of lands upon or by or along a 'beach,' the word would be held synonymous with the shore or strand, and as having reference to and including only the lands washed by the sea, and between high-water mark and low-water mark. In the case of a boundary it would be necessary so to restrict the meaning of the word, in order to have a certain and definite limit to the lands granted. If held to mean the sandy land or flats between the upland and the shore, which is frequently formed by a change of the shore line, and is not unfrequently called a '.beach,' it would be quite too uncertain and indefinite to constitute a line bounding lands granted. In a grant of a 'beach,' and perhaps when a 'beach' is made the boundary of lands, other clauses of the deed, and the situation of the lands granted or other circumstances may authorize a different interpretation, and effect may be given to the word as meaning flats, or the sandy land between the upland and the actual shore line. In Storer v. Freeman, 6 Mass. 435, Chief Justice Parsons, in interpreting a deed substituted the word 'flats' for 'shore' in the description to give effect to the intent of the parties, and held that the land conveyed extended to the 'flats,' but did not include any part of them. The reasons given by the chief justice in the case quoted for restricting 'shore' or 'sea shore' to the ground between ordinary high water mark and lowwater mark are equally applicable to a boundary upon, or by, or along a beach. He says: 'It can not be considered as including any ground always covered by the sea; for then it would have no de

which they were only recently declared by the Court of Appeals after years of litigation, presents a strong argument for its enactment into law and for the principle ing such a comparison I have selected only a few inupon which it is based. For the purpose of institutstances in some of the leading branches of the law and have oy no means exhausted the subject.

I. PARENT AND CHILD.

This is a personal relation of such an ordinary character, that we would naturally expect to find the principles of the law governing this relation so elementary and well settled as to be considered beyond dispute. That the husband frequently dies and leaves the wife to take care of the children, is not an unusual occurrence. Is the widowed mother entitled to the ser

vices of the minor child, and as a corollary to this question, can she sue for the seduction of her minor daughter? In Bentley v. Rickmeyer, 4 Comst. 38, Bronson, J., declared that she was not entitled to such services, and in Re Ryder, 11 Paige, 185, Chancellor Walworth held that she was. In 1867, in the case of Gray v. Durland, 50 Barb. 100, Miller and Peckham, JJ., held, after a thorough examination of the authorities, that the mother was entitled to such services, and Hogeboom, J. (id., p. 211), after a similar examination of the authorities, held that she wasn't. On appeal in 1873, the Commission of Appeals, Hunt, C., stated that the question was not free from doubt, but dodged this issue, and affirmed the right of the widowed mother to sue for the seduction of her minor daughter in this case, on the ground that the daughter 1874, the question was decided by the Court of Appeals was actually in the mother's service at the time. In in Furman v. Van Size, 56 N. Y. 435. The majority of the court, per Grover, J., examined the question de novo, and held that the widowed mother is entitled at common law to the services of her minor daughter, and can therefore sue for her seduction. The minor

7 Metc. 322; Cutts v. Hussey, 15 Me. 237."

is constantly urged by the opponents of the Civil

same ground in an able dissenting opinion, and came to the conclusion that no such right belonged to the mother at common law. The glorious flexibility of the common law is beautifully illustrated in the numerous cases cited in support of both views of the

settled the question once and for all. Section 32 (§ 35 of 1884) declares that the right of personal relation forbids the seduction of a daughter, and sectious 89, 90 (§§ 123, 124, of 1884), entitle the widowed mother to the care, services and earnings of her minor children. This elementary principle governing the relation of parent and child was "inflexibly "fixed by the code in 1865, and was only "flexibly "declared by our highest court in 1874.

II. HUSBAND AND, Wife.

1. Is an agreement between husband and wife for immediate separation valid? Its validity was attacked by one of the most prominent opponents of the code, on that such an agreement

State, that in so far as the Civil Code states elementary principles of the law it is unnecessary; that these principles are so well settled that it is a work of supererogation to restate them in the form of a code. A cursory review of the recent adjudications of the highest appellate courts, upon elementary principles governing ordinary legal relations, may lead the blind panegyrists of the common law to admit that its so-called flexibility is a euphemism for its uncertainty. It may be asking too much from the opponents of codification, to expect that such a review may induce them to acknowledge that a code, which as early as 1865 stated elementary legal principles in the form in

a

strange that Judge Cowen, in People v. Mercein, 3 Hill, 411, actually calls such voluntary separation kind of divorce which the courts cannot very well gainsay at this day.' The validity of such an agreement was upheld in 1882 by Judge McAdam, in Allan v. Affleck, reversed by the General Term of the Marine Court, and such reversal in turn reversed by the General Term of the Court of Common Pleas, 64 How. Pr. 380. The question was again mooted as late as 1883, in Desbrough v. Desbrough, in 29 Hun, 592. The Civil Code settled this question in accordance with these decisions as early as 1865 (§§ 80, 81, being §§ 105, 106, of 1884).

2. How far is a husband liable for the independent tort of his wife? As late as 1872, the General Term, Supreme Court, second department, was informed by the Court of Appeals that the liability of the husband did not rest upon the ground that he, in contemplation of law, was guilty of the tort, but resulted from a necessity of pleading arising from the incapacity of the wife to be sued without her husband. Kowing v. Manly, 49 N. Y. 192. It was therefore natural to assume that when the new code allowed a married woman to sue or be sued as if she were single (§ 450 Code of Civil Pro.), the husband could not be joined as a party in an action for her independent tort. But Judge Van Brunt, sitting at Special Term, Supreme Court, first department, in Berrien v. Steel, decided May, 1878, and Judge Sedgwick, of the New York Superior Court, in Dimelow v. Rosenfield, decided June, 1878, held otherwise. But now comes Judge Rumsey, in Fitzgerald v. Quann, 62 How. Pr. 331, and decides in accordance with Kowing v. Manley, that the husband is not a proper party in such an action. It must be admitted that the provisions of the Civil Code on this subject are not as "flexible" as our common law, for by section 83 (§ 108 of 1884), neither husband nor wife as such is answerable for the act of the other.

III. PRINCIPAL AND AGENT.

1. How far is the principal bound by the act of the agent done under an ostensible authority? This is surely a matter of elementary law, but as late as 1879 the Court of Appeals in People v. Bank of North America, 75 N. Y. 547, 562, was compelled to re-examine and restate the rule that the agent's acts, done under an ostensible or apparent authority, bind the principal only as against those who, in good faith, have acted in reliance upon such ostensible authority. This rule was clearly stated in the code of 1865, section 1249 (§ 1814 of 1884).

2. There is probably no question in the law of agency that has arisen more frequently and has been examined and discussed more elaborately than that of the liability of the principal for the wrongful acts of the agent in the course of his employment, and for his willful omission to fulfill the obligations of the principal. The layman would have a right to expect that the legal rules governing a question of such frequency and importance as this should be clearly defined and clearly expressed. If such were his expectation, he would be doomed to a sad disappointment upon examining the adjudications of our courts upon this subject within the last fifteen years. The kaleidoscope of the common law presents few pictures of a more motley hue than that which is formed by the heterogeneous mass of distinguished cases, reversals, and reiterated opinious upon this subject. In 1872, in Isaacs v. Third Avenue R. Co., 47 N. Y. 122, the Court of Appeals, in reversing the Trial and General Term of the Supreme Court, second department, declared that the act of defendant's conductor, in pushing the plaintiff from the car, while in motion, was a wanton and willful trespass, which the defendant could not lawfully have done, and therefore no authority could be implied in the conductor to do it (p. 128). From this solemn adjudication of our highest court sprang a prolific brood of lawsuits, appeals and elaborate opinions, of which we can notice only a few. In 1875, the Court of Appeals, in Shea v. Sixth Avenue R. Co., 180, found itself compelled to distinguish the prior decision of Isaacs v. Third Avenue R. Co., and held that the defendant was liable for the act of its driver in "forcibly, willfully, and violently" throwing the plaintiff from defendant's car. To one not inured to the solemn casuistry of the common law, the only apparent difference between the Isaacs case thus "distinguished," and the Shea case would seem to be a dif

ference in the names of the parties litigant and the difference between a conductor and a driver. If the Isaacs case declared the law, then the Shea case was a departure from the law, and vice versa, if the Shea case was a correct announcement of the law then the Isaacs case ought not only to have been distinguished, but completely extinguished and expunged. But notwithstanding the Shea case the principle underlying this great question of agency seemed not to be clearly understood by the courts and the profession. For again in 1876, in Rounds v. Del., L. & W. R. Co., 64 N. Y. 129, eminent counsel in reliance upon the defunct Isaacs case appealed to the Court of Appeals, and obtained from the court instruction upon this elementary principle of the law in an elaborate opinion, in which the Isaacs case was no longer distinguished, but killed by silence. In this opinion the court again reiterated the rule that even if the wrongful act complained of is willful the principal is not relieved from liability; that the willful, wrongful act of the agent which will relieve the principal must be done outside of the agent's duty and his master's business (p. 137). In 1878 the Court of Appeals was again called upon, in Mott v. Consumers' Ice Co., 73 N. Y. 543, to re-examine and restate this principle of law in reversing the Trial and General Term of the Court of Common Pleas for sustaining a judgment dismissing the complaint. In this case the principle was clearly and succinctly stated that in an action brought against the principal for the wrongful act of the agent, the inquiry is simply whether the wrongful act was in the course of the employment, or outside of it, and thus the quality of the act, whether done negligently, wantonly, or even willfully, does not excuse. The Isaacs case was again distinguished from other cases, "but," says the court with solemn facetiousness, "the harmony of the law is in no degree disturbed by a seeming inconsistency of the two cases"-the real humor of this remark can only be appreciated upon discovering that the judge who wrote the clear and logical opinion in the Mott case was the responsible author of the disjointed and erroneous opinion in the Isaacs case. The principle was now deemed settled by the Court of Appeals, and although in 1881, in Hoffman v. New York Central & Hudson R. Co., 87 N. Y. 25, eminent counsel again mooted the question and raised the spectre of the defunct Isaacs case, and although in the same year in Quinn v. Power, 87 N. Y. 535, the appellate court was compelled to reverse the Trial and General Term of the Supreme Court for a wrong application of the principle in directing a verdict for the defendants, and although in 1882, in Schultz v. Third Avenue R. Co., 89 N. Y. 242, the court again curtly informed the same counsel, who again cited the Isaacs case, that the principle was settled that the quality of the agent's act, whether willful, reckless or malicious, does not excuse the principal, and although in the same year, in Lynch v. Metropolitan Elevated Ry. Co., 90 N. Y. 77, the Isaacs case was again cited by other eminent counsel and the principle discussed, still we must agree with the Court of Appeals in its declaration, made in the Lynch case, that the principles upon which the liability of the master for the wrongful act of his servant rests "have been so fully and plainly laid down in recent cases in this court that a restatement of them now would serve no useful purpose" (p. 87). In view of the beautiful flexibility of our common law in numerous instances where a principle was just as solemnly declared to be settled as in this case, e. g., Markham v. Jaudon, 41 N. Y. 235, reversed in Baker v. Drake, 53 id.211, we would not be so bold as to join in this solemn declaration of our highest appellate court in the Lynch case, if we were not satisfied that the funeral service was at last in 1882 officially read over the corpse of the Isaacs case, and its ghost forever laid, in Stewart v. Brooklyn R. Co., 90

N. Y. 588. But in burying the Isaacs case, the court was compelled to reverse the Trial and General Term of the City Court of Brooklyn for dismissing plaintiff's complaint, and pointed out to these inferior tribunals and to the profession at large, that a principal is liable not only for the negligence of his agent, but also for the agent's willful default in the performance of a duty which the principal has undertaken. The Civil Code, section 1253 (§ 1818 of 1884), not only laid down in 1865 the principle of the master's liability as deolared by the Court of Appeals in 1878, in Mott v. Consumers' Ice Co., 73 N. Y. 543, but also stated the amplification of the rule as declared in Stewart v. Brooklyn R. Co., supra, by providing that unless required by law to employ that particular agent, the principal is responsible to third persons for the negligence of the agent in the transaction of the business of the agency, including wrongful acts committed by such agent in the transaction of such business; and for his willful omission to fulfill the obligation of the principal. The test of liability as declared by the code, is whether the wrongful act was committed in the transaction of the business of the agency or not; in other words, was the act done in the course of the employment or outside of it. This is declared to be the proper test in the Mott case (73 N. Y. 543, 547).

IV. PARTNERSHIP.

The Civil Code defines a partnership as the association of two or more persons, for the purpose of carrying on business together and dividing its profits between them, section 1910. As late as 1880, the Court of Appeals had occasion to call attention to the first element of this definition, that a partnership is an association for "business," by deciding that a voluntary association for moral, benevolent and social objects, is not a partnership, sustaining on this point the General Term, Supreme Court, first department, in overruling the judgment of the Special Term. Lefond v. Deems, 81 N. Y. 507. In 1871 the Court of Appeals was compelled to inform the Trial and General Term of the New York Superior Court that a share in the profits, without any community of losses, was sufficient to constitute a partnership (Manhattan Brass, etc., Co. v. Sears, 45 N. Y. 797), both of these questions were settled by the code as reported in 1865. But as to the more important question, whether a share of the profits, as such, will constitute a person a partner as to third persons, although as between the parties there is no agreement to be partners, or even an agreement not to be partners, who can state positively what the law is at present? As late as 1871, the New York Superior Court, Trial and General Term, did not know that sharing in the profits as such constitutes a partnership as to third persons, although the parties expressly declare it to be their intention not to be partners (Manhattan Brass Co. v. Sears, 45 N. Y. 797), and in 1874 the Court of Appeals was compelled to re-affirm this doctrine for the instruction of eminent counsel, and to hold that a person receiving a share of the profits for a loan of money to a firm to be used as capital in the business, is liable as a partner to the firm creditors. Leggett v. Hyde, 58 N. Y. 272. But in 1879 the Court of Appeals, in Richardson v. Hughitt, 76 id. 55, began to "distinguish "its prior decisions, and held that a loan of money to a firm for use in its business, with an agreement for a share of the profits "as a measure of compensation," does not constitute a partnership. In ⚫ the same year the appellate court no doubt found great pleasure in concurring with the New York Superior Court, in holding that a person participating in the share of the profits of some of the partners of a firm, under an agreement with such partners, but not with all the partners, that it is for the interest of the firm that he should be a co-partner, is not a partner as

to firm creditors. Burnett v. Snyder, 76 N. Y. 344. But in 1880, in another action between the same parties, growing out of the same agreement, the Court of Appeals was compelled to overrule the General Term of the New York Superior Court, and to reiterate the rule after re-examining all the authorities. The question was again mooted in Curry v. Fowler, 87 N. Y. 83. Had the Civil Code been adopted in 1865, all this litigation would have been spared. Section 1973 provides that no one is liable as a partner who is not such in fact, except in the case of one permitting himself to be held out as a partner.

So also as to the law governing the relation of partners to each other. The Civil Code declares partners to be trustees for each other (§ 1930), and makes them liable to the strict obligations governing trust relations (§§ 1690-1701). Had the code been adopted in 1865, it is but fair to assume that the celebrated case of Mitchell v. Read, 61 N. Y. 123; S. C., 84 id. 556, would either never have been appealed, or if carried to the appellate court, would not have required such elaborate arguments as those of Earl and Dwight, CC., to establish the elementary principle that a trustee cannot profit from the estate for which he acts.

From this hasty review of the late adjudications on the subject of partnership law, it will be seen that our highest court is constantly called upon to state, examine and re-examine the fundamental principles of this branch of mercantile jurisprudence. This either argues a woeful ignorance of the law on the part of the members of the legal profession, or implies a latent belief on their part in the unlimited "flexibility" of the decisions of our highest court even in questions of elementary law. How far the adjudications of the Court of Appeals, on the question of partnership by sharing in the profits as such, have justified such belief, it is not for us to say. But it is surely time that the profession should be told that the main principles of this important branch of the law are fixed and no longer flexible."

V. SURETYSHIP.

It was only as late as 1883, that the Court of Appeals in the course of a few months was twice compelled to iterate and reiterate the rule, that to release the surety because of delay in proceeding against the principal, the surety must have explicitly requested the creditor to proceed against the principal (Howe Machine Co. v. Farington, 82 N. Y. 121), and that even in case of such a request, the surety will not be released, unless the failure to observe the notice resulted in injury to him. Hunt v. Purdy, 82 N. Y. 486. And again, in 1881, the Court of Appeals once more passed upon this question and laid down the rule as before. Toles v. Adee, 84 N. Y. 222. In 1882 the cases were again examined and the rule restated in Newcomb v. Hale, 90 N. Y. 326. In each of these decisions the court referred to the authorities in extenso to sustain this elementary principle of the law of sureties, a labor which the court would have been spared if the Civil Code had been in force, for by sections 2459 and 2466 the same rule is clearly and concisely declared.

VI. FRAUD.

As to the law of fraudulent representations. As late as November, 1880, the question whether the representation must be addressed directly to the party who was actually deceived thereby to his injury, was elaborately argued before the Court of Appeals, in reference to the legal effect of false statements made to commercial agencies. Eaton, Cole & B. Co. v. Avery, 83 N. Y. 31. And in holding that to constitute actionable fraud, it is not necessary that there should be an intent to defraud any particular person, so long as there is such an intent against a whole class of persons of whom the defrauded individual is one, the court

merely announced the rule as laid down in section 1123 of the Civil Code.

I might add numerous other instances in which the code has anticipated the Court of Appeals, and has substituted certainty in the place of what is falsely called the flexibility of the common law, where uncertainty is really meant. But this will suffice. JOHN FRANKENHEIMER.

I

A COMMON LAW ALSATIA.

HAVE read lately eloquent panegyrics contributed to your columns upon the solid sense and righteousness of the "unwritten" law of New York State, and upon the great benefits which it draws from the peculiar manner of its judge-nursed growth. It must be intellectually both an education and a treat to trace out the development of any one of its great principles. I dedicate the result of my study into one of them to your subscribers, in the hope that Mr. Carter or Mr. Hornblower will supplement my story by an exposition of the righteousness and common sense and flexibility of its special subject.

arose.

The principle which I have made the subject of study is that which renders it impossible to bring a “local” action except in the locality where the cause of action So lately as in Cragin v. Lovell, Exr., 88 N. Y. 258, it was held that although Mr. Cragin could sue Miss Quitman in New York for breaking an agreement with him about her plantation in Louisiana, yet Miss Quitman could not counter-claim certain loss suffered by her because Mr. Cragin had "destroyed, injured and wasted" the same plantation; since waste is a "local" action, and cannot be brought except where the land lies, although covenant concerning the same piece of land is "transitory," and may be brought anywhere. Wherefore let me devastate my neighbor's property in Louisiana, for I will escape with my spoil to the Alsatia of the "unwritten jurisprudence of New York (if, indeed, I be not intercepted in Mississippi, whose law the statute-makers have corrupted.) Mr. Cragin can transmit his booty safely to his descendants if he leave not our sanctuary; meanwhile he may proceed to recover from Miss Quitman's executor the uttermost dollar.

Mr. Cragin confidently admitted by his demurrer all the misdeeds with which Miss Quitman charged him. Why then was he so sure that he could not be sued in the only place where he could be caught? Because of the above great principle of our law, whose history I will now relate. Its reason, as I have said, I leave to Mr. Carter and Mr. Hornblower.

In the ancient times, when the common law was in its first flush of expansion and adaptation, all actions were "local," and could be brought only in the county wherein the cause of action arose. This was probably for the very good reason that the juries of those times were required to supply their own evidence instead of gaining it from outside witnesses. Hence, when outside witnesses had been introduced the bolder judges began, by a "fiction" or judicial white lie, to raise up and extend "transitory" actions, or actions which could be tried in other counties if necessary; so that these "transitory" actions gradually became the rule, and "local" actions the exception. But at the end of the seventeenth century some more timid judges were calling a halt, and torts to real property remained of a "local" nature; for they had been left untouched by recent decisions, and obedience to all ancient precedent was getting more into fashion.

Up to this time the question had been comparatively of little importance, arising, with few exceptions, only as between different counties of England. But now cases were coming up of waste foreign lands, so that

no redress was possible unless English courts could furnish it. Admiral Boscawen pulled down tyrannically some private house in Nova Scotia. There were no courts in Nova Scotia, and in England the admiral pleaded, and his counsel "fully and seriously argued ” the great principle recently invoked by Mr. Cragin. But Lord Mausfield (case cited in Mostyn v. Fabrigas, 1 Cowp. 161, 180-1), a judge who thought himself entitled to limit rules to what he considered their reason, overruled the objection, because "otherwise there would be a failure of justice," saying that Chief Justice Eyre and Lord Hardwicke had already done the same thing. The admiral's representatives paid £1,000 and the costs, not moving for a new trial, because probably "the over-bearing influence of Lord Mansfield might have sustained" him. The full bench never had a chance to rule on the point while Lord Mansfield reigned over it- otherwise, perhaps, Mr. Cragin would be less fortunate; but in the time of Lord Kenyon, whose highest avowed ambition was to tread slavishly in the steps of his predecessors, the law of the yearbooks was re-established for England on authority of a case in the Common Pleas. Doulson v. Matthews, 4 T. R. 503. The rule had thus already exemplified two great attributes of the "unwritten" law-immutability, for it had survived its original reason; and expanciveness, for it had attached to circumstances never conceived of at its inception, and for which it never could have been intended.

Doulson v. Matthews was decided after the revolution, so that the question remained open to the courts of this country. Some courts and writers followed the English rule without much investigation (Clark e. Scudder, 6 Gray, 122; Story Confl. Laws, § 554); others repudiated it (Genin v. Grier, 10 Ohio, 409). How do we come to have it in New York?

Before Chief Justice Marshall at Circuit in Virginia in 1811 (Livingston v. Jefferson, 1 Brock. 203) Edward Livingston sued Thomas Jefferson, ex-president of the United States, because he near New Orleans a parcel of land of the said Edward "did break and enter, and 200 spades and various other tools, planks, rails, nails, etc., * * * then and there being found * * * 200,000 cart loads of earth * * * did dig and raise * ** and convert to his own use" and otherwise did injure the said Edward's messuage in various ways. The defendant justified as president under an act of Congress, and among other pleas set up that trespass on land was a "local" action. The chief justice recounted much of the history which I have given, showed that it had produced "the inconvenience of a clear right without a remedy," acknowledged the want of authority of Lord Kenyon's decision, but said that to pass a limit so long fixed "would require a hardihood which, sitting in this place, I can not venture on." Some people would call this a hint to appeal to a place where the chief justice would feel less trammelled. Livingston however did not appeal. Probably the other pleas discouraged him. Such an ex-president as Jefferson is not easily made to pay for excavations dug by his soldiery.

The question came up in New York in 1843 (although not even then necessary to the decision) in Watts v. Kinney, 6 Hill, 82, in the Court of Errors, the Supreme Court having indorsed the English rule. Here an action for trespass upon land in New Jersey was brought in the Superior Court of the city of New York. Several opinions were delivered upon the affirmance. Chancellor Walworth rested partly on Livingston v. Jefferson, not noticing that the decision there might have been otherwise had the chief justice sat, as he did not, and as Lord Kenyon and his colleagues did not, but as the chancellor did sit, in the highest appellate court; but the chancellor also rested partly on a statute; he remarked that no real harm was done, as chancery