and that is that the people of this State nearly forty years ago pronounced their fiat that our common

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CODIFICATION.

WEEK ago last Tuesday there was a hearing upon the Civil Code before the judiciary

committees of the two houses of our Legislature, at which Messrs. Field, Swayne, Milburn and Arnoux were heard in favor of, and Mr. Hale against the Code. Last Tuesday the committees sat again, and heard Judge Spencer of New York city in favor of the Code, presenting a memorial asking its adoption signed by Messrs. Beach, Pierpont, Dillon, Fithian, Sullivan, Dyett and Leslie W. Russell, and Messrs. Carter, Van Cott, Hornblower and Adams in opposition, and Mr. Frankenheimer in reply. The time granted by the committee was so short that no one else could be heard in reply to the objectors, the laboring oar among whom was taken by Mr. Carter, who reiterated some of his pamphlet, the magna charta of the opposition. Inasmuch as this is the most important measure that can possibly be presented for legislative consideration it would seem that another hearing might reasonably be accorded. Five hours is hardly enough for this purpose.

We are aware that we do not speak as one having authority on this subject but only as one of the scribes, and yet we may reasonably urge our disinterestedness, as one no longer in the practice of the law; our experience as one who while not young enough to be totally uninstructed or very rash, is yet not old enough to be timid of change and averse to studying new laws; and our studiousness as one obliged to read all decisions in the English language and to report many of them; and consequently presumably cognizant of the contradictions, uncertainties, changes and hardships of the common law, the latest definition of which is that of the eminent jurist, Mr. Pollock, "chaos tempered by Fisher's Digest." Our position on this topic is that of a witness, not of an advocate; we speak by force of a subpoena, not of a retainer. We have spoken of our disinterestedness; we must retract that; we are not disinterested; we have a strong pecuniary interest in keeping the law as it is, because we thrive by editing and reporting judicial decisions, and the more there are and the more contradictory and changing, the more we thrive.

But we recognize one fact which our Legislatures, or we should rather say, our governors, have ignored,

this, but they cannot blink the fact. If the Constitution means any thing it means that the people declared that they will have written laws - we do not say, the Field code necessarily and unconditionally, or any code immediately, but some code within a reasonable time; and inasmuch as the Field code has been before the public for nineteen years, and is the work of the duly constituted commission, and has been the subject of study, criticism, and amendments all these years, and has never been successfully impugned, and has been thoroughly tested and approved in California, we into effect at some future day to be specified. believe that it is a legislative duty to adopt it to go We believe this is a constitutional duty.

But if it were not, we believe that public policy demands general codification. We do not propose to go over this familiar ground in detail, but we would lay emphasis on one or two arguments that Written laws are preferable to are not so familiar. unwritten laws, first, because they are of superior authority. No lawyer questions the authority of a statute in court. The only way we can get rid of it No matter is by legislative repeal or modification. by how small a majority it was passed. But every decision, especially every decision pronounced by a divided court — and it is perfectly astonishing how many there are, and how many pronounced by a bare majority of judges - the early volumes of our Court of Appeals' Reports are stuffed with such can always be assailed in court by a lawyer with some prospect of success, or at all events furnishes a ground of advice to his client to take his chances of reversing the uneasily settled doctrine. Besides, conflicting statutes are very rare; conflicting decis ions can be found on any topic in every volume in any year and frequently in the same court. Second, as we have intimated above, legislative enactment is much more difficult to procure than judicial distinguishing, doubting, denying and final overruling. To the public and professional mind, then, written laws have the superior sanction, and they are settled on a much more stable basis than judicial legislation.

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Now who are the contesting parties? On the one hand five millions of laymen, on the other five thousand lawyers. Five millions of people on the one hand, demanding a statute-book which they can read for themselves, on the other hand, five thousand lawyers - one-half of the entire number - denying the privilege because it may hurt their interests or give them inconvenience. Is anybody but lawyers opposing codification? Not a soul, even in the newspapers, for if you will scratch an editor opposed to codification, you will find a lawyer, just as Napoleon said, if you scratch a Russian you will find a Tartar. Every man who writes to a newspaper on this subject signs himself "Lex."

Now we can see some things a great deal more

clearly than we could when we were at the bar. And one of these things is that the empire of the legal profession is passing away from them, and passing away just in proportion to the increase of their number. Sixty-five thousand lawyers now have not half the influence that a third of that number had

forty years ago. Our places in halls of legislation have been taken by farmers, merchants, manufacturers, bankers, editors. The people have grown distrustful of us. Why? Because we are less honest or learned than formerly? No, but because the idea prevails that we are opposed to legal reform. The people have not forgotten the long and factious opposition of lawyers and judges to the code of 1848. Look at the two last constitutional conventions. In the convention of 1846, there was a majority of lawyers, legal reform was proposed, and that Constitution was adopted. In the convention of 1868 there was a majority of lawyers, we believe, no legal reforms, or none of great moment were proposed, and their work was rejected, all but the part looking to legal reform. Now it will be a sorry day for our profession if this idea gets firmly rooted, that as a profession we are averse to simplifying the laws and cheapening justice. The people are determined on these two things, and they will have them in spite of five thousand old, respectable, rich and influential lawyers, holding up their hands in alarm at the prospect of having their occupation made easier and possibly less lucrative.

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It has been said to us by legislators that their lawyer-constituents are opposed to codification. We say to them, what about your other constituents — much more numerous and influential? What have they said to you in the Constitution? Other legislators have said to us that it is a great responsibility to "change the laws." We say to them, we are not proposing to change the laws, but only to find out and fix them so they cannot be arbitrarily and capriciously changed by a power not entrusted with the duty of making laws. But if it were otherwise, wili 'they "take the responsibility " of disobeying the plainly expressed will of the sovereign people?

But Messrs. Carter, and Dwight, and Van Cott and Hornblower, and a few others, emissaries of the New York City Bar Association—all honorable men, but just here short-sighted, prejudiced, and not disinterested have pointed out a few faults in the proposed code. Well, it is a good thing to have the law in one volume so the citizen can find it and find fault with it. That is the way to set laws right. But any body of written law, whether in reports or statutes, is susceptible of criticism. Even Mr. Carter could not frame a code that his friend, Professor Dwight, could not pick all to pieces, and the learned Professor could not frame one that the great expounder of "how not to do it" could not demolish to his own satisfaction and that of the New York City Bar Association in short order. We have studied this code for several years, disinterestedly and not as a partisan, and we agree with one

of the most eminent judges of this State and one of the best judicial writers of this country, in his opinion recently expressed to us, that it is "marvel ous for comprehensiveness and precision," and the testimonials, not only from lawyers but from business men, which Mr. Field has produced, bear witness to its simplicity and probable usefulness.

Talking as a lawyer to other lawyers, accustomed to give and take blows, we have not been and we do not propose to be mealy-mouthed about this matter. It is not our office to lecture the Legislature on their duty. We simply desire to record our conviction, as a student and observer, that if the legal profession, in the Legislature or out, continue to stand in the way of the expressed determination of the people to have written laws and cheaper and speedier justice, the people will say, and justly, "the lawyer must go." Laws are not made for the pleasure or convenience of lawyers, but for the protection of the people, and the people who have borne with these obstinate lawyers for nineteen years will soon assert their rights in a way that cannot be ignored or trifled with. The people are long-suffering but not utterly supine. They will on occasion assert themselves, as it does not require a very long memory of public events in this State to recall. Depend upon it, brethren and legislators, they are not going to allow their rights and their commands to be barred by the statute of limitations.

AT

T the legislative hearing upon the Civil Code, Mr. Frankenheimer, of New York, pointed out the practical utility of this Code in settling disputed questions, in substance as follows:

"Section 109 of the Civil Code provides that neither husband nor wife, as such is answerable for the acts of the other. The law as to the liability of the husband for the independent tort of the wife is now unsettled in this State. Judges Sedgwick and Van Brunt, at Special Term in New York, have held that the husband is still liable; but Judge Rumsey, in Fitzgerald v. Quause, 62 How. Pr. 331, held the contrary.

"Sections 1910, 1972 and 1973 of the Civil Code settle the much-disputed question whether the mere sharing in the profits of a business constitutes one a partner. They provide that no one is liable as a partner unless he is a partner by express contract, or has permitted himself to be represented as a partner. Since Leggett v. Hyde, 58 N. Y. 272, has been distinguished in Richardson v. Hughitt, 76 id. 55, and in Curry v. Fowler, 87 id. 33, the law of this State on this subject is still unsettled.

"Sections 2459 and 2466 of the Code provide that a surety is discharged by the creditor's delay to pursue the principal debtor, only when he has requested the creditor to take proceedings, and then only to the extent to which he is prejudiced by the delay. The Code so provided in 1865. But the question has been mooted in the Court of Appeals in 82 N. Y. 121, id. 486, 84 id. 222, and 90 id.

326, with the result of confirming the doctrines laid down by the Code in 1865.

"Sections 627 and 1069 of the Code provide that grants and contracts made by a municipal corporation are to be interpreted in favor of such corporation. Upon the argument in the Court of Appeals of the case of Langdon v. The Mayor, 93 N. Y. 129, the appellant's counsel felt obliged to cover thirteen pages of printed points in support of the rule so stated in the Code.

"These are all elementary principles, and are of daily recurring importance. In these cases, and in very numerous other cases of which time does not permit the enumeration, the Civil Code would have saved litigation and spared the labors of courts and of counsel."

DISCHARGE UNDER STATE INSOLVENT LAW.

THE

absence of any National Bankrupt Law at the present time renders a discussion and examination of the effect of a discharge under a State insolvent law not only interesting but also of great practical importance. No one question has been involved in greater obscurity, and this has been caused by the conflicting dicta emanating from the Supreme Bench of the National judiciary. The conflicting dicta can in the main be attributed to a want of agreement among the members of that court upon the grounds on which the validity of a discharge has been determined under the various phases in which it has been presented. In deciding a question which arises under such widely different circumstances as the validity of a State insolvent discharge, the courts must have some recognized principles by which all may be guided to prevent that most deplorable of all evils in the law, conflicting decisions and consequent uncertainty as to the correct doctrine. Herein lies all the difficulty. The object of this article is to review the authorities; educe out of the chaos some degree of order; state what rules appear to be established by the decisions; and what rules ought to obtain in these cases as to which law yet remains unsettled.

In Sturges v. Crowningshield, 4 Wheat. 122, the court decides that the power conferred on Congress by the Constitution to establish uniform laws on the subject of bankruptcy throughout the United States was not essentially exclusive in its nature; and that there being nothing exclusive in the terms of the grant, and no prohibition on the State against the exercise of the power to establish insolvent laws which should be operative within their respective limits, the several States had full authority to establish such insolvent laws; and that the State legislation would be unconstitutional only when there might be in force a general law of Congress on the subject conflicting with such State legislation. Ch. J. Marshall, in that case held however that the insolvent law of New York under which a valid discharge was claimed was unconstitu tional, on the ground that it impaired the obligation of a contract, because it attempted to discharge a debtor from all liability on his debt, and thus practically destroy it. The opinion of the chief justice in this case is sufficiently comprehensive in its language to cover not only cases of contracts entered into prior, but also cases of contracts made subsequently to the enactment of a State insolvent law. But the opinion so far as it assumes to dispose of the constitutionality of insolvent laws in force at the time of the execution of a contract, was a mere obiter, as the contract on which the liability was claimed to have been extinguished by the insol

vent law of New York was executed nearly two weeks before the enactment of such insolvent law. The case afforded a striking illustration of the wisdom of that rule which obtains in the construction of judicial decisions, namely, that the language of the courts, no matter how general and comprehensive it may be, should always be read in the light of the facts of the case, and be construed solely with reference to them; for in the case of Ogden v. Saunders, 12 Wheat. 213, a majority of the court were of the opinion that a State insolvent law was not unconstitutional as to a contract executed subsequently to its enactment, provided the contract was made in that State. Justices Johoson, Washington, Thompson and Trimble, all wrote able and exhaustive opinions in favor of the constitutionality of such a law with reference to subsequent contracts, in which they maintained their position with great power of reasoning and fortified it by the citation of numerous authorities. Chief Justice Marshall adhered to the view he originally expressed in Sturges v. Crowningshield, and Justices Story and Duvall concurred with him.

This case however cannot be considered as having definitely settled the question, as Mr. Justice Johnson finally concurred with the minority in affirming the judgment, but upon a ground entirely different from that on which the minority were in favor of affirming. He assigned as a reason for his concurrence in the affirmance of the judgment, the fact that the creditor was a citizen of Louisiana and never within the jurisdiction of the State of New York, under whose insolvent laws the debtor claimed his discharge: and that therefore the creditor was not bound by the insolvent proceedings or the decree based thereon. It has sometimes been thought that the statement of Chief Judge Marshall in Boyle v. Zacharie, 6 Pet. 348, before the argument of that case, and that of Judge Story at the threshold of his opinion in that case, see page 642, have forever set at rest this question whether a State insolvent law impairs the obligation of contracts entered into within that State, and between citizens thereof subsequently to the adoption of such insolvent law. But it is not clear from either of these statements whether the minority, on the general question of the constitutionality of a State insolvent law, concurred in the whole of the second opinion written by Judge Johnson, including that portion of it in which he states that an insolvent law does not impair the obligation of a subsequent contract; or merely in the reasoning and conclusion of that opinion to the effect that the discharge was inoperative as to the Louisiana creditor for the reason that he was never within the jurisdiction of the court which granted the discharge. The statement of Chief Justice Marshall, would seem to warrant the first view, see page 348; while that of Judge Story appears to neutralize the broad statement of the chief justice, see page 642. He seems to limit the concurrence in Judge Johnson's second opinion of those who were in the minority on the general question, to that part of the opinion on which Judge Johnson bases his concurrence with the minority in affirming the judgment. It cannot be that Chief Justice Marshall and Judge Story intended to assert that they and Judge Duvall concurred with Judge Johnson in his opinion that a State insolvent law does not impair the obligation of a subsequent contract, seeing that the chief justice in his opinion in that very case in which Judge Story had concurred, had expressly declared it to be his opinion that such insolvent laws impaired the obligation of all contracts, both prior and subsequent. In that opinion he asserts in limine that the only difference between the case at bar, Ogden v. Saunders, and the case of Sturges v. Crowningshield, is the fact that in the latter the law acted on a contract which was made before its passage,

and in the case at bar on a contract which was entered into after the enactment of the statute. He states that the reasoning in Sturges v. Crowningshield, might have conducted the court farther, and that with that reasoning he had never had occasion to be dissatisfied. He then proceeded to maintain the position that such a law impairs the obligation of all contracts existing and subsequent with a chain of reasoning extending through more than 25 pages, and finally reaches the conclusion that the law existing at the time of the execution of a contract does not enter into and form an integral part thereof; and that therefore it is no answer to the position that an insolvent law impairs the obligation of a contract, that such law was in force at the time the contract was made. Can it be possible that Chief Justice Marshall and Judge Story intended to assert that they and Judge Duvall had abandoned a position, fortified with so much learning and force of reasoning, which it was utterly unnecessary that they should abandon in order to concur with Judge Johnson in affirming the judgment? Every presumption is against such an intention, and the nature of Judge Johnson's opinion seems to be conclusive against any such intention, and to bar all further argument, the whole trend of that opinion is to support this proposition which he states at the very outset. "The question now to be considered is whether a discharge of a debtor under a State insolvent law would be valid against a creditor or citizen of another State, who has never voluntarily subjected himself to the State laws otherwise than by the origin of the contract." No other question is discussed in this opinion; and at the close he states the following as the conclusion to which his reasoning has led him: "I therefore consider the discharge under a State law, as incompetent to discharge a debt due a citizen of another State; and it follows that the plea of a discharge here set up is insufficient to bar the rights of the plaintiff." At the close of his opinion he states that the propositions which he has endeavored to maintain are three. Of these, one is that the obligation of a contract is not impaired by an insolvent law in existence at the time the contract is executed. But he did not essay to maintain that proposition in his second opinion in which Chief Justice Marshall and Judge Story stated they had concurred. He had already disposed of that question in the first opinion from which they had expressly dissented. And therefore when they asserted in Boyle v. Zacharie that they had in Ogden v. Saunders concurred in the second opinion delivered by Judge Johnson, they clearly did not intend to state that they concurred in a proposition of law discussed in another opinion, from which they had expressly dissented; but merely that they concurred with Judge Johnson in the proposition maintained by him in his second opinion, to-wit, that the insolvent law, irrespective of the question whether it was passed before or after the execution of the contract, could have no effect upon the citizens of another State over whom the court granting the discharge had no jurisdiction.

As the question involves the construction of the National Constitution, and as the only case in which a majority of the United States Supreme Court expressed themselves in favor of the constitutionality of a State insolvent law as to subsequent contracts was decided, not only upon another ground, but also in diametric opposition to the decision to which that view would have led, it cannot be said that the question has been definitely settled so as to preclude all argument. The able and convincing argument of Mr. Webster for the defendant in error, and the exhaustive and unanswerable reasoning by which Chief Justice Marshall supported his views, would seem to be decisive of the question on principle. But when in addition it is considered that these views were main

tained by the three most eminent expounders of the Constitution since the days of Hamilton, the soundness of their position seems to be unassailable. Should the United States Supreme Court ultimately adopt the opinion of the majority of the court in Ogden v. Saunders, it will be because that case has been generally regarded by the bar and judiciary of the whole country as having finally established the constitutionality of a State insolvent law as to future contracts. It is certainly indefensible on principle.

We

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Another erroneous doctrine seems to be sanctioned by necessary implication by many of the cases. It is expressed in this language: "A discharge cannot be pleaded in bar of an action brought by a citizen of another State in the courts of the United States or of any other State than that where the discharge was obtained." Suydam v. Broadnax, 14 Pet. 75; Baldwin v. Hale, 1 Wall. 232: Ogden v. Saunders, 12 Wheat. 213. Now two erroneous principles are impliedly asserted in this statement. First, that though the court acquired jurisdiction of the person of the non-resident creditor by his voluntary appearance and submission to the jurisdiction of the court, the debtor cannot plead his discharge in the courts of any other State or of the United States. Second, that even though the court failed to acquire jurisdiction of the person of the creditor, the debtor can always plead in bar the discharge in the courts of the State where granted. desire to assail both of these propositions on grounds. First, they are founded in a total misapprehension of the nature of the question. Second, they are not supported by the cases in which the language above quoted is used. It being conceded to be the law that a State insolvent law does not impair the obligation of a contract made in the State in which the law is enacted and subsequently to the passage of that law, the question presented for the determination of the court in the case of such a contract claimed to be barred by such a discharge, where the discharge is regular and otherwise valid, is purely and simply a question of jurisdiction. Did the court granting the discharge obtain jurisdiction of the person of the creditor? The decree which distinguishes the liability of the debtor on the contract in effect, takes from the creditor and pays to the debtor the amount of the debt. Jurisdiction of the person is therefore necessary to the validity of such a decree unless the proceedings are in rem. But should they be conceded to be in their nature proceedings in rem, the case would not be altered. That the existence and seizure of the res within the territorial limits of the State in whose courts the proceedings in rem are instituted is essential to jurisdiction of the res, so as to conclude the owner as to that particular res, is so well settled that the citation of authorities to sustain this principle would be supererogatory. That in the case of a mere debt, the debt is not within the limits of the State in which the debtor resides in case the creditor lives elsewhere is equally well established. A debt follows the situs of the creditor. Story on the Conflict of Laws, §§ 362 and 369. If then, when the insolvent proceedings are instituted, the creditor is a resident of another State, and does not voluntarily subject himself to the jurisdiction of the court in which the proceedings are pending, and if there is no res within the State over which the court can acquire jurisdiction by seizure, on what principle can it be maintained that the discharge is operative to extin'guish the debt of such creditor even in the very court by which the discharge was granted? There is no jurisdiction either of the person or of the res, and the decree is therefore a mere nullity. To declare such a decree of any binding force under such circumstances would be subversive of the fundamental principle on which rests the superstructure of all free govern