the railway company mainly because the company had not kept its track and contiguous land free from weeds, grass and other material likely to be ignited by coals dropped or thrown from its engines. But if the plaintiff below was equally guilty in failing to use reasonable means to avoid the destruction of his property, his failure to do so would also be negligence; and if he were thus guilty of like negligence with the railway company, he could not recover. Railway Co. v. Brady, 17 Kans. 380. * * * We do not in any way intend to intimate that the mulching and wrapping below of his apple trees, or his failure to remove from the orchard the old grass and corn stalks, was per se and as a matter of evidence tending to prove these facts, a question of contributory negligence was thereby presented, and this question of fact was for the jury to decide.” See note, 32 Am. Rep. 98. EXTENSION OF TAX-COLLECTORS TIME EFFECT OF SURETIES. IN 'N State v. Swinney, 60 Miss. 39, it was held that a surety on a tax-collector's bond is not released by subsequent extension of the collector's time by the Legislature. The court, Campbell, C. J., said: "We decline to follow the courts of Illinois, Tennessee and Missouri, in their views that sureties on the bond of a tax-collector are discharged by an act of the Legislature passed after the execution of the bond, without their consent, giving further time for the collection of taxes and settlement by the officer, and we embrace and declare the more just and politic doctrine of the courts of Virginia, Maryland and North Carolina, and hold that the official bond of the tax-collector is given with a full knowledge of the right of the Legislature to alter the dates fixed by law for the collection of taxes and the settlement of the collector, and subject to the exercise of that right at the pleasure of the Legislature, without the assent of the sureties. Commonwealth v. Holmes, 25 Gratt. 771; Smith v. Commonwealth, id. 780; State v. Carleton, 1 Gill, 249; Prairie v. Worth, 78 N. C. 169." To the same effect is Commonwealth v. Holmes, 25 Gratt. 771. The court said: "In cases of suretyship, in private and individual obligations for the payment of money, there can rarely arise any serious difficulty as to the nature and extent of the surety's liability. But when as here his obligation is that a public officer shall discharge his duties according to law, the delicate and important question at once arises, what is that law according to which the officer is to discharge his duties? The appellee's counsel insist, and cite authority to show, that it is the law existing at the date of the contract, and that alone. No Virginia authority has been cited to that point; and a just interpretation of the words, and a due regard to the nature and object of the bond and the office would perhaps justify us in holding that the condition of the bond was to secure the due discharge by the officer of all such reasonable duties germain to the office as might be imposed by law during his continuance therein; that the Legislature could not have intended by taking bond to secure the public interest, to deprive itself of the power of otherwise contributing to the same end in a proper way without first obtaining the consent of the surety. It would perhaps not be unreasonable to hold, under such a bond as this, that the Legislature had not intended to do, and had not done an act so inconvenient and indeed so prejudicial to the public interest. "But without deciding that proposition, and conceding, as a general rule, that the law at the date of the contract is the law, and the only law which enters into and forms part of the sureties' contract, the question again arises, what part of that law is it which enters into and forms part of the sureties' contract? "For the purposes of this case that question may be more conveniently answered by showing what kind of laws do not enter into the sureties' contract. "Laws, then, merely directory to the officers of government, requiring that settlements shall be made at short and stated periods are provisions of law created by the government for its own security and protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract of the surety.' Mr. Justice Story delivering the opinion of the Supreme Court in United States v. Kirkpatrick, 9 Wheat. 720, 736–7. "In the United States v. Vanzandt, 11 Wheat. 184, Mr. Justice Washington, delivering the opinion of the court, confirms the authority of the U. S. v. Kirkpatrick; and speaking of analogous provisions made in that case for the safety of the public, he says, p.190, The provisions in both laws are merely directory to the officers, and intended for the security and protection of government, by insuring punctuality and responsibility; but they form no part of the contract with the surety.' "The same principle is reaffirmed in United States v. Nicholl, 12 Wheat. 509, and United States v. Boyd, 15 Pet. 187, 208. In the last mentioned case Mr. Justice Catron says for the court: The regulations requiring settlements to be made by its officers at short periods, are designed for the protection of the government, and merely directory to the offices, and form no part of the contract. Such is the settled doctrine of this court as holden in United States v. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt, 11 id. 184; United States v. Nicholl, 12 id. 509.' "The force of these principles has been attempted to be averted by the counsel for the appellee, by showing that the question directly decided in each of the cases involved laches merely; and not a change or violation of the sureties' contract. That is true; but it is equally true, that in order to reach that question it became necessary for the court to inquire and decide what the contract of the surety really was; and it was held unanimously in all the cases, that these directory regulations for prompt settlements were regulations for the protection and security of the government, and formed no part of the contract of the surety. Forming no part of that contract, it follows as a necessary consequence, that like any other act of a like nature, the provision may be extended, altered or repealed at the will of the Legislature, and without the assent of the surety, looking alone to the public interest. And we think, as a general rule, that what in such a case will advance the public good will at the same time protect the interest of the surety. Indeed the indulgence granted to the officer by the extension of time in this case is not a contract, but is an ordinary act of legislation for the public good, with no consideration for the extension moving from the officer; and it is repealable at the will of the general assembly. Such extension was held, and we think correctly, by the Supreme Court of Maryland, in the case of the State v. Carleton, etc., 1 Gill, 249, 248, not to operate as a discharge to the sureties. The law was not considered as binding or obligatory upon the State, but alterable by the Legislature at their pleasure, whenever the interest or convenience of the State might require it.' And this we think is the law in the case. "Several cases in the English courts have been cited in seeming conflict with these views. Were that actually so, we would not hesitate to disregard their authority, however high may be our respect for the source from which they come. But when carefully examined, these cases will be easily distinguished from the case in judgment. They were cases in which such new and additional duties were imposed on the officer as to make the office itself, in the opinion of the court, a new office, to which, of course, the contract of the surety did not extend. This is merely the conceded doctrine that you cannot enlarge or materially vary the surety's contract without his consent. "Two cases from the Supreme Court of Illinois, reported in 1 and 2 Gillman, which seem to be very much in point, have also been relied on for the appellee. On these cases we will only say, that they seem to be in conflict with the principles established by the Supreme Court of the United States and the Supreme Court of Maryland in the cases above cited; and we think the latter the better law, and approve them. lection of public taxes must be conducted under the continuous supervision and control of the legislative branch of the government. The laws affecting the assessment and collection of the public revenues must be from time to time made more or less rigorous in their enforcement, or otherwise | modified to conform to the existing condition of the country, the depression of trade, the failure of crops, the scarcity of money and other causes, often delicate and complex, as affecting the sensitive subject of taxation. The power which imposes the burden of taxation is the sole power that can legally indulge, mitigate or suspend the assessment and collection of the revenues. Every collecting officer therefore accepts office and gives bond, affected with notice and subject to the exercise of this right of sovereignty. It enters into and becomes a part of the contract with the State, and is as binding upon the bondsmen as any express condition of the bond. The sheriff took the office and executed the bond, subject to the power of the Legislature to control its duties, as the public good might require." To the contrary is Johnson v. Hacker, 8 Heisk. 388. The court said: "The case, then, must turn upon the inquiry, was the State disabled from suing by the action of the Legislature in granting six months' time to the collector? "It is not denied by the attorney-general that the Legislature had the constitutional power to grant time to the collector by the enactment of the private statute in question, nor that that act had all the obligatory force of law in suspending the authority of the agents of the State to proceed to enforce the debt against Fry. It is clear that if the comptroller had directed the district-attorney to move against the collector for judgment for the amount due, during the time the act was in force, the existence of the act would have been a successful defense to the motion. It is only through these agents that the State could proceed to enforce her demand. It follows, that as soon as the act was passed, and while it remained in force, the State, through the valid action of the Legislature, disabled herself from suing. But the attorney-general insists that although the agents of the State are bound by the act, and could not proceed to enforce collection, yet that the right of the State to proceed In Prairie v. Worth, 78 N. C. 169, the same was is not gone or suspended. To state the argument held as to a surety on a sheriff's bond, where it ap- in the language of the attorney-general: 'Now, the peared that certain conditions on which the exten- legislature, without consideration, has given time sion was granted had not been fulfilled; and on as an indulgence. The officers of the State, its atthe precise point here in question the court re- torneys, are bound, but is the right of the State marked: "If the sheriff had brought himself gone or suspended? Could the legislature repeal within the proviso of the act of December 1, Laws the act and retract at will? If they could, then the of 1873-4, chap. 4, by a compliance with the con- remedy is not gone from the State, but the right ditions precedent, it does not follow that the surety of its agents is suspended, so long as the State upon his bond would then have been discharged. A chooses to stand by the voluntary and gratuitous distinction is made between private bonds, indi- promise. The surety then is substituted to a right, vidual and corporate, and public official bonds not suspended, but in force, only awaiting the given to secure the performance of continuous pub-pleasure of the State at any moment to withdraw lic duties affecting the general welfare. The col- the indulgence. The right of the surety, to which he is substituted, is a perfect right in full force, which he may at any moment proceed upon, though the officers of the State cannot.' "It may readily be conceded that the act in question was not passed upon such a consideration as would constitute it a contract, or vest in the collector a right which would prevent the Legislature from repealing it. We are to presume that the Legislature enacted this statute upon the consideration of the public good, and therefore that upon the same consideration they had the right to repeal this, just as they can any other act resting on the same consideration. But from the moment of its passage it is the law that binds and governs, not only the officers of the State, but upon all the people and every department of the State, and it so continues to be obligatory until the Legislature chooses to repeal it. It is true therefore that the State retains the right, through the law-making department of the government, to repeal the act, and so far as the collector is concerned, proceed to enforce collection before the expiration of the six months. "But does it follow that because the Legislature retains the right to repeal the act, therefore while the act is in force the sureties are substituted to a perfect right in full force, which they may at any moment proceed upon, though the officers of the State cannot? What is the right to which the sureties are substituted? Clearly it is the right to come into a court of chancery and require the creditor to enforce his right to collection of the debt. If the creditor was a private individual who had given time to his debtor without consideration, the right of substitution could be readily exercised. But here the State is the creditor, and through the law-making department she has passed a law which disables all of her officers and agents, executive, ministerial and judicial, from enforcing collection for six months. But she has reserved the right to repeal that law at any time; therefore it is said, the right to enforce collection at any time is retained by the State. But the State can only enforce collection through its agents, and their hands are tied by a law which they dare not violate. Before the State then can exercise its right to enforce collection, the State, through its law-making department, must pass another law repealing the existing act. Is the surety substituted to this right? Where is the tribunal in which the right can be enforced? Where are the agents through whom the right can be enforced? They are all forbidden by the existing law to take any steps toward collection from the debtor. 66 But, again, if the sureties are substituted to the right of the State to enforce collection, then they must have the right to require the law-making department to pass an act repealing the existing law, before the right of substitution can be made available. As long as the existing law stands the right of the State to enforce collection is mere abstraction. It cannot be maintained that the substitution of a surety to an abstract right like this is the right of substitution which the law secures to a surety to indemnify him against losses. "But this argument overlooks the important fact that whenever the creditor by a binding act disables himself from suing his debtor, ipso facto, the surety is instantly released, without any inquiry as to the question of damage. Now it is conceded that the act giving time to the collector was a valid, binding law from the time it was passed. From that moment the State disabled herself from suing, because she forbade all of her officers and agents to enforce collection. The immediate result was that the sureties were as effectually discharged as if they had never signed the bond. The subsequent repeal of the act might remove the obstacle which stood in the way of the State suing the debtor, but it could not restore the right to sue the sureties which had been lost by the passage of the act. The reason upon which a surety is released when the individual creditor, for a valid consideration, gives time to his debtor, is that the contract stands in the way of his suing. An act of the legislature, though not based on such consideration as to make it a contract, has all the binding force and effect of a contract until it is repealed. The only difference is that the individual debtor has no reserved right to abrogate his contract. The State has this reserved abstract right, but until this right is called into exercise, the act is as obligatory on the parties, and on all the officers and agents of the State, as if it had in it the elements of a contract. "The exact question involved in this case was determined in two cases in Illinois - one of Davis, v. People, 1 Gilm. 409; the other, People v. McHutton, id. 638. In both it was held that the giving of time to a tax collector by an act of the Legislature, was a release of his sureties. We concur in the correctness of these decisions, and hold that in the present case the demurrer was properly overruled." McFarland, J., dissented. This decision is approved in Prairie v. Jenkins, 75 N. C. 545, as follows: "The principle, that if a creditor by any binding contract gives time to a principal debtor, the sureties are thereby discharged, cannot be questioned. It applies when a State is the creditor as well as when an individual is. A State may by an act of the Assembly incur an effective obligation to give time, although there was no consideration for the act, for although it may be repealed, yet while it stands, it binds the officers of the State, and puts it out of the power of the sureties to use the name of the State in enforcing the obligations of the principal. These conclusions are supported by the judgment of the Supreme Court of Tennessee, in the case of Johnson v. Пacher, at October Term, 1874." And in harmony with the latter class of cases is State v. Roberts, 68 Mo. 234; S. C., 30 Am. Rep. 788. A SHORT RESPONSE TO A LONG DISCOURSE. AN ANSWER TO MR. JAMES C. CARTER'S PAMPHLET not. I affirm that it is not only not well enough, but that in fact it is fast become unendurable. We have in this State seven judges of the Court of Appeals, forty-six of the Supreme Court and fifteen of the higher city courts-sixty-eight-all making case law, judge-made law, or common law, whichever you may THIS pamphlet, which I heard of only a few days choose to call it. This, however, is a small part of the ago, appears to have been published under the auspices of the "Committee of the Association of the Bar of the City of New York," a highly respectable association of eight hundred lawyers out of seven thousand in the city-one in nine-duly certified by an "extract from the minutes," and ordered to be "circulated among the members of the Legislature, and of the bar of this city and State, and other persons interested in the subject." There is however nothing new in it. It is the same old committee, so far as appears, and it is the same old story, which the Legislature, the bar and "others interested in the subject," have heard time and time again, for the last nine-and-thirty years. The voice is now and then a little disguised, it may be, when heard from behind the curtain, but as the actor advances to the foot-lights, we behold the same visage glaring at us that has glared so often before. To change the figure somewhat abruptly, "the voice is Jacob's voice, but the hands are the hands of Esau." This pamphlet is divisible into five parts corresponding to the five acts of a play; beginning with a vilification of codification in general, followed by a vilification of all codes extant; then a vilification of the Civil Code now proposed in particular; next, a vilification of the courts and the Legislature; and lastly a vilification of me. I will take each of them in turn. In the first place as to the theory of codification, I will confine myself to one or two reasons by way of argument and add some by way of authority. The proposition of some of our adversaries, stated in a condensed form, appears to be that while codification of the statutes may be good, codification of the common law is bad. The proposition confutes itself. One has but to look into our statute book to see that statutes are enacted year after year to declare, change or repeal rules of the common law. In other words, if we first turn parts of this law into statutes, we may then make a new statute of these statutes and call the new a Code. This is codification of the common law. So that if instead of beating the air with denunciation, our adversaries were to change the question from the one whether codification be desirable, to this other, whether the particular statute in question be desirable, they should logically cease to attack codification and confine their observation to the statute before us. trouble. If the other States have the same proportionate number of judges, there are in the United States more than seven hundred, making laws, not for their own States only, but for all the States. More than this, the judges of England, Scotland and Ireland are engaged in the same task of making laws for their own people and for us. I find this taunt in a late English paper. Is it wholly undeserved? "The British King and the British Parliament still lay down, through the law which proceeded from one or the other of them, rules of life for Americans which they dare not disobey. The old idea that English law is the perfection of human reason has very much died out in the country which once believed in that audacious maxim, but it is still acted upon by Americans as if it were true, and the lives of three-fourths of the nation are affected by it at every turn." In the last volume of our Court of Appeals, 154 cases are reported as decided and 2730 as cited by counsel. In one of these causes the counsel referred to 136 cases which they thought would guide the court to a safe conclusion, cases decided in this State and 21 others. Thus much by way of argument. Now for authority. Better than any words of mine in advocacy of a codification of the common law, I will give not the fierce language of a disputant, not the chance words of a thoughtless talker, but the deliberate expression of the "State's collective will,” then the carefully chosen sentences of the last of our chancellors, and lastly the elaborate report of one of the greatest of Federal judges, joined with four of the judges of Massachusetts. THE CONSTITUTION. The Legislature is to 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. And the said commissioners shall specify such alterations and amendments therein as they shall deem proper; and they shall at all times render reports of their proceedings to the Legislature, when called upon to do so; and the Legislature shall pass laws regulating the terms of office, the filling of vacancies therein, and the compensation of said commissioners, and shall also provide for the publication of the said Code, prior to its being presented to the Legislature for adoption.' CHANCELLOR WALWORTH. "It is made the duty of the commissioners appointed by the Legislature, under the seventeenth section of the first article of the Constitution, not only to reduce into a systematic Code the whole body of the written and unwritten law of this State, or so much thereof as they shall deem practicable and expedient; but also to specify the amendments which they shall consider proper to be made in the existing law, and I am not one of those who believe it is wholly impracticable to carry out the provisions of the Constitution on this subject. On the contrary, I think it not only practicable but highly ex Or if the proposition be that though codification of some parts of the common law may be good, that of the rest would be bad, I ask which do you include among the rest? What is the part that cannot be codified? Is it the law of crimes and punishments? That has been codified already? Is it the law of procedure, civil or criminal? That too has been codified. Is it the law of real property? That was mostly codified fifty years ago by the Revised Statutes in about 300 sections. The proposed Civil Code adds but a few sections to make a complete Code of our law of real property. Is it then the law of partnership which cannot be codified? That has been codified in India by provisions taken partly from our Civil Code. Is it the law of negotiable paper? That has been nearly codi-pedient to collect the generat principles of the unwritten fied in England within two years. Tell us then what other subject is that on which the rules of the common law cannot be written down with method and precision? Until you can tell us this, pray do not declare against codification. The proposition moreover assumes that the present condition of the law is well enough. I affirm that it is commercial and other civil law, and of our equity system, as well as the criminal law of the State, now scattered through some thousands of volumes of treatises, commentaries, digests and reports of judicial decisions, and to arrange them under appropriate heads, divisions and titles, in connection with the statute law on the same subject. Such modifications of the "The compilation and adoption of such a Code as I have supposed to be both practicable and expedient, and which the Constitution directs to be made, although it cannot provide for every case, will embody all the great principles of law which exist in our civil, criminal and commercial systems, and will greatly facilitate the acquisition of knowledge of the law, not only by those who diligently devote themselves to its study, but also by the people at large, who will in a few years become as familiar with the leading principles of the Code as they are now with those of the Revised Statutes." The Massachusetts commissioners being Story, judge of the Supreme Court of the United States, Metcalf and Greenleaf, then judges, and Forbes and Cushing, since judges of Massachusetts. II. The commissioners are, in the next place, of opinion that it is expedient to reduce to a Code those principles and details of the common law of Massachusetts, in civil cases, which are of daily use and familiar application to the common business of life and the present state of property and personal rights and contracts, and which are now so far ascertained and established as to admit of a scientific form and arrangement, and are capable of being announced in distinct and determinate propositions. What portions of the common law properly fall under this predicament will be in some measure considered hereafter. III. The commissioners are, in the next place, of opinion that it is expedient to reduce to a Code the common law, as to the definition, trial and punishment of crimes, and the incidents thereto. IV. The commissioners are, in the next place, of opinion that the law of evidence, as applicable both to civil and criminal proceedings, should be reduced to a Code." * ** the party and yet be as well established as the rule itself. Many lawsuits are founded upon errors and mistakes of this sort, which the mere imperfections of the means within the reach of the interested party, or of his counsel, has unavoidably produced. A single line of the Code, properly and accurately prepared upon such a subject, might at once have dissipated every doubt and uncertainty, as to the nature, extent and operation of the existing rule. "II. And this leads the commissioners to remark, in the next place, that one great use of a Code of the common law in its principal branches will be the abridgment of professional as well as of private labor in ascertaining and advising upon a rule or doctrine of that law. "It was said by an eminent judge (Lord Eldon), upon one occasion, where some question of artificial or technical law was under discussion before him, that there were upward of three hundred cases bearing on that question, which had already been decided. To master them, with all their minute distinctions of circumstances, would of itself be a vast labor. And yet it is not perhaps too much to say that four or five lines of a text in a Code, stating the true general rule, deducible from the best of them, would at once have put aside the necessity of any further consideration of most of these cases." In the second place, the animadversions of Mr. Carter upon all former Codes are disposed by a single test, which is this: Was any Code heretofore enacted ever repealed in order to go back to a pre-existing common law? If he can show us one such instance, he will show what I have not seen, and what I believe "The benefits proposed by a Code may be summed does not exist. If he cannot show it, he stands conup in the following propositions: "But this is not all.. At present the known rules and | doctrines of the common law are spread over many ponderous volumes. They are nowhere collected together in a concise and systematic form, having a positive legislative sanction. They are to be gathered from treatises upon distinct and independent subjects, of very different merit and accuracy; from digests and abridgments; from books of practice and from professional practice; and above all, from books of reports of adjudged cases, many hundreds of which now exist, and which require to be painfully and laboriously consulted in order to ascertain them. These rules and doctrines may be well known and well understood by eminent lawyers and judges, by profound students, who possess an ample library of law books, and by others, who devote their whole leisure to the purpose. And yet men less eminent, less studious, or with less means to provide a library, or to consult it, may be unable to arrive at the same certainty, and may even be misled by their partial examinations into serious errors and mistakes. A leading rule may have some exceptions which have escaped the researches of demned by the experience of mankind. In the third place; of the particular Code now before the Legislature, being the Civil Code reported in 1865, land since revised and re-revised with no little care, I have first to say that it has been before the people of the State for nineteen years, and has been subjected to the most malignant criticism, and that every objection made to it, good or bad, has been considered, and as I I think, obviated. At all events, if there be any objection now possible to be made to any provision or article, let it be made and obviated by the wisdom of the Legislature. The objection once taken that it proposed some changes (suggestions of which, be it remembered, were required by the Constitution and the law under which the commission was organized), this objection I say has been yielded to, in order to disarm opposition; and as the Code now stands, it contains only a few inconsiderable changes from the existing law, and these such only as I think every one must admit to be desirable. But if there still be any objection let it be removed, as it can in a few hours, by slight changes in the text. The Code now speaks for itself. Let it be read, or if there be not time for that, let some part of it be read, that part relating to real property, for instance, to see if there be any thing wrong or strange in its provisions. Or look into the chapter on insurance, or on negotiable instruments, and see if there be any thing to be alarmed at, any thing which would not be found useful in every counting-house in the State. The truth is that all the cry about there being some |