While the authors of the code, in these subdivisions, seem to have in mind, and to be describing, the various forms of fraud as they exist at law, yet it is very remarkable that in none of the acts mentioned in these subdivisions, is an intent to deceive made essential in order to constitute the fraud. By the language of the introductory clause of the section, any of the acts described in the five subdivisions, done by a party to the contract, with intent to deceive the other party, or to induce him to enter into the contract, constitute actual fraud. In other words, if the act is done in order to induce the other party to enter into the contract, although without any intent to deceive him, it is declared to be fraud. As the doctrine has heretofore been fully settled concerning fraud in connection with the making of contracts, both at law and in equity the act (misrepresentation or concealment) must always be done for the purpose of inducing the other party to enter into the contract; and at law the act must also be done with what the law calls an intent to deceive. In other words, at law, the act must be done both with an intent to deceive, and also for the purpose of inducing the other party to enter into the contract. Is it possible that the authors of the code, by merely inserting the disjunctive conjunction or into their definition, designed to effect such a great change in the well settled legal doctrines concerning fraud? It is plain that the true meaning and effect of this section can only be determined by an elaborate system of judicial interpretation. But this is not all. In a subsequent title on "obligations imposed by law," fraud is again defined under the name of "deceit." The essential elements of deceit and its legal consequences are first stated." In this general statement, wilful deceiving and au intent to mislead are made indispensable. Then follows a statement of the acts which may constitute such deceit, in a section containing four subdivisions, and describing four separate forms of deceit." These subdivisions in some respect, correspond exactly with those of the section defining actual fraud, but differ from them in other respects in a remarkable manner. change in the well settled doctrine of both law and equity concerning fraudulent concealments. Any suppression of a fact, by a party having knowledge of it, if done in order to induce the other party to enter into the contract, even if there is no intent to deceive that party, is declared to be a fraud; the requisite that there should be a duty resting upon the party to disclose, is entirely omitted from this section. I have already mentioned the settled doctrine of law and equity that a concealment is fraud, only when a duty rests upon the party to disclose. This doctrine the section in subdivision third seems to abrogate; for taken literally, it declares every concealment, even when there is no intent to deceive, to be a fraud.

I may refer to 2 Pomeroy on Eq., §§879, 880, 883, 884.

Civil code, $1,709.

10 Civil code, $1,710. Subdivisions one and four of this section are identical, word for word, with the same subdivisions of $1,572. Subdivision two, although expressed in somewhat different language, is the same in meaning with the second subdivision of $1,572. Indecd, it states the same doctrine, as settled by the decisions, in a clearer and more simple manner. Subdivision three differs widely from the third subdivision of $1,572. It states the doctrine as to fraudulent concealment, as settled by courts of law and equity; the necessary requisite of a duty to disclose, is retained. It would be simply impossible to reconcile thes two subdivisions if both were interpreted literally.

Finally, in the chapter on contracts, "constructive fraud" is defined in a section containing two subdivisions." It cannot possibly refer to those instances which are described by text writers upon equity under the name of "constructive fraud." As it seems to me, the authors of the code intend, by the very general and vague language of this section, to include those instances which would be regarded as fraud in equity although not so at law. Without a full and accurate knowledge of the settled doctrines concerning equitable fraud, this language would convey very little definite meaning to lawyers or judges.

12

Another illustration of ambiguity and uncertainty is found in the title on negotiable instruments. It is a familiar common law rule that a promissory note payable on demand, either with or without interest, becomes payable at once, so that a suit may be brought upon it on the day after its date without any actual demand. It was further settled with regard to such notes that they become mature on the next day after their date, with all the consequences of such maturity. Demand of payment must be made on that day or endorsers would be discharged; a transfer after that day would be a transfer after maturity; and finally, the statute of limitations began from that day."3 Similar rules were established with respect to bills payable on sight." The civil code contains the following provisions concerning such demand notes: "Apparent maturity of a promissory note payable at sight or on demand, is 1. If it bears interest, one year after its date; or 2. If it does not bear interest, six months after its date." 15 This section is a most striking illustration of the am11 Ib., §1,573.

12 Haxtun v. Bishop, 3 Wend. 13.

13

13 It is true that some cases had drawn a distinction between notes on demand without interet, and those with interest, and had held the latter to be continuing securities, not maturing at once; but most of these cases had been overruled; and the law as stated in the text was settled by the great weight of authority. See Merritt v. Tod, 23 N. Y., 28; Payne v. Gardener, 29 Id. 146; Herrick v. Woolverton, 41 Id. 581; Hirst v. Brooks, 50 Barb 334. See Mintman_v. D'Equino, 2 H. Bl. 565; Mellish v. Rawdon, 9 Bing. 416; Brady v. Little Miami R. R., 34 Barb. 249; Benton v. Martin, 40 N. Y. 345.

66

15 Civil code, §3,135. One single effect of this provision is stated in a subsequent section, namely: "$3,248-If a promissory note payable on demand or at sight, without interest, is not duly presented for payment within six months from its date, the endorsers thereof are exonerated, unless such presentment is excused." It is certainly very strange that no rule is given as to the effect upon the endorsers of a failure to present a demand note with interest for payment within a year from its date. The full meaning and legal effect of $3,135 can only be determined by a course of judicial interpretation. What is meant by the apparent maturity" of such a note? Does it result from this section that no suit can be maintained on a demand note without interest until the six months from its date have elapsed, or on a demand note with interest until a year from its date has elapsed? The general rule is that no suit can be maintained upon a promissory note before it has matured. The same term "apparent maturity" is applied to all negotiable instruments, in stating the time when they become due, $3,132. Again, does this section prevent the statute of limitations from beginning to run on a demand note without interest, until the six months from its date have elapsed, and on a demand note with interest until the year from its date has elapsed? Finally, is a transfer of such notes, before the six months have expired, or the year has expired, as the case may be, a transfer before maturity, so that the transferee may be a bona fide holder; and is a transfer after these times a transfer after maturity? All these questions might easily have been settled, and should have been settled by plain and unequivocal rules of the code itself. One very curious result may possibly follow from the judicial interpretation of this section. If it should be held that the common law rule allowing a suit on a demand note with or with out interest, to be brought at any time after the day of its date, had not been changed; and

biguity and uncertainty which must arise from such general language, when it would have been so easy to have provided for the effects of such language by a few definite rules added to the text. The same ambiguity and uncertainty arise from the corresponding provisions concerning bills payable at sight, and the same observations might be made upon them.16

It is wholly unnecessary to extend these articles by multiplying such examples, especially as it is not at all my main purpose to criticise the civil code as a work of legislation. It is apparent, from the illustrations already given, that there are several important sources of ambiguity, uncertainty, and possible error in the order, method, employment of legal phraseology, use of language, and concise manner of stating doctrines and rules, adopted by the authors of the code. The highest interests of the state require that these defects should be removed, and that the code should, as far as possible, be rendered clear, certain, and comprehensible, not only to judges and lawyers, but to all intelligent laymen. This result might be reached by a complete revision and reconstruction of the code itself through the labors of an able commission appointed for that purpose under the authority of the legislature. Such a reform is, at present, wholly impracticable. There is no reason to expect any interference by the legislature; and if it should interfere, there is no reason to anticipate any real improvement as the result. To reconstruct and perfect the civil code according to the highest type of codification, would require the uninterrupted labors, extending through a considerable period of time, of a commission composed of the very ablest lawyers in the state. The expense of such a commission the legislature would not incur, although it would be far less in amount than the necessary cost of judicially interpreting the present code through a long succession of decisions. The only practicable method, therefore, of removing ambiguity from the text of the code, of ascertaining the meaning of its provisions and determining their effect with certainty, is by the process of judicial interpretation.

We thus reach the final question, what principles should guide the courts, and especially the court of last resort, in this work of interpretation? It is possible, of course, that the courts should adopt and follow no general principle whatever. If in one case depending upon a rule of law formulated in the code, the court should rest its decision wholly upon the pre-existing common-law rule, without making any reference if it should be further held that the statute of limitations does not begin to run on such notes until six months or a year from their date have elapsed, as the case may be; then we shall have the following strange result: A note payable on demand with interest is not barred until fire years have run from its date, while a note payable one day after date is barred in four years and a day, a note payable in one month after date is barred in four years and a month. The possibility for such a strange inconsistency could easily have been obviated.

16 Civil code, §§3,134, 3,189, 3,213.

whatever to the text of the code, and should thus virtually treat that provision as being simply declaratory of the common-law rule with all of its consequences and effects; if, in another similar case, the court should rest its decision wholly and exclusively upon the very text of the code, interpreting the provision strictly according to its very letter, making no reference to the pre-existing common-law rule on the subject, and should thus virtually treat the common-law rule as though it never had existed, and the provision of the code as being the first and only source of the rule; and if in still another similar case, the court should rest its decision both upon the text of the code and upon the pre-existing common-law rule, treating the common-law rule as the foundation, construing the code provision by its light, and enquiring how far, by a reasonable interpretation of its language it had altered, added to, or simply declared the common-law rule; then the court would plainly be guided by no principle of any kind; its work of interpretation would be conducted, if I may be permitted to use the expression, in a hap-hazard manner. In this manner, particular and isolated sections or clauses of the code might be interpreted; but there would be no interpretation of the civil code.

(TO BE CONTINUED.)

J. N. P.

CIRCUIT COURT, DISTRICT OF OREGON.

GOLDSMITH V. SMITH ET AL.

September 8, 1884.

EJECTMENT.-The action of ejectment as defined and regulated by the Oregon code of civil procedure (chap. IV., tit. 1), is a possessory action, and although the estate or interest of the parties in the premises may be ascertained by the verdict therein, yet the plaintiff can only have judgment for the possession wrongfully withheld from him with damages for such detention and costs; and the defendant can only have judgment for costs.

IDEM-BETWEEN TENANTS IN COMMON --A co-tenant cannot maintain this action against his co-tenant unless the possession is actually and wrongfully withheld from him or his right thereto wholly denied.

CO-TENANTS ADVERSE CLAIM BY ONE AGAINST THE OTHER.-Where a co-tenant is in possession and another co-tenant claims an estate or interest in the premises hed in common, adverse to him, his remedy is by a suit in equity for the purpose of determining such adverse claim as provided in sec. 500 of the Oregon code of civil procedure.

BEFORE FIELD, CIRCUIT JUSTICE, AND DEADY, DISTRICT JUDGE.
Motion for judgment on the pleadings.

This action is brought by the plaintiff, a citizen of New York, to recover the possession of the undivided three-eighths of the east half of the donation of Danford Balch, the same being claim fifty-eight • and parts of sections twenty-eight, twenty-nine, thirty-two and thirty-three, in township one north of range one east the Wallamet meridian, and situate in the county of Multnomah, and state of Oregon.

The plaintiff alleges that he is the owner in fee of an undivided five-eighths of the premises, and as such entitled to the possession thereof; and that from October 4, 1870, to December 31, 1883, "the plaintiff, his predecessors and grantors were seized of the said premises so owned by him and in the actual and adverse possession thereof."

The action is brought against John Balch and Alexander Hamilton, citizens of Oregon, and the persons in the actual possession of the property at the time. The complaint alleges that they or those under whom they claim are the owners of one undivided eighth of the premises; and that on December 31, 1883, the said defendants, denying the right and title of the plaintiff to three of the said fiveeighths, entered into and took possession of the same and ousted plaintiff from the said three-eighths, and are now in the actual possession of the same; denying the right and title of the plaintiff thereto : and unlawfully and wrongfully withhold the possession of the said undivided three-eighths of said land from the plaintiff "-wherefore they pray "judgment against the defendants for the possession of said three of said undivided five-eighths."

The defendants Balch and Hamilton answered, alleging that they were in possession of the premises in common with the plaintiff, as tenants of the above named Smith, Gilliland, Hamilton, Dickinson and Walker, and on the same day said parties applied to the court to be made defendants in the action in place of said tenants, as provided in section 314 of the code of civil procedure, which apulication was allowed.