no doubt, always unfortunate when the law of our own country disagrees with, and differs from, the law of other civilized countries; but the rule of law is fixed on the matter, and ought not to be lightly shaken on such a point; and, indeed, to hold otherwise would be to disturb and upset a vast number of floating contracts which have been entered into upon the footing of that construction of the rule throughout this great maritime country, which would be a consequence most injurious to the commercial interests of the kingdom. The question then is, in what character was this payment made? Does it, under the circumstances, and under the terms of the charter-party, range itself under the cases in which there is a payment on account of freight? I think it does. It seems to me, for the reasons given by the lord chief justice, with which I entirely agree, that it was manifestly the intention of the parties that this should be, in any event, an absolute payment, and one not liable to be affected by the subsequent loss of the goods. For these reasons, I think that we ought to affirm the judgment of the court below in favor of the plaintiff.

this contract by the rule of the English law, and ought, therefore, to hold that this money would not be recoverable back from the shipowner, if it had been paid to him before the loss of the cargo, and that the judgment of the court of exchequer should, therefore, be affirmed. Lush, J.-I am of the same opinion. I think it is of the very highest importance that a rule of our commercial law, which has been established for such a length of time as the one which we have been discussing in this case, should be upheld and adhered to. I confess that I was at one time much struck by Mr. Butt's argument, that this payment of the difference was intended by the parties to be only a substitute, and an indemnity to the owner for the loss of his lien upon the goods. That might, no doubt, be a very reasonable agreement for the parties to make; but, looking at the terms used by them in the agreement entered into between them, I do not think that that was their contract or their intention. On the contrary, I think their intention was that the payment should be a payment out and out, and that it was a payment on account of freight, which, according to the rule of our law, cannot be recovered back. I am of opinion, therefore, that the plaintiff is entitled to recover, and that the judgment of the court of exchequer should be affirmed. Judgment affirmed. -Law Times Reports.

M. Smith, J.-I also am of the same opinion, although I have felt much hesitation in arriving at a conclusion in this case, from the difficulty of precisely apprehending upon what ground it is that the rule of our English law has been placed. I apprehend, however, that the foundation of that rule, viz., a prepayment of freight, is not recoverable by the charterer in the event of the failure of the voyage by the loss of the cargo, depends upon this, that at the time when such prepayment is made there is an implied understanding that it is a payment which is made once for all, and which is not to be subject to any contingency. Now, undoubtedly, that was the character of the prepayment in the present case. The law of foreign countries, on the other hand, requires that, if such is their intention, there shall be an express agreement to that effect between the parties; while, on the contrary, our law would seem to suppose that there is an implied agreement to that effect, unless it be expressly excluded. Taking that to be the foundation of the rule, there was, without doubt, a prepayment here, and the question is, whether it was intended that the money so prepaid was to remain in suspense, and to be kept by the shipowner only in the event of the safe arrival of the cargo, or whether it was a payment in the nature of a prepayment on account of freight, and so not recoverable. Now, looking at the rule of English law, which has been established and acted upon for so long a period of time, and assuming, as we must, that the parties had knowledge of that rule, and that they entered into this contract with such knowledge, I confess that it appears to me that their intention was that this payment of the difference should not be a payment to remain in suspense, but that it should be an absolute payment, and subject, on the shipowner's part, to no contingency whatsoever. It is clear that the master could only be required to sign bills of lading at a less rate than the chartered rate of freight, upon condition that the difference was paid to him in cash. The words of the clause are, "the master to sign bills of lading at any rate of freight required, without prejudice to the charter-party, but not under chartered rates, except the difference be paid in cash." It seems to me, gathering the intention of the parties from the language used by them in the document, that when they name a payment in cash-not in bills, but in money-they mean a payment which shall not be subject to any after contingency. We have to construe

ADVANCED FREIGHT.

The case of Byrne v. Schiller, Ex. Ch., 19 W. R. 1114, L. R., 6 Ex. 319, settles with the authority of a court of appeal the rule long since followed in the courts of first instance, that advanced freight cannot be recovered back by the shipper if the goods are lost by the perils of the sea. Several members of the court, especially Cockburn, C. J., appear to have pronounced their judgment with reluctance, and in deference only to the current of authority. The objections to it were twofold. First, that it was contrary to principle that one who had paid money for a consideration which failed should not be entitled to recover it back. This, however, begs the question of what is the consideration. Certainly, if freight means something which is earned by the carriage of the goods to their destination and not otherwise, then, if the goods, in respect of which freight is paid, are not so carried, the consideration is not performed and the freight is not earned. But there is nothing to prevent a man from earning a sum of money by agreement with another for taking his goods on board and doing his best to carry them to their destination, subject to certain contingencies; and if, under such an agreement, he does so take them on board and do his best to carry them, then, although, owing to those contingencies, they never reach their destination, the consideration does not fail, for the consideration was not the carrying them to their destination at all events, but the carrying them, subject to certain events which have happened. And if this is the agreement between the parties, it cannot alter the case or deprive the shipowner of the sum he has stipulated for, that they call this sum "freight," any more than it can deprive him of his right to payment for an empty vessel because the sum to be paid is called "dead freight." To insist that, because the word freight is used (and popularly and commonly used) in such a contract, therefore the consideration must necessarily be the actual carrying the goods to their destination, and can be nothing else, is to worship technicality; but if this assumption

fails, then the whole argument about failure of consideration fails with it. The question really is, what was the contract? and the answer to that question must be obtained by asking further, what is the inference to be drawn from the fact that pre-payment is stipulated for? Now, when money is to be paid for work done, it naturally becomes due only when the work is done, and as money is not usually paid before it is due, the payment of money at the commencement of the performance of a work or service lays the basis for an inference, which may vary according to circumstances, and which may or may not be an inference bearing upon the contents of the contract. But if, for instance, a man received a heavy sum of money to convey a message through the lines of the enemy, and he were captured or killed on the way, so that the message never reached its destination, could he or his representatives be sued for the money under the magic formula of causa data causa non secuta? The contract would scarcely be so interpreted. If, then, a man agrees to bear a cargo through the perils of the winds and waves, but stipulates for payment beforehand, it would be no very extraordinary inference that it was intended he should not, in the event of shipwreck, be under the obligation to repay that sum as well as suffer the loss of his ship, on which that very sum had, perhaps, been already expended.

Jurists, however, have not only held it unjust to draw this inference, but they have also held it inexpedient to allow it to be drawn, lest it should encourage captains in fraud and negligence; or rather, perhaps, because they held it inexpedient, they have refused to draw it; for if they had held it strictly unjust (which must mean contrary to the contract) there would have been no need to resort to the argument of inexpediency. But since they did not feel entitled to go so far as to disallow such a contract if expressly made (which shows they did not consider it an unconscionable one) they gave effect to an express stipulation that the prepaid freight should not be returned in the event of loss of the ship, and so in reality vacated their own rule, at least, so far as concerned the only part it could at all serve to guard against, of the evil it was designed to check; for the fraudulent captain would certainly take care to obtain the insertion of the necessary words. They thus, at any rate, secured to the shipper that he should enter into the contract with his eyes open, and that he should not be deprived of his right to recover prepaid freight by the mere fact of its prepayment alone; but they admitted that the additional clause was of constant occurrence, and that the exception made the rule of little practical value. And it is obvious that if the argument about public policy and encouragement to misconduct were of any real substance, it would go to disallowing such a stipulation altogether. It is in this modified form, however, that the rule prevailed in Europe, was adopted in America by Chancellor Kent and has been since followed there, and has been incorporated in all the foreign mercantile codes. And this was the second ground for the reluctance of some members of the court of exchequer chamber to follow the English rule; though it could not prevail on them to hold the contract to be any thing but what, by the well-established English custom, it was, of course, meant by the parties to be. It may produce, no doubt, a certain amount of inconvenience, especially in matters of marine law, that different constructions should, in different countries, be put upon similar instruments; that, for instance, an English ship-owner making a

charter in a foreign port, or a foreign shipper chartering a vessel in an English port, should unexpectedly find himself, in the same event, the one unable to retain, the other unable to recover, the sum of money prepaid. But it is very doubtful whether the article ought not rather to be withdrawn from the foreign codes than introduced into the English. What the contents of a contract are, ought to be determined by its express words; or, where express words fail, by usage; and there seems reason to think, that, but for the interference of lawyers, the persons interested in the matter would, in foreign countries, have put the same construction upon the transaction of prepaid freight that has here been adopted from commerce into law. If the principle of failure of consideration is really applicable, that is, if it is fairly to be assumed to be the meaning of the parties, that the shipper shall have his money back, if, from any cause whatever, his goods are not carried to their destination, there is no occasion for any special rule; the principle is perfectly well known. But if, on the other hand, as would appear from the alleged frequency of the additional stipulation, the parties coming together are quite prepared to enter into that contract, so that it is probable they would of themselves understand the contract in that sense even without express words, there is no occasion for the law to hold up its warning finger to the shipper, and, by requiring express words, caution him not to do what he is quite prepared for, and which the shipowner will naturally demand. If, however, the warning has its effect and deters him from entering into a charter on those terms, it is a further question whether it is expedient to do so; and whether, since the only legal effect one way or the other will be to shift the right to insure (which of itself puts an end to the whole supposed safeguard against the shipowner's dishonesty, since any act which would forfeit his policy would also forfeit his right to retain) it is not more natural and more convenient to allow the man who has already paid his money to watch over the security of his venture, and the man who has got his money to expend it in the most advantageous manner, without the liability to re-imburse it on some future contingency.-Solicitors' Journal.

GENERAL TERMS.

1st Monday in November, first department, New York.

2d Tuesday in November, third department, Schonectady.

3d Tuesday in November, fourth department, Syra

cuse.

2d Monday in December, second department, Brooklyn.

LEGAL NEWS.

Judge Aylwin, one of the most brilliant judges on the Canadian bench, died on the 14th inst.

A law-library association has been organized at Bowling Green, Ky.

The department of justice has been transferred from the Treasury building in Washington to the new Freedman's Bank building.

Chief Justice Chase appeared and took his seat on the bench of the supreme court, at Washington, on the 16th inst.

The Bavarian chamber is about to sanction a new police code, which is to place Bavarian criminal legislation on a par with that of the rest of Germany.

The Albany Law Journal.

ALBANY, NOVEMBER 4, 1871.

THE USE AND ABUSE OF LEGAL TEXTBOOKS.

It has been said by the critics that as civilization advances poetry declines, and the same rule would seem to hold good as to the genius for legal writing. In those early centuries when the common law began to assume form and shape, were produced nearly all of those treatises and text-books which are looked upon as authoritative. Glanville, Bracton, Littleton, Fitzherbert, Coke, Bacon, Hale, Comyns and even Blackstone, wrote when the science de legibus was in its infancy, and their writings have come down to us stamped with the approval of the highest legal and judicial authorities of England. Their works have always been considered models, and the opinions of many of them, even though unsupported by authorities, have been adopted as the correct exposition of the common law. In rendering judgment Chief Justice Best spoke of one of them as follows: “I am afraid we should get rid of a good deal of what is considered law in Westminster Hall, if what Lord Coke says without authority is not law." *

In the days when Bracton, Littleton and Coke wrote the reports could be readily counted by scores, the cases were few and easily mastered. A system was to be formed, and the condensed material of all the ages which had preceded them was ready to their hand. In these latter days the cases have increased to such an extent that to even become familiar with them would require the strength of Hercules and the days of the planet Jupiter. Exceptions and distinctions have been multiplied without number. The case law of the last century has dealt with details more than with the great principles of the science. Το

Strong as is the human instinct to venerate antiquity, it cannot be said with any truth that the reputation of these ancient worthies has resulted from that instinct. They have been weighed in another scale, and subjected to other tests than that of mere reverence, and whatever consideration has been given to their productions has resulted from their own intrinsic merits.

reduce all of this accumulated material- much of it

discordant-into a systematic treatise, with the same degree of accuracy and completeness witnessed in the old writers, has proved too much for the genius of the age.

Another, and perhaps the principal, reason why modern text-books are of comparatively little value as authorities is, that they are, as a rule, the results of little study and less ability. The last century has been an age of "law-book making," as that term is understood by law publishers. Most of the treatises, socalled, have been the works either of young men neither profoundly versed in the law, nor yet in the practice, or of those pedants whose professional career has proved a failure, and who indulge their cacoethes scribendi for the purpose of eking out a slender income. We of course do not intend to include in this category all of our modern text-books, for some of them have been honestly and laboriously prepared, and with no little ability; but the great mass of the legal literature of the day exhibits the impress of about the same kind and amount of genius required to "piece" a bed quilt. Law-book making has become, in fact, a sort of trade or profession. There are a few men who devote themselves to it and it only, not that they have any peculiar calling or fitness for the task, but because by it they can earn their bread and butter. They have learned the "trick of the trade," and they multiply books with a rapidity that would have astonished Sulpicius himself. It needs no argument to prove that text-books so written, and by such men, have positively no authority.

Since their day there have been produced in England few, if any, legal treatises entitled to great distinction; and in this country the same is true, always excepting the Commentaries of Chancellor Kent. There are two reasons for this decline in legal writing. One is the enormous number and conflict of reported cases. In former days it was no unusual thing for a lawyer to carry in his head the reference to and contents of the leading cases on all subjects, and to give advice on legal questions as readily in his coffee house as in his chambers. Mr. Samuel Warren, in his admirable "Introduction to the Study of the Law," cites, with evident satisfaction, an instance in his own experience, where a learned barrister, in the heat of an important trial, referred him, off hand, to a case which solved a knotty question of law. But the days for this sort of display have passed. Precedents and leading cases have become altogether too numerous and conflicting to justify even a Hippias in trusting to his memory, or in advising in difficult cases, without much consideration and examination.

*2 Bing. 296.

Considering the proportions to which our laws have attained, it may be fairly said that no man is equal to the task of treating more than one subject well, and to do even that well he must make it the study of his best days. We have no hesitation in saying that where a man attempts to do more than this — to write treatises on two, three or a half dozen different subjects-his works should be received with the greatest degree of care.

This modern style of book making would probably lead to no very serious results if the books themselves were taken for what they are really worth, and used for no higher purposes than those to which they are adapted. We take it that the sole and only value of modern legal treatises is that of a methodized digest,

useful as indicating the source of the law, but not to be taken as of themselves the source. Unfortunately there is a constantly increasing tendency, both at the bar and on the bench, to make them fulfill a nobler office to treat them as having of themselves authority. For a counsel to cite as authority, in the argument of a case, a text writer, is scarcely pardonable, as it indicates, at best, but a lax and "slip-shod" preparation; but for a judge to use, as authority, the opinions or deductions of a modern treatise writer is without excuse.

It is said that in England a law writer is never considered an authority during his life-time, but in this country the living and dead are honored alike. All are placed on the same footing, and are cited with equal emphasis. One needs only to turn over the pages of our reports, especially the western and southern, to discover to what an extent the judges make use of these second-hand authorities. We have before us now a recent western report in which case after case is decided upon no other authority than the ipse dixit of some book maker. This is a simple and easy method of making decisions, but one to which no judge can afford to resort. It is not only full of danger to his own reputation and to the suitors, but it tends to confusion and dissension.

Chief Justice Willes, speaking of Lord Coke, remarked: "He was certainly a great man, though he had his mistakes."* If such as Coke was not infallible, how much less so must be even the better class of modern writers, to say nothing of that class-by no means small-whose only tools are the paste-pot and scissors. We remember having been shown not very long ago the preface to a treatise then about to be issued on an important branch of the law, wherein the writer, with an honesty most refreshing, begged the indulgence of the profession for any errors discovered, stating that his access to original cases had been very limited, and that he had been compelled to rely largely upon digests. When the book was published, we noticed that the paragraph about digests, etc.,, had been suppressed.

We do not, of course, wish to be understood as militating against text-books and treatises properly used. No doubt the opinion of a text writer upon any particular point of his subject ought not to be considered merely as the private opinion of the author, but may be presumed to be the result of the authorities to which he refers. But this is a presumption which certainly no judge has a right to indulge in the decision of a cause. It is for him to go to the fountain-head, to examine for himself, and to draw his own conclusions. He who does less than this does less than his duty, and helps to degrade the noble science of which he is minister and priest.

A female justice in Wyoming has fined her husband three times for drunkenness.

*8 Atk. 141.

THE MORMON QUESTION. Were it not for the fact that great reforms have seldom or never been brought about by judicial action alone, we might see in the events now passing in Utah the promise of a brighter dawn for that polygamy-ridden people. Chief Justice McKean has certainly shown himself an uncompromising enemy to the peculiar institution of the saints, and has initiated measures that may well fill them with apprehension.

The first and severest blow was struck when the chief justice decided that the courts of the Territory were courts of the United States, to be governed by the rules and practice of the federal courts, and that all processes were to be served, and juries selected, by United States officers. Theretofore, the laws and regulations of the Territory had been paramount; Mormon officers had selected Mormon juries, and justice had been administered quite in accordance with Mormon notions. But with "Gentile " juries and the "second Daniel came a new order of things. Men holding opinions favorable to polygamy were refused certificates of American citizenship; Mormon laws and Mormon ordinances were set aside, and the entire polygamous hierarchy was put on trial.

The present status of affairs seems to be about as follows: Brigham Young, the successor of Jo. Smith, has been indicted on several charges, among others for "lascivious cohabitation." The mayor and several of the elders are under arrest, and Hawkins, a polygamist, has been convicted of adultery and sentenced to pay a fine of $500 and to be imprisoned at hard labor for a term of three years.

The trial of Brigham Young has been postponed for several months, during which his counsel hope to get a decision of the United States supreme court on the question as to whether the territorial or federal laws are to govern in the selection of juries. This question is, of course, of the first importance, for, with a jury composed entirely of "Gentiles," there would be little hope for the "prophet." The remark of the chief justice, that "the system of polygamic theocracy would be tried in the person of Brigham Young," has served, we are told by a correspondent, to knit together the entire Mormon community, and men and women are alike offering their contributions to secure counsel to defend their leader and their doctrines. Should the trial take place, it will be one of the causes celebre of the country.

The indictment of Young and the conviction of Hawkins were brought about under a statute against adultery and lascivious conduct passed by an exclusively Mormon legislature in 1852. That the act was intended to cover cases of the kind no one believes, and it may fairly be questioned whether polygamy can be treated as a crime under it. But it is a question we do not purpose to discuss. We are of the opinion, however, that it would have been more

becoming, considering the decisions already made, for the court to have proceeded under the statutes of the United States against polygamy.

That Chief Justice McKean is a pure and honest man, we know, having known him for years before his elevation to the bench; but we know him also to be a man of strong convictions and unyielding prejudices. These latter qualities he has displayed in his present position in a manner scarcely becoming the ermine. Justice ought to be severe, and awful, too, but it ought at the same time to be impartial – to sit calm and unmoved above the storms of prejudice and passion that rage beneath. His decisions we do not question, but the language accompanying those decisions has been often so intemperate and partial as to remind one of those ruder ages when the bench was but a focus where were gathered and reflected the passions of the people.

Of the Mormon people much may be said in praise as well as in blame. They have, no doubt, trampled upon one of the strongest traditions of civilization, but they have also done some service to the State. Driven from one point to another by mobs as bad as the worst of them, they at length made a hegira quite as memorable as the "Flight of the Tartar Tribes" to the wilderness of Deseret, and established a commonwealth which has prospered almost beyond example. Aside from polygamy, they have obeyed the laws quite as well as most new western communities, and they have never failed to respond promptly to any calls made upon them to aid in defending the country or in prosecuting its wars. For a quarter of a century their peculiar institutions have been tolerated by the government; so long, indeed, as to justify them in assuming that they had become legalized by prescription. In view of these facts we have no hesitation in saying that the justice that is now meted out to them should be tempered with mercy, and that neither the chief justice nor his followers will gain imperishable renown by an uncompromising crusade.

THE CHICAGO BAR.

Probably no class or profession suffered more by the recent calamity in Chicago than did the members of the bar. The great body of them were young men, with little or no means, except their libraries and their practice. Their libraries are gone, and their practice so interrupted as to promise but little for months to come. As the Chicago Legal News says, they "are without offices, without books, without money, without business, and with no immediate prospect of any." We visited the library of the Law Institute the day preceding the fire, and found it to be one of the most complete law libraries in the country, a noble monument of the liberality and enterprise of the Chicago bar. It is entirely gone. Let its successor be a monument of the liberality of the bar of the entire country, and a token that in the

hour of their greatest need our professional brethren were not forgotten. No calamity, in the annals of the world, has ever elicited such wide spread sympathy, or been alleviated by such generous aid. Even before the smoke had lifted from the ruins, trains were rushing from every direction to the scene, laden with food for the hungry and raiment for the homeless and naked. The "brotherhood of man" has been most emphatically acknowledged. But beside this human brotherhood, there is another, arising from kindred occupations and professions. A dozen crafts all over the country have made provision for the material assistance of their brother craftsmen in the burned city. While the legal profession have not been backward in helping along the general relief, they have done nothing for the especial aid of their professional brethren. An appeal has been issued by John M. Wilson, former chief justice of the superior court of Chicago, asking the lawyers of the country to assist in restoring the library of the Law Institute by contributing books. We give below the material part of his appeal, and trust that it may meet with a most liberal response. The plan proposed by him is, however, rather cumbersome, and not likely to be generally adopted. We would suggest that, in case no organization be formed, that each lawyer send directly what he has to give, addressed to the Law Institute.

Judge Wilson says:

Having been associated with the legal profession at the bar and upon the bench for forty years, and having escaped the calamity which has overtaken most of my brethren in this devoted city, and being at the present time in no way judicially, or by practice, connected with the legal profession, I assume the responsibility of appealing to the legal profession of the United States and Great Britain in behalf of the Chicago bar; and suggest that responses to this appeal be made in law books. In order to avoid the inconvenience of miscellaneous contributions, and that the books con

tributed may be memorials of the generosity and sympathy of the contributors, I suggest that the bar of every State capital inaugurate an association to include all tho legal profession of such State that may desire to join it, the object of which shall be to procure and forward as a donation to the Chicago Law Institute, all the legal literature of such State, including the statutes and reports and treatises on legal subjects by citizens of such State.

That the association be designated "Association of the Members of the Legal Profession of the State of -, for the Relief of the Legal Profession of Chicago," or, that associations be formed by the bars of each county, to act in concert with the bar of the capital of the State. That in each county or bar, legal cap paper be prepared with proper heading, and signed by all contributors, with place of residence; that each page contain ten signatures; that these be preserved and forwarded with the books as a memorial not only of our unprecedented calamity, but especially of the liberality and generous sympathy of the legal profession. The Chicago Law Institute is a corporation, including in its membership nearly all the lawyers in the city. The library and fixtures before the fire exceeded