to the philosophical standard. We are in favor of our lawyers entering upon a new era and deplore as much as any one the narrow, superstitious view of property entertained by most leading men of our profession, but we still think that Mr. Clark goes too far in his notions, and we propose to pin our faith to the more conservative views of such economists as Mill and de Laveleye, and not run riot with theories which contravene the ex

perience of over two thousand years of authentic history. Mr. Clark's book is not a strong book, though it is strongly written and shows adequately in small compass the theories of George and others of that ilk. It is very portentous, but at the end it cautions persons who think as the writer does from using explosives to enforce their theories, as if frightened at the awful possibilities of the power of the author's argu

ment.

We should not be surprised if this book were widely read because it contains elements of truth but of truth not stated with that dignity and philosophy of demeanor which is necessary to make a book a power for good, or a power for evil oftentimes.

TAUSSIG'S HISTORY OF THE TARIFF.

The History of the Present Tariff from 1860 to 1883. By F. W. Taussig, Ph. D., instructor in Political' Economy in Harvard University, etc. G. P. Putnam's Sons, New York and London. 1885.

Very different from 'Man's Birthright' is this little monograph, from the same publishes. It is a clear succinct history of the tariff of the United States, and as it arrays the facts which speak for themselves, the author has not seen fit to resort to needless argument.

Professor Lieber first made the meaning of "institutions" clear to the American reader. In his sense of the term, the tariff would be an organic institution, and of course susceptible of separate literary treat ment. Dr. Taussig's history is an application of this view to a given case. It is a history of the tariff institution of this country. We have no hesitation in pronouncing it a valuable history, and one which every legislator and politician should know before he commits himself to a position from which there may be no consistent retreat. It is astounding that the ig norance of the science of government should be so wide-spread. The amount of accurate, adequate knowledge on any subject,relative to law or legislation is not large, and that which there is, can be widely diffused only by an array of facts and not by dogmatizing. For this reason Dr. Taussig's history is a valuable addition to our stock of economic knowledge.

ABBOTT'S NEW YORK DIGEST, 1884.

Mr. Austin Abbott's Annual Digest of the reports and statutes of this State has become an indispensable aid to every lawyer. We can say of this, as we said of the last preceding annual, that it is as good as possible. It embraces 96th New York, and it digests nineteen volumes of reports. Published by George S. Diossy, New York.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Friday, March 27, 1885:

Judgment affirmed-People, respondents, v. Charles H. Rugg, appellant.-Judgment affirmed with costs -In re Accounting of Francis A. Mason and others; Lydia Miller, appellant, v. Thomas McBlain, executor, etc., respondent; Catherine Lockwood, administratrix, respondent, v. N. Y., L. E. & W. R. R.-Ap peal dismissed-Town of Cherry Creek v. Phillip Becker, impleaded.Order affirmed with costs-In re Accounting of C. A. Waldron, assignee, etc. The court adjourned to April 13th.

A

The Albany Law Journal.

ALBANY, APRIL 11, 1885.

CURRENT TOPICS.

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a

LAWYER as President may be depended upon to select a cabinet of lawyers. President Cleveland has disappointed no one in this respect, unless it may be the lawyers who expected to be called on as his advisers, and were not. All his cabinet but one, we believe, are lawyers. Mr. Bayard was once district attorney for Delaware. Mr. Endicott was for nine years a judge of the Supreme Judicial Court of Massachusetts. Mr. Whitney was a very active lawyer, and has been corporation counsel for the city of New York. Mr. Vilas was one of the most eminent lawyers of Wisconsin graduate of our Albany Law School, by the way. Mr. Lamar was once professor of law in the University of Mississippi. Mr. Garland has long been recognized as one of the ablest lawyers in the nation. But when it comes to the question of making money, or taking care of money, the president very wisely concedes that lawyers are not the best counsellors, and so he puts the treasury into the hands of a layman an Albanian, by the way, of which we are duly proud. It must be admitted that the president has put plenty of brains into his cabinet, and the lawyers need not yet despair of their influence in national affairs.

There is an "irrepressible conflict" between the pretense of "stare decisis and the actuality of judicial legislation. The opponents of codification in one breath tell us that our law is all settled by judicial decisions, and in the next that the greatest merit of the common law is that it may so easily be made to suit circumstances-stretched or contracted, narrowed or widened elephant-trunk fashion, made to launch a ship or pick up a pin. On this matter we call attention to the following from the London Law Times: "The following dictum of Mr. Justice Kay is deserving of more notice than it has so far received. In Re Chapple; Newton v. Chapman, 51 L. T. Rep. (N. S.) 748, his lordship is reported to have said: 'I always struggle against being bound by authority, unless the principle upon which the authority proceeds commends itself to my judgment.' If this simple plan of treating previous decisions is followed by other judges, the 'glorious uncertainty' of the law will rapidly become such that law in its modern sense will tend to disappear, and a system of what may be called decision in accordance with the judge's subjective view of natural equity will replace it. With all deference to the learned judge, we must protest against this theory that the authority of a decision depends on whether or no its principle approves itself to any particular judge who has to administer the law subsequently. If any unpaid VOL. 31 No. 15.

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magistrate or county court judge had used similar phraseology, and the case with respect to which the remark had been made had come before the High Court, there would probably have been some expressions of disapproval from the court. Much of the law of England depends on cases, the principles of which could not possibly find approval at the present day. Still more is founded on facts of mediæval life, and factors in medieval thought that have long ago disappeared. Is some bold follower of a new school of case-rejecting judges to alter the law of primogeniture, because the feudal system has now disappeared? Or are we to have the doctrines or a double possibility,' and the impossibility of the existence of a use upon a use' again doubted? Again we must say, as we have done before in commenting on a recent decision of Mr. Justice Kay's, we are not now quarrelling with his decision, which was on the construction of a will. You cannot always test a testator's expressed intention by considering how far his phraseology agrees with or differs from previous testators- 'you cannot construe one man's nonsense by another man's nonsense.' But these terribly unguarded dicta really require some observation."

A correspondent sends us the following scheme for the relief of our Court of Appeals: << There shall be a Court of Appeals composed of a chief judge and nine associates, who shall be chosen by the electors of the State, and shall hold their offices for the term of fourteen years from and including the 1st day of January next after their election. The judges being in office at the time of the adoption of this amendment shall continue until the expiration of their respective terms, death, removal amendment the Court of Appeals shall be divided or disqualification. Upon the adoption of this into two parts; the chief judge and four associate judges constituting part I, Part II being composed of five associate judges designated by the chief judge. The presiding judge of part II shall be the senior judge in respect of time of service among the associate judges. No less than four judges shall constitute a quorum in either part of the court, and a concurrence of three shall be nec

essary to a decision. The chief judge may order argument of any case to be heard and decided by all the judges of the court, in which case a concurrence of seven shall be necessary to a decision. The additional judges provided for by this amendment shall be chosen as at present provided." It seems to us that it would be much better to have more judges in each part - at less six or seven. The above might barely answer at present, but in a very few provide ample means now for at least a generation. years it would prove inadequate, and it is best to

Mr. Thomas has introduced a bill in our Senate for the republication of the Session Laws from 1777 to 1801 inclusive. We hope this will prevail. These laws have become exceedingly scarce. Mr. Moak,

who is the best possible authority, says there are not five complete sets in existence, and that he has vainly tried for twenty years to complete his own set. A few fires might destroy all there are. The design of the bill is to supply sets to all the legislative and judicial libraries of the State, and to furnish copies to any who may wish to purchase. Doubtless the sales would go far toward paying the expense. At all events the State ought to take immediate measures to perpetuate the records of its early laws.

The Association of the Bar of the City of New York have reported a "Plan for improving the Methods of Legislation of this State," by a committee consisting of Messsrs. Simon Sterne, James M. Varnum, Theron G. Strong and George H. Yeaman. We infer that the germs of this plan may be found in Mr. Sterne's excellent essay read before the American Bar Association last summer, and published in this journal. The committee say: "Your committee respectfully recommend a constitutional amendment creating a Commission of Revision to be appointed by the Governor for the period of his own term of office, which shall consider all public legislation except supply bills. This consideration shall relate to the constitutionality of a bill, its effect upon existing statutes, its relation to and its effect upon the common law, whether the object of the bill can be secured under existing statutes, whether the language of the bill is apt for the purpose intended, whether its provisions are consistent with each other and with existing law, and to point out whatever incongruities there may be either in language or in the provisions themselves. The useful operation of the scheme here suggested as to public legislation would involve a material modification of the present system of standing legislative committees, a system rendering the annual contest for the speakership both arduous and demoralizing. Bills might be submitted to special committees, after being scrutinized by the Commission of Revision, but it would not be a committee selected in advance by the friends or opponents of the measure, nor its composition known in advance. * * * For all special and local laws your committee respectfully recommend a constitutional amendment, which shall provide that no local or special bill which involves the exercise of the right of eminent domain or the power of taxation shall be passed by the Legislature unless such bill, and a petition setting forth the necessity therefor, shall have been filed in the office of the secretary of State at some fixed period in advance of the legislative session, and its general purpose and effect advertised in such manner and for such time as the Legislature shall by a general law to govern its legislative procedure direct; and that the Legislature shall not consider a special or local bill not of this character unless the same shall have been filed in the office of the secretary of State and notice of such filing given as shall be directed by the Legis

lature by a general law governing its procedure, so as to afford an opportunity for scrutiny and examination before the bill comes before the Legislature, and to present objections thereto. The Legislature should by such a general law governing its procedure provide a mode of hearing of all private and local bills by special committees; and all local and special bills affecting city, town, township or county interests, and all bills creating corporations or amending corporate powers, or involving the exercise of the power of taxation, or of eminent domain, should be treated as bills requiring formal investigation. It is a well known fact that all the expenses of the legislative sessions of parliament are defrayed by the payment of the fees which promoters of private bills are required to pay into chancery upon filing and hearing of their measures. It might be well for the Legislature in a general law to make provision that the promoters of private and local bills should pay a specific sum of money to the comptroller of the State of New York, for the necessary expenses incident to the examination and hearing of such bills." We believe that something of this sort must be done. In connection with this we call attention to Mr. Hopkins' communica

tion in another column,

As a letter in our issue of April 4th last, signed "Relwof," treats of a question now in actual liti gation in which Mr. Robert L. Fowler appears, it may be possibly attributed to his interest in the question, which would be unjust to Mr. Fowler, who is not afraid to say what he has to say openly, and in his own fashion. Hereafter we must request our correspondents to use somewhat less misleading noms de plume than family names spelled backward.

NOTES OF CASES

IN Union National Bank v. Dersham, Pennsylvania Supreme Court, October, 1884, 15 Week. N. Cas. 540, A., a man of ordinary firmness, made a deposit in a bank, for which the cashier gave him a certificate of deposit, but neglected to append thereto the word "cashier" after his name. Subsequently, after the cashier had resigned his position in the bank, he added the word "cashier" to correct his former error. The certificate of deposit was then cashed by the bank. Afterward the bank called A.'s attention to the fact that the word "cashier" had been added to the certificate at a different time, and with different ink, accused him of making the alteration, said they would go to law and recover the amount paid him, and that they could prosecute him for forgery. A., then, to avoid litigation and to settle the dispute, gave the bank a note for seventy-five dollars, and paid it. Held, that he could not recover it. The court said: "There is no evidence that the plaintiff is timid or feeble, or not possessed of ordinary firmness by reason of age or other cause. He did not believe they

could collect the money back, finally settled and gave the note to avoid a lawsuit, and he does not assert that his judgment was overcome, or that he gave the note through fear arising from a threat of criminal prosecution. As bearing upon the question of duress, his act of payment of the note is as potent as if no transfer had been made; he did not learn of the transfer till in the act of payment. He gave the note and paid it in settlement of a claim for a larger sum. The whole testimony, or that on the part of the plaintiff, did not warrant a finding of 'that degree of severity, either threatened and impending or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.' There is no threatened exercise of power from which he needed immediate relief; if sued, he could defend. It may be conceded that the rule has become settled that any contract produced by actual intimidation is voidable, not only where the circumstances were sufficient to intimidate a man of ordinary firmness, but were sufficient to and did intimidate the particular person because of his or her infirmity, though insufficient to intimidate one of ordinary firmness. The question of duress ought not to be submitted on a scintilla of evidence

him in good faith, had borne him children, had kept his house, had aided him in business and helped him accumulate his estate; and he had treated her as his wife, had supported her as such, she had passed in society as such, and was dependent upon him for support. Equitable Life Insurance Co. v. Paterson, supra. She had therefore, as in fact occupying the relation of wife, a deep interest in the preservation of his life. But she had also an interest as the mother of his children. He was under a natural obligation to maintain them until they could maintain themselves: Cooper v. Scott, 62 Penn. St. 139; and he was under a legal obligation for at least part of their minority to assist their mother in their support. This policy of life insurance was in no sense an equivalent for such an obligation, and could not be considered as adequate compensation for its loss. There is no principle of public policy, justice or humanity upon which to found a discrimination against the right of Maria Mueller in the policy in evidence. She was married under our laws; lived as a faithful wife and mother; the policy was taken out for her benefit; and her estate is entitled to the proceeds, under our laws."

In Poole v. Delaware, etc., R. Co., 35 Hun, 29, the defendant, which ran trains from Oswego to Fulton station, entered into an agreement with one Hatch, who ran an omnibus from Fulton station to Fulton village, distant about a mile therefrom, by which the defendant's agent, at Oswego, sold tickets to Fulton village, and Hatch sold tickets at the village to Oswego; the fare charged for the whole distance being the sum of the two separate fares, and each party accounted to the other for the fares received for it. The tickets were on separate cards; one a railroad ticket from Oswego to Fulton, the other an omnibus ticket from the station to the village. The plaintiff having purchased tickets at Oswego for the village, and having been injured while going in the omnibus from the station to the village through the negligence of the driver, brought this action to recover the damages thereby sustained against the railroad company. Held, that it could not be maintained. The court said: "The separate tickets delivered to the plaintiff, whether regarded as contracts or tokens, are insufficient evidence to justify the conclusion as a matter of law, or of fact, that the defendant contracted to carry the plaintiff beyond Fulton station. Milnor v. N. Y. & N. H. R. Co., 53 N. Y. 363. this case the defendant issued coupon tickets and checked the plaintiff's baggage over a connecting road. The baggage was burned while in the custody of the connecting road, and it was held that the tickets and check were insufficient evidence to authorize the conclusion that defendant contracted to carry over the connecting road. In Kessler v. N. Y. C. & H. R. R. Co., 61 N. Y. 538, the plaintiff purchased a coupon ticket from the Baltimore and Ohio Railrood at Washington, for Buffalo, over the defendant's road, and checked her baggage

In Estate of Mueller, Pennsylvania Orphans' Court, January, 1885, Pittsb. Leg. Journ., April 1, 1885, J. M. took out a policy of life insurance for the benefit of "his wife M.," by whom he had children and with whom he continued to live as his wife until his death. Held, that M. had an insurable interest in A.'s life, notwithstanding he had a prior undivorced wife in life at his death. The court said: "The test of insurable interest is that the beneficiary named in the policy has an interest in the continuance of the life of the party insured; Stevens v. Warren, 101 Mass. 564. The principle is stated in different form in the Supreme Court of the United States (Conn. Mutual Life Ins. Co. v. Schaefer, 94 U. S. 460), thus: Indeed it may be said generally that any reasonable expectation of pecuniary benefit, or advantage from the continued life of another creates an insurable interest in such life.' Thus 'it is well settled that a man has an insurable interest in his own life, and in that of his wife and children; a woman in the life of her husband; and the creditor in the life of his debtor.' Conn. Mutual Life Ins. Co. v. Schaefer, 94 U. S. 460. The Supreme Court of Missouri in the case of McKee v. Phoenix Ins. Co., 28 Mo. 383, applied the principle to the case of a divorced woman who had borne children during coverture to the insured; and the Supreme Court of Georgia in Equitable Life Ins. Co. v. Paterson, 41 Ga. 338, held that a woman who had married the insured with the knowledge that he had another wife then living undivorced had an insurable interest in his life. Judged by the reason of the principle, there can be no doubt that Maria Mueller had an insurable interest in the life of John Mueller, when the policy was taken out for her benefit. She had married

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In

through, which was never delivered. The plaintiff failed to show that the baggage came into the possession of the defendants, and it was held that the tickets and checks were insufficient evidence to justify the conclusion that the connecting roads were liable as joint contractors. In Isaacson v. N. Y. C. & H. R. R. Co., 94 N. Y. 278; S. C., 46 Am. Rep. 142, it was held that a check upon baggage through to New Orleans was evidence of a contract to safely deliver to a connecting road, but not evidence of a contract to deliver at New Orleans. The same principle is decided in Knight v. Portland R. Co., 56 Me. 234; Myrick v. Mich. Central R. Co. 107 U. S. 102; Gass v. New York Providence & Boston R. Co., 99 Mass. 220; Burroughs v. Norwich & Worcester R. Co., 100 id. 26; S. C., 1 Am. Rep. 78; see also Whart. Neg., §§ 582, 583; 2 Rorer Railroads, 975. Each ticket is, as it purports to be, an independent contract or token, one by the railroad to carry from Oswego to Fulton station, and the other by the omnibus line to carry from Fulton station to Fulton village. In Buxton v. North Eastern R. Co., L. R., 3 Q. B. 549, the defendant, by a single ticket, agreed to carry the plaintiff to a station on a connecting road. The plaintiff was injured on the train of the connecting road and the defendant was held liable. The same rule was held in regard to the carriage of goods in Bristol & Exeter Railway v. Collins, 7 H. L. Cas. 194. The rule in England differs from the rule generally laid down in the United States. For a discussion of the English and American rule, see 3 Alb. Law J., 485; 2 Am. Law Rev. 426." See Cent. Railroad v. Combs, 70 Ga. 533; S. C., 48 Am. Rep. 582.

FOR

THE CODE OR CHAOS?

NOR a long time past gentlemen who know all about the proposed Civil Code have been advocating its adoption, against the vehement opposition of other gentlemen, who also know all about the proposed Civil Code. While the war is yet unended, it is possible that some remarks from one who knows nothing about the Civil Code may not be out of place. In this position I stand; but the humiliation which would ordinarily attend such a confession of ignorance is unfelt by me, for the reason that I have, as I think, a sufficient justification. Let any one endeavor to ascertain what laws of this State are actually in existence, and then let him declare how much time remains for the study of proposed laws. Unless he be a prodigy, he will, I think, find ample justification for a profound ignorance of proposed laws.

Now upon this subject of the present condition of our statutes I do claim the right to a hearing. It has for years been my practice, on the appearance of the annual flood from the legislative halls of New York, to examine carefully the laws of former years and to note what they have suffered at the hands of the law-mixers. To any one who takes this

course, strange revelations will be made. He will find laws repealed, and then repealed three or four times in addition, and then repealed once more in order to make death certain - under an apparent belief that a law can be killed only by repeated blows; and he will discover that after all this heroic treatment, these same laws have been calmly amended by some legislature, oblivious of repeals. He will see a legislature, moved by the conviction that a certain law should be repealed, repealing an entirely different law an act very much like that described by the Irishman when he told how he killed the rat: "The first time I hit him I missed him, and the second time I hit him in the same place where I missed him before." And finally he will observe, with dismay, that after these repeated legislative Donnybrook-Fairs, in which laws are indiscriminately knocked on the head, most of the laws that ought to be repealed still stare at him from the statute books, with all the similitude of life. Dead enough, no doubt, the majority of them; supplanted by subsequent laws covering the subject, and so killed by indirect repeal. But they ought to be put out of misery by direct action and not left in this painful uncertainty as to whether they are alive or not. If any one desires an example of these comatose laws, let him read the Penal Code, and then, turning to the Revised Statutes, find nearly every law relating to crimes in full force, except as it is indirectly repealed by the Penal Code.

But it is not alone in the matter of repeals that wonder is excited by the action of those singular beings, whom a mysterious dispensation of Providence permits to sit in the legislative halls of this State. They seem to imagine that their reputation as legislators depends upon the quantity rather than the quality of their work, and that every law of which they deliver themselves is a credit mark in their favor. So it comes to pass that they often assail a perfectly peaceable law, with diabolical fury, loading it with amendments until it is flattened out of shape. And in groping through this labyrinth of amendments, stumbling occasionally over a repeal, one frequently arrives-nowhere.

All this is familiar to those who have made a careful examination of the laws of this State, and it would be unnecessary to mention it but that the productions of the opponents of the proposed Code breathe an apparent complacency - an owl-like satisfaction in the present condition of things. I use the word "apparent " because I do not wish to accuse any one, without absolute proof, of being contented with the laws as they are. And yet, a few days ago, I read an extract from an article in the Albany Evening Journal in which the laws of New York received as flattering mention as if they were incapable of improvement. If the author of that article had the creation of a world on hand, he would rest when he reached chaos and pronounce it "good." But with the exception of the Evening Journal- unless, indeed, the article was written by the "funny man" of that paper-I

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