The Albany
Albany Law Journal.

ALBANY, MARCH 8, 1884.

CURRENT TOPICS.

THE Tribune publishes a corrected summary of the

Tresults of its postal-card inquiry of the lawyers upon codification: "The three questions to be answered were as follows: 1. Are you in favor of the codification of the common law in this State? 2. Are you in favor of the Field Civil Code? 3. Why? The answers are classified as follows: First Those that answered 'Yes' to the first question and 'Yes' to the second, and who did not answer the third. Second - Those that answered 'No' to the first two questions, but who did not answer the third. Third-Those that answered 'Yes' to the first and 'No' to the second, with or without answer to the third question. Fourth Those that answered 'Yes' to the first, gave no answer to the second, with or without answer to the third.

Fifth-Those that answered the first two questions in the affirmative and gave their reasons. Sixth-Those that answered the first two questions in the negative and gave their reasons. Following are the numbers in each class: Class number 1, 53; class number 2, 138; class number 3, 75; class number 4, 201; class number 5, 311; class number 6, 431; total, 1,209. Recapitulation: Total number in favor of codification, 640; total number in favor of Field Code, 364; total number opposed to codification, 569; total number opposed to Field Code, 644; majority declaring in favor of codification, 71; majority declaring themselves opposed to Field Code, 280; majority of those opposed to Field Code over those in favor of codification, 4; number not expressing opinion on Field Code, 201."

As we have said before, the significance of this result depends upon two unknown factors, namely, first, how many of those expressing an opinion on the Field Code have read it, and second, who they are and where they live; i. e., how many of them are outside the New York City Bar Association. Not that we by any means believe that a majority of that association are opposed to codification or the Field Code; on the contrary we believe that on a full vote a majority would be the other way; but no doubt a majority of those most active in its management and most constant in attendance are opposed to codification. We wish the Tribune would institute a postal-card inquiry among the clients of those 1,200 lawyers. We think they would prefer written laws, and certainly their opinion should have greater weight than that of their attorneys.

rights," containing 867 sections and covering 267 pages. The subjects covered are real property, personal property, express contracts, wills, etc., receivers and trustees, time, weights, measures, money and interest, commercial and industrial relations, domestic relations, definitions, etc. The bill has been recommitted, and wisely, we think. We have had time and now have space to refer only to a few of its provisions which we think unwise. And first we refer to § 379 to amend the statute of frauds. It reads as follows: "The last two sections apply, although the goods and chattels are intended to be delivered at a future time, or are not, at the time of the contract, actually made, procured or provided, or fit or ready for delivery; or some act is requisite for the making or completing thereof, or rendering the same fit for delivery." This is designed to embrace a contract of manufacture as well as a contract of sale. Doubtless it is often very difficult to distinguish between the two classes; witness the case in our Court of Appeals of sale of a mortuary monument, to be lettered and somewhat modified and added to. But this inconvenience can better be borne than the enormous inconvenience which would be entailed by the proposed rule. It would be insupportable, for example, if a man could not bind himself to pay for a suit of clothes worth $60 without signing a written contract. No law can be conceived that would increase litigation more than this, for it would be a practical dead letter in trade, and a standing invitation to tradesmen and customers to avoid their contracts.

Again § 64 proposes to do away with tenancy by entirety, and to make the provision retroactive. Four judges of the Court of Appeals were of opinion, in Meeker v. Wright, 76 N. Y. 262, that the tenancy was abolished by implication by the married woman's acts, but the contrary was authoritatively held in Bertles v. Nunan, 92 N. Y. 152. It might be well enough—indeed, we think more consistent with the theory of the married woman's act to abolish this tenancy prospectively, but why should it be made retroactive? An immense amount of property is now held in this State under this tenure, and there would be little justice and no good purpose in unsettling it. There is a vast difference between a law declaring that the property which a wife'owned at the time of marriage shall be her separate property after marriage, and a law declaring that property deeded so that the husband shall have the title by survivorAs ship shall not be his but shall be in common. the Daily Register well says, this is equivalent to declaring that "the property of A. shall be henceforth deemed to be the property of B." Besides, is not tenancy by entirety a vested right by contract, which the Legislature cannot constitutionally take away? This question did not arise in Meeker v. Wright or Bertles v. Nunan, as the conveyances there were subsequent to the married woman's acts. We are not positive about this, and perhaps Senator Gilbert has considered it.

Opposed to codification, or at least to Mr. Field's Code, as Senator Gilbert is known to be, he still believes in "definitions," and his bill contains a number of them. Even "vessel " is here defined,"every structure, complete or incomplete, intended | to float upon the waters." We hardly know whether this will satisfy Prof. Dwight. It does not greatly differ from Mr. Field's "a structure fitted for navigation." We call Prof. Dwight's attention to it, and hope he will see that it does not infringe upon the "nautilus." He may think that it includes "the tiniest boat or a child's toy." does it not include a buoy? We greatly fear that it does- if not a life preserver.

And

But the bill recognizes the office and usefulness of codification by reducing to a statutory form many clear decisions of the courts and many others that are conflicting.

Our radical

objection to the whole bill, if it is designed as a substitute for a code, is that it is too detailed. What can be said in favor of a code containing such enactments as the following?“The half-bushel is the unit of measure of capacity, for substances other than liquids;" (we are glad to know that whisky is not to be sold by the bushel)"but for convenience, the measure of such substances, when it exceeds two half-bushels, may be expressed in bushels, each consisting of two halfbushels." "A commodity, sold by heap-measure, must be heaped up as high as its nature permits, in the form of a cone, whose base is limited by the outside of the top of the measure used." (It would be pretty difficult for the base to get outside of it, we should think, although it might not extend to it.) A clergyman shall be entitled to one dollar for "solemnizing" a marriage, but he may accept "any sum"

- less as well as more, we suppose. A crane, andirons, coal scuttle, shovel, tongs, lamp, and candlestick shall be exempt from execution. These are but samples. All this sort of thing is proper for statutes, but is no proper part of the organic law.

* * *

lawyers why do they not dispense with their services? There is no law compelling any one to employ counsel; there is a book entitled 'Every man his own lawyer.' Lawyers never intrude their services, but they are sought after, and will be as long as civil liberty has a place on earth. Mr. Croly used to be the editor of the World, and did lawyers write for his paper simply because they were lawyers; or was it because they had something to say and knew how to say it? Sir William Blackstone, a great many years ago, suggested that it would be desirable for every gentleman to study the laws of his country, so that he might take an intelligent part in the making and executing the laws thereof; but we believe that so far very few have seen fit to take advantage of his suggestion; about ten thousand in this country of fifty-six millions of souls, we believe, Mr. Croly estimates them to be. We don't believe the law is a blundering profession, and we would watch a lawyer very closely, who said that he did. Lawyers as a general rule have the utmost confidence in each other's integrity, and so far as we have been able to judge, their clients trust them implicitly; this confidence may sometimes be abused, but we, after a practice of ten years, cannot recall a single well-authenticated charge to have been made against a lawyer. Isn't it because of their well-grounded knowledge of the laws, and their well-known integrity that they exert such an influence over the nation? The relief that the ALBANY LAW JOURNAL would offer to this lawyer-ridden people, is, a written system of laws; and whom would it have write them? David Dudley Field -a lawyer." We commend this voice from North Carolina to the lawyer-phobist of the Troy Daily Times.

IN

NOTES OF CASES.

'N Briesen v. Long Island R. Co., 81 Hun, 112, it was held that where a railroad company has acquired title to the interior of a block in a city, and uses the same as a depot for passengers and freight and a yard for the accommodation of incoming and outgoing trains, and such drilling operations as are absolutely necessary to the proper transaction of its business, using due skill and care and all the appliances and machinery required by law, it is not liable to the owner of abutting property for the injury and damages which may be caused thereto by such use. The court said: "It may be stated, as a general rule of law in this State, that what is done by the sanction of the State under legislative authority is completely justified when done without negligence or fault. Radcliff's Executors v. Mayor, 4 Coms. 195. It was decided in that case where persons are authorized by the Legislature to do certain things they are not responsible for consequential damages where they act with prudence and care. In no proper or strict sense can this railroad be termed a nuisance, when managed without negligence or willful misconduct. Its construction was authorized by sovereign power for purposes of public utility

and its operation is lawful because it is in pursuance of a statutory license. So long as it is kept within the scope of the powers granted to it, it is protected from all legal proceedings. This remark however is subject to the qualification that the resulting injury arises as a natural result of the exercise of the statutory authority. In the case of Bellemont and Ohio Company v. Fifth Baptist Church, 27 Alb. Law Jour. 488, the Supreme Court of the United States laid down a different rule of law; but as we understand the law to be settled in the courts of this State as we have stated it here, we feel bound to follow our own rule until our highest appellate courts shall declare a different rule."

In Mullen v. Platt, 31 Hun, 121, it was held that a married woman is personally liable for the value of services rendered by a music teacher, at her request, to her daughters, and for the value of sheet music furnished by him to them while giving them instructions in music. The court said: "Married

women have been held liable on contracts similar to this. In Tiemeyer v. Turnquist, 85 N. Y. 516; S. C., 39 Am. Rep. 674, the Court of Appeals held a married woman liable for groceries bought on her credit to be consumed by her family, including her husband. In the case of Conlin v. Cantrell, 64 N. Y. 217, the same court held a married woman liable on a contract for services of a seamstress to do work

for herself and her children." But it was held in White v. Story, 43 Barb. 124, that a married woman is not liable to pay for a wedding supper of her daughter, although she ordered it, and afterward promised to pay for it. Flynn v. Messenger, 28 Minn. 208; S. C., 41 Am. Rep. 279, seems opposed to the principal case. If the station of the parties was such as to render the services and goods necessaries, the wife certainly was not liable for them on her bare request.

In Seybolt v. New York, etc., R. Co., 31 Hun, 100, it was held that a United States postal clerk travelling in a postal car, free under the mail contract, is to be regarded as a passenger, and the railroad company is liable for his death by its negligence, although the pass issued by the company contained a condition waiving such right. The court said: "The deceased was a postal clerk, and the defendant was a carrier of the mails for the government by contract. It was a part of this contract that the postal clerks should be carried free. In such cases the clerks are passengers and entitled to protection as such. Blair v. Erie Railway, 66 N. Y. 313. The clerk was not travelling upon a free pass. The government officers made requisition for passes under the contract, and the defendant sent one with a condition upon the back of the pass making the recipient agree to waive his right to sue for injuries occasioned by the negligence of the railroad company. This was not a part of the contract between the government and the defendant, nor of the contract between the government and the deceased.

him

There was no basis for such a restriction upon the carrying of the clerk.” Dyckman, J., dissented, observing: "The deceased man received and accepted this pass containing this language, and was in possession of it at the time of his death. Such acceptance constituted a contract between and the company, by which he waived liabil ity by reason of negligence. Our conclusion therefore is, that the plaintiff cannot avail herself of the contract between the government and the defendant, because it was not made with or for the deceased; and that although the defendant owed the deceased the duty of care because it had undertaken to carry him, and he was rightfully on the train, the performance of that duty was waived by the acceptance and use of the pass containing the stipulation for exemption." See Penn. R. Co. v. Price, 96 Penn. St. 256; S. C., Alb. Law Jour. 69.

In People v. Woodward, 31 Hun, 57, it was held that taking a horse from another's stable, killing it, and burying it in a pit does not necessarily constitute larceny. The court said: "Upon the evidence it is certainly a grave question whether the act charged and proved was larceny or malicious mischief. To constitute larceny there must have been a felonious intent, animo furandi or lucri causa. The malicious killing of a horse is a misdemeanor. (Penal Code, § 654; 2 Rev. Stat., *695, and chap. 682, Laws of 1866.) The offenses are quite distinct. In either case there is a trespass. In larceny the taking must be for the purpose of converting to the use of the taker. In malicious mischief no such tends to show a taking of the horse to kill him, with intent is necessary. In the present case the evidence

a sole desire to injure the owner. It was incumbent on the court then to point out to the jury the legal elements of the crime of larceny, so as to distinguish it from malicious mischief." Learned, J., dissented, in a learned opinion, holding that lucri causa is not an essential of larceny. He says there is no decision on the point in this State, and "it may then, I think, be said to be established by the great weight of American authorities, with no real exception, that to constitute larceny it is not necessary that the intent of the taker should be to appropriate the property to his use; that where the other elements exist, it is enough if the intent be to deprive the owner permanently of his property. If in the absence of decisions in our own State we are not to be guided by these text-books and by these decisions of other States, and of England, and are to consider the question on principle, then I think the same conclusion should follow. That there must be a taking is undoubted; that it must be wrongful and without excuse or color of right. But when these circumstances exist, what does it matter whether the motive of the person taking is to benefit himself or to injure the owner? Suppose the property is a thing highly valued by the owner; a thing which the person taking it cannot use and does not intend to use; and suppose that out of malice he takes it

from the owner and keeps it permanently, in order to deprive the owner of it, what is this act? Not malicious mischief, because the property is not injured; certainly not a mere trespass, because it has the elements of malicious wrong doing. Is such a wrong-doer to escape because he can say: 'I did not take the property lucri causa'? Yet on the doctrine against which I am contending, such a wrong-doer would escape altogether. He would be guilty of no malicious mischief, and if not guilty of larceny, would be only a trespasser; a conclusion which seems to me plainly incorrect."

A

CODIFICATION.

WEEK ago last Tuesday there was a hearing upon the Civil Code before the judiciary committees of the two houses of our Legislature, at which Messrs. Field, Swayne, Milburn and Arnoux were heard in favor of, and Mr. Hale against the Code. Last Tuesday the committees sat again, and heard Judge Spencer of New York city in favor of the Code, presenting a memorial asking its adoption signed by Messrs. Beach, Pierpont, Dillon, Fithian, Sullivan, Dyett and Leslie W. Russell, and Messrs. Carter, Van Cott, Hornblower and Adams in opposition, and Mr. Frankenheimer in reply. The time granted by the committee was so short that no one else could be heard in reply to the objectors, the laboring oar among whom was taken by Mr. | Carter, who reiterated some of his pamphlet, the magna charta of the opposition. Inasmuch as this is the most important measure that can possibly be presented for legislative consideration it would seem that another hearing might reasonably be accorded. Five hours is hardly enough for this purpose.

We are aware that we do not speak as one having authority on this subject but only as one of the scribes, and yet we may reasonably urge our disinterestedness, as one no longer in the practice of the law; our experience as one who while not young enough to be totally uninstructed or very rash, is yet not old enough to be timid of change and averse to studying new laws; and our studiousness as one obliged to read all decisions in the English language and to report many of them; and consequently presumably cognizant of the contradictions, uncertainties, changes and hardships of the common law, the latest definition of which is that of the eminent jurist, Mr. Pollock, "chaos tempered by Fisher's Digest." Our position on this topic is that of a witness, not of an advocate; we speak by force of a subpœna, not of a retainer. We have spoken of our disinterestedness; we must retract that; we are not disinterested; we have a strong pecuniary interest in keeping the law as it is, because we thrive by editing and reporting judicial decisions, and the more there are and the more contradictory and changing, the more we thrive.

But we recognize one fact which our Legislatures, or we should rather say, our governors, have ignored,

and that is that the people of this State nearly forty years ago pronounced their fiat that our common law should be codified. Men may quibble about this, but they cannot blink the fact. If the Constitution means any thing it means that the people declared that they will have written laws - we do not say, the Field code necessarily and unconditionally, or any code immediately, but some code within a reasonable time; and inasmuch as the Field code has been before the public for nineteen years, and is the work of the duly constituted commission, and has been the subject of study, criticism, and amendments all these years, and has never been successfully impugned, and has been thoroughly tested and approved in California, we into effect at some future day to be specified. We believe that it is a legislative duty to adopt it to go believe this is a constitutional duty.

But if it were not, we believe that public policy demands general codification. We do not propose to go over this familiar ground in detail, but we would lay emphasis on one or two arguments that are not so familiar. Written laws are preferable to unwritten laws, first, because they are of superior authority. No lawyer questions the authority of a statute in court. The only way we can get rid of it is by legislative repeal or modification. No matter by how small a majority it was passed. But every decision, especially every decision pronounced by a divided court — and it is perfectly astonishing how many there are, and how many pronounced by a bare majority of judges - the early volumes of our Court of Appeals' Reports are stuffed with such — can always be assailed in court by a lawyer with some prospect of success, or at all events furnishes a ground of advice to his client to take his chances of reversing the uneasily settled doctrine. Besides, conflicting statutes are very rare; conflicting decisions can be found on any topic in every volume in any year and frequently in the same court. Second, as we have intimated above, legislative enactment is much more difficult to procure than judicial distinguishing, doubting, denying and final overruling. To the public and professional mind, then, written laws have the superior sanction, and they are settled on a much more stable basis than judicial legislation.

Now who are the contesting parties? On the one hand five millions of laymen, on the other five thousand lawyers. Five millions of people on the one hand, demanding a statute-book which they can read for themselves, on the other hand, five thousand lawyers-one-half of the entire number denying the privilege because it may hurt their interests or give them inconvenience. Is anybody but lawyers opposing codification? Not a soul, even in the newspapers, for if you will scratch an editor opposed to codification, you will find a lawyer, just as Napoleon said, if you scratch a Russian you will find a Tartar. Every man who writes to a newspaper on this subject signs himself "Lex."

Now we can see some things a great deal more

clearly than we could when we were at the bar. And one of these things is that the empire of the legal profession is passing away from them, and passing away just in proportion to the increase of their number. Sixty-five thousand lawyers now have not half the influence that a third of that number had

forty years ago. Our places in halls of legislation have been taken by farmers, merchants, manufacturers, bankers, editors. The people have grown distrustful of us. Why? Because we are less honest or learned than formerly? No, but because the idea prevails that we are opposed to legal reform. The people have not forgotten the long and factious opposition of lawyers and judges to the code of 1848. Look at the two last constitutional conventions. In the convention of 1846, there was a majority of lawyers, legal reform was proposed, and that Constitution was adopted. In the convention of 1868 there was a majority of lawyers, we believe, no legal reforms, or none of great moment were proposed, and their work was rejected, all but the part looking to legal reform. Now it will be a sorry day for our profession if this idea gets firmly rooted, that as a profession we are averse to simplifying the laws and cheapening justice. The people are determined on these two things, and they will have them in spite of five thousand old, respectable, rich and influential lawyers, holding up their hands in alarm at the prospect of having their occupation made easier and possibly less lucrative.

It has been said to us by legislators that their lawyer-constituents are opposed to codification. We say to them, what about your other constituents much more numerous and influential? What have they said to you in the Constitution? Other legislators have said to us that it is a great responsibility to "change the laws." We say to them, we are not proposing to change the laws, but only to find out and fix them so they cannot be arbitrarily and capriciously changed by a power not entrusted with the duty of making laws. But if it were otherwise, wili 'they "take the responsibility of disobeying the plainly expressed will of the sovereign people?

But Messrs. Carter, and Dwight, and Van Cott and Hornblower, and a few others, emissaries of the New York City Bar Association all honorable men, but just here short-sighted, prejudiced, and not disinterested - have pointed out a few faults in the proposed code. Well, it is a good thing to have the law in one volume so the citizen can find it and find fault with it. That is the way to set laws right. But any body of written law, whether in reports or statutes, is susceptible of criticism. Even Mr. Carter could not frame a code that his friend, Professor Dwight, could not pick all to pieces, and the learned Professor could not frame one that the great expounder of "how not to do it" could not demolish to his own satisfaction and that of the New York City Bar Association in short order. We have studied this code for several years, disinterestedly and not as a partisan, and we agree with one

of the most eminent judges of this State and one of the best judicial writers of this country, in his opinion recently expressed to us, that it is "marvel ous for comprehensiveness and precision," and the testimonials, not only from lawyers but from business men, which Mr. Field has produced, bear witness to its simplicity and probable usefulness.

Talking as a lawyer to other lawyers, accustomed to give and take blows, we have not been and we do not propose to be mealy-mouthed about this matter. It is not our office to lecture the Legislature on their duty. We simply desire to record our conviction, as a student and observer, that if the legal profession, in the Legislature or out, continue to stand in the way of the expressed determination of the people to have written laws and cheaper and speedier justice, the people will say, and justly, "the lawyer must go." Laws are not made for the pleasure or convenience of lawyers, but for the protection of the people, and the people who have borne with these obstinate lawyers for nineteen years will soon assert their rights in a way that cannot be ignored or trifled with. The people are long-suffering but not utterly supine. They will on occasion assert themselves, as it does not require a very long memory of public events in this State to recall. Depend upon it, brethren and legislators, they are not going to allow their rights and their commands to be barred by the statute of limitations.

AT

T the legislative hearing upon the Civil Code, Mr. Frankenheimer, of New York, pointed out the practical utility of this Code in settling disputed questions, in substance as follows:

"Section 109 of the Civil Code provides that neither husband nor wife, as such is answerable for the acts of the other. The law as to the liability of the husband for the independent tort of the wife is now unsettled in this State. Judges Sedgwick and Van Brunt, at Special Term in New York, have held that the husband is still liable; but Judge Rumsey, in Fitzgerald v. Quause, 62 How. Pr. 331, held the contrary.

"Sections 1910, 1972 and 1973 of the Civil Code settle the much-disputed question whether the mere sharing in the profits of a business constitutes one a partner. They provide that no one is liable as a partner unless he is a partner by express contract, or has permitted himself to be represented as a partner. Since Leggett v. Hyde, 58 N. Y. 272, has been distinguished in Richardson v. Hughitt, 76 id. 55, and in Curry v. Fowler, 87 id. 33, the law of this State on this subject is still unsettled.

"Sections 2459 and 2466 of the Code provide that a surety is discharged by the creditor's delay to pursue the principal debtor, only when he has requested the creditor to take proceedings, and then only to the extent to which he is prejudiced by the delay. The Code so provided in 1865. But the question has been mooted in the Court of Appeals in 82 N. Y. 121, id. 486, 84 id. 222, and 90 id.