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he had demanded payment of a foreign bill was held insufficient to prove that he had presented the bill itself to the drawees for payment, and the presumption that as a public officer he had done his duty could not supply this omission. But by the law-merchant the certificate of protest is the proper evidence in such cases; and although a presentment may have been proved by oral testimony, there was no attempt to prove it in this way. As the court deemed the certificate of protest defective and insufficient, it was a legitimate conclusion that the defect could not be supplied by mere presumption. In United States v. Ross it was sought to deduce by the presumption of law the essential facts that the claimant's cotton was delivered to a treasury agent, was sold, and the proceeds paid into the treasury, when the only proof was, and the only facts found by the Court of Claims were, that the cotton was captured and sent forward by a military officer from a station in Georgia to certain connecting stations and railroad lines leading north, and that there were certain funds in the treasury which might have been the proceeds of the cotton. Of course this court held that such a finding was insufficient to establish the facts referred to Knickerbocker Life Ins. Co. v. Pendleton. Opinion by Bradley, J. [Decided Nov. 16, 1885.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

SET-OFF-LAW AND EQUITY-ACCORD AND SATISFACTION-PAYMENT BY STRANGER-RATIFICATION.Under the distinction required to be maintained in the courts of the United States between actions at law and suits in equity, in remedies, pleadings and practice, a plea of set-off which contains a purely equitable defense to an action on a promissory note cannot be admitted, although such defense would be allowed in the State where the note was made. One of the first cases in which the subject was considered is that of Robinson v. Campbell, 3 Wheat. 212, where it was decided that a merely equitable title could not be set up as a defense in an action of ejectment in the Circuit Courts of the United States, although such might be the practice in the State courts. After referring to the jurisdiction of the former courts at law and in equity, as defined and regulated by the judiciary acts of 1789 and 1792, the court say: "The remedies in the courts of the United States are to be at common law or in equity, not according to the practice of the State courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of those principles." And in Bennett v. Butterworth, 11 How. 674, the court, speaking through Chief Justice Taney, says: "Although the forms of proceedings and practice in the State courts have been adopted in the District courts, yet the adoption of the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit. The Constitution of the United States, in creating and defining the judicial power of the general government, establishes this distinction between law and equity." These cases are cited with approval in Thompson v. Railroad Cos., 6 Wall. 137, and in Van Norden v. Morton, 99 U. S. 380. Equitable defenses, though admissible under the State practice, are not admissible in the United States courts. Parsons v. Denis, 2 McCrary, 359; S. C., 7 Fed. Rep. 317; Butler v. Young, 1 Flip. C. C. R. 276. In U. S. v. Robeson, 9 Pet. 325, it *Appearing in 25 Federal Reporter.

was decided that on common-law priciples the assignment of a claim as between individuals could not be regarded as transferring to the assignee a right to bring an action at law on the account in his own name, or to plead it by way of set-off to an action brought against him. The same question was considered in Whittenton M. Co. v. Memphis & O. R. P. Co., 19 Fed. Fep. 273, where all the authorities are collected as late as 1883. Cir. Ct. Dist. Del., Oct. 6, 1885. Snyder v. Pharo. Opinion by Wales, J.

CONSTITUTIONAL LAW-STATUTE REGULATING FORM OF NOTE GIVEN FOR PATENT-RIGHT.-A State statute providing that any person who may take any obligation in writing for which any patent-right, or right claimed to be a patent-right, shall form the whole or any part of the consideration, shall, before it is signed by the maker, insert in the body thereof, above his signature, the words "given for a patent-right," is unconstitutional. The statute referred to is section 6055, Rev. St. Ind., 1881, which reads as follows: "Any person who may take any obligation in writing for which any patent-right, or right claimed by him or her to be a patent-right, shall form the whole or any part of the consideration, shall, before it is signed by the maker or makers, insert in the body of said written obligation, above the signature of said maker or makers, in legible writing or print, the words 'given for a patentrights.'" This law is, I think, clearly unconstitutional. It was so held in respect to similar laws, in Helm v. First Nat. Bank, 43 Ind. 167, following the decision in Ex parte Robinson, 2 Biss. 309. See also Grover & Baker S. M. Co. v. Butler, 53 Ind. 454; Fry v. State, 63 id. 552; Toledo Agr. Works v. Work, 70 id. 253. It is claimed that these cases are inconsistent with the opinion of the Supreme Court of the United States in Patterson v. Kentucky, 97 U.S. 501. But that case has reference to local restrictions upon the sale or use of tangible property; and notwithstanding the property was manufactured or produced under letters patent, it was held that the enforcement of the statute of the State interfered with no right conferred by the letters patent. The case manifestly has no application here; the notes in suit having been given, not for tangible property, but for a right in letters patent, in respect to which the States can impose no restrictions. Cir. Ct. Ind., Nov. 10, 1885. Castle v. Hutchinson. Opinion by Woods, J.

LETTER FROM PROFESSOR KOENIG ON CODI FICATION.

Highly esteemed Sir:

The draft of a Civil Code for the State of New York and the efforts to introduce it as established law seem to have caused for some years an excitement which recalls the controversy that in its time flamed between Savigny and Thibaut on the vocation of legislation in our day. The Constitution of the State of New York of 1846 provides for a comprehensive codification of the entire existing body of the law, and directs the appointment of commissioners to prepare “a Code of the whole body of the law of this State, or so much and such parts thereof as to the said commissioners shall seem practicable and expedient." In execution of this requirement of the Constitution which decides the question of codification unequivocally as a matter of principle, a commission was appointed that at once undertook energetically the work of codification. After a while the Penal Code and the Code of Criminal Procedure were put into operation without realizing the apprehensions that had been expressed against their introduction.

Less fortunate was the fate of the most important law-book, the Civil Code. Passed by the Legislature, but vetoed by the governor, this Code has been for years in operation in California, a State for which it was not written, while its introduction is opposed in New York. It appears from the polemic treatises written in favor of and against it, that it is not so much its contents which provoke opposition, as the idea of establishing written law in the place of the unwritten common law, and thereby impeding the development of legal deductions by the judiciary. As early as ten years before the adoption of the Constition of the State of New York the same question was a subject of earnest and thorough discussion in the State of Massachusetts, and Story's report exhibits every phase of it so completely that one would think that in America the last word on the matter had been spoken, and that opposition to the principles of codification would not be heard again. Story had previously in the Encyclopædia Americana, edited by Lieber, declared himself in favor of a codification of the common law, and in his official report developed his ideas still more completely, so it is hard to understand how he can be brought into the campaign against the present project. In expressing himself about the possible extent of a codification he discriminates between two methods: "If by those terms the common law of Massachusetts is to be intended, not only all the general principles of that law, but all the diversities, ramifications, expansions, and qualifications of those principles as they ought to be applied not only to the past and present but to all future combinations of circumstances in the business of human life, it may require one answer." This Story gives by showing the complete impracticability of such a far reaching plan, and as a matter of course therefore advises against it. "If on the other hand," he then continues, "those terms are to be understood in a more restricted sense, as importing only the reduction to a positive code of those general principles and of the expansions, exceptions, qualifications, and minor deductions which have already by judicial decisions or otherwise been engrafted on them and are capable of a distinct enumeration, then a very different answer might be given. In the former sense the commissioners have no doubt that it is not practicable to reduce the common law of Massachusetts to a written Code; in the latter sense they have no doubt that it is so practicable." With this agree the conclusions of the commissioners. The first refers to the first alternative, the second to the other. As in sooth no one thought of giving the new Code an expansion in the sense of the first alternative, the whole work being carried out in the method approved by Story, you were quite right to refer in your short response to the second "conclusion" and to leave the first unmentioned. Mr. John R. Strong on the other hand has suppressed from his readers the introductory remarks which characterize Story's standpoint, and thus created the erroneous belief that Story was opposed to the codification of the common law, while it appears from his report that the reverse is true.

To renew now the old controversy about the question of codification would be of no consequence. Experience alone can decide it, and it is experience that speaks decidedly for codification. From this course we could be dissuaded only because the principles of English-American law had not yet had a satisfactory development, or because among American jurists there were wanting representatives who would be able to perform successfully the work of codification. For tunately we are permitted to assume the contrary to be true. American law literature has not only reached a high degree of development, the common law especially having found writers whose names are everywhere quoted with great distinction, but the proposed

codification bears testimony that the abilities necessary for such an important undertaking exist in rare fullness and are available.

In Germany the same apprehensions were in their time expressed, and people received with reluctance the idea of substituting a written Code for the common law. The idea nevertheless prevailed at last. In Hesse and Bavaria complete drafts were prepared, which although not accepted and put in operation, prove that old prejudices have been overcome and that codification is generally considered a most valuable and attainable progress. The kingdom of Saxony has codified its civil law with complete success, and at present the whole of Germany follows with increasing solicitude the labors of the commissioners sitting in Berlin and engaged for years in the preparation of a Civil Code for the German Empire, and the day is looked forward to with great pleasure when it will be published as a law. That the development of the law will be thereby disturbed is a nursery-tale which no intelligent jurist will ever believe.

In some parts of Germany during the reign of Napoleon the French Civil Code was introduced, but after his overthrow no one thought of restoring the old law, so much did the people appreciate the benefit of a comprehensive, well arranged Code. This Code was also introduced into a part of the canton of Berne, in which your correspondent has the honor to reside, and to the present time the people consider it a benefit of which they would not permit themselves to be deprived. With reason has stress been laid upon the fact, that no people has yet regretted the introduction of a comprehensive Civil Code, and that though reluctantly adopted none would willingly give it up in order to reinstate the former unwritten law. Without doubt New York will have the same experience. What is here offered is not for the greater part new law, but existing law in a fixed form and firm form, so that for us continental jurists, the Civil Code of New York takes the place of a compendium of the EnglishAmerican law. We are also convinced that the projected Code has not been without influence upon the decisions of the courts. The desirability of codification appears moreover not only from the latest legislative efforts but also from the tendency of the science. Many new works of a merely scientific nature are written with regard to future codification, and with the intention of promoting it, and therefore are published in the form of laws. I refer to the comprehensive English legislation on bills of exchange, to the laws made for India, to the works of Sir James Stephen, Pollock, Dicey and Lawson, as well as the lately published treatise of Sidney K. Smith, on the "Theory and Principles of Law." All of them advocate a codification of the common law and endeavor to promote it as much as possible.

Inasmuch as for the most part no new law is presented, but only the existing law in a new form, all past science is won over and enlisted into the service of the new Civil Code, permeating it with the old spirit. We foreign jurists follow with interest the development of American law, and therefore look with a certain anxiety at the unusual excitement, being unable to believe that apprehensions long ago quieted here should be strong enough across the ocean defeat a work of which every nation would have reason to be proud,

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THE ALBANY LAW JOURNAL.

CORRESPONDENCE.

COMPENSATION OF BROKER FOR ATTORNEY IN FACT.
Editor of the Albany Law Journal:

A., who resided in California, and owned lands in Pennsylvania, gave a power of attorney to B., a sonin-law, who was coming to New York, expressive of the usual confidence and trust in him which is given in such instruments, authorizing him to sell all her real estate in Peansylvania, without limitation in price of terms, and in her place and stead make and deliver all deeds, etc., as should be necessary and requisite and satisfactory to the grantee, "giving and granting unto said attorney full power and authority to do and perform every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personall present, with full power of substitution, ratifying and confirming all that my said attorney or his substitute shall do or cause to be done by virtue hereof."

B. employed C., a real estate broker, residing near the lands, to find a purchaser, agreeing to pay a commission. C. succeeded in finding a purchaser. Query: Could B., under such authority, bind A. by his agreement to pay commissions to the broker?

NEW BOOKS AND NEW EDITIONS.

N.

IV ABBOTT'S NATIONAL DIGEST. The fourth and concluding volume of this important work is at hand. We spoke fully and in commendation of the first volumes, and there seems no falling off in the completion. Published by Diossy & Co., New York.

IV AMERICAN CRIMINAL LAW.

This is a good and useful series, edited by Mr. Gibbon, and published by Callahan & Co., of Chicago. The selections continue to be judicious and practically useful.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, Dec. 22, 1885:

Order appealed from reversed, and judgment of Special Term affirmed-James J. O'Dea, appellant, v. Mary O'Dea, respondent.-Judgment affirmed with costs-Schenectady Stove Company, respondent, v. Charles Holbrook et al,, appellants; James Hall, respondent, v. Benjamin F. Chandler, appellant; Kerosene Lamp Heater Company, appellant, v. John F. Rathbone et al., respondents; Henry Steers, respondent, v. City of Brooklyn, appellant; James H. Smith and others, respondents, v. City of Brooklyn, appellant; George A. Kent and others, respondent, v. Leonard Friedman, appellant.-Judgments of Special and General Terms reversed, and new trial granted, costs to abide the event-John W. Smith, appellant, v. Brooklyn Savings Bank, respondent.Order of General Term reversed, and judgment on verdict affirmed with costs-Max Heurtematte and another, appellants, v. Francis Morris, respondent; James C. Fitzpatrick, appellant, v. New York & Manhattan R. Co., respondent.

NOTES.

We may be allowed to admire the dignity with which Mr. Justice Field, as reported elsewhere from an American journal, condemned the appearance of

armed advocates and attorneys in a court of the Supreme Court of the United States. Six-shooters, it is possible, may be overlooked in State courts; but the attorney who enters a court of the Supreme Court of the United States with a bulge in his trousers' pocket is to be liable to instant disbarment. It is a pity that Judge Sawyer should have a little derogated from the great principle laid down by his colleague by observ ing that "witnesses, it is true, may come into court armed." May they? If so is it not a little unfair to counsel? A cross-examination conducted on the terms that the witness may reply to inconvenient questions with a pistol-shot is a proceeding not fully conducive to eliciting the truth. Common brotherhood compels us to ask that Judge Sawyer will kindly insist on witnesses leaving their revolvers outside the court, or that Mr. Justice Field will allow our transatlantic brethren to be armed even in the Supreme Court of the United States. In such matters it is only fair that there should be reciprocity.- London Law Journal.

We shall certainly be obliged to open a department of "puffs" of ourselves. An eminent lawyer writes us respecting the article on a Class of Counsel: "I think the article the most thoughtful, able and apposite of any I have read on legal subjects for years. It expresses my own views exactly, and therefore I hope you will ask the writer to follow up the theme. Taking this opportunity of thanking you for the pleasure it always gives me to read the A. L. J.," etc. Here is another: "I have been charmed with many of your articles in which you pictured our eminent jurists, and perhaps none of them touched me so deeply as your portraiture of the lamented Folger. He was no less brilliant than profound; and so winning in his You should be proud to have had such a friend." And yet another: "A dissent from one or two of the views so vigorously maintained by its conductor does not prevent my feeling an indebtedness to it resembling that which Lord Bacon said every lawyer should feel to his profession itself." If our readers all agreed with us on all points we should want to retire, feeling that our usefulness was at an end.

manners.

We have recently seen a volume of the sessions laws of this State for 1782, containing the book-plate of Henry Stevens, of Baruet, Vt., with the following

verses :

"In Paradise the tree

Of knowledge was the pride;
By God's supreme decree

The man who ate them died.

But Heaven in mercy since
Does him who tastes forgive;
To know is no offence;

Now, he who eats shall live."

We think that Heaven would readily forgive one for all the knowledge he could steal out of a volume of modern session laws.

Speaking of Mr. Justice Grove's objection to judicial wigs, Gibson's Law Notes remarks: "Surely Mr. Justice Grove does not want to sit in his ordinary garb, like an American judge, with a toothpick in his mouth, his hands in his pockets, and his feet on the desk?" Well, how would Gibson have an American judge sit with his hands in his mouth, his feet in his pockets, and his toothpick on the bench?-or how?

The Chicago Legal Adviser attributes to Judge
Breese, in Nichols v. Guibor, 20 Ill. 285, the authorship
of the saying, "his eyes were his chap," to illustrate
saying is a great deal older than that.
the doctrine of caveat emptor. We suspect that the

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GENERAL INDEX.

Page.
221

1

; development of municipal, constitutional and
international, Dr. Wharton on...

laws; proper enforcement of, by municipal govern-
ment....

"is our law just to the poor?"; address by Mr.
Charles A. Kent....

law reform, a California judge on...

leases in fee; Berridge v. Glassey, Mr. Hirschl's
comments on....

Louisiana reports; extracts...

Page.

FINANCIAL LAW, abstracts of decisions..... 18, 120
FOLGER, Charles James, address on, at Hobart Col-
339, 480
lege commencement, by Judge Charles Andrews.... 33
GODKIN, Lawrence, on the
22
as railway

42

62

courts

managers...
HUMOROUS epistles by Esek Cowen and Martin I.
Townsend.

.........

45

299

ILLINOIS SUPREME COURT, abstracts of de-
cisions of.
INDIANA SUPREME COURT, abstracts of de-
54, 118. 157. 276, 357
cisions of
IOWA SUPREME COURT, abstracts of decisions
413, 432, 477
of....
118, 239, 258, 454, 478

KANSAS SUPREME COURT, abstracts of de-
cisions of..
295, 336, 398, 438, 456

KENTUCKY COURT OF APPEALS, abstracts
of decisions of..

198

masses, bequest for

master and servant, relation of, in politics..

[blocks in formation]

KOENIG, Prof.; letter from on codification..

[blocks in formation]

281

medical persons, two kinds of eccentric..
Merrick, Mr. Richard T., death of..

mayor, should not hesitate to put down labor riot
by enforcement of the laws

[blocks in formation]

Mikado, The, opera; right to represent in this coun-
try.

bankruptcy court, the Old London..

265

21

bequests for masses, F. A. McCloskey on...
Browning; elegant extracts from..

367

344

242

New Hampshire, early jurisprudence of, address
by Mr. John M. Shirley on....

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common sense and legislation, James W Pryor on.. 324
common words and phrases...

44, 143, 383, 504

for applause by spectators..

newspapers, American, their oracular utterances... 201
new trial; for abuse of party by counsel..

counsel; is it expedient to have a class of ?...
courts as railway managers, the, Lawrence Godkin

364

142

on....

45

442

risks of, in murder case; Bohanon v. State
new trials, injustice of; Judge McFarlane on..
New York colonial documents in London....
novel for lawyers; Week of Passion..
Okey, Judge, death of

321

262

362

....201, 202

121

oleomargarine case: comments of Washington Law
Reporter on decision of Court of Appeals......
physicians; right of State medical board to refuse
certificate.

delays and uncertainties in judicial administration;
attention called to errors in report of Messrs.
Field and Dillon...
delays and uncertainties of the law, Edward P.
Wilder on...
W. J. Curtis on...

226

224

227

61

102

railroads, elevated, nuisance of..

121

damage to property by.....

502

family relations in France; parent and child, W.
Morton Grinnell on..

evidence, utility of, rules of, Ed. J. Maxwell ou....
extra-territorial effect of transfers of personal prop-
erty, Guy C. H. Corliss on....

507

244

railroad; duty to fence grounds at station; conflict-

ing decisions of Illinois Supreme Court on.

141

re-arguments, rule of Supreme Court of United
States, as to..

281

Riel case; ingenious grounds of appeal.

381

Reporter, Eastern, notice of..

82

North-Eastern..

202

Reporters, the new cheap..

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their difficulties..

491

reports and decisions, too much time and space con-

sumed in setting forth arguments of counsel...
seduction case of Mrs. Johnson; Senator Voorhees

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in.

21

Selden, Henry R., death of

261

senate, United States, intoxication in

Sharon-Hill divorce case...

Seward, Clarence A.; testimony of, in Lauderdale
Peerage case...

501

41

402

Shirley, John M., on early jurisprudence of New
Hampshire...

sidewalks; illegal obstruction of, by women with
parasols...

92

State department; consular reports on labor..
Stead; his conviction for conspiracy...

182

401

Storrs, Emory A., death of.

Stedman's Poets of America"; poetical prefer-
ences of lawyers.....

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story of...

381

Surrogate may act after seventy

342

marine zone, Francis Wharton on...

partnership real estate, Guy C. H. Corliss on, 284, 304, 326
Shakespeare's lawyers, A. B. M., on....
sidewalks; the law of, William J. Carr on....
writ of elegit, a.......

MAINE SUPREME JUDICIAL COURT,
abstracts of decisions of.

MARYLAND COURT OF APPEALS abstracts
97, 139, 335, 394, 437, 497
of decisions of.
MASSACHUSETTS SUPREME JUDICIAL
12, 135, 197, 399, 435
COURT, abstracts of decisions of...279, 296, 339, 398
MAXWELL, Ed. J., on the utility of rules of evi-
434, 457, 478
dence..

MC CLOSKEY F. A., on bequests for masses..
MICHIGAN SUPREME COURT abstracts of
367
decisions of....
MINNESOTA SUPREME COURT, abstracts of
134, 438, 454, 479, 495
decisions of.
.32. 79, 133, 317, 379, 496

NEBRASKA SUPREME COURT, abstracts of
decisions of.
11, 320, 455

insurable interest in life, Guy C. H. Corliss on.. 385, 403
insurgents not pirates..
Lauderdale Peerage case, the, Hugh Weightman on. 183
65
malicious prosecution of civil suit, Guy C. H. Cor-
liss on..

124, 145
104

24

424

204

38, 358

telegraph; humorous case of mistake in message..
Texas, criminal courts of, severity of...

302

282

theatres, right to hiss in.

401

Thornton, Prof. R. H.; address at Oregon Law

School

361

Tithing man, the, McMaster's History on

59

NEW HAMPSHIRE SUPREME COURT,
abstracts of decisions of.....
NEW JERSEY COURT OF CHANCERY
277 416
abstracts of decisions of...
NEW JERSEY SUPREME COURT, abstracts
56, 476
of decisions of.
238, 319

Virginia Law Journal, on Judge Bleckley's poetry.. 242

Waite, Chief Justice, honors to, in England....

62

reception of, in England

301

Lord Coleridge on his reception in England..
Westbrook, Justice, death of....

441

NEW YORK COURT OF APPEALS abstracts
of decisions of 20, 30, 51, 75, 92, 113, 131, 234, 253, 292
299, 315, 340, 352, 360, 375, 392, 411, 439, 451, 460, 474, 480
491, 500, 516, 520

301

misapprehensions of Albany Law Journal's com-

ments...

381

Wayland, Professor, dream of, as to criminal trials 361
Wharton, Dr., on relation of legal practitioners to
progressive development of declaratory laws of
the country..

Williams, I. T., on arbitrations

of......

- obstinacy of, in litigation

women's right to sit in Parliament; Miss Taylor's
legal position,

421

441

illegal obstruction of sidewalks by, with parasols. 22

ENGLISH DECISIONS abstracts of, recent....16, 358
380, 420, 459, 497

NEW YORK letter.

NOTES Houghton and the laundress..
Chief Justice Waite's visit to England,..........
Sing Sing Prison on Thanksgiving Day....

OHIO SUPREME COURT, abstracts of decisions

commission, abstracts of decisions of..
14, 55, 96
OREGON SUPREME COURT, abstracts of de-
56, 138
cisions of...
137
59
160

POEMS. Circuiteers, the, an eclogue.............
"Every Married Woman now;

Law Notes...

Hand-Organ Man, the,..

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verses from Gibson's

...

297, 400, 499
340
300, 340, 500
460

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