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firms where such knowledge relates to the business must be received by him while engaged in the busiaffecting both firms. Notice which is imputable to ress of his principal or if not so received must be one of the firms is imputable to the other also if it present to the agent's mind at the time of his acting relates to the business of that other. This notice
Wormuth v. Sornburger, 17 N. Y. Weekly with which all the members of such firms are Dig. 162. affected and are chargeable does not cease with LIS PENDENS. The modern doctrine of lis pendens their dissolution, but continues with full force dur- is based not upon the theory that a pending suit is ing the winding up of the affairs of the partners as constructive notice to all the world, like a recorded between the firms and themselves. Marietta, deed, but upon the ground that the law will not etc. v. Mowry, 16 N. Y. Weekly Dig. 433. Where allow litigant parties to give to others pending the two members of a firm are the president and cashier litigation, rights to the property in dispute so as to respectively of a bank, their knowledge of the in- prejudice the opposite party and defeat the execusolvency of the firm is the knowledge of the tion of the decree te be entered in the case. The bank. Nisbet v. Macon, etc., 4 Woods, 464. The doc- doctrine can therefore have no application except in trine of constructive notice cannot properly be so those cases where the lis in question is of such a extended as to charge a company with notice of the character as to enable a definite decree to be entered condition of another company, because its agent therein deciding the right of property between the was for three years a manager of such other com- parties. Dovey's Appeal, 97 Penn. St. 153; and see pany, some two years before the time when the doc- Ballamy v. Sabine, 1 De Gex. & Jones, 566, and note; trine is sought to be applied. Banco de Lima v. Holbrook v. N. J. Zinc Co., 87 N. Y. 616. Lis pendens Anglo-Peruvian Bank, 8 Chan. Div. 160, 25 Eng. R. is merely a statute substitute for actual notice to (Moak notes) 194. In this case Malins, V. C. (p. subsequent purchasers and incumbrancers of the 175), said: “I think if I were to say that where a existence of the plaintiff's claims and that he has gentleman, who had been manager of one company commenced an action to enforce it. Whoever buys for three years after a transaction had taken place after that, buys with notice equivalent to actual and had then ceased to be so for two years and be knowledge of these facts. Hall v. Nelson, 23 Barb. come the agent of another company, the other com- 92; Stuyvesant v. Hall, 2 Barb. Ch. 151; Ray v. Roe, pany to which he became the agent is bound by all 2 Blackf. (Ind.) 258; Knowles v. Rablin, 20 Iowa, the knowledge that he once possessed, and that he | 101; Sheridan v. Andrews, 49 N. Y. 478; Murray v. as their agent was bound to recollect all the minute Ballou, 1 Johns. Ch. 566. A lis pendens only relates
to possession of and which are not accessible to him, pending a suit in respect to it, by or from the deand also to go into the general account between fendant therein, and in no way affects independent principal and agent arising out of this transaction, parties asserting adverse rights in respect to it. it would in my opinion be carrying the doctrine of Becker v. Howard, 4 Hun. 359; aff'd 66 N. Y.6. To notice to a most inconvenient and dangerous extent. make the pendency of a suit notice so as to affect It has often been said, and the celebrated decision the conscience of a purchaser, it is essential that the of Lord Hardwicke was referred to as to the doc- court have jurisdiction over the subject-matter. trine of notice, that it must be not at a distant Carrington v. Brent, 1 McLean, 167, 175; citing period but in the same transaction. We cannot ex- Sorel v. Carpenter, 2 P. Wms. 482; Worsley v. Earl pect a person to remember the minute effect of of Scarborough, 3 Atk. 392; Bishop of Winchester v. transactions long ago."
Payne, 11 Ves. 194; Murray v, Ballou, 1 Johns. Ch. NOTICE TO SUB-AGENT. — An account or money 566. In New York it is notice only to parties in the demand having been delivered by its owners to a action, and purchasers and incumbrancers from collection agency with instructions to collect the them, subsequent to the notice being filed. New debt, that agency transmitted the claim to an at- York Code Civ. Pro., $ 1671; Weyh v. Boylan, 63 torney, who knowing the insolvency of the debtor How. Pr. 12; affirming 62 How. 397; 'Fuller v. persuaded him to confess judgment. The money Scribner, 76 N. Y. 190. The assignee of a mortcollected was transmitted to the collection agency, gage is an incumbrancer and is bound by a lis but never reached the creditors. Proceedings in pendens. Hovey v. Hill, 3 Lans. 167. Notice of lis bankruptcy were instituted against the debtor pendens may be filed in a suit affecting a leasehold within four months after such confession and were interest. Ruck v. Lange, 10 Hun, 303. In Lietch v. prosecuted to a decree. Held that as the attorney Wells, 48 N. Y. 585, it was held that the doctrine was the agent of the collection agency which em- of constructive notice by lis pendens did not apply to ployed him, and not of the creditors, his knowledge articles of commerce passing from hand to hand, of the insolvency of the debtor was not chargeable like commercial paper, and the court say (p. 613), to them in such a sense as to render them liable to “the doctrine of constructive notice by lis pendens the assignee in bankruptcy for the money collected has never yet been applied to such property (stocks). on the judgment. Quaere would they have been so This doctrine must have its limitations. It could liable had the money reached their hands? Hoover not be applied to ordinary commercial paper nor to v. Wise, 91 U. S. 308, affirming 61 N. Y. 305. bills of lading nor to government or corporate bonds The notice to an agent which binds his principal payable to bearer. Indeed I do not find that it has ever been applied and I do not think it ought to be sett v. Smith, 23 N. J. 252. The principle of conapplied to any of the articles of ordinary commerce. structive notice will not apply to an uninhabited Public policy does not require that it should be and unfinished dwelling-house. Browne v. Volkenthus applied. On the contrary its application to ning, 64 N. Y. 76. When personal property is atsuch property would work great mischief and lead tached in the hands of one not the attachment deto great embarrassments." To same effect, County fendant the attaching creditor is charged with noof Warren v. Marcy, 97 U. S. 96; County of Cass v. tice of the rights of the person in possession, and Gillett, 100 id. 585; Mayberry v. Morris, 62 Ala. 113; he acquires through this attachment no higher or Holbrook v. N. J. Zinc Co., 57 N. Y. 616; Miles v. better right to the property than the defendant has Lefi, 60 Iowa, 168.
when the attachment is made. Bacon v. Thompson, POSSESSION. — The general rule is that possession 60 Iowa, 284. of real estate is constructive notice to all the world RECITALS. A purchaser is chargeable with notice of the rights of the party in possession. Troup v. of every thing that appears on the face of the deeds Hurlburt, 10 Barb. 97; Tuttle v. Churchman, 74 Ind. constituting his chain of title. Burch v. Carter, 44 311; Perkins v. Swank, 43 Miss. 349; Hauley v. Ala. 115; Pringle v. Dunn, 37 Wis. 449; Cordova v. Morse, 32 Mo. 287; Jefferson v. Jefferson, 96 Ill. 551; Hood, 17 Wall. 1. But he is not bound to inquire Bratling v. Brashim, 102 id. 441; Warren v. Rich- | into collateral circumstances. Burch v. Carter, 44 mond, 53 id. 52; Strong v. Shea, 83 id. 575; Hommel Ala. 115. A recital in a deed forming a link in the v. Derinney, 39 Mich. 522; Russell v. Sueezey, 22 id. chain of title of any facts, which should put a sub235; Rogers v. Jones, 8 N. H. 264; Patton v. Hollidays- sequent grantee or mortgagee upon inquiry, and burgh, 40 Penn. St. 206. The possession which will cause him to examine other matters by which a debe equivalent to actual notice to a subsequent pur- fect in the title would be disclosed is constructive chaser must be an actual open and visible occupa- notice of such defect. Acer v. Westcott, 46 N. Y. tion inconsistent with the title of the apparent owner 384; Cambridge Bank v. Delano, 48 id. 326. The by the record; not equivocal, occasional, or for a
rule that a grantee always takes with constructive special or temporary purpose. Constructive pos- notice of whatever appears in the conveyances consession will not suffice.
Volkenning, 64 N. stituting his chain of title applied to a prior unY. 76, 83; Page v. Waring, 76 id. 463; Atwood v. recorded mortgage referred to in the second mortBears, 47 Mich. 72; Smith v. Jackson, 76 Ill. 254; gage. Baker v. Mather, 25 Mich. 51. Where the deBingham v. Kirkland, 34 N. J. Eq. 229; Cabcen v. fendant claims title through a deed which contains Breckenbridge, 48 Ill. 91; Ely v. Wilcox, 20 Wis. 523; a covenant to recovery, he is chargeable with conMoyer v. Hinman, 13 N. Y. 180; Trustees v. Wheeler, structive notice of such covenant. Van Doren v. 61 id. 88; Greer v. Higgins, 20 Kans. 420; Meehan v. Robinson, 16 N. J. Eq. 256. One knowing of a deed Williams, 48 Penn. St. 238; Noyes v. Hall, 97 U. 8. containing a reference to a registered title bond, 34. But such possession does not necessarily con- held to be affected with constructive notice of the stitute constructive notice of the existence of a title
contents of the deed. Payne v. Abercrombie, 10 in the party in possession, as the presumption of Heisk. 161. See Willis v. Gay, 48 Tex. 463; S. C., notice arising from it may be rebutted. Roger v, 26 Am. Rep. 328. Jones, 8 N. H. 264. The possession of a tenant is RECORDS.— The record of a deed is notice only to sufficient notice of his landlord's title to put a per- those who are bound to search for it. It is not a son dealing with the property on inquiry. O'Rourke publication to the world at large. Maul v. Rider, v. O'Conner, 39 Cal. 442. Actual occupancy by a 59 Penn. St. 167. From the time a conveyance is purchaser under a contract of sale is constructive delivered to the clerk for record, it is notice to all notice to a mortgagee of his rights. Trustees v. subsequent purchasers. Mut. Life Ins. Co. v. Dake, Wheeler, 61 N. Y. 88; Braman v. Wilkinson, 3 Barb. 87 N. Y. 257; Poplin v. Mundell, 27 Kans. 138. 151. When a vendor remains in possession after Brookes' Appeal, 64 Penn, St. 127; Pringle v, Dunn, making his deed, a purchaser from his grantee has 37 Wis. 449; Clader v. Thomas, 89 Penn. St. 343; a right to rely upon the deed of the vendor in pos- Polk v. Cosgrove, 4 Biss. 437; Oats v. Walls, 28 Ark. session as a complete answer to any inquiry which 244. A purchaser of real estate who takes his deed his possession would suggest. Bingham v. Kirkland, to the office of the register of deeds, and deposits 34 N. J. Eq. 229. The fact that a grantor remains in it with him for record, discharges thereby his duty possession of his land after conveying it away by a of notice to the public; and if through the fault deed absolute on its face is not constructive notice
alone of the register the deed is lost, and not ento purchasers of a judgment against the grantee, oftered of record, such failure will not work to the the grantor's right to have his deed treated as a prejudice of the title of such purchaser, even in famortgage. Tuttle v. Churchman, 74 Ind. 311. Act- vor of a subsequent purchaser without notice, unual possession by a cestui que trust is constructive less the first purchaser, after knowledge of the denotice to a purchas er thatthere is some claim, title or fect in the record, is guilty of laches in failing to possession of the property adverse to the vendor. give notice of his title, either by occupation of the Johng v. Norris, 28 N. J. Eq. 147. For the purpose premises, record of a new deed, or proceedings in of putting purchasers upon inquiry as to the rights court. Lee v. Birmingham, 30 Kans. 312. A of third persons, the husband's possession of the transfer upon its face as spread upon the wife's real estate is the possession of the wife. Fas- record must show a compliance with the require
ments of the statute in order to give it effect as con- Iowa, 154. The entry of a conveyance out of the structive notice; parol evidence cannot be brought order of its date and upon a page which should in aid of any defect. Wood v. Cochrane, 59 Vt. 544. have contained a mortgage several years antecedent The record of a deed not executed in conformity in execution is not notice to a subsequent mortgagee with the recording laws is constructive notice to no in good faith. N. Y. Life Ins. v. White, 17 N. Y
Galpin v. Abbott, 6 Mich. 17; Isham v. Ben- 469. nington, 19 Vt. 230; Laughridge v. Brookland, 32 The record of a deed or mortgage is constructive Miss. 546; Cogan v. Cook, 22 Minn. 137; Wood v. notice of only what appears on the face of the inCochrane, 39 Vt. 544; Bishop v. Schneider, 46 Mo. strument as recorded. Battenhousen v. Bullock, 11 472; Van Thornilly v. Peters, 26 Ohio St. 471; Green Bradw. (Ill.) 665; Galway v. Machon, 7 Neb. 285; v. Drinker, 7 Watts & Serg. 440; Kauffelt v. Bower, Barnard v. Campau, 29 Mich. 162, 164, and cases 7 Serg. & Rawle, 64. But see Watson v. Wells, 5 cited; Gate's Err. v. Morris, 29 N. J. Eq. 222; Conn. 468; Brown v. McCormick, 28 Mich. 215. A affirmed 30 id. 285. Not of all which might be memorandum attached to a deed and entered on the ascertained by inquiries suggested by the record. margin of the record, but not acknowledged, is not Taylor v. Harrison, 47 Tex. 542. In Riggs v. Boylan, constructive notice to a purchaser. McKecn v. 4 Biss. 445, it was held that a grantee's rights are Mitchell, 35 Penn. St. 269. Where a recorded in protected even though the recorder actually records strument shows upon its face that the acknowledg- only a portion of his deed. The index is not an esment was taken by a party in interest, is improperly sential part of the record for the purposes of notice; recorded and is no constructive notice; but when it and a mortgage duly recorded though not indexed is fair upon its face it is the duty of the register to is constructive notice, even against a bona fide purreceive and record it, and its record operates as chaser or mortgagee who dealt on the faith of finding notice notwithstanding that there may be some bid- no incumbrance in the index. Mut. Life Ins. Co. v. den defect. Yet a conveyance, though improperly Dake, 1 Abb. N. C. 381; Board, etc. v. Babcock, 5 acknowledged, is good as between the parties or Oreg. 472; Chatham v. Bradford, 50 Ga. 327. And those purchasing with actual notice. Stevens v. in this case the court say: "When a deed has been Hampton, 46 Mo. 404. The recording of an assign- duly copied upon the record book it is difficult to ment as a notice to subsequent mortgagees is not say that it is not recorded. The steps to be taken invalidated by proof that the acknowledgment was for easy reference, it seems to us, are matter with taken in New Jersey by a notary public of New which the owner of the deed has nothing to do. York county, when his certificate was in due form He has caused his deed to be copied upon the puband purported to have been taken in New York. lic books, that is all the law requires of him, and Hulburn v. Hammond, 13 Hun, 404. A party ac- that is all he can do. Where an assignment of the quires no rights by recording a paper not entitled interest of the owner of a leasehold estate in fee to be recorded. Gillig v. Maas, 28 N. Y, 181; is presented to and left with the clerk of the proper Brown v. dd, 2 Ind. 442; Dutton v. Ives, 5 Mich. county to be recorded, the failure of the clerk to 515. But knowledge of such a deed may operate properly index it, or errors made by him in transas actual notice. Musgrove v. Bonser, 5 Or. 313. cribing it, will not prejudice the rights of thc asThe contents of the deed are to be correctly spread signee or deprive him of the privileges conferred upon the record.
Terrell v. Andreu, 44 Mo. 309. upon him by the recording acts. Bedford v. TupThe registry of a mortgage given to secure $3,000, per, 30 Hun 174, 176. A party who suffers through but by the mistake of the clerk registered for $300, the neglect of the clerk to properly index a converis notice to subsequent bona fide purchasers, to the ance must look to the clerk and his sureties for extent only of the sum expressed in the registry. redress. Board, etc. v. Babcock, 5 Oreg. 472. The Frost et al. v. Beekman, 1 Johns. Ch. 288. Where registry of a conveyance of an equitable title is a mistake is made in recording a mortgage in ex- notice to a subsequent purchaser of the same intertenso, by omitting to copy the attestation thereof, est or title from the same grantor, but is not notice held, that the registry was not constructive notice to a purchaser of the legal title from the person to subsequent mortgagees for value. Pringle v. who appears by the record to be the real owner. Dunn, 37 Wis. 449. Recording a mortgage in book Tarbell v. West, 86 N. Y. 280. Constructive notice of deeds is not duly recording it, within the mean- from the record applies to equitable as well as to ing of the recording acts, so as to be constructive legal estates. Digman v. McCollum, 47 Mo. 372. notice to a subsequent mortgagee in good faith or Actual knowledge of a prior unrecorded deed is to affect a conveyance subsequently but duly re-equivalent to the constructive notice operated by corded. Gillig v. Maas, 28 N. Y. 192, Recording registration. Blaine v. Stewart, 2 Iowa, 378; Baya mortgage in the records of assignments of mort- les v. Young, 51 Ni. 127; Maxwell v. Brooks, 54 Ind. gages is not constructive notice. Parsons v. Lent, | 98; Lieman, Matter of, 32 Md. 225. An incorrect 34 N. J. Eq. 67, 70; Conklin v. Hinds, 16 Minn. 457; registration cannot avail a party who is not misled contra, Clader v. Thomas, 99 Penn. St. 343. thereby. Gaskill v. Badge, 3 Lea (Tenn.), 144.
Where the recorder by mistake enters the name The partial or total destruction of a record book of another person as the grantor in the deed in place containing a deed does not affect the record of it as of the true grantor the same is not duly recorded. legal notice. Myers v. Buchanan, 46 Miss. 397; Jennings v. Wood, 29 Ohio, 261; Howe v. Thayer, 49 Gammon v. Hodges, 73 Ill. 140; Shannon v. Hall, 72 id. 354. If before the purchase of real estate the incompetency of our judges;” and the second, the
"still more marked decline in the character of our purchaser, having received information that a transcript of a judgment against the owner had been
legislators." Now it needs no demonstration that
these two sources have nothing whatever to do with filed, goes to the proper officers, and in good faith
the subject; that if all our judges were Kents, and all causes an examination of the records to be made, our legislators Solons, still the evils against which and they disclose the fact that there is no judgment codification is directed would be the same as now. lien, he is justified in acting upon the belief that
Either the author wholly fails to show how the there is none. Bell v. Davis, 75 Ind. 314; Rogers v.
thing is to be done; or in a prior portion of his pam
phelt, he argues that the evils in question are irremeJones, 8 N. H. 264; Simon v. Kaliske, 1 Sweeny, 304.
diable. “The interpretations of law, written or unHoyt v. Sheldon, 3 Bosw. 267. A record of a mort- written, must forever depend upon human fopinion; gage prior to the acquisition of title by the mort- and must be inseparable attendants upon this condigagor is constructive notice to a subsequent pur
tion." Can we take this to our bosom as a comforter, chaser in good faith, and under the recording act
while we are being crushed by the ivcreasing volume
of reported decisions? Is not the present number of and gives it priority to his title. Teft v. Munson, 57
decisions incalculable, will not ten years suffice to N. Y. 97. Where a deed is not delivered to the
double it, and twenty to quadruple it? Is the law in grantee therein named until after it has been recopied such a condition that any one with a smaller library by the grantor, the grantee takes the deed and its than Mr. Carter's, with a smaller stock of legal knowregistration with the same effect thenceforward as
ledge than he, with smaller facilities for legal refer
ence than are afforded by the libraries located in New if recorded by him at the date of its delivery. Jones York, or Boston, or Philadelphia, can pretend to make v. 1. Roberts, 65 Me. 273.
up his mind approximately upon a point of law with An unrecorded deed is not constructive notice to less than a week's labor? Can he retain his knowledge the subscribing witness. Vest v. Michie 31 Gratt. of a point of law without writing a book about it? 149; S. C., 31 Am. Rep. 722.
Can he transfer to others any idea of what he himself
knows, invested with so much authority as will be CASES MUST PLEAD AND SHOW.- Upon the ques
necessary to have them believe him ? tion whether one took a deed without notice of a In a certain sense the pamphlet answers this quesprior unrecorded one, the burden of proof is upon tion; and in this implied answer lies its leading error. the one alleging bad faith. Ryder v. Rush, 102 III. It says in effect, "the unwritten law of the day is right 338. One buying land mortgaged of record, will
reason; and as every reasonable man has that, he has
all of the law that he requires." take no benefit from declarations made to him by
He says this in his opening: “The great body of the the mortgagor, that the mortgage has been paid. rules which determine the rights of men, have their Pratt v. Pratt, 96 III. 184. The record of an assign- origin in the popular standard, or ideal of justice, as ment of a mortgage is constructive notice as against applied to human action.” “The law of England and a grantee of the mortgagor, that the mortgagee can
America,” he says, “has been a pure development
proceeding from the constant endeavor to apply to no longer deal with the mortgaged interests, and a the civil conduct of men, the ever advancing standard subsequent discharge or release of the lien of the of justice." "The judge's office is to apply the existmortgage executed by him is invalid. Belden v. ing standard of justice to the new exhibition of fact; Meeker, 47 N. Y. 397; Smyth v. Knickerbocker, etc.,
and to do this by ascertaining the conclusion to which 84 id, 589.
right reason, aided by rules already established, leads. There is no arbitrary power in bim; and any exercise
of it by him, would form clear ground for his impeachTWO ANSWERS TO MR. CARTER'S PAM- ment. Nor can any discordance be found between PHLET.
this theory and the fact."
Is it not singular that in writing on legal subjects, Mr. Carter's latest pamphlet, which I have only so much can be said which turns out on close security, just seen, appears to me to deserve more attention to be inadvertent self-deception. Mr. Carter has than it has received. It is the very able presentation practiced law for many years. I will ask him whether of a bad case, and shares, with most other productions he can point to one lawsuit, in wbich the right reason of that kind, the peculiarity that it covertly proves the of the matter was ever the subject of positive and excontrary of what it expressly pretends to indoctri- press discussion. I will ask him to point to one page pate.
in the endless mass of reports in which ever the right It contains, among the rest, the following very ex- reason of the thing was debated? Whether he would cellent description of the work which it attempts to not smile the moment he saw a lawyer undertake to discourage : "Such a work, by facilitating, would save do it? Whether he has ever heard of the thoughts of labor. It would refresh the failing memory, repro- any except the parties to the action tending that way? duce in the mind its forgotten acquisitions, exhibit the If so common a standard were at all considered, how body of the law, so as to enable a view to be had of would it be possible that there should be difference of the whole, and of the relation of the several parts, and opinion enough to keep a lawsuit open? How would tend to establish and make familiar a uniform nomen it be that one lawyer should not convince the other? clature. Such a work, well executed, would be the How would it continue questionable with every one vade mecum of every lawyer and every judge. It what the decision of a case was to be, even after the would be the one indispensable tool of his art.”
argument has closed? How could there be a dissent The main defect of the pamphlet lies in its blink- from every prevailing opinion? How could the decising the question how the case is to be met? How the ion swing back and forth from side to side, as the evils aimed at by the supporters of a code are to be case ascended from appeal to appeal? How could the removed ? After writing around this portion of its decision of a rule in one State leave it entirely an subject to its close, it ends by restricting the “un- open question, whether the same case would lead to necessary evil, which is by possibility removable," the same or an opposite rule in another? How could to two main sources; the first being “the occasional opposition in their rules become almost the regular
thing between certain States? How could well nigh of the measure to admit and indoctrinate that codifi. every rule of the common law be ruled upon in oppo- cation is desirable as to all but one kind of law. The site ways by the same court, in the course of every progress that lies herein is conceivable only to ten or twenty years? Many rules being the subject of lawyers. I had almost said, to black letter lawyers. repeated decisions on either side.
The best proof of this is in the opinion of English Right reason is concerned with the law in one re- judges, given in this same pamphlet, on · various spect only; it is always present to the mind of both schemes of codification there proposed, some of them counsel, and of the judges; and they tacitly agree being codifications of the very branches of law here that it shall not be controverted. Beyond this limit pronounced proper subjects of codification. it is of no force whatever.
Consider, for a moment, that in including in these And here comes the second great error in the pam- criminal law, you cut off fully one-half of what was phlet. The symptoms we have adverted to are of anciently regarded as the common law. The maxim course not unknown to the author. How does he ex- nulla poena sine lege was never regarded there, is not plain them? “The general part of the variety of new regarded there, except only in New York State since conditions incessantly arising in human affairs will the year 1881. Now it is recognized. readily be admitted; but few have attentively con- In England the “Constitution and Government" sidered
can adequately comprehend - the would not be regarded as proper for codification. infinite number of diversities. In the State of New Here they are. York, each successive day witnesses acts, millions in With regard to the decisions, however, it is not number, each one of which may, by possibility, satisfactory. “While the promises of written aud become the source of dispute, and call for judicial de- uuwritten law are for the most part easily distin. cisions, and no two of them be alike."
guished and separable, there is no precise line of demarIn short he ascribes the contrariety of judicial deci. cation between them. They fall into each other at sions to the infinite variety of cases, and the much the boundary by insensible gradations, and consecited changes in the forms of society. I contend that quently there are many subjects as to which it is a this is a facon de parler; that society does not change matter of difficulty to determine upon which side of so fast but that acts of assembly could follow all the the line they lie. In these cases it is not of very changes which required registration; that the infinity much importance which system is applied.” of acts forming the subject of judicial investigation is He then roughly enumerates “The Constitution and not yearly so great but that thousands of acts differ- Government, the general law, social and political quesing in their details, come under one and the same tions, sharp changes, procedure, real property, and classification as subjects of legal transaction; and in negotiable paper,as the subjects of written law;" as to short that the conflict and contrariety of judicial de- which we may remark, that social and political ques. cisions result, not at all from necessary multiplicity tions are somewhat difficult of specification; that if in the subject-matter, but from a tendency in the ad- sharp changes are needed in the matter which he rejudicating mind to vent itself in different and diverg- serves for unwritten law, a mixture of written and ing formulæ.
unwritten law is called for, which must be very diffiTherefore the great phantom of the opponents of cult of management; that at all events, nothing of codification must dissolve in mist. The variety of this kind has been known to the English or American cases which must arise, is not so great as to escape the law of the past, and that the introduction of this new activity of a codifier and a Senate and Assembly, and distinction is an innovation of great force and extenthe changes in society are not so daily and hourly, sive effect. that the speed of legislators cannot possibly keep up He then enumerates "the general law both of conwith them.
tracts and torts, the law of sales, of partuership, of Upon the same principle he enumerates, among the agencies, of corporations, of bills and notes, of sbipevils resulting from the adoption of a code,
ping, insurance, and admiralty; the law governing the “7. The enforced abandonment of all hope of bring- rights and duties springing out of particular employ. ing the private law of all English speaking States to a ments, occupations, relations and engagements, as the unity."
law of carriers, of bailees, of master and servant, of This seems to me to be auti-code run mad. What husband and wife, of telegraphs, and the principal could be farther from unity, or from an approach to body of the law affecting the ownership of property, unity, than the multifarious state of the present law real or personal,” as covering the immense field of upon any point or question? Is there one upon which subjects which ought to remain those of unwritten a careful counsel would advise his client to take the law. There are a number of observations which oblaw of one State for that of another? Is not the neces- trude themselves in connection herewith. For insity of care in this respect infinitely greater now than stance, corporations aro in their very nature creatures it was ten or twenty years ago? And is not the practi- of positive law, and many people think it very imcal tendency toward greater multifariousness, instead portant to keep them under close control. Bills and of inversely? Codification is the only means of ap- notes are but another name for negotiable paper, proximating such an end. Already we have California which has been enumerated as a proper subject of adopting the code of New York before New York does codification. In regard to admiralty, Judge Donohue so for herself. A similar instance is in the German has said, “I entered a large office, at twelve years of Empire, which has adopted a uniform code after the age, where there was a large admiralty practice, and Prussian Landrecht had been adopted for a portion of as such practice is codified, I dare say that I have a it. Another is the case of the Latin countries, where disposition favorable to a code which most common the Code Napoleon was adopted in Italy and in Bel- | lawyers would not feel.” So admiralty belongs to she gium, by way of accommodation to France.
domain of codifiable law. Shipping is distinct from A most striking feature of this pamphlet is its first admiralty to the mind of the technical practitioner; production of the distinction between law calculated but inseparable from it in the mind of a jurist. It cerfor codification, and law not so calculated. At one tainly came under Judge Donohue's observation as place he makes the distinction equivalent to that frequently as admiralty, and if it were not equally between public law and private law, but that distinc-codifiable, it would have imbued his mind with avertion is not preserved. I wish to say, first and fore- sion to a code. Insurance is regulated by set written most, that it is important to register this advance in the contracts; they are easily controlled by legislation; progress of codification; we have driven the opponents and it is very important they should be. How the law