firms where such knowledge relates to the business affecting both firms. Notice which is imputable to one of the firms is imputable to the other also if it relates to the business of that other. This notice with which all the members of such firms are affected and are chargeable does not cease with their dissolution, but continues with full force during the winding up of the affairs of the partners as between the firms and themselves. Marietta, etc. v. Mowry, 16 N. Y. Weekly Dig. 433. Where two members of a firm are the president and cashier respectively of a bank, their knowledge of the insolvency of the firm is the knowledge of the bank. Nisbet v. Macon, etc., 4 Woods, 464. The doctrine of constructive notice cannot properly be so extended as to charge a company with notice of the condition of another company, because its agent was for three years a manager of such other company, some two years before the time when the doctrine is sought to be applied. Banco de Lima v. Anglo-Peruvian Bank, 8 Chan. Div. 160, 25 Eng. R. (Moak notes) 194. In this case Malins, V. C. (p. 175), said: "I think if I were to say that where a gentleman, who had been manager of one company for three years after a transaction had taken place and had then ceased to be so for two years and become the agent of another company, the other company to which he became the agent is bound by all the knowledge that he once possessed, and that he as their agent was bound to recollect all the minute arrangements of the documents which he is not in possession of and which are not accessible to him, and also to go into the general account between principal and agent arising out of this transaction, it would in my opinion be carrying the doctrine of notice to a most inconvenient and dangerous extent. It has often been said, and the celebrated decision of Lord Hardwicke was referred to as to the doctrine of notice, that it must be not at a distant period but in the same transaction. We cannot expect a person to remember the minute effect of transactions long ago.'

NOTICE TO SUB-AGENT.- An account or money demand having been delivered by its owners to a collection agency with instructions to collect the debt, that agency transmitted the claim to an attorney, who knowing the insolvency of the debtor persuaded him to confess judgment. The money collected was transmitted to the collection agency, but never reached the creditors. Proceedings in bankruptcy were instituted against the debtor within four months after such confession and were prosecuted to a decree. Held that as the attorney was the agent of the collection agency which employed him, and not of the creditors, his knowledge of the insolvency of the debtor was not chargeable to them in such a sense as to render them liable to the assignee in bankruptcy for the money collected on the judgment. Quaere would they have been so liable had the money reached their hands? Hoover v. Wise, 91 U. S. 308, affirming 61 N. Y. 305. The notice to an agent which binds his principal

must be received by him while engaged in the busiLess of his principal or if not so received must be present to the agent's mind at the time of his acting as such. Wormuth v. Sornburger, 17 N. Y. Weekly Dig. 162.

The

LIS PENDENS. - The modern doctrine of lis pendens is based not upon the theory that a pending suit is constructive notice to all the world, like a recorded deed, but upon the ground that the law will not allow litigant parties to give to others pending the litigation, rights to the property in dispute so as to prejudice the opposite party and defeat the execution of the decree te be entered in the case. doctrine can therefore have no application except in those cases where the lis in question is of such a character as to enable a definite decree to be entered therein deciding the right of property between the parties. Dovey's Appeal, 97 Penn. St. 153; and see Ballamy v. Sabine, 1 De Gex. & Jones, 566, and note; Holbrook v. N. J. Zinc Co., 87 N. Y. 616. Lis pendens is merely a statute substitute for actual notice to subsequent purchasers and incumbrancers of the existence of the plaintiff's claims and that he has commenced an action to enforce it. Whoever buys after that, buys with notice equivalent to actual knowledge of these facts. Hall v. Nelson, 23 Barb. 92; Stuyvesant v. Hall, 2 Barb. Ch. 151; Ray v. Roe 2 Blackf. (Ind.) 258; Knowles v. Rablin, 20 Iowa, 101; Sheridan v. Andrews, 49 N. Y. 478; Murray v. Ballou, 1 Johns. Ch. 566. A lis pendens only relates to and affects voluntary alienations of property pending a suit in respect to it, by or from the defendant therein, and in no way affects independent parties asserting adverse rights in respect to it. Becker v. Howard, 4 Hun. 359; aff'd 66 N. Y. 6. To make the pendency of a suit notice so as to affect the conscience of a purchaser, it is essential that the court have jurisdiction over the subject-matter. Carrington v. Brent, 1 McLean, 167, 175; citing Sorel v. Carpenter, 2 P. Wms. 482; Worsley v. Earl of Scarborough, 3 Atk. 392; Bishop of Winchester v. Payne, 11 Ves. 194; Murray v, Ballou, 1 Johns. Ch. 566. In New York it is notice only to parties in the action, and purchasers and incumbrancers from them, subsequent to the notice being filed. York Code Civ. Pro., § 1671; Weyh v. Boylan, 63 How. Pr. 12; affirming 62 How. 397; 'Fuller v. Scribner, 76 N. Y. 190. The assignee of a mortgage is an incumbrancer and is bound by a lis pendens. Hovey v. Hill, 3 Lans. 167. Notice of lis pendens may be filed in a suit affecting a leasehold interest. Ruck v. Lange, 10 Hun, 303. In Lietch v. Wells, 48 N. Y. 585, it was held that "the doctrine of constructive notice by lis pendens did not apply to articles of commerce passing from hand to hand, like commercial paper, and the court say (p. 613), "the doctrine of constructive notice by lis pendens has never yet been applied to such property (stocks). This doctrine must have its limitations. It could not be applied to ordinary commercial paper nor to bills of lading nor to government or corporate bonds payable to bearer. Indeed I do not find that it has

New

ever been applied and I do not think it ought to be applied to any of the articles of ordinary commerce. Public policy does not require that it should be thus applied. On the contrary its application to such property would work great mischief and lead to great embarrassments." To same effect, County of Warren v. Marcy, 97 U. S. 96; County of Cass v. Gillett, 100 id. 585; Mayberry v. Morris, 62 Ala. 113; Holbrook v. N. J. Zinc Co., 57 N. Y. 616; Miles v. Lefi, 60 Iowa, 168.

POSSESSION. - The general rule is that possession of real estate is constructive notice to all the world of the rights of the party in possession. Troup v. Hurlburt, 10 Barb. 97; Tuttle v. Churchman, 74 Ind. 311; Perkins v. Swank, 43 Miss. 349; Hawley v. Morse, 32 Mo. 287; Jefferson v. Jefferson, 96 Ill. 551; Bratling v. Brashim, 102 id. 441; Warren v. Richmond, 53 id. 52; Strong v. Shea, 83 id. 575; Hommel v. Devinney, 39 Mich. 522; Russell v. Sweezey, 22 id. 235; Rogers v. Jones, 8 N. H. 264; Patton v. Hollidaysburgh, 40 Penn. St. 206. The possession which will be equivalent to actual notice to a subsequent purchaser must be an actual open and visible occupation inconsistent with the title of the apparent owner by the record; not equivocal, occasional, or for a special or temporary purpose. Constructive possession will not suffice. Brown v. Volkenning, 64 N. Y. 76, 83; Page v. Waring, 76 id. 463; Atwood v. Bears, 47 Mich. 72; Smith v. Jackson, 76 Ill. 254; Bingham v. Kirkland, 34 N. J. Eq. 229; Cabcen v. Breckenbridge, 48 Ill. 91; Ely v. Wilcox, 20 Wis. 523; Moyer v. Hinman, 13 N. Y. 180; Trustees v. Wheeler, 61 id. 88; Greer v. Higgins, 20 Kans. 420; Meehan v. Williams, 48 Penn. St. 238; Noyes v. Hall, 97 U. S. 34. But such possession does not necessarily constitute constructive notice of the existence of a title in the party in possession, as the presumption of notice arising from it may be rebutted. Roger v, Jones, 8 N. H. 264. The possession of a tenant is sufficient notice of his landlord's title to put a person dealing with the property on inquiry. O'Rourke v. O'Conner, 39 Cal. 442. Actual occupancy by a purchaser under a contract of sale is constructive notice to a mortgagee of his rights. Trustees v.

Wheeler, 61 N. Y. 88; Braman v. Wilkinson, 3 Barb. 151. When a vendor remains in possession after making his deed, a purchaser from his grantee has a right to rely upon the deed of the vendor in possession as a complete answer to any inquiry which his possession would suggest. Bingham v. Kirkland, 34 N. J. Eq. 229. The fact that a grantor remains in possession of his land after conveying it away by a deed absolute on its face is not constructive notice to purchasers of a judgment against the grantee, of the grantor's right to have his deed treated as a mortgage. Tuttle v. Churchman, 74 Ind. 311.

Actual possession by a cestui que trust is constructive notice to a purchas er that there is some claim, title or possession of the property adverse to the vendor. Johns v. Norris, 28 N. J. Eq. 147. For the purpose of putting purchasers upon inquiry as to the rights of third persons, the husband's possession of the wife's real estate is the possession of the wife. Fas

sett v. Smith, 23 N. J. 252. The principle of constructive notice will not apply to an uninhabited and unfinished dwelling-house. Browne v. Volkenning, 64 N. Y. 76. When personal property is attached in the hands of one not the attachment defendant the attaching creditor is charged with notice of the rights of the person in possession, and he acquires through this attachment no higher or better right to the property than the defendant has when the attachment is made. Bacon v. Thompson, 60 Iowa, 284.

RECITALS. A purchaser is chargeable with notice of every thing that appears on the face of the deeds constituting his chain of title. Burch v. Carter, 44 Ala. 115; Pringle v. Dunn, 37 Wis. 449; Cordova v. Hood, 17 Wall. 1. But he is not bound to inquire into collateral circumstances. Burch v. Carter, 44 Ala. 115. A recital in a deed forming a link in the chain of title of any facts, which should put a subsequent grantee or mortgagee upon inquiry, and cause him to examine other matters by which a defect in the title would be disclosed is constructive notice of such defect. Acer v. Westcott, 46 N. Y. 384; Cambridge Bank v. Delano, 48 id. 326. The rule that a grantee always takes with constructive notice of whatever appears in the conveyances constituting his chain of title applied to a prior unrecorded mortgage referred to in the second mortgage. Baker v. Mather, 25 Mich. 51. Where the defendant claims title through a deed which contains a covenant to recovery, he is chargeable with constructive notice of such covenant. Van Doren v. Robinson, 16 N. J. Eq. 256. One knowing of a deed containing a reference to a registered title bond, held to be affected with constructive notice of the contents of the deed. Payne v. Abercrombie, 10 Heisk. 161. See Willis v. Gay, 48 Tex. 463; S. C., 26 Am. Rep. 328.

RECORDS. The record of a deed is notice only to those who are bound to search for it. It is not a publication to the world at large. Maul v. Rider, 59 Penn. St. 167. From the time a conveyance is delivered to the clerk for record, it is notice to all subsequent purchasers. Mut. Life Ins. Co. v. Dake, 87 N. Y. 257; Poplin v. Mundell, 27 Kans. 138. Brookes' Appeal, 64 Penn, St. 127; Pringle v, Dunn, 37 Wis. 449; Clader v. Thomas, 89 Penn. St. 343; Polk v. Cosgrove, 4 Biss. 437; Oats v. Walls, 28 Ark. 244. A purchaser of real estate who takes his deed to the office of the register of deeds, and deposits it with him for record, discharges thereby his duty of notice to the public; and if through the fault alone of the register the deed is lost, and not entered of record, such failure will not work to the prejudice of the title of such purchaser, even in favor of a subsequent purchaser without notice, unless the first purchaser, after knowledge of the defect in the record, is guilty of laches in failing to give notice of his title, either by occupation of the premises, record of a new deed, or proceedings in court. Lee v. Birmingham, 30 Kans. 312. A transfer upon its face as spread upon the record must show a compliance with the require

id. 354. If before the purchase of real estate the purchaser, having received information that a transcript of a judgment against the owner had been filed, goes to the proper officers, and in good faith causes an examination of the records to be made, and they disclose the fact that there is no judgment lien, he is justified in acting upon the belief that there is none. Bell v. Davis, 75 Ind. 314; Rogers v. Jones, 8 N. H. 264; Simon v. Kaliske, 1 Sweeny, 304. Hoyt v. Sheldon, 3 Bosw. 267. A record of a mortgage prior to the acquisition of title by the mortgagor is constructive notice to a subsequent purchaser in good faith, and under the recording act and gives it priority to his title. Teft v. Munson, 57 N. Y. 97. Where a deed is not delivered to the grantee therein named until after it has been recopied by the grantor, the grantee takes the deed and its registration with the same effect thenceforward as if recorded by him at the date of its delivery. Jones v. Roberts, 65 Me. 273.

An unrecorded deed is not constructive notice to the subscribing witness. Vest v. Michie 31 Gratt. 149; S. C., 31 Am. Rep. 722.

CASES MUST PLEAD AND SHOW.-Upon the question whether one took a deed without notice of a prior unrecorded one, the burden of proof is upon the one alleging bad faith. Ryder v. Rush, 102 Ill. 338. One buying land mortgaged of record, will take no benefit from declarations made to him by the mortgagor, that the mortgage has been paid. Pratt v. Pratt, 96 Ill. 184. The record of an assignment of a mortgage is constructive notice as against a grantee of the mortgagor, that the mortgagee can no longer deal with the mortgaged interests, and a subsequent discharge or release of the lien of the mortgage executed by him is invalid. Belden v. Meeker, 47 N. Y. 397; Smyth v. Knickerbocker, etc., 84 id. 589.

Mr. Carter's latest pamphlet, which I have only just seen, appears to me to deserve more attention than it has received. It is the very able presentation of a bad case, and shares, with most other productions of that kind, the peculiarity that it covertly proves the contrary of what it expressly pretends to indoctrinate.

It contains, among the rest, the following very excellent description of the work which it attempts to discourage: "Such a work, by facilitating, would save labor. It would refresh the failing memory, reproduce in the mind its forgotten acquisitions, exhibit the body of the law, so as to enable a view to be had of the whole, and of the relation of the several parts, and tend to establish and make familiar a uniform nomenclature. Such a work, well executed, would be the vade mecum of every lawyer and every judge. It would be the one indispensable tool of his art."

The main defect of the pamphlet lies in its blinking the question how the case is to be met? How the evils aimed at by the supporters of a code are to be removed? After writing around this portion of its subject to its close, it ends by restricting the "unnecessary evil, which is by possibility removable," to two main sources; the first being "the occasional

incompetency of our judges; " and the second, the "still more marked decline in the character of our legislators.' Now it needs no demonstration that these two sources have nothing whatever to do with the subject; that if all our judges were Kents, and all our legislators Solons, still the evils against which codification is directed would be the same as now.

Either the author wholly fails to show how the thing is to be done; or in a prior portion of his pamphelt, he argues that the evils in question are irremediable. "The interpretations of law, written or unwritten, must forever depend upon human opinion; and must be inseparable attendants upon this condition." Can we take this to our bosom as a comforter, while we are being crushed by the increasing volume of reported decisions? Is not the present number of decisions incalculable, will not ten years suffice to double it, and twenty to quadruple it? Is the law in such a condition, that any one with a smaller library than Mr. Carter's, with a smaller stock of legal knowledge than he, with smaller facilities for legal reference than are afforded by the libraries located in New York, or Boston, or Philadelphia, can pretend to make up his mind approximately upon a point of law with less than a week's labor? Can he retain his knowledge of a point of law without writing a book about it? Can he transfer to others any idea of what he himself knows, invested with so much authority as will be necessary to have them believe him?

In a certain sense the pamphlet answers this question; and in this implied answer lies its leading error. It says in effect, the unwritten law of the day is right reason; and as every reasonable man has that, he has all of the law that he requires."

He says this in his opening: "The great body of the rules which determine the rights of men, have their origin in the popular standard, or ideal of justice, as applied to human action." The law of England and America," he says, "has been a pure development proceeding from the constant endeavor to apply to the civil conduct of men, the ever advancing standard of justice." 'The judge's office is to apply the existing standard of justice to the new exhibition of fact; and to do this by ascertaining the conclusion to which right reason, aided by rules already established, leads. There is no arbitrary power in him; and any exercise of it by him, would form clear ground for his impeachment. Nor can any discordance be found between this theory and the fact."

Is it not singular that in writing on legal subjects, so much can be said which turns out on close security, to be inadvertent self-deception. Mr. Carter has practiced law for many years. 1 will ask him whether he can point to one lawsuit, in which the right reason of the matter was ever the subject of positive and express discussion. I will ask him to point to one page in the endless mass of reports in which ever the right reason of the thing was debated? Whether he would not smile the moment he saw a lawyer undertake to do it? Whether he has ever heard of the thoughts of any except the parties to the action tending that way? If so common a standard were at all considered, how would it be possible that there should be difference of opinion enough to keep a lawsuit open? How would it be that one lawyer should not convince the other? How would it continue questionable with every one what the decision of a case was to be, even after the argument has closed? How could there be a dissent from every prevailing opinion? How could the decision swing back and forth from side to side, as the case ascended from appeal to appeal? How could the decision of a rule in one State leave it entirely an open question, whether the same case would lead to the same or an opposite rule in another? How could opposition in their rules become almost the regular

thing between certain States? How could well nigh every rule of the common law be ruled upon in opposite ways by the same court, in the course of every ten or twenty years? Many rules being the subject of repeated decisions on either side.

Right reason is concerned with the law in one respect only; it is always present to the mind of both counsel, and of the judges; and they tacitly agree that it shall not be controverted. Beyond this limit it is of no force whatever.

And here comes the second great error in the pamphlet. The symptoms we have adverted to are of course not unknown to the author. How does he explain them? The general part of the variety of new conditions incessantly arising in human affairs will readily be admitted; but few have attentively considered- -none can adequately comprehend - the infinite number of diversities. In the State of New York, each successive day witnesses acts, millions in number, each one of which may, by possibility, become the source of dispute, and call for judicial decisions, and no two of them be alike."

In short he ascribes the contrariety of judicial decisions to the infinite variety of cases, and the much cited changes in the forms of society. I contend that this is a facon de parler; that society does not change so fast but that acts of assembly could follow all the changes which required registration; that the infinity of acts forming the subject of judicial investigation is not nearly so great but that thousands of acts differing in their details, come under one and the same classification as subjects of legal transaction; and in short that the conflict and contrariety of judicial decisions result, not at all from necessary multiplicity in the subject-matter, but from a tendency in the adjudicating mind to vent itself in different and diverging formulæ.

Therefore the great phantom of the opponents of codification must dissolve in mist. The variety of cases which must arise, is not so great as to escape the activity of a codifier and a Senate and Assembly, and the changes in society are not so daily and hourly, that the speed of legislators cannot possibly keep up with them.

Upon the same principle he enumerates, among the evils resulting from the adoption of a code,

7. The enforced abandonment of all hope of bringing the private law of all English speaking States to a unity."

This seems to me to be anti-code run mad. What could be farther from unity, or from an approach to unity, than the multifarious state of the present law upon any point or question? Is there one upon which a careful counsel would advise his client to take the law of one State for that of another? Is not the necessity of care in this respect infinitely greater now than it was ten or twenty years ago? And is not the practical tendency toward greater multifariousness, instead of inversely? Codification is the only means of approximating such an end. Already we have California adopting the code of New York before New York does so for herself. A similar instance is in the German Empire, which has adopted a uniform code after the Prussian Landrecht had been adopted for a portion of it.

Another is the case of the Latin countries, where the Code Napoleon was adopted in Italy and in Belgium, by way of accommodation to France.

A most striking feature of this pamphlet is its first production of the distinction between law calculated for codification, and law not so calculated. At one place he makes the distinction equivalent to that between public law and private law, but that distinction is not preserved. I wish to say, first and foremost, that it is important to register this advance in the progress of codification; we have driven the opponents

of the measure to admit and indoctrinate that codification is desirable as to all but one kind of law. The progress that lies herein is conceivable only to lawyers. I had almost said, to black letter lawyers. The best proof of this is in the opinion of English judges, given in this same pamphlet, on various schemes of codification there proposed, some of them being codifications of the very branches of law here pronounced proper subjects of codification.

Consider, for a moment, that in including in these criminal law, you cut off fully one-half of what was anciently regarded as the common law. The maxim nulla poena sine lege was never regarded there, is not regarded there, except only in New York State since the year 1881. Now it is recognized.

In England the "Constitution and Government" would not be regarded as proper for codification. Here they are.

With regard to the decisions, however, it is not satisfactory. "While the promises of written and unwritten law are for the most part easily distinguished and separable, there is no precise line of demarcation between them. They fall into each other at the boundary by insensible gradations, and consequently there are many subjects as to which it is a matter of difficulty to determine upon which side of the line they lie. In these cases it is not of very much importance which system is applied."

He then roughly enumerates "The Constitution and Government, the general law, social and political questions, sharp changes, procedure, real property, and negotiable paper, as the subjects of written law;" as to which we may remark, that social and political questions are somewhat difficult of specification; that if sharp changes are needed in the matter which he reserves for unwritten law, a mixture of written and unwritten law is called for, which must be very difficult of management; that at all events, nothing of this kind has been known to the English or American law of the past, and that the introduction of this new distinction is an innovation of great force and extensive effect.

He then enumerates "the general law both of contracts and torts, the law of sales, of partnership, of agencies, of corporations, of bills and notes, of shipping, insurance, and admiralty; the law governing the rights and duties springing out of particular employments, occupations, relations and engagements, as the law of carriers, of bailees, of master and servant, of husband and wife, of telegraphs, and the principal body of the law affecting the ownership of property, real or personal," as covering the immense field of subjects which ought to remain those of unwritten law. There are a number of observations which obtrude themselves in connection herewith. For instance, corporations are in their very nature creatures of positive law, and many people think it very important to keep them under close control. Bills and notes are but another name for negotiable paper, which has been enumerated as a proper subject of codification. In regard to admiralty, Judge Donohue has said, "I entered a large office, at twelve years of age, where there was a large admiralty practice, and as such practice is codified, I dare say that I have a disposition favorable to a code which most common lawyers would not feel." So admiralty belongs to the domain of codifiable law. Shipping is distinct from admiralty to the mind of the technical practitioner: but inseparable from it in the mind of a jurist. It cer tainly came under Judge Donohue's observation as frequently as admiralty, and if it were not equally codifiable, it would have imbued his mind with aver sion to a code. Insurance is regulated by set written contracts; they are easily controlled by legislation; and it is very important they should be. How the law