in Houghton v. Bank, 26 Wis. 663, where it is held that an indorsement on a note not belonging to the bank, by "Geo. Buckley, Cas.," he being cashier of the bank, bound the bank and not himself. In Bank v. Bank, 16 Wis. 120, it is held that a note sigued by "J. H. Sidmore, Cash.," bound the bank alone. In Rockwell v. Bank, 13 Wis. 653, where the bank promises to pay in the body of the note, and it is signed only by "D. D. Spencer, Cashier," it was held that the bank only was bound. The principle of these authorities seems to be "that if the agent sign the note with his own name alone, and there is nothing on the face of the note to show that he was acting as agent, he will be personally liable; but if his agency appears with his signature, then his principal only is bound." Here the corporation could not sign its own name, and it is not otherwise shown on the face of the note than that Kraus signed the corporate name, and by adding the word President" to his own name he shows conclusively that as president of the corporation he sigued the note, and not otherwise. Such is the natural and reasonable construction of these signatures, and so it would be generally understood. The affix, cashier, secretary, president or agent, to the name of the person sufficiently indicates and shows that such person signed the bank or corporate name, and in that character and capacity alone. The use of the word "by" or "per" or "pro" would not add to the certainty of what is thus expressed. It is not common to use these words in commercial business. It is sufficiently understood that the paper is signed by the officer or agent named, and for the corporation. But it is useless to prolong this discussion. It is almost too plain for argument. The note was that of the corporation alone, signed by Kraus as its president. The Circuit Court properly rejected the offer of parol proof, and correctly instructed the jury to find a verdict in favor of Kraus. Wis. Sup. Ct., Sept. 24, 1889. Liebscher v. Kraus. Opinion by Orton, J.

PARTIES--HUSBAND AND WIFE-PLEADING.-A writ in assumpsit on a note attached the defendant to answer to W. and E. W., "husband of " the said W. Held, that the description of E. W. as husband was mere descriptio persona, and, as it was not connected with any thing that referred it to any other time, it related to the time of pleading only, and therefore that there was no allegation that they were husband and wife at the time the note was given, or at the time an act was passed whereby the common-law disability of a married woman to sue alone, in respect of her separate rights, was removed. It is the same as though it read, "being [existens] the husband," or "who is the husband," which should manifestly refer to the time of pleading. And so it has been held. Thus, in Bridges' Case, Cro. Jac. 639, the respondents were indicted pro eo quod they entered into such land, existens liberum tenementum of J. S., et manu forti disseised him. And because the indictment was not ad huc existens liberum tenementum, and existens liberum tenementum might refer to the time of the indictment, and not of the entry, the indictment was adjudged ill. See also Poynts' Case, id. 214, and 1 Chit. Crim. Law, 220. When existens, referring to the person, may relate to a time prior to that of pleading, see Johnson's Case, Cro. Jac. 610. It is claimed that the averment that the defendant "did make, execute and deliver" the note "to the plaintiff Mary J. Wright, *** and therein promised the plaintiff Mary J. Wright," etc., is an allegation that at the time of its execution she bore the name of Wright, and that as she then bore that name, it follows that she was then the wife of the other plaintiff, because his name is Wright, and hence that this is, in effect, the allegation. This claim does not comport with the rule that every thing is to be taken most strongly against the

pleader, under which we might as well suppose that her maiden name was Wright, or that she was then covert or discovert of some other Wright, as to suppose that she was the wife of the other plaintiff because his name happens to be Wright. There is, then, no allegation that the plaintiffs were husband and wife at the time the note was given, which was April 15, 1881, nor at the time the statute of 1884 was passed, whereby the common-law disability of married women, in respect of acquiring property, and of binding themselves by contract, and of suing and being sued alone in respect of their separate rights and liabilities, has been almost wholly removed. That act provides that a married woman may make contracts with any person other than her husband, and bind herself and her separate property in the same manner as if she was unmarried, and may sue and be sued as to all such contracts made by her either before or during coverture, without her husband being joined as plaintiff or defendant; and that all personal property and rights of action acquired by her before coverture, or acquired in any manner during coverture except by her personal industry, or by gift from her husband, shall be held to her sole and separate use, not subject to the disposal of her husband, nor liable for his debts. As there is no allegation that the plaintiffs were husband and wife prior to the time of bringing the suit, the case must stand as upon a marriage of that time, which brings the note within the operation of the statute, and makes it the sole and separate property of the wife, free from the disposition of the husband, who has, and can acquire, no interest therein by virtue of his marital rights, which must be governed by the law as it stood at the time of marriage; and the question is, can he be plaintiff with his wife in an action upon the note? Counsel for the plaintiffs concede that he cannot be, upon this holding as to lack of averment of earlier marriage. And that is the logic of the thing; for the general rule is, at law, actions upon contracts must be brought in the name of him who has the legal interest; and as the husband has no legal interest, and the wife is no longer under disability to sue alone, no reason remains for his joining, and cessante ratione legis, cessat et ipsa lex. And although the statute may seem in form to be merely permissive-" may sue and be sued "-and to leave it optional whether the husband shall join or not, yet, when we consider that its purpose was to cut up by the roots the marital rights of the husband in the wife's personal property and rights of action, and to set her free from the thraldom of the common law in respect thereof, and confer upon her the rights and privileges of an independent legal existence, it would be inconsistent with the spirit of the act to construe it as permissive merely, and not mandatory. And besides, by construing it as mandatory, we preserve the symmetry of the law by not having an unnecessary plaintiff who has no interest. We also get certainty in the law, which is always desirable, though not always attainable. We also prevent the husband from being made a competent witness for the wife merely by joining him, and the defendant from being deprived of an offset against the wife alone. In Massachusetts, a statute similarly worded is construed as obliging the wife to sue alone at law. nessey v. White, 2 Allen, 48; Forbes v. Tuckerman, 115 Mass. 115, 118. So in the District of Columbia, Candy v. Smith, 12 Cent. Rep. 33. In New York it does not seem to be settled. Palmer v. Davis, 28 N. Y. 242; Ackley v. Tarbox, 31 id. 564. In White v. Waite, 47 Vt. 502, the husband was allowed to join with the wife in trespass for her property, although it was of such a character that he had no marital right to reduce it to possession. But then the wife could not sue alone, and there was a necessity for his joining. Vt. Sup. Ct., Aug. 31, 1889. Wright v. Burroughs. Opinion by Rowell, J.

Hen

RELEASE AND DISCHARGE-NOVATION.-It is not a sufficient defense to an action on a promissory note that the note was given in payment for land, that defendant had sold the land to one who assumed the note, and that the plaintiff had agreed to release the defendant, and look only to the assumer. The auswer, to be good, must be so upon at least one of three grounds: First, that the facts alleged constitute a novation; second, a release; and, third, an estoppel. In every novation there are four elements: (1) An existing and valid contract; (2) all parties must agree to the new contract; (3) the new contract must be valid; and (4) the new contract must extinguish the old one. Morris v. Whitmore, 27 Ind. 418; Glasgow v. Hobbs, 32 id. 440; Jewett v. Pleak, 43 id. 368; Crim v. Fitch, 53 id. 214; Clark v. Billings, 59 id. 508; Fensler v. Prather, 43 id. 119; Manufacturing Co. v. Probasco, 64 id. 406; Parsons v. Tillman, 95 id. 452; Kelso v. Fleming, 104 id. 180. It will be hardly necessary for us to take the time to explain wherein the facts pleaded in the answer fall short of showing a novation, and especially need we not do so as appellee's counsel do not contend there was a novation. To constitute a valid release there must be a valuable consideration paid therefor. See Kelso v. Fleming, and authorities cited. No such consideration is shown. When Parker and Hanway purchased the real estate from the appellee, and as a part of the consideration therefor assumed and agreed to pay the notes that had been executed by the appellee, they became primarily liable for the payment of the debt, and as between the appellee and them the relation of principal and surety existed, they being the principals and he the surety. This however in no way changed or altered the appellee's liability to the appellant. It was held in the case of Sefton v. Hargett, 113 Ind. 592, "that the purchaser of real estate who assumes the payment of incumbrances on the land thereby becomes, as to those previously liable, the principal debtor, without regard to the original relations of the parties, or whether the creditor consented thereto or not; " and further, "in such a case, if the creditor has knowledge of the facts, and extends the time of payment without the consent of those who occupy the relation of sureties, the latter will be discharged." But it is not averred or contended that the appellant extended the time of payment to any one, or made any agreement with reference to the payment of the notes, except so far as an agreement is alleged with the appellee. Conceding that there was an agreement between the appellant and the appellee that the former would no longer look to the appellee for payment of the notes, but would look to those who had purchased the real estate and assumed payment of the notes, the agreement was not one that could be enforced unless bottomed upon a valuable consideration. Kelso v. Fleming, 104 Ind. 180. The grantees of the appellee, by their purchase and assumption, having become the principal debtors, the appellant had a complete right of action against them as well as against the appellee at the time the agreement is alleged to have been made for his release. Birke v. Abbott, 103 Ind. 1; Davis v. Hardy, 76 id. 272; Josselyn v. Edwards, 57 id. 212; Kelso v. Fleming, supra; Sefton v. Hargett, supra. The agreement did not give to the appellant an advantage or legal right which he did not already have. The appellee surrendered no legal right, nor was he placed in a different position, to his prejudice, because of the promise made by the appellant. It was not necessary to the right of the appellee to maintain legal proceedings against those who had assumed to pay his notes that he first pay them; but had payment been a condition precedent to his right of action, he was at liberty at any time to leave with the bank the money necessary to pay the notes, and this would have stopped the interest, which he alleges in his answer he very much desired to do; or he could have made a tender

to the appellant and demanded his notes, and then brought an action for their cancellation, or waited until sued upon them, and kept his tender good by bringing the money into court. The facts pleaded do not constitute au estoppel. Much of what we have said with reference to the question of consideration is applicable to the question of estoppel; but we may add that there is no averment tending to show that any one of the parties who assumed to pay all or any one of the notes is not at this time in as good condition financially as on the day when the agreement was made; nor is there any averment tending to show that any action which the appellee then had a right to bring will not be equally as available now as then. The opinion in the case of Kelso v. Fleming, supra, covers the question presented by the record in this case, and has left very little to be said at this time. Ind. Sup. Ct., Oct. 15, 1889. Pope v. Vajen. Opinion by Berkshire, J.; Elliott, C. J., dissenting.

SALE-WARRANTY-EXPRESS AND IMPLIED.-Where a bull-calf at the time of sale is but three months old, free from apparent defect, and present to the view of the purchaser, it cannot be held as a matter of law that his sterility, which transpired two years later, existed at the time of sale, and that there was an implied warranty that he would possess the power of procreation at maturity. A mere statement by the seller, of his own opinion and belief, not amounting to a positive affirmation or statement of fact, and upon a matter concerning which the purchaser is to exercise his own judgment, does not amount to a warranty. Tenney v. Cowles, 67 Wis. 594. This is especially so, where the court, in the same connection as here, charged the jury as follows: "An express warranty is an express statement which the party undertakes shall be a part of a contract, and, though part of a contract, yet collateral to the express object of it. Any assertion or averment by the seller to the purchaser during the negotiations to effect a sale, respecting the quality of the article or the efficiency of the property sold, will be regarded as a warranty, if relied upon by the purchaser in making the purchase. So I instruct you, gentlemen, that you must take into consideration, under all the evidence in the case, what was said by the parties at the time of the negotiations of this sale; what was their relation and understanding at that time; what did both parties fairly understand by the language that was used at the time of the sale. If you find that the defendant made an express warranty that the bullcalf would be a sure stock-getter, in order to induce the plaintiff to purchase him, and that the plaintiff relied upon such statement of the defendant, and at the time of such warranty or statement there existed a defect or unsoundness in the calf, which would result in his being sterile, or not a sure stock-getter, and that such was the result, then you should find for the plaintiff." These instructions are within the rules sanctioned by this court in the cases cited by the counsel for the appellant. Neave v. Arntz, 56 Wis. 176. But counsel strenuously contend that the court erroneously took from the jury all consideration of an implied warranty. It is true that the charge is confined to the cause of action alleged in the complaint, which is clearly the breach of an express warranty. Counsel requested no instruction respecting an implied warranty. The charge is simply silent respecting such a warranty. It might perhaps be inferred from the oral argument of counsel that the undisputed evidence makes the defendant liable as upon an implied warranty. But the calf was only three months old at the time of the purchase. It is conceded that to all appearances he was free from any defects at that time. The only evidence of any defect is that it transpired some two years after the purchase that he then lacked the power of procreation. The calf was present to the

view of the purchaser, as well as the seller, at the time of the purchase. If the alleged defect existed at that time, as a matter of fact, then the plaintiff had the same opportunity for discovering it as the defendaut. It has been held that where the buyer has had an opportunity of examining the article sold, there is no implied warranty by the seller against latent defects unknown alike to himself and to the purchaser. Eagan v. Call, 34 Penn. St. 236; 75 Am. Dec. 653; Brantley v. Thomas, 73 id. 264. Certainly we cannot hold, as a matter of law, upon the record in this case, that the supposed defect existed at the time of the purchase, and that there was an implied warranty that the calf would, at maturity, possess the power of procreation. Wisconsin Supreme Court., September 24, 1889. White v. Stelloh. Opinion by Cassoday, J.

SPECIFIC PERFORMANCE -REFERENCE APPEAL.Specific performance of a contract to deliver stock will not be enforced when it appears that there is no fiduciary relation between the parties; that the value of the stock can be estimated in money; and that there are no allegations of defendant's insolvency. Judge Noyes, sustaining the demurrers, said: "The court is asked to compel defendants Ryan and Fahnstocks to organize a corporation, the only terms of the charter or articles of which are specified being that the capital stock shall consist of $1,000,000 preferred and $1,000,000 common, the shares to be of $100 par value, and, when so organized, to compel defendants to deliver to him $25,000 par value of preferred stock and $100,000 of common stock. The statute provides the essential provisions in the articles of association in order to form a corporation. Can the court specify what these shall be in the proposed company, in the absence of an agreement with respect thereto made by the parties? Can the court determine the character and terms of the preferred stock? Certainly preferred stock is not all alike, and how does the court know what the parties intended, or would be satisfied with, if drawn by the court? No rule is better established than is the rule that a court of equity will not decree specific performance of a contract unless the terms of the contract are clearly and definitely expressed. If the court is unable, from the contract itself, aided by authorized legal presumption, to arrive at a clear result of what all its essential terms are, the contract will not be specifically enforced.' Schmeling v. Kriesel, 45 Wis. 325-327. A court of equity must interpret a contract between parties as it is made by them. It cannot make a contract for parties.' Iron Co. v. Todd (Del.), 14 Atl. Rep. 27-34. Were the stock actually in existence, instead of to be created, the question would be presented as to whether the action would lie in equity to compel a delivery thereof to the plaintiff. It seems to be now settled that a specific performance of a contract relating to personal property, including stocks, will in certain cases be enforced. The general rule is that it will not. It is only when the detention of chattels cannot adequately be redressed by damages that the jurisdiction of equity attaches. If there be any peculiar value to the personal property-such as an heirloom, a painting, title-deeds, and the like-or it be stock not purchasable in the market, or such that its value cannot be ascertained. or it have a special peculiar value in the future to the plaintiff, then courts of equity will decree specific performance, because an adequate compensation in damages cannot be ascertained or given at law. Pom. Spec. Perf., §§ 11-14; Foll's Appeal, 91 Penn. St. 434. So in cases where the plaintiff has put money or other property in the hands of the defendant so as to create a fiduciary relation between them, or the defendant, in any proper sense, has made himself the trustee of the plaintiff, the jurisdiction in equity is enlarged, and performance of a contract relat

ing to personal property will be decreed. Johnson v. Brooks, 93 N. Y. 337; Pom. Spec. Perf., § 14. But in all cases it is clear that when the plaintiff himself has put a value upon the property which he asks decreed to him, as in this case, and adequate compensation in the form of damages can be recovered in a legal action, and equity cannot be invoked. The plaintiff here has expressly fixed his damages at $75,000. Pom. Spec. Perf., § 17, and cases cited. "The facts alleged do not bring this case within any of the recognized exceptions to the rule. The subject-matter has not any peculiar value as an article of curiosity, antiquity or affection; not one which the defendants alone can supply to enable the plaintiff to fulfill an engagement to a third person; not one of unknown or uncertain value, compensation for which cannot be given in money; not a subject of trust placed by the plaintiff in the hands of the defendants to be used or returned in a certain manner. The subject-matter, on the other hand, is a broker's commission of $75,000, which the defendants Ryan and associates agreed to pay the plaintiff for services rendered. The remedy at law is clear, adequate, and its enforcement attended with no special doubt or difficulty, except as in many cases where process must be served and litigation had over a disputed claim. The right of a stockholder to compel the corporation to issue to him certain stock is conceded to be one enforceable in equity in proper cases. Dousman v. Smelting Co., 40 Wis. 418. See Tanner v. Gregory, 71 id. 490. But the relief here asked for is not at all analogous. The plaintiff is not a stockholder. The corporation is not organized. There is no stock in esse. The subjectmatter of the suit for specific performance does not exist, and never has existed. If it had once existed, so as to entitle the plaintiff to sue in equity therefor, and thereafter the defendants had put it out of their power to comply with their contract, a court would be justified in holding the suit in equity for awarding compensation in money. Hall v. Delaplaine, 5 Wis. 206, 207; Pom. Spec. Perf., §§ 475-477. But in this case the contract, as I think, was of such a nature that equity could and would not enforce it, and consequently the court will not hold the case to award a money judgment. This contract, if enforced, would compel the court just to create the subject-matter of the suit, and then order its delivery to the plaintiff. I do not think, upon authority or in reason, the court could compel a defendant to create a corporation, even if all the provisions of the charter or articles had been definitely agreed upon, which corporation should create certain common and certain preferred stock, even if the exact conditions of such stock had been prescribed in the agreement, so that the subject-matter might be brought into esse for the purpose of being delivered to the plaintiff. Courts refuse to compel the building of railroads, or the erection of buildings, or the cultivation, cutting and delivery of crops, etc. Pom. Spec. Perf., § 312, and note; 2 Mor. Priv. Corp., § 1136, and note. With much more reason, it seems to me, should they decline to compel the organization of corporations and creation of stock, with all the details necessarily accompanying such proceedings, especially in a case where the plaintiff has a clear remedy at law, and has himself fixed the exact amount of his damages by reason of a violation of the contract made with him." Perhaps a more elaborate opinion would have been written had not the legal questions involved in the case been so fully and ably considered and discussed by Judge Noyes. Wisconsin Supreme Court, October 15, 1889. Avery v. Ryan. Opinion by Lyon, J.

TELEGRAPH COMPANIES-STIPULATIONS-EVIDENCE. —In a suit by a telegraph company on a contract to furnish defendant accurate market quotations of prices, and to send his messages for purchases and

sales, it appeared that defendant was an oil broker, and his business being too urgent to admit of written messages, those delivered and received by both parties were oral; that on account of plaintiff's mistake in sending a message, one of defendant's agents bought, instead of selling, causing defendant serious loss; that a rule, printed at the top of plaintiff's message blanks, declared that plaintiff would not be liable for mistakes of any unrepeated messages, and it did not appear that defendant's messages had been repeated. Held, that it was for the jury to say, from the evidence, whether plaintiff, by dispensing with the use of its blanks in its transactions with defendant, intended to relieve him from the stipulations printed thereon. Penu. Sup. Ct., Oct. 7, 1889. Western Union Telegraph Company. v. Stevenson. Opinion by Clark, J.

TRUST-CHARITABLE-CY PRES DOCTRINE.--The income from property, given by will, in trust, "to establish a female academy" in a certain town, may be applied by the trustees to the support of a school in connection with the school district in which the academy is situated, when the fund becomes insufficient to maintain an independent school. The question is whether the proposed change in the mode of executing the charity is reasonable and allowable under the terms of the bequest by which it was created. The necessity of a change is shown by the fact that the fund is insufficient to maintain an independent school at the present time, and unless some other mode of executing the trust can be adopted, the charity must fail. The reasonableness of the plau suggested is shown by the fact that it seems to be the nearest practicable method of carrying out the expressed intention of the donor. Whether the change is allowable under the terms of the bequest is a question of construction. The doctrine of cy pres, although perhaps not formally adopted in this State, has been recognized. Society v. Society, 14 N. H. 315, 330; Brown v. Society, 33 id. 285, 296. And regarded as a rule of construction and not of administration (Perry Trusts, § 723) it is a reasonable doctrine, by which a charity may be enforced in favor of the general intent, even where the particular mode or means provided by the donor fail by reason of their inadequacy. The rule of equity on this subject seems to be clear, that when a definite charity is created the failure of the particular mode in which it is to be effectuated does not destroy the charity; for equity will substitute another mode, so that the substantial intention shall not depend upon the formal intention. Philadelphia v. Girard, 45 Penu. St. 27; Jackson v. Phillips, 14 Allen, 539. The doctrine of cy pres, adopted to this extent, is in harmony with the equitable rule that a liberal construction is to be given to charitable donations, to accomplish the general charitable intent of the donor. Upon the facts appearing in the case the trustees are authorized to make the proposed change in the mode of administering the trust. The purpose of the donor was to provide a fund for the education of females, and the language of the will indicates an intention to establish a permanent charity. The bequest was not in terms restricted to the original plan of the donor, which, having become impracticable by reason of a change of circumstances, a reasonable construction of the terms of the gift authorizes the trustees to adopt any mode of administering the trust which will accomplish the ultimate purpose of the testator, if such a scheme is practicable; and the plan proposed seems best adapted to carrying out the charitable intention of the testator, under existing circumstances. New Hampshire Supreme Court, July 26, 1889. Adams Female Academy v. Adams. Clark, J.

Trustees of Opinion by

THE WICKED SHOEMAKER AND SAC

RILEGIOUS FARMER.

COMMONWEALTH V. JOSSELYN (97 Mass. 411); COMMONWEALTH V. SAMPSON (97 Mass. 407).

[The hoeing of corn or the gathering of seaweed on Sunday is not a "work of necessity," although otherwise the one may suffer from neglect and the other may be swept away and lost.]

Josselyn was a humble citizen,

Who paid his way by cobbling boots and shoes,
As kind and sober as most other men,

Who ne'er a moment from his bench dared lose,
Because upon his stitching and his pegging
Depended wife and several children small,
Who, if he failed them, must perforce go begging,-
He was indeed to them their treasured awl,
A curious, prying, and malicious neighbor,
At eight o'clock one peaceful Sunday morn,
Saw Josselyn one hour at worldly labor,

To-wit: in hoeing a few hills of corn
Which grew in his remote back-garden-patch,
And which he cultivated as he could
Contrive some scattered anxious hours to catch
To furnish his small frugal table food.
And so this shoemaker incendiary,
Upon complaint of this detested sneak,
Was brought to trial for unnecessary
Labor upon the first day of the week,
As by the wiles of Satan instigated,
Without the fear of God before his eyes,
He had this corn of mammon cultivated,
Instead of Christian graces for the prize.
In vain he represented to the court

How hard it was to make both waxed-ends meet;
That his wrong-doing was so very short;
Disturbed no others in reflections sweet;
That the corn needed hoeing very much;
And asked the judge to let the jury say
Whether the immorality was such

That he deserved a penalty to pay.
But for his humble brother of the bench
No sympathy had this fell magistrate;
In durance vile poor Josselyn must blench
And cobble shoes for Puritan Bay State.
Ill weeds disfigure now his humble garden.
His wife and little ones of foot go bare;
Consigned to cruel mercies of the warden.
He meets a due reward in prison fare.
On Sunday cobbler should become knee-suitor,
At church in morning be among the first,
Seek not his suffering garden-sauce to tutor,
Hoe not, however much he is athirst.
On bended knee of him one lesson cram,
To wit! Ne sutor ultra crepidam.

Sampson a license legally acquired

To gather seaweed on a neighboring beach, To spread which on his land he much desired, That into every cranny it might leach;It was a sort of heaven-sent manure Which very cheaply he could thus secure. One Sunday was unusually good for weed, And so to haul it higher up the shore, Lest it should wash away he did proceed; This was his crime, and really nothing more,A simple exercise of Yankee thrift Lest gifts of providence should go adrift, It was at ten o'clock that Sunday night, Afar from any house or public road, There was no proof of any one in sight, He did not try to draw a single load,— But probably it made his crime the worse, That he to observation was averse. He might have been at "meeting" all day long, And played the double-bass in country choir, Or raised his voice in nasal sacred-song,

Till he and all his listeners did perspire ;But on this point the report, I must concede, Is silent, therefore we return to weed.

The court apparently thought the defense

In Sampson's case than Josselyn's was stronger; On the enormity of his offense

:

Prepare fit food for man as well as beast, Save things from fire or flood or tempest when They otherwise would perish ;-- this at least On Sunday godly men may always do, And there are such occasions not a few. But if the fish in bay or birds on shore

Uncommonly abundant then should be,
Fishing or shooting would be none the more
Devoid in law of immorality.

As fish and birds are not uncommon prey,
So waves will cast up seaweed every day.
How it might be in case a goodly whale
Should on the beach be driven high and dry,
Tempting of bone and blubber to avail,

'Tis not important now to signify.
That case exceptional, which doth involve
Such sum accessible, we need not solve."
Thus spoke the venerable Hoar, how wrought
His morals from the hoar antiquity
When Puritans unanimously thought

It reprehensible iniquity

For one to kiss his wife on Sabbath day
Or in the meeting-house an organ play.

If Sampson could have got his arms about

The pillars of that court-house where Hoar sat, He would have raised as great a rout

As when great Sampson laid the temple flat. But he was sent on mush and milk to feed, And in striped clothes repent of gathering weed.

So listen, all ye Massachusetts men,

Unto the lesson which we here would teach With trembling awe and reverential pen:

On Sunday weed not garden nor the beach, Nor let the enemy your thoughts assail With profit less than prophet-bearing whale. -Irving Browne in The Green Bag.

CORRESPONDENCE.

THAT "TEMPLE."

Editor of the Albany Law Journal:

In reading your recent article on the Rip Van Winkle of Tazewell court-house, Virginia, I have been both amused and edified. The article is a good and timely one. On waking up however, he seems only to have seen the "spooks" in the mountain. He did not discover the wonderful and magnificent strides which the town on the plain below bad made during his long

sleep. His dreams seem to have been visionary misconceptions of the real object and purpose of law reform. He seems to be prejudiced against code procedure, without apparently knowing any thing about its beneficial results.

If these Rip Van Winkles, when they wake up to turn over, could only remain awake long enough to stand erect and take a look at the temple, and behold the beautifying touches which have been placed upon it by the hands of such men as David Dudley Field, they would stand in wonder and amazement that the work is so well and artistically done. They would probably come to the conclusion that "well grounded " workmen had had a hand in beautifying and embellishing the temple, and at the same time repairing its foundation walls. Mr. Graham seems to fear that a change in the law-I suppose he means codification— will make poor lawyers of us all, or render us useless altogether.

What is meant by "a well-grounded lawyer?" A lawyer so thoroughly grounded in fogyism,that his eyes are too weak and tender to look upon the brilliancy and beauty of the decorations that have been, are being,

and will continue to be made on the temple? If so, excuse me from being "well grounded." Where is there a better grounded lawyer, in the true sense of the term, than David Dudley Field? But why fear codification? Whom has it ever injured? New York adopted a Code of Procedure forty-two years ago, but David Dudley Field, Charles O'Conor and William M. Everett did not seem to suffer by the change, although they were all young men at the time. Their reputations as great lawyers were made under the "forced Code of Procedure."

But why not codify all the law as well as a part of it, or the procedure under it? If statute-law can be codified, why not the common law? They tell us that the common law is unwritten, and therefore cannot be codified. That is the very reason why it should be reduced to writing and codified, so that all who read may know the law.

If Mr. Bishop, in treatises on Marriage and Divorce, Criminal Law, Criminal Procedure, Contracts and Non-Contracts, can define, and tell us what the common law is on these various subjects, why cannot a Legislature make it the law by enactment? Suppose Mr. Bishop should be mistaken as to what the law really is on a given subject and state it wrongly (which he no doubt has done), and some court, who knows no more law than Mr. Bishop, should approve his statement and hold it to be the law, would that make it so? Some other court of equally high authority, but more enlightened than he or the other court, might know the law and announce it. Thus two States, with exactly the same statutory provision concerning the force of the common law within their respective jurisdictions, would have exactly opposite common law" on precisely the same subject. If made definite and certain by legislative enactment, there could be no mistaking it by the court, and we should need no long treatises-well written or otherwise-after the change. Let us have codification, and the sooner the better for all. It will drive the "owls of the profession" out of the temple, and we shall have in their stead broad-minded, liberal men at the bar. G. R. CHANEY.

RED CLOUD, NEB., January 3, 1890.

THERE

NOTES.

THERE is a law of the State, if I mistake not, that condemns convicted murderers to death by electricity; yet by one of those paradoxes to which the American mind is gradually accustoming itself, the only man in New York city who is to-day absolutely secure from execution by electricity is the condemned murderer. Energetic lawyers and the massive walls of the city prison keep the deadly fluid at bay, while the industrious and inoffensive lineman," the casual pedestrian, and the unsuspecting car-driver are gathered to Abraham's bosom from day to day with a thoroughness and dispatch, that must excite the hangman's deepest envy. If any one fears that his turn may come next, my advice would be to take advantage of the darkness that broods over Fifth avenue nowanights, to deal a fatal blow to some passer-by. He will then be put out of electricity's way till the wires are buried, and can trust to his counsel to save his The neck from the hangman's noose later on. Critic.