railroad company by the person injured. The court On the subject of the publication of law reports the case of People ex rel. Ayers v. Board of State Auditors, Michigan Supreme Court, 1880, 4 Northw. Rep. 16, is of interest. It is held as follows: The State board of auditors, as to duties imposed upon it by the Legislature, outside of its constitutional duties, is subject to the judicial power, and mandamus will lie to compel performance; and therefore, one who is engaged in the business of publishing law books, and is ready and anxious to make bids and give security, as prescribed by law, for the publication of the State reports, is a proper relator in mandamus proceedings to compel the board of State auditors to advertise for proposals under such law. The court say: "When the Legislature sees fit to impose new duties on such a board, the agency thus created cannot be distinguished from any other State agency, and is subject to the same rules. The judicial power is the only means of enforcing obligations in ordinary cases, and where, as under the act of 1879, the duties to be performed are laid down by mandate and not in any sense discretionary, the courts can inquire into the conduct of the State agents and compel their action, unless the supposed obligation is in violation of some paramount right or duty which will excuse its nonperformance." As to the right of a private relator to compel the performance of a public duty, they say: "The rule which rejects the intervention of private complaints against public grievances is one of discretion and not of law. There are serious objections against allowing mere interlopers to medIdle with the affairs of the State, and it is not usually allowed, unless under circumstances where the public injury, by its refusal, will be serious. In the case of People ex rel. Drake v. Regents of the University, 4 Mich. 98, and People ex rel. Russell v. Inspectors of the State Prison, id. 187, the court took pains to guard against any decision that would prevent complaint by a private relator, where the pub-person injured by a breach of that duty having relic interest requires prompt action, and where the public prosecutors will not interfere. There is, as there shown, more liberality in some States than in others. But we find no reason to consider the matter as one lying outside of judicial discretion, which is always involved in mandamus cases concerning the relief as well as other questions." Upon the latter point, see Pumphrey v. Mayor of Baltimore, 47 Md. 145; S. C., 28 Am. Rep. 446, and note, 448, supporting the same conclusion. In McMahon v. Second Avenue Railroad Co., New York Court of Appeals, November, 1879, a street railroad company agreed with the city to keep the street in and about the rails in repair. A trench being dug by a private party, licensed by the city, across the street, the company, in order to pass its cars, bridged it over with timbers. In driving over this structure in a cart, plaintiff was injured by the joists separating. Held, that the company was liable, both by reason of its contract with the city and because it undertook to bridge the trench and did not do so properly, and that to avoid circuity of action, the suit might be prosecuted against the covered against the city, the city was held entitled to recover of the railroad. In Mayor of Troy v. Troy, etc., R. Co., 49 N. Y. 657, the like doctrine was held, where the railroad had accepted its charter on condition that it should keep in repair the pavement, and remove the snow so as to render the street passable. A person was injured by the upsetting of a sleigh on account of an accumulation of snow excavated from the track and heaped up at the side of the track, and recovered against the city. It was held that the city could recover of the railroad company, although the accumulation was partly caused by snow thrown into the street from roofs and sidewalks by citizens. See, also, McMahon v. Second Ave. R Co., 75 N. Y. 231. long ago discoursed to us of dogs (see 20 A. L. J. 6), we give the results of our recent gleanings in the law reports on this subject. the St. Bartholomew tragedy. The historian and moral philosopher can more appropriately discuss the influence which the watchfulness of the little In Mayor of Washington City v. Meigs, 1 McAr- spaniel had upon the destinies of the world. We thur, 53; S. C., 29 Am. Rep. 578, it is held that can only state a reason for the law throwing around the law recognizes property in dogs, and a city or- this animal its sanction that the right of property dinance requiring the owner of such property to exists thereto, and that the right of property existobtain a license for keeping the same, and subject-ing, it will be sure to receive the protection of man." ing him to arrest, fine, and imprisonment for not procuring such license, is invalid. The court say, "this is too well settled in England and in the States of this Union to be now questioned." The same doctrine is held in Harrington v. Miles, 11 Kans. 480; S. C., 15 Am. Rep. 355, and the cases are gathered in a note at page 356. But of this more anon. Our chief interest in the principal case arises from a touching story introduced and told as follows by the learned and humane judge: "Not only has the dog been the subject of discussion in the courts, as involving the question of property, but his virtues have been celebrated in song. The wrongs done him have been touchingly described by poets, and hours have been occupied at the camp-fires of huntsmen in narrating the achievements of favorite hounds. History informs us of noble acts of fidelity and affection performed by some sentinel of the class under consideration. Our attention has been called by our brother, Olin, to the event of so much interest to the world, and to the cause of freedom of opinion, and to the exercise of a conscientious faith, the rescue from the grasp of the enemies of toleration of William of Orange, on the morning of the 12th of September, 1572, by the action of a little dog. The Spanish army, under the command of Alva, invading the Netherlands, and the army of patriots under the command of the prince, were encamped near the city of Mons. The plan was formed for the surprise of the patriots and the capture or assassination of William, and for this purpose a band of six hundred disguised men were placed under the command of Julian Romero. The historian of the Rise of the Dutch Republic narrates that near the hour of two o'clock in the morning, 'the boldest, led by Julian in person, made at once for the prince's tent. His guards and himself were in profound sleep, but a small spaniel, who always passed the night upon his bed, was a more faithful sentinel. The creature sprang forward, barking furiously at the sound of hostile footsteps, and scratching his master's face with his paws. There was but just time for the prince to mount a horse which was ready saddled and to effect his escape through the darkness before his enemies sprang into the tent. His servants were cut down, his master of the horse and two of his secretaries, who gained their saddles a moment later, all lost their lives, and but for the little dog's watchfulness, William of Orange, upon whose shoulders the whole weight of his country's fortunes depended, would have been led within a week to an ignominious death. To his dying day, the prince ever afterward kept a spaniel of the same race in his bed-chamber.' This event occurred but a short time after the Paris wedding, and a short time after Now it seems a pity to disturb the pleasant idea that dogs are universally recognized as property, as above declared and justified. But contemporaneously down in Texas, where it would seem that dogs ought to be more thought of than in the District of Columbia, the courts hold just the reverse. It is there held that dogs are not property within the constitutional provision for taxation; but a statute exempting one dog to each family, and taxing all others at a fixed rate, under a penalty for nonpayment, is valid as a police regulation. The preamble of the statute in question is worth quoting : "Whereas there are in many localities in this State a very large number of dogs, and there are strong indications of a prevalence of hydrophobia, from which much danger will result to the lives and property of citizens," etc. Now two questions arise just here; first, will taxing dogs prevent their going mad; and second, how do mad dogs endanger property? But on the merits the court quote as follows from Blair v. Forehand, 100 Mass. 36; S. C., 1 Am. Rep. 94: "In regard to the ownership of live animals, the law has long made a distinction between dogs and cats and other domestic quadrupeds, growing out of the nature of the creatures and the purposes for which they are kept. Beasts which have been thoroughly tamed and are used for burden, or for husbandry, or for food - such as horses, cattle and sheep- are as truly property of intrinsic value, and entitled to the same protection, as any kind of goods. But dogs and cats, even in a state of domestication, never wholly lose their wild natures and distinctive instincts, and are kept either for uses which depend on retaining or calling into action those very natures and instincts, or else for the mere whim or pleasure of the owner; and therefore although man may have such right of property in a dog as to maintain trespass or trover for unlawfully taking or destroying it, yet he was held, in the phrase of the books, to have no absolute or valuable property' therein which could be subject of a prosecution for larceny at common law, or even, according to some authorities, of an action of detinue or replevin, or a distress for rent, or which would make him responsible for the trespasses of his dog on the land of other persons as he would be for the trespasses of his cattle. Vin. Abr., Trespass, Z, Replevin, A; 2 Bl. Com. 93; 3 id. 7; 4 id. 234, 235; Millen v. Fandrye, Poph. 161; Mason v. Keeling, 1 Ld. Payne, 608; S. C., 12 Mod. 335; Read v. Edwards, 17 C. B. (N. S). 245; Regina v. Robinson, 8 Cox's C. C. 115. And dogs have always been held by the American courts to be entitled to less legal regard and protection than more harmless and useful domestic animals. Putnam v. Payne, 13 Johns. 312; Brown v. Carpenter, 26 Vt. 638; Woolf v. Chalker, 31 Conn. 121." And the court also quote from State v. Marshall, 13 Tex. 58, as follows: "By the common law, though a man may have such a property in these animals as to entitle him to maintain a civil action for an injury done them, yet as they are not classed among valuable domestic animals, as horses and other beasts of burden, nor among animals domitiæ naturæ, which serve for food, as neat cattle, swine, poultry and the like, the property in them is considered of so base a nature, and they are held in so little estimation as property, that the stealing of them does not amount to larceny." Supporting the latter view are State v. Lymus, 26 Ohio St. 400; S. C., 20 Am. Rep. 772, and Ward v. State, 48 Ala. 161; S. C., 17 Am. Rep. 31. Also, State v. Holder, 81 N. C. 527. Now let us turn from dogs to bulls. In Iowa they have a statute prohibiting bulls from running at large, and making their owners responsible for all the injury they may thus do. Crawford v. Williams, 48 Iowa, 247, was an action of damages for seduction by a bull. The plaintiff alleged that he was a breeder of reputed fine thoroughbred stock of the kind known as short-horns, and that an ill-bred, unregistered and unpedigreed bull, belonging to defendant, unlawfully at large in the highway, served and got with calf plaintiff's two year old heifer, called "Royal Butterfly," which is reputed to be registered in American Herd Book, vol. 13, p. 926, to the damage of plaintiff in the sum of five hundred dollars. The plaintiff testified that he was accompanying a procession of her royal highness, and six ladies of her court, along the highway, when they met the defendant's cattle, and to use his own graphic and indignant language, "I supposed they were just cows, till I got among them, and the first thing that I knew there was a bull served one of my heifers." A man cannot be too careful about the associates of the females of his family. One unlearned in the law might suppose that this plaintiff was nonsuited on the ground of contributory negligence on his own part, or on the part of her royal highness; or that the court would have held that as the noble and aristocratic lady of the herd thus chose to suffer the embraces of a goodly male representative of her sex, although low-born and presuming too much on short acquaintance, that was a matter entirely within the volition of her highness. Royal personages are not to be restricted by the usages which pertain to the peasantry. It seems to us a touching instance of love at first sight and queenly condescension. Indeed, the court below ruled that the measure of damages in this case was the physical injuries or damages that might have been done to the cow herself, by reason of the attack made upon her by the bull, and confined to that particular time. But the court on review said: "This damage cannot properly be restricted to the merely physicial injuries which they occasion. The importance to the State of improvement in all kinds of stock can scarcely be overestimated. The intelligent public spirit which employs itself in the improvement of stock ought to be encouraged and protected. It will be found impossible to maintain good breeds of stock if the owners of 'scrub' male animals may permit them to run at large with impunity. Much skill and intelligence are requisite upon the part of stock breeders in selecting the most desirable crosses, so as to transmit the best qualities to the progeny. Each stock breeder has the right to make this selection for himself. If he is deprived of the right of making this selection he ought to be fully compensated for the injury inflicted. The value of thoroughbred stock consists in the probability that the qualities of excellence will be transmitted to the offspring. It is evident that, to a breeder of fine stock, a thoroughbred heifer, with calf to a bull of impure blood, would be of less value than one with calf to a thoroughbred, or not with calf at all. The difference in value of the heifer, for the purpose of breeding fine stock, before meeting defendant's bull and afterward, constitutes the proper measure of plaintiff's damages.” We do not know whether the animal thus stigmatized as a "scrub" is in the habit of reading the Iowa reports, but if he is, we should advise the judge who uttered the above Bourbon sentiments to keep himself out of the defendant's stock-yard. The bull, however, may congratulate himself on not residing in Kentucky, where the statutes are peculiarly harsh towards such animals running at large. REVISION OF THE STATUTES. N the "introduction to the Code of Civil Procedure," the commissioners declare that they "deem it proper to accompany this, the first installment of the New Revision of the Statutes, with a brief history of the various attempts at codification and revision in this State, since the enactment of the Revised Statutes, and of the preparation and enactment of this portion of the new revision, together with some explanations of the manner in which they have discharged the duty devolved upon them by law, of preparing this standard text of the Code of Civil Procedure of the State of New York." Much of this brief history is correct. In some of the most important particulars it seems to be, though doubtless unintentionally, incorrect. In section 17 of article I of the Constitution of 1846, it is provided that "the Legislature, at its first session after the adoption of this Constitution, shall appoint three commissioners, whose duty it shall be to reduce into a written and systematic code the whole body of the law of this State, or so much and such parts thereof as to the said commissioners shall seem practicable and expedient." Section 24 of article VI of the same Constitution is as follows: "The Legislature, at its first session after the adoption of this Constitution, shall provide for the appointment of three commissioners, whose duty it shall be to revise, reform, simplify and abridge the rules and practice, pleadings, forms and proceedings of the courts of record of this State, and to report thereon to the Legislature, subject to their adoption and modification from time to time." Here were two distinct provisions of the Constitution, authorizing the appointment of two distinct commissions, to revise two distinct portions of the law of this State. The duty of the first commission was to revise "the whole body of the law of this State." The duty of the second commission was to revise the laws relating to the practice, pleadings and proceedings of courts of record. No one dreamed that the first commission, though appointed to revise "the whole body of the law," could touch "the rules and practice, pleadings, forms and proceedings of the courts of record of this State." No one dreamed that the second commission could touch any thing else. This distinction has been observed by the Legislatures of the State ever since the revision of 1830, and when a commission was appointed to revise the statutes it was never intended that the practice, pleadings and proceedings of courts should be tampered with. For nearly half a century the Legislature has declined to intrust to the same commission the revision of both practice and general law. In pursuance of the seventeenth section of the first article of the Constitution of 1846, the Legislature appointed three commissioners to perform the duties specified in that article, and to be styled "Commissioners of the Code." Laws of 1847, ch. 59, § 1. Whether these commissioners did any thing, and if so what, does not appear, Their terms of office expired on the 8th day of April, 1849. On the 10th day of April, 1849, the Legislature appointed three other "commissioners of the Code" (Laws of 1849, ch. 312); but the sections of that chapter which related to those commissioners were repealed by chapter 281 of the Laws of 1850. The labors of these commissioners, like those of their predecessors, had no result. The eighth section of chapter 59 of the Laws of 1847 created a very different kind of commission. That section is as follows: "In pursuance of the twentyfourth section of the sixth article of the Constitution, Arphaxed Loomis, Nicholas Hill, Jr., and David Graham are hereby appointed commissioners, to be styled "commissioners on practice and pleadings," to perform the duties therein specified; and it shall be the duty of the said commissioners to provide for the abolition of the present forms of actions and pleadings in cases at common law; for a uniform course of proceeding in all cases, whether of legal or equitable cognizance, and for the abandonment of all Latin and other foreign tongues, so far as the same shall by them be deemed practicable, and of any form and proceeding not necessary to ascertain or preserve the rights of the parties. And any system which said commissioners may present to the Legislature shall be published, as provided in the sixth section of this act." In September of the same year David Dudley Field was appointed to fill the vacancy caused by the resignation of Mr. Hill, and the commission thus organized presented to the Legislature of 1848 the draft of a Code of Procedure. This proposed act was passed by the Legislature April 12, 1818, and as subsequently amended, constitutes what is now known as the "old Code." On the 10th day of April, 1849, the term of the former commission having expired, the Legislature created a new commission, consisting of Arphaxed Loomis, David Graham and David Dudley Field, to further revise the practice, pleadings and proceedings. Laws of 1849, ch. 312, § 1. The Legislature did not intend, nor did the commissioners suppose, that the Code of Procedure was to be interfered with under this act. That Code had just gone into effect; it had received important amendments; it was regarded as a permanent thing. It was not likely that the Legislature would have meditated any vital change in so important an act, which had just received its approval. Indeed, the commissioners were the very ones who had framed the Code of Procedure. Even if they had been allowed, it was not probable that they would have cared to undo their own work-particularly as they were granted only a little over seven months in which to make their report. At all events, it is certain that though they were appointed "further to revise the practice, pleadings and proceedings," they made no attempt to change the Code of Procedure. In the meantime the laws of the State had been going from bad to worse. They were drifting rapidly toward that whirlpool of confusion in which they now are. The first move for relief on the part of the Legislature had failed. A second attempt was made in 1857. By chapter 266 of the Laws of 1857 a wise plan for the revision of the statutes was framed. I quote the first and second sections of that act. "SECTION 1. David Dudley Field, William Curtiss Noyes and Alexander W. Bradford, of the city of New York, are hereby appointed commissioners, whose duty it shall be to reduce into a written and systematic Code, the whole body of the law of this State, or so much and such parts thereof as shall seem to them practicable and expedient, excepting always such portions of the law as have been already reported upon by the commissioners of practice and pleadings, or are embraced within the scope of their reports. SECTION 2. The commissioners shall divide their work into three portions: One containing the Political Code, another the Civil Code, and a third the Penal Code. The Political Code must embrace the laws respecting the government of the State, its civil polity, the functions of its public officers and the political rights and duties of its citizens; the Civil Code must embrace the laws of personal rights, and relations of property and of obligations; the Penal Code must define all the crimes for which persons can be punished, and the punishment for the same. But no portion of either of said Codes shall embrace the courts of justice, the functions or duties of judicial officers, nor any provisions concerning actions or special proceedings, civil or criminal, or the law of evidence." The exceptions and restrictions in this act were un necessary. It was doubtless passed in compliance with the requirement of the 17th section of article I of the Constitution; and it was well known, by experience and by the distinction made by the two sections of the Constitution already referred to, that when commissioners were appointed to codify "the whole body of the law of this State" they had nothing to do with the practice, pleadings and proceedings. This inhibition against meddling with the Code was due to an excess of caution on the part of the Legislature. Not only was the plan for codification wisely framed by the Legislature, but the commissioners, who were to carry it out, were wisely chosen. Their names were a guaranty that the work would be well done, and the fact that they were to "receive no compensation whatever" was a guaranty that they would labor solely for the interests of the public. They were allowed five years to complete the codification; and this time was subsequently extended to the first day of April, 1865. The "Political Code" was reported to the Legislature in 1860; the "Civil Code" and "Penal Code " in 1865. For some reason, best known to the Legislature, these Codes were not enacted. Once more the people resigned themselves to the perplexity of the innumerable statutes of the State a perplexity which grew more profound every year. While this attempt at a revision was in progress the Code of Procedure was growing steadily in favor. It was receiving necessary amendments and the decisions of the courts were clearing up all ambiguous portions. Indeed, it had attained such perfection that in 1869 the 24th section of article VI was dropped from the Constitution. There was no further need for "commissioners on practice and pleadings." The Code of Procedure had realized all the hopes of its framers. Be it remembered that section 17 of article I of the Constitution was retained. The codification of "the whole body of the law of this State" belonged to the future; it had yet to be accomplished. In 1870 the Legislature, considering the appalling condition of the laws, dimly recognizing the intricacy of the labyrinth, made the third effort for relief. "An act to provide for the revision of the statutes of the State of New York" was passed, as chapter 33 of the Laws of 1870. The first section of that act is as follows: In view of all these facts it is a little surprising that the first and only act of these commissioners appointed under chapter 33 of the Laws of 1870; the first and only act of these commissioners for revising the statutes; the first and only act of these gentlemen, whose predecessors were appointed in accordance with the requirement of section 17 of article I of the Constitution, was to report to the Legislature the "Code of Civil Procedure." For twenty-five years the people of the State, starving through lack of intelligible laws, had been crying to the Legislature for bread. Two attempts of the Legislature to supply it had failed. Meanwhile the famine increased; the suffering was frightful. At length, in 1870, the Legislature made a third attempt to answer the cry; they authorized a commission of three gentlemen to furnish bread; and these commissioners, having duly deliberated, presented to the people of the State, a stone. "The governor, by and with the advice and consent of the Senate, is authorized to appoint three persons, learned in the law, as commissioners, to revise, simplify, arrange and consolidate all statutes of the State of New York, general and permanent in their nature, which shall be in force at the time such commissioners shall make their final report, and in the execution of their duties said commissioners shall have free access to any public records or papers of this State, and be permitted to examine the same without fee or reward." Under this act the governor appointed three commissioners. It was evident that the act granted to the commissioners no greater power than had been previously granted to the commissioners appointed to "reduce into a written and systematic code the whole body of the law of this State." In other words, they were to keep clear of "practice, pleadings and proceedings." Indeed, if there had been any doubt on this point, the Legislature removed it. The first amendment to chapter 33 of the Laws of 1870 was passed in 1873; and it is in referring to this amendment, in the "introduction to the Code of Civil Procedure," that the commissioners make their most serious misstate ment. They say: "By section 1 of that act the commissioners to revise the statutes were authorized to in-laws of the State are chaos. I venture to affirm that corporate into and make part of their revision the proposed Political Code, Penal Code, Code of Civil Procedure and Code of Criminal Procedure, reported to the Legislature by the commissioners of the Code' and the 'commissioners on practice and pleadings,' as herein before stated." Now read the section alluded to and judge: "The commissioners appointed to revise the statutes of this State, under and by virtue of chapter 33 of the Laws of 1870, are hereby authorized to incorporate in and make a part of such revision, the Political Code, the Penal Code, the Code of Civil Procedure and the Code of Criminal Procedure, reported to the Legislature by commissioners appointed pursuant to chapter 266 of the Laws of 1857, or so much and such parts of said codes as the said commissioners for the revision of the statutes may deem advisable, with the same force and effect as though the said codes were now a part of the statutes of this State." § 1, ch. 467, Laws of 1873. It will be remembered that the commissioners appointed by chapter 266 of the Laws of 1857 were merely commissioners of the Code" to revise "the whole body of the law of this State;" that they were expressly enjoined from trespassing on "practice, pleadings and proceedings;" that they obeyed the injunction; that they reported merely the Civil, Political and Penal Codes, and that they had nothing to do with the "Code of Civil Procedure" or the "Code of Criminal Procedure," which were reported by a very different commission-a commission "on practice and pleadings" appointed by chapter 312 of the Laws of 1849. The commissioners appointed pursuant to chapter 33 of the Laws of 1870 were therefore simply authorized to avail themselves of the labors of their predecessors in the same work, and were, very properly, not authorized to avail themselves of the labors of any commissioners "on practice and pleadings," that being outside of their province. This indirect but plain designation of the territory assigned to the commissioners was repeated in a second act, relative to chapter 33 of the Laws of 1870. Chapter 520 of the Laws of 1875 authorizes the "commissioners appointed by virtue of chapter 33 of the Laws of 1870," to "incorporate in, and make I fear that this article may read like an attack upon the new Code. It is not so intended. It is not my purpose to enter into any discussion of the merits of stones as articles of food. I am not blaming the commissioners for having "done those things which they ought not to have done," but for having "left undone those things which they ought to have done." The there is no one, in or out of the State, who can tell what the laws of this State are on a dozen different subjects; not what they mean-oue is always excusable for not knowing that- but what they are. In order to do so he must have surrounded himself with nearly fifty volumes of aws-the yearly statutes since the revision-and have gone carefully through each of them, comparing each with all the others and with the Revised Statutes, marking all repeals, actual and constructive; all amendments, actual and constructive; all explanatory and supplemental acts; all acts which in any way bear upon others. If he emerges from the task with a clear knowledge of the laws of the State, he may regard himself as the eighth wonder of the world. Legislatures repeal laws and then amend the repealed laws. They pass half a score of amendments, and then, forgetting the fact, pass half a score more to exactly the same effect; they pass explanatory acts which themselves require volumes of explanation; they pass supplemental acts, which in reality are supplemental to nothing. I have had occasion to go carefully over all the laws passed since 1862, in the manner suggested, and therefore, to a certain extent, know whereof 1 affirm. Nevertheless, if this perplexity concerning the laws of this State belonged to myself alone, I should attribute it to mental density, and keep silent. But I have listened to remarks on the subject from able judges and lawyers, and those remarks may be summed up as follows: "The statutes of this State? It is impossible to maintain an exact knowledge of them. As well try to remember all the combinations of figures and colors in a kaleidoscope. The most that can be hoped is to be able to find out what they are, when the occasion arises." "It is singular," says Mr. Edmonds, in the introduction to his Statutes at Large, that, while during the first thirty years of this century, we had three revisions of our statutes, viz.: in 1801, 1813 and 1830, in the next thirty years we had none; yet in this latter period more general and important alterations have been made in our civil polity than in the former." If the failure to revise was "singular" in 1862, is it not something for angels to weep over in 1880? If a revision was needed then, it is absolutely indispensable now. The difficul |