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enough, but candor compels us to admit that the distinction was not spoken of, and for aught that beacon of the new world civilization will ever be appears the fee was in the lot owner. The fee of the old yellow “hub” on Beacon Hill rather than some of our streets is in the city, including, we bethe gorgeous "white elephant” at the head of lieve, some of the streets now in question. General State street.
Banks has succeeded in maintaining his position
before Recorder Gould, upon what grounds we are Judge Thomas in The Forum bas another article not informed, but we believe on account of the radagainst the jury. There is nothing new in it. The ical inconsistency of the ordinance with the charter, writer takes hold of his subject by the weakest part, thus not involving the constitutional question. for he particularly recommends the abolition of the jury in criminal cases, which are precisely the cases in which it ought not to be abolished. Neither he
The Columbia Jurist — we do not mean our esnor any of the other opponents of the system lays
teemed contemporary, Professor Dwight, but the much stress upon the most serious objection to the
newspaper — has succumbed after a long disorder, system, namely, the delay in impanelling juries.
manifested by an inveterate hatred to codification. Sometimes this is monstrous, as in the Cleary case
The disease lately took a bad form, and with a gasp pending in New York, in which more than two
the Jurist expired on January 29th last, but the fact weeks have been consumed in this preliminary pro
was kept secret from the mourning subscribers — a ceeding. It is absurd that so much time should be
few of whom had paid up --- until recently, when occupied in this matter. We have known ten days
inquiry disclosed the sad news that the Columbia or more occupied in a vain attempt to get a jury,
Jurist — the newspaper — was no more. The Jurist and then a motion to change the venue was granted.
died penitent, and by a singular fact made a public We do not know how this is managed in England,
confession of its wicked life and its unholy antipabut we believe nothing of the sort is tolerated or
thy to codification. With its last breath it feebly known there, and it ought to be remedied here.
murmured, “the need of codification is confessed on all sides," and then it died. May so die all ene
mies to codification! We don't want them to die, Mr. Thorvald Solberg, assistant librarian in the but when they die, we want them to die penitent. law library of Congress, is about to visit Europe, on the employment of Mr. Charles C. Soule, the lawbook dealer and publisher of Boston, particularly to
· NOTES OF CASES. purchase books on the civil, feudal, canon, ancient and international law, and to collect and report in-MHE " pre-historic boat " case. Elves v. Brigg formation in regard to these or any law books or
1 Gas Co., is reported in 55 L. T. Rep. (N. S.) government publications. Mr. Solberg is admira
831. In land demised by the plaintiff to a gas bly fitted for this business, and this is an excellent
company there was found an ancient boat of rude opportunity for libraries and lawyers to procure
construction, stated to be two thousand years old, such works or information.
which having been abandoned or left derelict by
the original owners on the bank of a river, became, The boycotting case which we recently published
by the operation of natural causes, buried in the has started up a school of similar cases. Briefs of earth, and so remained for many centuries, until great learning have been sent to us in two other cases,
discovered and excavated by the gas company. which we should be glad to publish if we had space.
When discovered the boat was lying embedded in In State v. Glidden, in the Supreme Court of Errors, the clay at a depth from the surface of four feet at we have the defendants' brief by Messrs. Johnson one end and six feet at the other. It was about T. Platt, Talcott H. Russell and James T. Moran,
forty-five feet in length, hollowed out of a single of New Haven, and in People v. Landgraf, we have
oak tree; the wood had not become petrified or the people's trial brief by Judge Goeff (late justice
fossilized, but retained the properties of wood. The of the Marine Court), of 62 Cedar street, New
lease to the company contained a reservation of York. Judge Goeff says: “Strange to say, the
mines and minerals, and the lessees were authorized, brief you give and mine appear not to cite an au- | under inspection of the lessor's surveyor, and acthority in common.” Doubtless these learned gen- | cording to plans previously approved, to erect a tlemen will be glad to furnish information to inquir
| gas-holder and other buildings, and it was in the ing brethren in similar cases.
course of excavating for the foundations of the works that the boat was found. Held, that the
boat, whether considered as a mineral, or as part of In connection with General Banks' sidewalk con- | the soil in which it was embedded, or as still retest, our attention has been called to the fact that taining the character of a chattel, was the property in Gridley v. City of Bloomington, 88 III. 554; S. C., of the lessor and not of the lessees. Chitty, J., 30 Am. Rep. 566, the fee of the street was in the said: “In support of the contention that it was a city, and the decision was put on that ground. That mineral, reference was made to the case of Hext v. 18 true, but in the later case of City of Chicago v. | Gill, and to the statement in the judgment of Mel. O'Brien, 111 Ill. 532; S. C., 53 Am. Rep. 640, that | lish, L. J. (with which James, L. J., concurred), that the term minerals'includes every substance longed to the owners of the inheritance as part of which can be got from underneath the earth for the the inheritance itself. But if it ought to be repurpose of profit. The terms of this definition garded as a chattel, I hold the property in the chatare wide enough to include the boat, but I am tel was vested in the plaintiff for the following reanot aware that the term 'minerals'has ever been sons: Being entitled to the inheritance under the held to include any thing except that which is part settlement of 1856, and in lawful possession, he was of the natural soil. Unquestionably coal is deemed in possession of the ground, not merely of the surin law a part of the natural soil, without regard to face, but of every thing that lay beneath the surwhat geologists may show to have been its origin. face down to the centre of the earth, and conseIn law the natural processes by which the trees of quently in possession of the boat. The principle of a forest have become coal are not investigated, the the decision of the court in Reg. v. Roue (Bell's C. result only is considered. But the boat has not be- C. 93) appears to me to apply. There the question come petrified or fossilized; it always has been dis was whether the property in some iron lying at the tinguishable from the natural soil itself. If there bottom of a canal was well laid in the indictment fore I were required to decide the question I should in the canal company. The water had been taken hold that it is not a mineral. In support of the out for the purpose of cleaning the canal, and the contention that it ought to be deemed in law as prisoner was indicted for stealing the iron which part of the soil in which it was embedded, refer- ) had been dropped into the canal by the owner. The ence was made to the principle embodied in the court held that the canal company had a sufficient maxim, quicquid plantatur, or as it is sometimes property in and possession of the iron to support stated (see Broom's Legal Maxims, 6th ed., p. 376, the indictment. If the fact of the iron having n., and the judgment in Climie v. Wood, 18 L. T. been left on the surface of the ground covered by Rep. (N. S.) 609; L. Rep., 3 Exch. 257), ficatur solo, water was sufficient to give in law possession of the solo cedit. This principle is an absolute rule of law chattel to the person in possession of the land, it apnot depending on intention; for instance, if a man pears to follow à fortiori that the facts of this case digs in the land of another and permanently fixes justify me in holding that the plaintiff was in possesin the soil stones or bricks or the like as the founda-sion of the boat. For the boat was embedded in the tion of a house, the stones or bricks become the land ; a mere trespasser could not have taken possesproperty of the owner of the soil, whatever may sion of it, he could only have come at it by further have been the intention of the person who so placed acts of trespass involving spoil and waste of the inthem there, and even against his declared intention heritance. Blades v. Higgs, 12 L. T. Rep. (N. S.) 615; that they should remain his property. Nor does it | 11 H. of L. Cas. 621; and Holmes' Common Law, appear to me to be material that the things should title · Possession,' p. 223. The plaintiff then being have been placed there by the band of man; it in the possession of the chattel it follows that the would seem to be sufficient if they have become property in the chattel was vested in him. Obpermanently fixed in the soil by the operation of viously the right of the original owner could not be natural causes. In support of the contention that established; it had for centuries been lost or barred, the boat always remained a chattel, it was or may even supposing that the property had not been be urged that though embedded in the soil, it al- abandoned when the boat was first left on the spot ways was distinguishable from the soil itself, and where it was found. The plaintiff then had a lawpreserved its original character of a chattel, which ful possession, good against all the world, and it certainly now is. Not long ago there was dis
therefore the property in the boat. In my opinion covered, in the course of making excavations in it makes no difference in these circumstances that Hampshire, a jar containing Roman coins, not gold the plaintiff was not aware of the existence of the or silver coins, and therefore not falling within the Royal prerogative of treasure trove; apparently the coins formed the small change of the treasure of a In McDonald v. Mayor, etc., New Jersey Court of Roman legion. Could it be said that the jar or Chancery, Jan. 12, 1887, it was held that the the coins were part of the soil within the principle whole of a public street in a city is for the use of referred to? Similarly a short time since there was the public at large; and the occupation of such found beneath the soil (I believe in Devonshire) a street for a market is a public and a private nuiRoman lamp of ingenious construction made of sance, and a city granting licenses to use a public lead, and in excellent state of preservation. A sim- street as a market may be enjoined from using, or ilar question may be asked of the lamp. But, as I authorizing or taking pay for the use of such street have said, it is not necessary to decide these or the for that purpose. The chancellor said: “The anlike interesting questions in the present case. The noyance complained of is loud noises and offensive first question which does actually arise in this case smells. The noise is of the stamping of horses' feet, is whether the boat belonged to the plaintiff at the the rumbling of wagons, the rattling of chains and time of the granting of the lease. I hold that it harness, the shouting of men to their horses and to did, whether it ought to be regarded as a mineral, each other, the throwing of barrels and boxes from or as part of the soil within the maxim above cited, the wagons to and upon the sidewalk, the hawking or as a chattel. If it was a mineral or part of the and the hum and bustle of the crowd of purchasers soil in the sense above indicated, then it clearly be- | The noises seriously disturb the sleep of the com
plainant and his family, and interfere with conver- a market, seems to the contrary. See note, 43 Am. sation in the house. The odors complained of arise Rep. 473. from the refuse, and from the smoke of the torches used by the hucksters in their business, and pervade
POINTS FOR ADVOCATES OF CODIFICAthe complainant's house. That this complaint of
TION. annoyance is well founded is not denied, and that the annoyances complained of constitute a nuisance
EVERAL members of the Senate judiciary comis not disputed. But it is urged, on behalf the de
D mittee have requested that I should publish a fendants, that the complainant and his family are
synoposis of my argument made last week before that not the only ones who are affected by the nuisance;
committee in favor of the Civil Code. This request and it is urged that since other persons similarly
is a concession to the principles of codification situated are also annoyed by it, the nuisance must
arguments should be codified. I give below the be regarded as public and not private. And again
substance of what I said, and of some things which it is contended that this suit cannot be maintained
I had not time to say. against the city, because the city does not create the nuisance but only takes fees for the occupation THE ENACTMENT OF THE PROPOSED Civil CODE of the street and sidewalk by the hucksters. Ob- IN THIS STATE IS DESIRABLE. viously, a nuisance may be an injury common to
1. many persons, and yet be a private and not a pub
A general code is desirable. lic nuisance; and there are nuisances which are at the same time both private and public, in the com
1. Because the common law is uncertain, fluctuatmitting whereof both public and private rights are
ing, inaccessible, inconvenient, expensive, without auviolated. In such cases the offense against the
thority. public at large may be punished by indictment, and A. Uncertain.— So uncertain that “the glorious redress for the special injury to individuals may be uncertainty of the common law” has grown into a sought by suit. Higbie v. Camden & A. R. Co., 19 N. | proverb. Its admirers even boast of its “flexibilJ. Eq. 276; High Inj., $521, 522. In the case in ity,” which is a “more tenderer word,” as Sam hand the use of the street for a market place is, un- | Weller said. It is notorious that no lawyer can der the circumstances, a public nuisance. Such use safely advise his client as to what the law really is of the higliway is wholly unwarranted. The entire on any point. He may sometimes be able to tell street is for the use of the public at large, and the un- what the courts have decided, but he cannot predict authorized use of part of it for a market is a public how long they will stick to it. Let any lawyer tell nuisance. State v. Laverack, 34 N. J. Law, 201. | me what he thinks the law is on any point — I don't Nor does the grant by the officers of the city of per- care what — and I will engage to furnish bim with mission so to use the street legalize such use. The "authority" to the contrary. For example: What use is not only a public nuisance, but it is, so far as is the rule of liability of the principal upon an enthe' complainant and others similarly affected are gagement signed by his agent as an individual, or concerned, a private nuisance also. Where, as in with words of description? Is a bank liable for the this case, an individual is specially injured by the neglect of a distant correspondent in making a colunauthorized use of a street, he may have recourselection for its customer? May a bank be sued for to this court for relief. The answer admits that not paying a check on it? Is a carrier bound for the city has, through its market clerk, designated goods for which his agent has issued a bill of ladthe places in question as places to be used for mar-ing but which were not actually received? What ket purposes, and has from day to day for a long is the law of boundaries on roads and streams? To time, licensed persons to occupy them for the sale what extent may a common carrier stipulate for exof their produce, and has collected and received for emption from liability for negligence? Are exemits use the license fees therefor; but the defendants plary damages proper? To what extent is a purinsist that such use of the street is reasonable and chaser of land bound by an easement of which he lawful. The city then, under color of its author-is ignorant? Is an insurance policy violated by ity, authorizes the hucksters, for a consideration procuring another, voidable for other undisclosed paid to it, to occupy parts of the public highway insurance? May a master contract for exemption for the purpose of vending their goods. It thus from liability to his servant? Is one servant liable unlawfully makes a market place of the streets, and for his own negligence to his co-servant? Who are it is therefore responsible for the nuisance occa- co-servants? Is a railroad company liable for an sioned thereby. St. John v. Mayor, etc., 3 Bosw. unlawful assault by a brakeman on a passenger by 483. It manifestly is the wrong-doer. It will be command of a conductor? What is the liability of enjoined from using or authorizing or taking pay cities for icy sidewalks; for coasting licensed by for the use of the streets in front or in the vicinity them in streets; for blasting in streets by contractof the complainant's house as a market place, or as ors? May cities compellot-owners to clear the a stand for the sale of goods.” So as to a back snow off their sidewalks? Is a passenger chargestand. Brunahan v. Hotel Co., 39 Ohio St. 333; able with the negligence of his carrier, or of a priS. C., 48 Am. Rep. 457. Henkel v. City of Detroit, vate person with which he is riding? Is a young 49 Mich. 249; 8. C., 43 Am. Rep. 464, a case of infant chargeable with the negligence of its parent or guardian? What is the rule of liability for a principles already laid down in these myriads of degligent fire communicated by the wind to distant volumes, and actually have the “gall” to tell him premises? Are preferential assignments proper? | that we refuse because to comply would render it
until payment, can the purchaser give title to an- | well deny the Bible to the citizen and send him to other? Has an innkeeper a lien on the goods of a the priest for his religion. In Code States and third person in possession of the guest? What con- countries the citizen knows much more of the law. tracts made on Sunday are valid? Is an infant es- Law is not made for the convenience or enrichment topped by his fraudulent representation that he was of lawyers, but for the regulation of the citizen. of age, in an action for the fraud? Is a sale without Therefore give him an abstract of it in small space, delivery conclusively or only presumptively fraudu- | and when it is to be altered let it be done by the lent as against creditors? These questions are proper law-making power, and not by the law adall uncertain, and differently decided in differ ministrators. ent States. And so I might “ go on forever,” like 3. The Constitution contemplates 'and intends codiTennyson's “Brook."
fication. Those wild gentlemen who attribute the B. Fluctuating.- There is no telling how long corruption of judges to codification tell us that the law will stay as it is. The judges may alter it the Constitution does not command codification. at pleasure, and are altering it all the time. It va- | What then? Was it jesting when it said the comries with their moods and caprices. The law may missioners should report codes “for adoption?", depend on an attack of dyspepsia. Everybody Three branches of our law have been codified in knows that the maxim "stare decisis " is a delusion. | compliance with this injunction. The fourth and Look at the table of cases overruled, etc. First, most important ought to be. the judges distinguish a case; next they limit it; 4. Codification would reduce the volume of reports. next they criticise it; then they doubt it; then they | It is a noteworthy fact that in the Code States redeny it; and at length, familiarity having bred con- ports are much fewer and opinions much shorter tempt, they overrule it. Like the influence of vice than in common-law States. - they "first endure, then pity, then embrace." 1 5. The American Bar Association, by a decisive
C. Inconvenient. - Granting that the law is all majority, have resolved that so far as its principles written and unchangeable, still it is vastly inconve- are concerned the common law should be reduced nient to have to go over thousands of volumes to to the form of a statute. find it, even down to the latest number of the last
II. week's periodicals. Mr. Moak deems it essential to have sixteen thousand law books at his hand. Our
General codification is practicable. State Library has twice as many. More than fifteen 1. Because the most civilized nations of the hundred have been published in this country in world have been successfully governed by codes, two years. It would be very desirable to put the and excepting the English, are yet so governed. meat of the law in one statute book just for conve 2. Because some of our States are so governed nience's sake.
- Louisiana, Georgia, California, Dakota. D. Expensive. — So many books are expensive.
3. Because the spirit of the age is in favor of It is expensive to employ lawyers to search them. codification. Witness England, where they are reIt is expensive to enforce the common law. It is
ducing the laws to codes as fast as possible. There particularly expensive to start out in a case with
is comparatively little of the common law left good law, and have it converted to bad law in the | there; nearly every thing is in statutes. course of the litigation,
4. Because much of our own law is already in
statutes; even much of the common law has been tioning the authority of a statute, nor of inquiring
enacted in statutes. by how large a majority it was enacted. But any
| 5. Because our three codes work admirably. The case is open to question. Especially so when de
Code of Civil Procedure, as it existed before Mr. cided by a divided court, as so many are, and where
Throop's monstrous revision, was the greatest legal the dissenting opinions are published. Many a
blessing ever granted to mankind; has been copied . case is decided by a majority of one judge in the in twenty States, and led England to abolish chanultimate court, and against the unanimous opinion | cery and adopt a similar system. of all the lower judges. Four judges frequently l 6. Because no code once adopted was ever relay down the law against seven, and even more, in | pealed. cases where several general terms are reversed. The lawyers will never cease struggling against such
The proposed code is desirable. authorities without authority.
1. Because it is the work of three of the greatest 2. The citizen has a right to know the law. He lawyers of our State. It was eight years in preparis presumed to know it, he is not excused, civilly | ation. It has been twenty-two years before the or criminally, for his ignorance or mistake. When he Legislature and the public, and subjected to unasks where he can find it, we tell him in six thou-sparing criticism and repeated amendments. It is as sand volumes of reports and countless commenta- near right, and as unobjectionable, as we can hope ries. We refuse to give him a statute book of the ever to have a code on the start. No code can ever
be devised that ingenious lawyers can't find flaws zen of a State which expends untold millions every in. We should not wait another generation for an- year on tobacco and rum! other code.
5. The Legislature would “tinker” it. Answer: 2. Because it has received the highest encomiums They couldn't “ tinker" it a tenth part so much as from the most celebrated jurists and scholars of the judges now “tinker” the law. But it is no exEurope and America. Even from many judges of cuse for not doing right that others may do wrong. our own State. With a few trifling exceptions, Besides, a standing commission on code revision no man who has examined it, and is in favor might and ought to be appointed, to prevent "tinkof codification, has failed to commend it. Evenering." candid enenies of codification praise it.
6. Two governors vetoed it. Answer : Governor 2. Because California has had a substantial copy Robinson vetoed it because it changed the laws in of it in operation for fifteen years, and it has worked important particulars — dower, for instance. These well. Chief Justice Wallace calls it “the greatest objections have been removed. Governor Cornell blessing.”
vetoed it, I believe, because the bill was not to 4. Because the other codes of the same commis | have it go into effect until a commission should sioners have proved so successful.
have revised and amended it, and he did not ap
prove of laws passed in such form. OBJECTIONS. The following are the principal objections:
FINALLY. 1. Foremost, the lawyers don't want it. Answer: The question is simply this: Are five or six thouThe people do. And at least a third of the lawyers sand lawyers to defeat the expressed will of five do, and this class is increasing constantly. Twenty millions of people, including certainly four or five lawyers in the Assembly voted for it against four- thousand lawyers? That is the plain honest Engteen. The New York city clique, headed by Mr. | lish of the matter. I make my living by reporting Carter and Prof. Dwight, and Mr. J. Bleecker and explaining the common law. Probably it is for Miller, oppose it, and I have Mr. Moak's authority my interest to have the present state of things confor saying that it is mainly because they don't like tinue. But the lawyers, including myself, will alMr. Field. Anybody who has heard Mr. Carter ways have enough to do without thriving on the knows that. If Prof. Dwight, the great “dis misfortunes of the public, growing out of our consenter” of the commission of appeals, had written fused, obscure, ever-changing laws. Lawyers have it - violent presumption! – the same clique would always opposed every legal reform. The first piece bow down and adore it. But neither a few lawyers of legal writing I ever did was a thesis thirty years in New York city nor the eleven thousand of the
ago, in favor of admitting parties to testify for State, have a right to say that the citizen shall not themselves — terrible heresy! How that was fought! have a book of the laws.
How the Code of Procedure was resisted !--" Jack 2. It would impair the “elasticity” and “flexibil. Code,” Mr. Evarts called it. Mr. Carter says this ity” of the law. Answer: If they mean it would repair Code is “not worth a dime novel.” Mr. Hare, in his its uncertainty — and that is really what they mean | new work on contracts, says “ codification is liable - I grant it. But how do these blowers of hot and
to err by enacting principles into rules." I should cold reconcile "elasticity” with “stare decisis?" say that is a laudable error. In contrast with these They say it would make a “cast-iron” rule. So learned gentlemen I cite Lord Justice James, who does every statute, and yet they actually complain recently spoke of Blackstone as “the somewhat inthat statutes give rise to necessity for construction! discrimate eulogist of every peculiarity and anomA code must be distinguished from a digest. It is aly in our system of laws." a skeleton of principles, not a statement of details. I call on the Legislature and the profession to Principles should be “ cast-iron.” Proper “flexi- rise above petty, personal, temporary interests, and bility” applies only to the application of them. I do the thing that is right for by the right and Cases should be relegated to their proper position never by the wrong may man thrive. of illustrations, not sources, of the law.
IRVING BROWNE. 3. It would give rise to necessity for construction. Answer : True, but it would remove the inquiry from the domain of principles to the field of mere REMARKS OF YR. WILLIAM W. COOK BEinterpretation. Instead of construing a principle
FORE THE SENATE JUDICIARY COMfrom thousands of books we should interpret the
MITTEE, ON THE CIVIL CODE. language of a statute in one. It would get settled long before the common is, which “ like the
MANY of the principles of corporation law are so
MI old, well-established and unquestioned that they troubled sea cannot rest but casts up mire and dirt."
are found only in the old reports aud decisions. That 4. It would cost a great deal. I heard Mr. Moak
these principles may be embodied in a code caunot be say at the capitol that two millions would not cover questioned. The question which faces us is whether it. Answer: No matter what it costs it will be these principles should be embodied in a code, and cheaper than the common law. What an argument
whether this code states those principles clearly and
accurately. The most practical way of answering this to make in a capitol that has already cost fifteen
question is to study the code itself. millions! What an argument to come from a citi- Take for example section 543. It provides that