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menial servant; but save as aforesaid, means any chopper, all labor, but in different ways, requiring person who, being a laborer, servant in husbandry, the exercise of different mental and physical powers. journeyman, artificer, handicraftsman, miner, or From the original and comprehensive meaning of otherwise engaged in manual labor, has entered into the word itself, no reason, perhaps, could be sugor works under a contract with an employer.' Is gested why a person who accomplishes a certain this man a 'laborer?' In one sense, every man who amount of work by the exercise of his mental works or labors may be called a laborer; but it can- powers, in connection with the physical exertion of not be said that he is therefore within the statutory others, could not be said to labor. The two classes definition of a workman.' Then, is this person a or kinds of labor are dependent, the one on the journeyman? Etymologically considered, a journey- other, and without both nothing would be accompman is one who is employed by the day; but that is lished. But when we study the legislative intention not the sense in which the term is ordinarily used, in the enactment of a law granting those who work for in most trades where journeymen are em- chiefly through physical means, certain privileges, it ployed — butchers, bakers, and tailors, for in- is possible to see that the term “labor ' is used in a stance — they are hired and paid by the week. In restricted sense, and not in its broad and comprecommon parlance, no one would call an omnibus hensive meaning. The object of the lien laws, now conductor a journeyman. Neither is he an artificer almost universal, is not doubtful, on authority at or handicraftsman. And the general words or least. One purpose may have been to protect the otherwise engaged in manual labor,' refer to labor laboring man, the man whose subsistence depends ejusdem generis with the specific kinds before men- on the wages earned by his own manual labor, from tioned. It seems to me therefore that an omnibus the reckless improvidence of his employer, and to driver or conductor is not within any of the defini- furnish him with ample security for his earnings, tions of a 'workman'in section 10 of the Employers which ordinarily he could not successfully demand. and Workmen Act.” It seems to us he comes pretty If this was the intention of the Legislature in the near being literally a “journeyman.” In Hall v.
passage of the law in question, then it follows that Brown, 59 N. H. 551, the enactment that “any per- it does not apply to contractors employing men and son who labors at cutting, hauling, or drawing teams to cut and haul timber, doing no manual wood, bark, logs, or lumber, shall have a lien thereon labor themselves, and deriving their compensation for his personal services," was construed. The court from the profits realized. Most of the authorities said: "The defendants claim that the term “personal that we have examined support this view of the law, service' is so far restrictive that the lienor can take except in cases where, from the wording of the security and precedence of other claimants only to the statutes, a different intention clearly appeared. And extent of the product of the work accomplished by his we are not disposed to question the wisdom of those own hands; and that none of the work produced Weymouth v. Sanborn, 43 N. H. 171; Balch through the labor of his agents or servants, his teams v. N. Y. &0. M. R., 46 N. Y. 521; Parker v. Bel, 7 or his implements, can be included in the security of Gray, 429; Stryker v. Cassidy, 17 N. Y. (S. C.) 18; the lien. But it is manifest that an interpretation so Wentroth's Appeal, 82 Penn. St. 469; Jones v. Shaunarrow as this was never intended. The lumberman han, 4 N. & 8. 257; Ericsson v. Brown, 38 Barb. may cut down trees; therefore he must use an axe; he 390; Aiken v. Wasson, 24 N. Y. 482; Sullivan's may haul and draw lumber; therefore he must use Appeal, 77 Penn. St. 107; Winder v. Caldwell, 14 chains and probably sleds and oxen, or horses. The How. 434; Hoatz v. Patterson, 5 W. & S. 538.” Legislature could not have intended to exclude these HARVEST. — This designates the time when crops appliances, without which it would be impossible of grain and grass are gathered, and does not apto perform the labor. We have therefore little hes- ply to second crops gathered out of the harvest itation in holding that the personal services of the
Wendell v. Osborne, Iowa Supreme Court, lumberman include the use and the earnings of his March 21, 1884. own oxen, chain, canthook, and his own team and ACTUALLY DWELLS.— This expression, in a statute. sled, if these are actually used by him and are es- of settlement, was thus defined, Toun of Hay Ricer sential to the service rendered. We do not, in this v. Town of Sherman, Wisconsin Supreme Court, case, go so far as to hold, that if the claimant did March, 1884: “The words ' actually dwells ' in the not labor himself, or if, acting as a common laborer, statute, are certainly broad enough to include one he loaned the use of his team on the same work, he who is boarded or supported at a particular house; could successfully claim the benefit of the lien on certainly this is so when applied to a pauper having account of his team.
Whether a person a legal settlement in a town. When so used, they in the plaintiff's position, a contractor, one who as- would seem to mean nothing more than the place sumes the responsibility of performing a certain where he actually remains, tarries, abides for some piece of work, and employs and superintends others length of time, continues, stays, sojourns. The in the performance of it, 'labors,' within the mean- place where he actually lodges and takes his meals ing of the statute granting one a lien for his 'per- must come within the meaning of the words “ actusonal services,' might be a question of no little diffi- ally dwells.?” culty in the absence of any judicial construction of BEACH.— In Trustees of East Hampton v. Kirk, 68 this or similar statutes. The stock-broker, the N. Y. 459, the court said: "Ordinarily in a grant clergyman, the student, the farmer, and the wood- of lands under the name of a ' beach,' or a boundary
of lands upon or by or along a 'beach,' the word which they were only recently declared by the Court of would be held synonymous with the shore or strand, Appeals after years of litigation, presents a strong arguand as having reference to and including only the ment for its enactment into law and for the principle lands washed by the sea, and between high-watering such a comparison I have selected only a few in
upon which it is based. For the purpose of institutmark and low-water mark. In the case of a bound-stances in some of the leading branches of the law and ary it would be necessary so to restrict the meaning have by no means exhausted the subject. of the word, in order to have a certain and definite
I. PARENT AND CHILD. limit to the lands granted. If held to mean the sandy land or flats between the upland and the acter, that we would naturally expect to find the prin
This is a personal relation of such an ordinary charshore, which is frequently formed by a change of the ciples of the law governing this relation so elementary shore line, and is not unfrequently called a ". beach,' and well settled as to be considered beyond dispute. it would be quite too uncertain and indefinite to That the husband frequently dies and leaves the wife constitute a line bounding lands granted. In a to take care of the children, is not an unusual ocour
rence. Is the widowed mother entitled to the sergrant of a beach,' and perhaps when a ‘beach’is vices of the minor child, and as a corollary to this made the boundary of lands, other clauses of the question, can she sue for the seduction of her minor deed, and the situation of the lands granted or daughter? In Bentley v. Rickmeyer, 4 Comst. 38, other circumstances may authorize a different inter- Bronson, J., declared that she was not outitled to such pretation, and effect may be given to the word as
services, and in Re Ryder, 11 Paige, 185, Chancellor
Walworth held that she was. In 1867, in the case of meaning flats, or the sandy land between the upland
Gray v. Durland, 50 Barb. 100, Miller and Peckham, and the actual shore line. In Storer v. Freeman, 6 JJ., held, after a thorough examination of the authorMass. 435, Chief Justice Parsons, in interpreting a ities, that the mother was entitled to such services, deed substituted the word “flats' for 'shore' in the and Hogeboom, J. (id., p. 211), after a similar examidescription to give effect to the intent of the nation of the authorities, held that she wasn't. On
appeal in 1873, the Commission of Appeals, Hunt, C., parties, and held that the land conveyed extended stated that the question was not free from doubt, but to the 'flats,' but did not include any part of them. dodged this issue, and affirmed the right of the The reasons given by the chief justice in the case widowed mother to sue for the seduction of her minor quoted for restricting ‘shore' or 'sea shore’ to the daughter in this case, on the ground that the daughter ground between ordinary high water mark and low- was actually in the mother's service at the time. In water mark are equally applicable to a boundary in Furman v. Van Size, 56 N. Y. 435. The majority of
1874, the question was decided by the Court of Appeals upon, or by, or along a beach. He says: 'It can the court, per Grover, J., examined the question de not be considered as including any ground always novo, and held that the widowed mother is entitled at covered by the sea; for then it would have no de
common law to the services of her minor daughter, finite limit on the sea-board. Neither can it include and can therefore sue for her seduction. The minor
ity of the court (Allen and Folger, JJ.), traversed the any part of the land for the same reason.' The de
same ground in an able dissenting opinion, and camo finition of the shore is an accurate definition of a
to the conclusion that no.such right belonged to the beach having respect to the nature and situation of mother at common law. The glorious flexibility of both. Both words denote lands washed by the sea.
the common law is beautifully illustrated in the nuLittlefield v. Littefield, 28 Me. 180; Phillips v. Rhodes,
merous cases cited in support of both views of the
question at issue. The Civil Code of 1865 would have 7 Metc. 322; Cutts v. Hussey, 15 Me. 237.”
settled the question once and for all. Section 32 ($ 35 UPON.- In a statute permitting telegraph com- of 1884) declares that the right of personal relation panies to construct lines “upon and along high- forbids the seduction of a daughter, and sections 89, ways,' upon "includes “across.” Banks v. High- 80 ($$ 123, 124, of 1884), entitle the widowed mother land Street Ry. Co., Massachusetts Supreme Court, dren. This elementary principle governing the rela
to the care, services and earnings of her minor chilFebruary 28, 1884.
tion of parent and child was “inflexibly "fixed by the RAPE. - This is not a verb. So, in an indictment, code in 1865, and was only “flexibly” declared by our "did rape” is not an equivalent for “did ravish.” highest court in 1874. Hewitt v. State, Texas Ct. App., Tyler, 1883.
JI. HUSBAND AND, WIFE.
1. Is an agreement between husband and wife for CODE LAW v. JUDGE LAW.
immediate separation valid ? Its validity was attacked by one of the most prominent opponents of the code,
Code, now pending before the Legislature of this alent to a voluntary extra-judicial divorce. It seems State, that in so far as the Civil Code states elemen- strange that Judge Cowen, iu People v. Mercein, 3 tary principles of the law it is unnecessary; that these Hill, 411, actually calls such voluntary separation “ a principles are so well settled that it is a work of super- kind of divorce which the courts cannot very well erogation to restate them in the form of a code. Againsay at this day.'”. The validity of such an agreecursory review of the recent adjudications of the ment was upheld in 1882 by Judge McAdam, in Allan highest appellate courts, upon elementary principles v. Affleck, reversed by the General Term of the Marine governing ordinary legal relations, may lead the blind Court, and such reversal in turn reversed by the Genpanegyrists of the common law to admit that its eral Term of the Court of Common Pleas, 64 How. Pr. so-called flexibility is a euphemism for its uncertainty. 380. The question was again mooted as late as 1883, in It may be asking too much from the opponents of codi-Desbrough v. Desbrough, in 29 Hun, 592. The Civil fication, to expect that such a review may induce Code settled this question in accordance with these them to acknowledge that a code, which as early as decisions as early as 1865 (S$ 80, 81, being $$ 105, 106, of 1865 stated elementary legal priuciples in the form in 1884).
2. How far is a husband liable for the independent ference in the names of the parties litigant and the tort of his wife? As late as 1872, the General Term, difference between a conductor and a driver. If the Supreme Court, second department, was informed by Isaacs case declared the law, theu the Shea case was a the Court of Appeals that the liability of the husband departure from the law, and vice versa, if the Shea case did not rest upon the ground that he, in contempla- was a correct announcement of the law tben tbe Isaacs tion of law, was guilty of the tort, but resulted from a case ought not only to have been distinguished, but necessity of pleading arising from the incapacity of completely extinguished and expunged. But notthe wife to be sued without her husband. Kowing v. withstanding the Shea case the principle underlying Manly, 49 N. Y. 192. It was therefore natural to as- this great question of agency seemed not to be clearly sume that when the new code allowed a married understood by the courts and the profession. For woman to sue or be sued as if she were single ($ 450 again in 1876, in Rounds v. Del., L. & W. R. Co., 64 N. Code of Civil Pro.), the husband could not be joined Y. 129, eminent counsel in reliance upon the defunct as a party in an action for her independent tort. But Isaacs case appealed to the Court of Appeals, and obJudge Van Brunt, sitting at Special Term, Supreme tained from the court instruction upon this elementCourt, first department, in Berrien v. Steel, decided ary principle of the law in an elaborate opinion, in May, 1878, and Judge Sedgwick, of the New York which the Isaacs case was no longer distinguished, but Superior Court, in Dimelow v. Rosenfield, decided killed by silence. In this opinion the court again reJune, 1878, held otherwise. But now comes Judge iterated the rule that even if the wrongful act comRumsey, in Fitzgerald v. Quann, 62 How. Pr. 331, and plained of is willful the principal is not relieved from decides in accordance with Kowing v. Manley, that liability; that the willful, wrongful act of the ageut the husband is not a proper party in such an action. which will relieve the principal must be done outside It must be admitted that the provisions of the Civil of the agent's duty and his master's business (p. 137). Code on this subject are not as “flexible" as our com- In 1878 the Court of Appeals was again called upon, in mon law, for by section 83 ($ 108 of 1884), neither hus- Mott v. Consumers' Ice Co., 73 N. Y. 543, to re-examine band nor wife as such is answerable for the act of the and restate this principle of law in reversing the Trial other.
and General Term of the Court of Common Pleas for III. PRINCIPAL AND AGENT.
sustaiving a judgment dismissing the complaint. In 1. How far is the principal bound by the act of the this case the principle was clearly and succinctly agent done under an ostensible authority? This is stated that in an action brought against the principal surely a matter of elementary law, but as late as 1879 for the wrongful act of the agent, the inquiry is simply the Court of Appeals in People v. Bank of North whether the wrongful act was in the course of the emAmerica, 75 N. Y. 547, 562, was compelled to re-examine ployment, or outside of it, and thus the quality of the and restate the rule that the agent's acts, done under act, whether done negligently, wantonly, or even wille an ostensible or apparent authority, bind the principal fully, does not excuse. The Isaacs case was again disonly as against those who, in good faith, have acted in tinguished from other cases, “but,” says the court reliance upon such ostensible authority. This rule with solemn facetiousness, “the harmony of the law was clearly stated in the code of 1865, section 1249 (S is in no degree disturbed by a seeming inconsistency 1814 of 1884).
of the two cases"—the real humor of this remark can 2. There is probably no question in the law of agency only be appreciated upon discoverivg that the judge that has arisen more frequently and has been exam- who wrote the clear and logical opinion in the Mott ined and discussed more elaborately than that of the case was the responsible author of the disjointed and liability of the principal for the wrongful acts of the erroneous opinion in the Isaacs case. The principle agent in the course of his employment, and for his was now deemed settled by the Court of Appeals, and willful omission to fulfill the obligations of the priu- although in 1881, in Hoffman v. New York Central & cipal. The layman would have a right to expect that Hudson R. Co., 87 N. Y. 25, eminent counsel again the legal rules governing a question of such frequency mooted the question and raised the spectre of the deand importance as this should be clearly defined and funct Isaacs case, and although in the same year in clearly expressed. If such were his expectation, he Quinn v. Power, 87 N. Y. 535, :he appellate court was would be doomed to a sad disappointment upon exam- compelled to reverse the Trial and General Term of the ining the adjudications of our courts upon this sub- Supreme Court for a wrong application of the princiject within the last fifteen years. The kaleidoscope ple in directing a verdict for the defendants, and of the common law presents few pictures of a more although in 1882, in Schultz v. Third Avenue R. Co., 89 motley hue than that which is formed by the hetero-N. Y. 242, the court again curtly informed the same geneous mass of distinguished cases, reversals, and counsel, who again cited the Isaacs case, that the prinreiterated opinions upon this subject. In 1872, inciple was settled that the quality of the agent's act, Isaacs v. Third Avenue R. Co., 47 N. Y. 122, the Court whether willful, reckless or malicious, does not excuse of Appeals, in reversing the Trial and General Term of the principal, and although in the same year, in Lynch the Supreme Court, second department, declared that V. Metropolitan Elevated Ry. Co., 90 N. Y. 77, the Isaacs the act of defendant's conductor,in pushing the plaint- case was again cited by other eminent counsel and the iff from the car, while in motion, was a wanton and principle discussed, still we must agree with the Court willful tres pass, which the defendant could not law- of Appeals in its declaration, made in the Lynch case, fully have done, and therefore no authority could be that the principles upon which the liability of the implied in the conductor to do it (p. 128). From this master for the wrongful act of his servant rests "have solemn adjudication of our highest court sprang a pro- been so fully and plainly laid down in recent cases in lific brood of lawsuits, appeals and elaborate opinions, this court that a restatement of them now would serve of which we can notice only a few. In 1875, the Court no useful purpose" (p. 87). In view of the beautiful of Appeals, in Shea v. Sixth Avenue R. Co., 180, found flexibility of our common law in numerous instances itself compelled to distinguish the prior decision of where a principle was just as solemnly declared to be Isaacs v. Third Avenue R. Co., and held that the de- settled as in this case, e. g., Markham v. Jaudon, 41 N. fendant was liable for the act of its driver in "forci. Y. 235, reversed in Baker v. Drake, 53 id.211, we would bly, willfully, and violently” throwing the plaintiff not be so bold as to join in this solemn declaration of from defendant's car. To one not inured to the our highest appellate court in the Lynch case, if we were solemn casuistry of the common law, the only appar- not satisfied that the funeral service was at last in 1882 ent difference between the Isaacs case thus “distin- officially read over the corpse of the Isaacs case, and guished," and the Shea case would seem to be a dif- its ghost forever laid, in Stewart v. Brooklyn R. Co., 90
N. Y.588. But in burying the Isaacs case, the court to firm oreditors. Burnett v. Snyder, 76 N. Y. 344. But was compelled to reverse the Trial and General Term in 1880, iu auother action between the same parties, of the City Court of Brooklyn for dismissing plaintiff's growing out of the same agreement, the Court of Apcomplaint, and pointed out to these inferior tribunals peals was compelled to overrule the General Terın of and to the professiou at large, that a principal is liable the New York Superior Court, and to reiterate the not only for the negligence of his agent, but also for rule after re-examiving all the authorities. The questhe agent's willful default in the performance of a tion was again mooted in Curry v. Fowler, 87 N. Y. 83. duty which the principal has undertaken. The Civil Had the Civil Code been adopted in 1865, all this litiCode, section 1253 ($ 1818 of 1884), not only laid down in gation would have been spared. Section 1973 provides 1865 the principle of the master's liability as deolared that no one is liable as a partner who is not such in by the Court of Appeals in 1878, in Mott v. Consumers' fact, except in the case of one permitting himself to be Ice Co., 73 N. Y. 543, but also stated the amplification held out as a partner. of the rule as declared in Stewart v. Brooklyn R. Co., So also as to the law governing the relation of partsupra, by providing that unless required by law to em- ners to each other. The Civil Code declares partners ploy that particular agent, the principal is responsible to be trustees for each other ($ 1930), and makes them to third persons for the negligence of the agent in the liable to the strict obligations governing trust relatious trausaction of the business of the agency, including (S$ 1690-1701). Had the code been adopted in 1865, it is wrongful acts committed by such agent in the transac- but fair to assume that the celebrated case of Mitchell tion of such business; and for his willful omission to v. Read, 61 N. Y. 123; S. C., 84 id. 556, would either fulfill the obligation of the principal. The test of lia- never have been appealed, or if carried to the appel. bility as declared by the code, is whether the wrong- late court, would not have required such elaborate ful act was committed in the transaction of the busi- arguments as those of Earl and Dwight, CC., to estabness of the agency or not; in other words, was the act lish the elementary principle that a trustee cannot done in the course of the employment or outside of it. profit from the estate for which he acts. This is declared to be the proper_test in the Mott case From this hasty review of the late adjudications ou (73 N. Y. 543, 547).
the subject of partnership law, it will be seen that our
highest court is constantly called upon to stato, exIV. PARTNERSHIP.
amine and re-examine the fundamental principles of The Civil Code defines a partnersbip as “tbe isso. this branch of mercantile jurisprudence. This either ciation of two or more persons, for the purpose of car- argues a woeful iguorance of the law on the part of the rying on business together and dividing its profits be- members of the legal profession, or implies a latent tween them, section 1910. As late as'1880, the Court of belief on their part in the unlimited “flexibility” of Appeals had occasion to call attention to the first the decisions of our highest court even in questions of element of this definition, that a partnership is an as- elementary law. How far the adjudications of the sociation for “business," by deciding that a voluntary Court of Appeals, ou the question of partnership by association for moral, benevolent and social objects, sharing in the profits as such, have justified such beis not a partnership, sustaining on this point the Gen- lief, it is not for us to say. But it is surely time that eral Term, Supreme Court, first department, in over- the profession should be told that the main principles ruling the judgment of the Special Term. Lefond v. of this important branch of the law are fixed and 110 Deems, 81 N. Y. 507. In 1871 the Court of Appeals longer • flexible." was compelled to inform the Trial and General Term
V. SURETYSHIP. of the New York Superior Court that a share in the
It was only as late as 1883, that the Court of Appeals profits, without any community of losses, was suffi
in the course of a few months was twice compelled to cient to constitute a partnersbip (Manhattan Bruss,
iterate and reiterate the rule, that to release the surety etc., Co. v. Sears, 45 N. Y. 797), both of these questions
because of delay in proceeding against the principal, were settled by the code as reported in 1865. But as to
the surety must have explicitly requested the creditor the more important question, whether a share of the
to proceed against the principal (Howe Machine Co. v. profits, as such, will constitute a person a partner as to
Farington, 82 N. Y. 121), and that even in case of such third persons, although as between the parties there is
a request, the surety will not be released, unless the no agreement to be partners, or even an agreement not
failure to observe the notice resulted in injury to him. to be partners, who can state positively what the law is
Purdy, 82 N. Y. 486. And again, in 1881, the at present? As late as 1871, the New York Superior Court of Appeals once more passed upon this question Court, Trial and General Term, did not know that
and laid down the rule as before. Toles v. Adee, 84 N. sharing in the profits as such constitutes a partnership
Y. 222. In 1882 the cases were again examined and the as to third persons, although the parties expressly de
rule restated in Newcomb v. Hale, 90 N. Y. 326. In clare it to be their intention not to be partners (Man
each of these decisions the court referred to the auhattan Brass Co. v. Sears, 45 N. Y. 797), and in 1874 the
thorities in e.tenso to sustain this elementary princiCourt of Appeals was compelled to re-affirm this doc
ple of the law of sureties, a labor which the court trine for the instruction of eminent counsel, and to
would have been spared if the Civil Code had been in hold that a person receiving a share of the profits for a
force, for by sections 2459 and 2466 the same rule is loan of money to a firm to be used as capital in the
clearly and concisely declared. business, is liable as a partner to the firm creditors. Leggett v. Hyde, 58 N. Y. 272. But in 1879 the Court
VI. FRAUD. of Appeals, in Richardson v. Hughitt, 76 id. 55, began As to the law of fraudulent representations. As to “distinguish" its prior decisions, and held that a late as November, 1880, the question whether the reploan of money to a firm for use in its business, with an resentation must be addressed directly to the party agreement for a share of the profits “ as a measure of
who was actually deceived thereby to his injury, was compensation," does not constitute a partnership. In elaborately argued before the Court of Appeals, in refthe same year the appellate court no doubt found erence to the legal effect of false statements made to great pleasure in concurring with the New York Su
commercial ageucies. Eaton, Cole & B. Co. v. Avery, 83 perior Court, in holding that a person participating in N. Y. 31. And in holding that to constitute actionthe share of the profits of some of the partners of a able fraud, it is not necessary that there should be an firm, under an agreement with such partners, but not intent to defraud any particular person, so long as with all the partners, that it is for the interest of the there is such an intent agaivst a whole class of persons firm that he should be a co-partner, is not a partner as of whom the defrauded individual is one, the court
merely announced the rule as laid down in section 1123 no redress was possible unless English courts could of the Civil Code.
furnish it. Admiral Boscawen pulled down tyranniI might add numerous other instances in which the cally some private house in Nova Scotia. There were code bas anticipated the Court of Appeals, and has no courts in Nova Scotia, and in England the admiral substituted certainty in the place of what is falsely pleaded, and his counsel “fully and seriously argued” called the flexibility of the common law, where un- the great principle recently invoked by Mr. Cragio. certainty is really meant. But this will suffice.
But Lord Mausfield (case cited in Mostyn s. Fabrigas, John FRANKENHEIMER. 1 Cowp. 161, 180-1), a judge who thought himself enti
tled to limit rules to what he considered their reason,
overruled the objection, because “otherwise there A COMMON LAW ALSATIA.
would be a failure of justice," saying that Chief Jus
tice Eyre and Lord Hardwicke had already done the I
HAVE read lately eloquent panegyrics contributed same thing. The admiral's representatives paid £1,000
to your columns upon the solid sense and right and the costs, not moving for a new trial, because eousness of the “unwritten" law of New York State, probably “the over-bearing influence of Lord Mausand upon the great benefits which it draws from the field might have sustained” him. The full bench nerer peculiar mauner of its judge-nursed growth. It must had a chance to rule on the point while Lord Mansfield be intellectually both an education and a treat to trace reigned over it, otherwise, perhaps, Mr. Cragin would out the development of any one its great princi-be less fortunate; but in the time of Lord Kenyon, ples. I dedicate the result of my study into one of whose highest avowed ambition was to tread slavishly them to your subscribers, in the hope that Mr. Carter in the steps of his predecessors, the law of the yearor Mr. Hornblower will supplement my story by an books was re-established for England on authority of exposition of the righteousness and common sense and a case in the Commou Pleas. Doulson v. Yatthews, 4 flexibility of its special subject.
T. R. 503. The rule had thus already exemplified two The principle which I have made the sabject of study great attributes of the “unwritten" law – immutais that which renders it impossible to bring a "local" bility, for it had survived its original reason; and exaction except in the locality where the cause of action panciveness, for it had attached to circumstances
So lately as in Cragin v. Lovell, Exr., 88 N. Y. never conceived of at its inception, and for which it 258, it was held that although Mr. Cragin could sue never could have been intended. Miss Quitman in New York for breaking an agree- Doulson v. Matthews was decided after the revolument with him about her plantation in Louisiana, yet tion, so that the question remained open to the courts Miss Quitman could not counter-claim certain loss suf- of this country. Some courts and writers followed the fered by her because Mr. Cragin had “destroyed, in- English rule without much investigation (Clark 4. jured and wasted" the same plantation; siuce waste is Scudder, 6 Gray, 122; Story Confl. Laws, $ 554); others a“ local" action, and cannot be brought except where repudiated it (Genin v. Grier, IO Ohio, 409). How do the land lies, although covenant concerning the same we come to have it in New York? piece of land is “ transitory," and may be brought any- Before Chief Justice Marshall at Circuit in Virginia where. Wherefore let me devastate my neighbor's in 1811 (Livingston v. Jefferson, 1 Brock. 203) Edward property in Louisiana, for I will escape with my spoil Livingston sued Thomas Jefferson, ex-president of to the Alsatia of the “unwritten” jurisprudence of the United States, because he near New Orleans a New York (if, indeed, I be not intercepted in Missis- parcel of land of the said Edward "did break and ensippi, whose law the statute-makers have corrupted.) | ter, and 200 spades and various other tools, planks, Mr. Cragin cau transmit his booty safely to his de- rails, nails, etc., * * then and there being found scendants if he leave not our sanctuary; meanwhile he
* 200,000 cart loads of earth *
did dig may proceed to recover from Miss Quitman's executor and raise * * and convert to his own use" and the uttermost dollar.
otherwise did injure the said Edward's messuage in vaMr. Cragin confidently admitted by his demurrer all rious ways. The defendaut justified as president anthe misdeeds with which Miss Quitman charged him. der an act of Congress, and among other pleas set up Why then was he so sure that he could not be sued in the that trespass on land was a "local" action. The only place where he could be caught? Because of the chief justice recounted much of the history which I above great principle of our law, whose history I will have given, showed that it had produced "the incounow relate. Its reason, as I have said, I leave to Mr. venience of a clear right without a remedy," acknowlCarter and Mr. Hornblower.
edged the want of authority of Lord Kenyon's decisIn the ancient times, when the common law was in ion, but said that to pass a limit so long fixed “would its first flush of expansion and adaptation, all actions require a hardihood which, sitting in this place, I can were “local,” and could be brought only in the county not venture on.” Some people would call this a hint wherein the cause of action arose. This was probably to appeal to a place where the chief justice would feel for the very good reason that the juries of those times less trammelled. Livingston however did not appeal. were required to supply their own evidence instead of Probably the other pleas discouraged him. Such an gaiving it from outside witnesses. Hence, when out- ex-president as Jefferson is not easily made to pay for side witnesses had been introduced the bolder judges excavations dug by his soldiery. began, by a “fiction” or judicial white lie, to raise up The question came up in New York in 1843 (although and extend “transitory" actions, or actions which not even then necessary to the decision) in Watts 5. could be tried in other counties if necessary; so that Kinney, 6 Hill, 82, in the Court of Errors, the Supreme these “transitory" actions gradually became the rule, Court having indorsed the English rule. Here an acand “local" actions the exception. But at the end of tion for trespass upon land in New Jersey was brought the seventeenth century some more timid judges were in the Superior Court of the city of New York. Sevecalling a hait, and torts to real property remained of a ral opinions were delivered upon the affirmance. “ local” nature; for they had been left untouched by Chancellor Walworth rested partly on Livingston F. recent decisions, and obedience to all anoient prece- Jefferson, not noticing that the decision there might dent was getting more into fashion.
have been otherwise had the chief justice sat, as he did Up to this time the question had been comparatively not, and as Lord Kenyon and his colleagues did not, of little importance, arising, with few exceptions, only but as the chancellor did sit, in the highest appellate as between different counties of England. But now court; but the chancellor also rested partly on a statute; cases were coming up of waste foreign lands, so that he remarked that no real harm was done, as chancery