to the capital stock of a railroad company, without referring the question of subscription to a popular vote. Keithsburg v. Frick, 34 Ill. 405, 421; Q. M. & P. R Co. v. Morris, 84 id. 410; Marshall v. Silliman, 61 id. 218, 225; Quincy v. Cooke, 107 U. S. 554. The Legislature therefore could make the election of 1868, legal and binding as an expression of the popular will; and upon the basis of the election thus legalized, empower or authorize the corporate authorities of the municipality to issue the bonds for the amount indicated by the popular vote. The right of the city to issue the bonds was saved by the proviso of the Constitution. City of Jonesboro v. Cairo & St. Louis R. Co. Opinion by Harland, J.

SUPERSE

PRACTICE -ALLOWANCE OF APPEAL DEAS.- If a court in session and acting judicially allows an appeal which is entered of record without taking a bond within sixty days after rendering a decree, a justice or judge of the Appellate Court may, in his discretion. grant a supersedeas after the expiration of that time under the provisions of section 1,007, United States Revised Statutes. Anson, Baugs & Company v. Blue Ridge R. Co., 23 How. 1; Brobst V. Brobst, 2 Wall. 96; Seymour v. Freer, 5 id. 822; The Dos Hermanos, 10 Wheat. 306; Kitchen v. Randolph, 93 U. S. 92; Edmondson v. Bloomshire, 7 Wall. 307; Railroad Company v. Blair, 100 U. S. 662. Peugh v. Davis. Opinion by Waite, C. J.

CRIMINAL LAW,

INSANITY-BURDEN OF PROOF.- The defense of insanity must be established by a preponderance of proof; and in such the burden is not on the State to satisfy the jury of the sanity of the prisoner beyond a reasonable doubt. New Jersey Supreme Court, June Term, 1883. Graves v. State of New Jersey. Opinion by Beasley, C. J. (16 Vroom, 203.) MERGER VICTION. One may be convicted of either of two felonies which have so merged that, if the proper plea were interposed, he could not be convicted of both. State v. Archer, 54 N. H. 465, 468; State v. Snyder, 50 id. 150, 155, 159; State v. Emerson, 53 id. 619; State v. Leavitt, 32 Me. 183; State v. Smith, 43 Vt. 324; Commonwealth v. Squire, 1 Metc. 258, 264, 265; Commonwealth v. M'Pike, 3 Cush. 181, 185; Commonwealth v. Burke, 14 Gray, 100; Commonwealth v. Bakeman, 105 Mass. 53, 61; Commonwealth v. Dean, 109 id. 349, 351, 352; State v. Shepard, 7 Conn, 54; State v. Parmelee, 9 id. 259; People v. Smith, 57 Barb. 46; Barnett v. People, 54 Ill. 325, 330, 331; Regina v. Neale, 1 C. & K. 591; S. C., 1 Den. Cr. C. 36; Regina v. Button, 11 A. & E. (N. S.) 929, 947, 948; Bank Prosecutions, Russ. & Ry. 378; 3 Inst. 139; 2 Hawk. P. C., ch. 29, § 1; 1 Russ. Cr. 31; 1 Bish. Cr. L., § 608; Lewis Cr. L. 599; Bick. Cr. Pr. 15. New Hampshire Supreme Court. State of New Hampshire v. Buzzell. Opinion by Bingham, J. (59 N. H. 65.)

OF DISTINCT FELONIES FORMER CON

Hornblower, one of the ablest opponents of the Civil Code. In the course of his remarks, Mr. Hornblower finds occasion to criticise my feeble efforts in behalf of the Civil Code. While fully recognizing the kindly spirit of the criticism, I must protest against what I believe to be an unintentional misstatement of my views. I deny that I have derived my chief illustration of the necessity of codification from the litigation over the rights and liabilities of married women in this State. I am fully aware that the law upon this subject has to some extent been complicated by the enactment of the Married Women's Acts, and that any argument in favor of the Civil Code based solely upon the chaotic condition of this branch of the law, would be assailed upon the very grounds stated by Mr. Hornblower. I have therefore in every argument, whether written or oral, advanced by me in favor of the Civil Code, been careful to refer to those branches of the common law which still preserve their pristine "flexibility" "(so-called) unsullied by the touch of statutory law, e. g., parent and child, partnership, agency, suretyship, fraud, and have endeavored to show that even the elementary principles of the most ordinary legal relations and contracts are either still in an unsettled condition, or have only been declared by our Appellate Court within the most recent period, while the Civil Code stated these very principles in clear and definite terms as early as 1865. The argument to be derived in favor of code-law against judge-law from such a review of recent litigation over elementary legal principles, seems to me to be irrefragable. But besides stating the law as it is, and thus putting an end to litigation over legal principles which ought to be deemed fundamental and well settled, the Civil Code also introduces some salutary amendments of the law. These, though few in number, are all in the direct line of progress and reform. Among these amendments, probably the most beneficial is that which enables a married woman to contract with persons other than her husband, as if she were single, and thus does away with the confusion arising from the present limitation to contracts referring to her sepa rate business, or for the benefit of her separate estate. It was in advocacy of this change that I referred to the numerous recent decisions upon this branch of the law.

But Mr. Hornblower may justly claim that my personal relation to his argument is of less importance than the question of the intrinsic merit of the argument itself. Let us then examine the logic of his reasoning. If I understand him rightly, Mr. Hornblower's argument reduced to the syllogistic form is as follows: Uncertainty and litigation were caused in the law of married women by the statutes called the Married Women Acts; the Civil Code is a statute; therefore the Civil Code will produce uncertainty and litigation. Admitting for the present, for argument's sake, that the uncertainty and litigation complained of were caused by the Married Women Acts, our reply to his argument is short and simple: Firstly, the Married Women Acts were loose, unscientific statutes, covering only part of the subject with which they purported to deal, and in this respect are probably the best illustrations of what a good statute ought not to be so that even if it were true that these acts created the uncertainty and litigation complained of, it could not logically be inferred that the same evils would result from a clear, systematic statute dealing with the whole subject as is done in the Civil Code; Secondly, the Civil Code is not a statute in the sense in which Mr. Hornblower uses the term. It will be discovered upon examination that much of the uncertainty and litigation arising from the enactment of the Married Women Acts, grew out of the application of that absurd rule of statutory construction, that every legislative

amendment of the law must be construed strictly as in derogation of the common law. But it is expressly provided that the Civil Code shall not be construed strictly as an ordinary statute (section 3,156). By this provision the essential element of weakness in all statutory law is eliminated from the Civil Code, and the argument derived from the practical working of statutes in derogation of the common law cannot logically be applied to the Civil Code.

But is it true that the present uncertainty in reference to the law of married women was caused by the adoption of the enabling acts? Mr. Hornblower admits that these acts were a necessity - pray why? If the law was fixed and certain before the passage of these acts, why introduce uncertainty by their enactment? The answer is patent; the certainty of the common law was the fixed rigidity of death. This renowned common law, whose glorious "flexibility' every opponent of the Civil Code is wont to sing in rapturous tones, could not divest itself of the doctrine of the total merger of the wife's civil existence in that of the husband, a doctrine which sprang from the medieval union of sacerdotalism and feudalism. Although the equity judges, with their rules derived from the codified civil law of Rome, endeavored to bring the legal status of married women into harmony with the spirit of the nineteenth century, their efforts were all in vain. The so-called "flexible" common law clung with "inflexible" tenacity to its medieval doctrine, and opposed with "inflexible" determination every attempt to clothe married women with the civil rights of responsible beings.

The common law in clinging to this dead doctrine, became petrified itself. To galvanize the dead spirit of the law into life, the Married Women Acts were passed. But lo and behold! This "flexible" common law would not be roused into new life. It still holds on with a veritable death grip to the anachronism of the wife's merger in the husband, and is killing the very life of those statutes which were intended to give it new life. And so it has come about that the Married Women Acts, twisted and distorted by judges imbued with the spirit of the common law, have been prevented from accomplishing completely the object for which they were enacted. I admit that much litigation has grown out of the enactment of these acts. But this litigation merely incorporates the struggle of the common law against the removal of a dead and withered doctrine the struggle of the spirit of the middle ages against the light and progress of the present age. We may therefore justly claim that the litigation complained of is the result of the narrow inflexible spirit of the common law, and is not directly attributable to the statutes referred to. Mr. Hornblower protests against the amendment of the law effected by the Civil Code upon this subject as being revolution and not codification. Has Mr. Hornblower examined the hetrogeneous mass of decisions upon the law of married women evolved by the Court of Appeals within the last few years? I doubt whether he will claim, after such examination, that the law upon this subject can be codified, in the sense in which he employs the term. Mr. Hornblower interprets codification to mean a systematic statement of the law as it is. But upon this subject there is at present no law, only chaos, In such a condition of affairs it is the proper function of a code to announce a clear and simple principle which shall be in harmony with the spirit of the age. This is accomplished by the proposed Civil Code. Mr. Hornblower may call this revolution. Call it what you please, it is in fact nothing but the reestablishment of order out of anarchy. I for one I am not frightened by the term revolution. If this be revolution, then I prefer the revolution of the

law to the mummified rigidity of the law, which existed before the enactment of the enabling acts, and to the chaos of the law, which exists to-day. JOHN FRANKENHEIMER.

NEW YORK, March 31, 1884.

MR. GOEPP TO MR. HORNBLOWER.

Editor of the Albany Law Journal:

Your correspondent, in the communication in which he so alarmingly repeats my name, deals with one single illustration in an article, containing a good many more, to which he offers no objection. With regard to this one, I have only to say that the object in addressing it was to show how the absence of a code, by leaving us without any standard for distinguishing the important doctrines of the law from the unimportant, obliges me vainly to travel a hundred miles in search of a decision, for the purpose of citing it, which, if we had a code to cite, would deservedly rank as an unimportant gloss, the absence of which would have no appreciable effect on the decision of the tribunal.

Those Canada law journalists are a very sensible class of men. The Canada Legal News says: “We may, as a far-away outsider-an Arctic bear or any thing else you choose--say that the American Law Review, the ALBANY LAW JOURNAL, the Criminal Law Magazine, and one or two more, are a credit to the profession."We copy on our third page to-day an exceedingly interesting, as well as able, article by the leading organ of the bar of this State, the ALBANY LAW JOURNAL. It is on the subject of codification, which has been lately forced upon the attention of the people of this State by the stubbornness, malice, and narrow selfishness with which certain old fogy-lawyers have fought the execution of the command of our State Constitution that the laws shall be codified. The LAW JOURNAL displays its high legal ability, its dialectical power and its faculty of humor, in the ease with which it exposes the sophisms of the lawyers who vainly fight the reform and simplification of the laws. A subject which concerns every intelligent good citizen is treated with a simplicity, skill and interest that will make the reading of the article we copy a pleasure. -New York Mail.-The American Law Register for March contains a leading article on Demurrage, by Theodore M. Etting, and the following cases in full: Jolliffe v. Baker (Q. B. Div.), on error in quantity in contract for purchase of land, with note by Edmund H. Bennett; Dickinson v. Coates (Mo.), on assignment of deposit by check, with note by Christopher G. Tiedeman; Nicholson v. Coombs (Ind.), on alteration of note by adding maker, with note by W. W. Thornton; First National Bank of Nevada v. Bryan (Iowa), on defense of duress as against bona fide purchaser of note, with note by M. D. Ewell.- -In Grunson v. State, 89 Ind. 533, Elliott, J., one of the ablest judicial writers in this country, remarks: "We know that there has been much discussion upon the subject of larceny, and that many subtle distinctions have been made, but these discussions are for the most part, as profitless as the ancient theological discussion whether angels could dance on the point of a needle." That is to say, we suppose, a needless discussion.

the most beautiful municipal buildings in this country.

The anticipated cyclone from the far West, in regard to the judges' gowns, has at last struck us. The Denver Law Journal says: "The judges of the Court of Appeals of the State of New York have yielded to the importunities of our contemporary, the Albany LAW JOURNAL, and a few members of the bar, and have adopted silken gowns as their judicial robes. Must we assume that the silk robe will add weight to the opinions hereafter announced by that court? Facilis descensus averni, etc. In the West this act will cause the

opinions of the New York court to be viewed with suspicion, and the fact of their yielding be regarded as an indication of weakness on their part, which will detract much from their authority. If however the plutocratic members of the bar of New York are satisfied with their judges aping the English customs in this respect, we have no reason to grumble." This is the hardest blow up to date. That Virgilian quotation is really unkind. And why "plutocratic"? Perhaps because of the descent to Avernus. It is a little relief to turn to Sam Slick, whose commentary on gowns is recalled

to us by the Canadian Law Times; "'Silence!' said the sheriff, and all was as still as moonlight. It looked strange to me, you may depend, for the lawyers looked like so many ministers all dressed in black gowns and white bands on, only they acted more like players than preachers, a plaguey sight. But, said I, is this not the case in your country is there not some sort of professional garb worn by

the bar of the United States, and do not the barristers and the court exchange those salutations which the common courtesies of life not only sanction but imperatively require as essential to the preservation of mutual respect and general good breeding? What on airth, said the clockmaker, can a black gownd have to do with intelligence? Them sort of liveries may do in Europe, but they don't convene to our free and enlightened citizens. It's too foreign for us, too unphilosophical, too feudal, and a remnant of the dark ages. No, sir; our lawyers do as they like. Some on 'em dress in black and some in white; some carry walking-sticks and some umbrellas, some whittle sticks with penknives and some shave the table, and some put their legs onder the desks and some put 'em a-top of them, just as it suits them. They set as they please, dress as they please, and talk as they please; we are a free people. I guess, if a judge in our country was to order the lawyers to appear all dressed in black, they'd soon ax him who elected him director-general of fashions, and where he found such arbitrary power in the Constitution as that, committed to any man."

An apology is due Mr. John Cotton Dana for a misprint of his middle name in the signature of his article on "Responsibility," ante, 248. An error in

so staple an article as Cotton ought not to have occurred, but it is after all probably self-evident.

cused.

In a recent charge to a grand jury Justice Daniels contrived to vary the usual monotonous recital of in terms of severe reprehension of the customary the cardinal sins of usury, lotteries, etc., and spoke methods of selecting jurors. Perhaps the grand jury could not very well help the manner of their own selection, or provide for the proper selection of future juries, but the occasion was convenient for the promulgation of the judge's views, which we have no doubt were excellent, and having heard ine the severity and plainness of his remarks. one of his ethical discourses to a jury we can imagAbout the first thing necessary to the reformation of our jury system is to prevent all the decent and intelligent men in the community from getting exwhy a manufacturer should be excused; if he has a We do not know any reason, for example, great many men in his employ he owes the greater duty to the community which protects him in his large interests. The true way to reform the jury system is the same which is essential to the reduty, and not defend or encourage them in shirkform of politics. Compel good citizens to do their the criminal disorder of the country, but we should ing it. It is all very well for men to whine about think better of these virtuous citizens if they would put the right men into office, and pay their taxes like honest people, and not squirm and wriggle to escape jury duty. The laziness, indifference, dishonesty, and selfishness of the best people in the community are chargeable with much of the wrong-doing of the worst.

NOTES OF CASES.

In Moebus v. Becker, New Jersey Supreme Court, November, 1883, 7 N. J. L. J. 104, two minors went gunning together, and one threw up stones for the other to shoot at, and the shooter's gun being cocked it went off accidentally and wounded the stone"The boys were friends, enjoying a holiday together, drank some 'Russian bitters,' were inexperienced and unsuccessful as gunners." Held, a question of negligence for the jury. The court said: "The duty which a person lawfully carrying

thrower.

fire-arms owes to others is not different from that which is imposed on all who have control of any hurtful thing, except in the degree of care to be exercised. As fire-arms are more than ordinarily dangerous when loaded, those who handle them are bound to use more than ordinary care to prevent injury to others. The cases cited in the plaintiff's brief of actions for injuries caused by the explosion of fire-arms, and many others are found in the notes to Morgan v. Cox, 22 Mo. 373, collected in 1 Thomp. Neg. 238. Beginning with the leading case of Weare v. Ward, Hob. 134, all hold a strict rule of accountability for the want of extraordinary care in

their use, but in no case is it said that where persons are gunning voluntarily together each may be held responsible for every accident or mishap that may occur to the other, while thus engaged; or that it is necessarily negligence to carry a gun cocked when in pursuit of game, or that in passing through brush, crossing ditches, climbing fences, or resting upon them, the gun must be uncocked; nor if one should pass in front of the other by his request, or on his own motion, and by stumbling or falling the gun of the other is discharged and a wound inflicted, that the only question to be considered by the jury is the amount of damages to be paid, and that negligence will be inferred as a presumption of law. Each case must stand upon its own peculiar facts, and rational rather than distinctive legal conclusions must usually be drawn from them. Whether in this case the damage to the defendant was the result of the pointing of the gun, or the accidental turning of the rail of the fence, causing the defendant to fall, and the discharge of the gun, as he has testified, was a question for the jury, and not for the court."

In Insurance Co. v. Carpenter, 39 Ohio St. 264, it was held that an agreement to pay lawful interest in advance is usurious. The court said: "It is contended by the learned counsel for the plaintiff in error, that the statute fixes the rate of interest and not the time of payment, and that as a contract | to pay the rate semi-annually is not usurious, there is no principle that would prevent the contract from providing for the payment of the rate semiannually or annually in advance. This means neither more nor less than that the borrower may be bound to pay interest at a stipulated rate of eight per cent per annum upon money of which he has never had the use, and yet the contract be free from usury. Interest for money is the reward or compensation which is paid by the borrower to the lender, or by the debtor to the creditor, for its use. If it is paid in advance or deducted at the time of the loan, the principal, of which the borrower is to have the use, is reduced pro tanto, and the lender should not be compensated for the use of money which in fact he has not loaned. B., for illustration, borrows and gives his note for $12,000, payable in one year after date, with interest at the rate of eight per cent per annum, and the interest is deducted in advance. He receives only $11,040, which he uses for one year; but as compensation therefor, pays the stipulated rate of interest on twelve thousand dollars. By computation it will be seen that he has paid interest at the rate of eight and sixty-eight one-hundredths per cent on the amount which he has actually received. He has lost the use of the $960 held back by the lender, which he would have had, if the interest had been payable only after it had accrued or been earned. His payment of interest on the sum so deducted is without consideration, and solely for the benefit of the lender. A construction of the language of the

* *

*

statute as applicable to the rate of interest only, and not to the time of payment, which will permit the payment of interest at periods shorter than the time a note has to run, furnishes, in our view, no reasonable ground for the advancement of interest before it accrues or is earned. The loans by banking institutions being for short periods, and the difference between discount and interest being in consequence so inconsiderable, it is not unreasonable that the Legislature should discriminate between private lenders and banks and those who deal in commercial paper by way of trade. It is quite obvious that unless the practice of deducting interest in advance is limited to short loans as by bank discounts, the usury will become greater in proportion as the period for which the usury is taken becomes longer. Thus in a loan of one thousand dollars for twelve and a half years, at eight per cent per annum paid in advance, the principal will be exhausted in the interest deducted, and the borrower will receive nothing."

The

In Parker v. Stroud, 31 Hun, 578, it was held, that personal demand of payment of a note of the maker is valid as against the indorser, although not made at the specified place of payment. court, Brady, J., said: "The plaintiff insists that the prior demands are of no avail, inasmuch as they were not made at the bank where the note was payable. But this proposition should not be sustained, for the reason that the maker, when applied to personally, admitted his inability to pay, from which it is clear that there were no funds in the bank for the purpose. The presentation at the bank, if necessary as a matter of form, should then have been made, in addition to the personal demand, if the plaintiff designed to hold the indorser. He knew from the maker's declaration that the note could not be paid, and he was therefore advised of the essential fact which put upon him the obligation to send notice to the indorser. *** The demand at the bank was a mere form, the result of which might readily be anticipated by the plaintiff, with his knowledge of the maker's financial condition, of which he had been advised, and it was an idle ceremony as to such result. It has not been declared in any case which has been found, that a presentation for payment, to the maker of a note payable on demand, is not an actual demand, although the note is payable at a particular place." Daniels, J., concurred, doubting, yielding, as he said, to the "superior wisdom" of his associates.