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fact that he sells it for the benefit of the maker takes the precise place of the payee with respect to the defense of usury. Hall v. Earnest, 36 Barb. 585. This doctrine has been fully recognized in our own State. Campbell v. Nichols, 4 Vroom, 81. Sup. Ct N. J., Feb., 1884. Zabriskie v. Spielman. Opinion by Van Syckel, J. (46 N. J. L. 35.)


DONATIO CAUSA MORTIS. Editor of the Albany Law Journal:

The case of Williams v. Schatz, abstract of which, from Ohio Supreme Court, is given in last number of your JOURNAL, p. 455, when compared with Grymes v. Hone 49 N. Y. 19, seems to warrant the soundness of Lord Eldon's opinion, that, "if among these things called improvements in the law, this donatio causa mortis was struck out of our law altogether, it would be quite as well." We are unable to discover even a nice shade of difference between the two cases.

In the Ohio case, A., having executed in due form a deed of gift of real estate to his son, said to B., "take this deed and keep it. If I get well I will call for it; if I don't, give it to Billy," the grantee. A. was then ill, and died in a few days of same illness. B. then delivered the deed to the grantee. The court held there was no delivery, and the instrument was invalid.

In the New York case, the donor executed an assignment in writing to his granddaughter, of a certificate of shares of stock in a New York bank.

After signing the paper he kept it by him for awhile, and afterward handed it to his wife to put with the will and other papers in a tin box she had. When he gave to his wife the paper, he said: "I intend this for Nelly. If I die, don't give this to the executors, it isn't for them, but for Nelly; give it to her, herself." She asked, "why not give it to her now?" "Well," he said, "better keep it for the present; I don't know how much longer I may last, or what may happen, or whether we may not need it."

The donor was old and ill, but lasted five months. The court held this a valid gift mortis causa.

Did the donor in the former of the cases cited any more reserve the power of revocation, or any the less part with the dominion over the subject of the gift than in the latter?

A recovery from the illness would in either case have entitled the donor to reclaim the property given.

Does the law gather a different interpretation of the intentions of these respective donors, so far as to warrant these apparently antipodal decisions?

Was not the depositary of the instrument as much the agent of the donor and trustee for the donee, in the one case as in the other?

Were not the declarations of the donors in both cases a statement of the law as to such a gift? In either case a restoration to health would render the gift void, and in both the gift was subject to the arbitrary will of the donor during life. What and where is the distinction, if any?

Yours respectfully,

ROCHESTER, Dec. 6, 1884.




Outlines of Roman Law, comprising its historical growth and general principles. By William C. Morey, Ph. D., Professor of History and Political Science in the Univer

sity of Rochester. New York and London: G. P. Putnam's Sons, 1884.

This work possesses more than ordinary interest, for it marks an epoch in American legal literature. The contributions of this country to Roman law are not numerous, and most of them have been issued at intervals widely apart. Outside of our French and Spanish provinces the contributions are few. Cooper's version of Justinian's Institutes, Professor Hammond's very able introduction, or excursus, prefacing the American edition of Sander's Justinian, Hadley's and Cushing's historical sketches, Kaufman's and Cropsey's translations of Makeldey readily occur to us as the most important instances of Roman law books published on this side of the water. Now comes "Morey's Outlines." Though it is of the handy volume series rather than of the technical order of Roman law books this volume possesses a considerable literary and technical merit. In its technical aspect it is an effort to apply the principles of Sir H. Maine to controverted questions of the origin of Roman law, and thus far it is of some value to the students of comparative jurisprudence. There is little doubt that Professor Morey is well adapted from a good training among the German civilians to an accurate presentation of his subject. We know of no book in English-Amos' latest contribution, "Roman Civil Law," not excepted where the rudimentary facts relative to the development of Roman law are better or more tersely presented than they are in these "Outlines." The work is not so ambitious as that of Amos, nor can it usurp its place; but it contains a great deal of matter not hinted at by Amos. As a practical book of reference, that of Amos excels, for it contains references to the Pandects, and serves as a sort of abridgment index to original sources. But Morey's outlines may well serve as an introduction to Amos' work, and both together will point the student's way to the more mysterious recesses of the only jurisprudence which may now be seen from start to finish. That either Amos' or Morey's book is of great technical value, we presume, is not pretended, but they are of unquestionable value to English-speaking students, and of the two we prefer Professor Morey's, as it is the more condensed. We are in hopes that this little volume is but the precursor of others of a like character. The American faculty of civilians may yet solve for the world that interesting scientific problem, is it indeed so that the Roman law is the true common law of all Europe, and that our own Anglo-American common law is but a branch of the same tree, as Savigny always contended.



HE following decisions were handed down Tuesday, Dec. 9, 1884:

Judgments of Special and General Terms reversed, new trial granted, costs to abide the event-Theodore F. H. Meyer, appellant, v. Hiram Phillips and another, respondents.Judgment affirmed with costs-Harvey Baker, respondent, v. Village of Oneonta,

-Appeal dismissed with costs-Henry A. Bate, appellant, v. William O. McDowell, respondent.Appeal dismissed on the ground that upon the circumstances disclosed by the papers the order appealed from was discretionary-Thomas W. Harris, assignee, etc., respondent, v. Lavina Taylor, appellant.-Order affirmed with costs-People ex rel. Edward Rorke aud another v. Board of Assessors of Brooklyn; In re Application Staten Island Rapid Transit R. Co.; In re Petition of Sarah T. Sands, etc.; James O'Shea, respondent, v. Henry Kohn, appellant. Order of General Term reversed, costs to abide the event-In re Petition of Cyrus W. Swan, etc.

The Albany Law Journal.





E have had our attention called to a randum upon the proposed Civil Code," with an appendix separate from the "memorandum," but said to be part of it. We had hitherto supposed that "memorandums" were either of a private character, or else diplomatic notes issued by sovereign States in connection with negotiations of magnitude. Of the two kinds of memorandums known to us this particular one is not issued by a sovereign State, for it purports to come from Mr. John R. Strong, a lawyer in the city of New York. It must therefore have gotten out of the receptacle for Mr. Strong's other memorandums. It begins a little like a soliloquy, with "I stand here for the law Shylock," and ends with the anti-climax, "which is respectfully urged." The memorandum however states that it "agrees unqualifiedly with the declarations of Mr. James C. Carter of the New York bar," so we suppose it may be regarded as conclusive. It evidently rejects Mr. Field in toto, that is if we understand Mr. Strong, and we confess that we do not always, although his incubrations are lucidity itself compared with those by Mr. J. Bleecker Miller.


The English quarterly Law Magazine and Review "The battle of codification is, we find, being very hotly waged just now in the State of New York. We have received several pamphlets pro and con., all of which we have read with interest, not excepting Mr. Carter's 'Counterblast to the Monstrous Regiment of Codification.' For it is always a matter worthy of attention how that which to some minds may seem to require no demonstration, to other minds presents itself as simply and absolutely the impossible and the undesirable. And yet even to Mr. Carter's mind codification, per se, would seem to have some ground of desirableness left-only Mr. Field's code he will not have at all. It is a more serious matter that Mr. Carter presents, under a misleading aspect, the historical facts concerning Roman law and French codification. If the Roman law was in any sense what he thinks it was a failure - it was so splendid a failure that the world may well stand excused for having taken it for a victory. We have little doubt that the possibility of seriously adopting such an attitude toward the unquestioned mistress of all scientific jurisprudence is mainly due to the absence of any general study of the Roman law in the United States. But with such commentators as Mackeldey placed in their hands, as recently edited by Mr. Dropsie, supplemented by oral teaching. to be followed no doubt by examination — and the evident appreciation of Roman law shown by Dr. VOL. 30- No. 25.

W. G. Hammond and other American jurists, we may hope that the day of contemptuous treatment of the science of law is fast waning, to give place to the age of codification. That the tide is really setting in that direction, indeed seems evident from other facts than those adduced by Mr. Dudley Field and his fellow-workers, Mr. Frankenheimer, Mr. Roger Foster and others, in their able, critical reply to Mr. Carter and those on his side. Not only has California adopted what New York is still hesitating to adopt, but San Francisco law publishers, such as the well-known house of Sumner, Whitney & Co., show their very real belief in codification by issuing what are practically unofficial codes in the shape of pocket manuals of the law by able editors. We have already noticed Mr. Desty's Shipping and Admiralty Law in this series, and there have since come to us, in code shape, Mr. Barber's Principles of Insurance, Mr. Boone's Law of Real Property, and Mr. Stewart's Marriage and Divorce. It seems evident that the principle of codification is taking root, and that the Atlantic States must in time steer for the 'Golden Gate.'"

Among the grave problems of American government is that concerning municipal debts. The late constitutional amendment, restricting the power to incur debts, is a step in the right direction. Manhood suffrage, abstractly right beyond question, should not be permitted to confiscate property, and its execution seems to require watching in our great cities. Lycurgus, when advised to try a democracy, is said by Plutarch to have advised his adviser to try a democracy in his own house.


moral is obvious. We now hear it intimated that the enterprising city of New York proposes to evade the constitutional inhibition against excessive debt by decreasing the valuation of its assessable property, thus increasing indefinitely its limits of indebtedness. We sincerely hope that in the interests of good government such an outrage will be checked by some concerted action. We advise the special committee of the City Bar Association to let the work of codification alone and to exert themselves to simplify and promote good government by defeating any scheme projected to impair the operation of the new amendment. Here is a real chance to get glory!

We have more than once spoken of Chief Justice Elliott, of Indiana, as one of the best judicial writers in this country. It is a curious fact that nearly all the best cases in his court seem to fall to him to write the opinions. If he picks them out himself, he shows good judgment; if the matter is decided by chance, fortune is kind to him. Just now we are more interested in his paper on "The Philosophy of Punishment for Crime," published in the Indiana Law Magazine of October 28, November 8. It is a very interesting production. It is hard to select where all is so admirable, but the following will give an idea of the scope and treat


ment of the writer: "Law-givers, philosophers and theologians have for ages assumed that men are responsible beings, and the combined experience of many centuries is far weightier than the speculations of visionary theorists. But as we have seen, the assumption is supported by the closest analogies and strongest reasons. Its denial involves the affirmation that organized society is impossible, and this is nihilism in its worst form. There are however degrees of responsibility; some persons are less responsible than others. On this point we nearly always err, for we almost invariably place the heavier responsibility on the wrong person. If a lad born of good parents, and who moves among the refined and educated, commits a theft, we feel that his punishment should be light, but if a child born of wicked parents, and who belongs in the ranks of the degraded, commits a like offense, we feel that he should be severely punished. This judgment is radically wrong. strict justice it is the well-born lad who deserves the severest punishment, and not the ill-born, whose inherited tendencies, and whose surroundings have exerted such a fearful influence upon his mental and moral nature. Environment is, I know, a term often made to stand for much and mean little, but it possesses an important meaning, and conveys a material thought when used as descriptive of the influences under which children are born and reared. The child reared among thieves and harlots and brutal men is surrounded by fateful influences that would be very likely to drive into crime a child born of the purest and best parents. The malignant influences that surround the young who dwell with vicious women and brutish men are so powerful that it is a marvel that any one ever escapes from their fell power. Better a thousand fold than all the criminal codes that man ever did or ever can devise, would be a pian that should take the young from these dark places and evil associations, and place them in a brighter and purer region. More potent than the law of environment is the dreadful and unbending one of heredity. The laws of heredity and environment, powerful as they are, do no more than implant in the individual tendencies and propensities; they are not laws of action; they do not compel a person to do wrong; they simply incline him to a life of evil. They are not supreme laws; above them are the conscience, the judgment and the will. No sane man was ever driven into crime by the laws of heredity and environment. As Dr. Elam says: 'And herein consists man's responsibility, and the very possibility of virtue, that whilst the brute acts strictly according to his organization, man equally urged by his, may act according to a higher law, i. e., a moral law. Every sane man is responsible for his voluntary acts, whatever may be the moving impulse. Sin and crime are always sin and crime, whatever the constitutional tendency.' * * * Society too often disregards these potent laws of heredity and environment, and thrusts young offenders into confinement

* * *

with men hardened in crime; men whose glory is their wickedness; and by the evil associations thrown around these novices in evil-doing have their inborn propensities festered into settled wickedness, and reformation becomes impossible. The wrong is a cruel one, in most instances an awful crime. It is a fierce enough battle for the young offender to fight the inherited impulses, strengthened as they most often are by his environments, without having his enemies re-enforced by the teachings and influences of the inmates of the prison disgraced beyond the hope of reclamation; and society does a cruel thing in supplying the re-enforcements that conquer the already hard pressed and far-spent combatant. Not only do the evil associations strengthen the wicked propensities, but the disgrace destroys all hope. There are many prison doors over which might be written the memorable words of Dante: 'Abandon hope all ye who enter here.' It may cost money to change our system of dealing with the young in crime, but shall an enlightened people weigh money against souls? It may be a slow and toilsome work, the repose of society may somewhat suffer, but in the end the gain will be infinitely greater than any loss, and will many times repay the work and time bestowed. There may be disheartening failures, but success will be attained at last, and in such fair measure that no one will doubt that the end crowns all. take measures to reform those in whom there is hope of reformation is to lay the axe to the root. To take the children of the bad from evil influences is to check the polluted stream that breeds criminals as foul waters breed slimy things. That society has a right to do this there can be no doubt; that it is the duty of society to do it is not uncertain."



IN Huntley v. Baker, 33 Hun, 578, a judgment by

default was entered against the defendant in the Municipal Court of Dane county, Wisconsin. He was at that time domiciled in that State, but was absent therefrom. The summons was not personally served upon him, but was left at his residence in the presence of his wife. This mode of service, and the proceedings in the Municipal Court were regular and valid according to the laws of that State. Held, that the judgment was valid, and that an action might be maintained thereon in this State. The court, Bradley, J., said: "The courts of any State or country can have no extraterritorial jurisdiction so as to give notice, serve process, or charge persons or property beyond their respective boundaries. And when thus unable to acquire jurisdiction of the person against whom legal proceedings are by statute authorized, and nominally taken without actual service on him, the proceeding can be treated as in rem only in respect to property within the jurisdiction. But it has been repeatedly held in England that this doctrine is not applicable when the person so sought to be

charged by judgment is a subject or citizen of the country where and at the time the proceedings are taken, and when they are in conformity to the statute there, although the person be then absent from the country, and that is put upon the ground that the person domiciled there owes allegiance to the country and submission to its laws. Douglas v. Forrest, 4 Bing. 686; Becquet v. McCarthy, 2 Barn. & Adol. 951; Bank of Australasia v. Nias, 16 Q. B. (Ad. & Ell.) 717; Same v. Harding, 9 C. B. (M. G. & S.) 661; Vallee v. Dumergue, 4 Exch. 290; Meeus v. Thellusson, 8 id. 638; Copin v. Adamson, L. R., 9 id. 345; S. C., 10 Moak, 492. And therefore a judgment may in such case be rendered against and charge a defendant in personam, without any personal service upon or actual notice to him, and in his absence from the country. There are only a few reported cases in this country where that proposition has been considered. In the United States Supreme Court a question somewhat analogous was decided in like manner as applied to the United States. Lafayette Insurance Company v. French, 18 How. 404; approved in St. Clair v. Cox, 106 U. S. 356; Pennoyer v. Neff, 95 id. 714, 722, 734, 735. And in this State this proposition is stated, and the English cases cited with apparent approval. Gibbs V. Queen Insurance Company, 63 N. Y. 114, 126; Hunt v. Hunt, 72 id. 218, 238; S. C., 28 Am. Rep. 129; Cassidy v. Leetch, 53 How. Pr. 108, 109. Without stating the principle more at length it may be assumed that by reason of the relation between the State and its citizen, which affords protection to him and his property, and imposes upon him duties as such, he may be charged by judgment in personam, binding on him everywhere as the result of legal proceedings instituted and carried on in conformity to the statute of the State, scribing a method of service which is not personal, and which in fact may not become actual notice to him. And this may be accomplished in his lawful absence from the State."

expressed. A false pretense is defined to be 'representation of some fact or circumstance calculated to mislead, which is not true.' Commonwealth v. Drew, 19 Pick. 179. What is said to be a fuller and practically better definition is the following: 'A false pretense is such a fraudulent representation of an existing or past fact by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value.' 2 Bish. Cr. Law, § 415. In Reg. v. Evans, 8 Cox C. C. 257, note to Bish. Cr. Law, 235, it is said: 'Had the prisoner represented the note to be of five pounds value, when she knew it was not of that value, and the jury had found the false pretense, and that the note was of less value than five pounds to her knowledge, it would have been sufficient to sustain a verdict of guilty. In Commonwealth v. Stone, 4 Metc. 43, the Supreme Court of Massachusetts held that the passing of a bill of a broken bank at its nominal value by one who represents it to be of such value, yet knows it to be nearly if not quite worthless, is an indictable pretense under the statute, although the bill may be of some value. 'A representation that a horse is sound, by one who knows it not to be true, is within the statute, and is indictable.' State v. Stanley, 64 Me. 157." To the same effect, Watson v. People, 87 N. Y. 561; S. C., 41 Am. Rep. 397. "The doctrine in the language of Russell, that the pretense need not be such an artificial device as will impose upon a man of ordinary caution is fully established, at least in the English courts. And the pretense need not be such as cannot be guarded against by common prudence.' 2 Bish. Cr. Law, § 436. 'It is substantially settled that any false representation, extending beyond mere opinion, conpre-cerning the quality, value, nature or other incident of an article offered for sale, whereby a purchaser relying on the representation is defrauded, is a violation of these statutes.' Id., § 447. 'A mere opinion is not a false pretense, but any statement of a present or past fact is, if false.' Id., § 454. There need be only one false pretense, and although several are set out in an indictment, yet if any one of them is proved, being such as truly amounts in law to false pretense, the indictment is sustained.' Id., 418. A false representation that one Conlin was a liquor dealer, doing business as such in Boston, was held to be within the statute. Commonwealth v. Stevenson, 127 Mass. 449." See also Higler v. People, 44 Mich. 299; S. C., 38 Am. Rep. 267, where the representation was of being a "storekeeper."

In People v. Jordan, Supreme Court of California, October, 1884, 18 Rep. 713 it was held that an indictment for false pretenses will lie for falsely and fraudulently representing that certain railroad bonds are of a certain market value, whereby a sum of money is obtained on the pledge thereof. The court, Morrison, C. J., said: It is true that the authorities may be somewhat conflicting, and that in many of them very nice and not entirely satisfactory distinctions are drawn between cases that are and cases that are held not to be within the statute; and as was said by Dewey, J., in Common_ wealth v. Norton, 11 Allen, 267: It may be difficult to draw a precise line of discrimination applicable to every possible contingency, and we think it safer to leave it to be fixed in each case as it may occur.' But we have found no case that holds such representations as are charged in this case not indictable. The following principles and authorities may be cited in further support of the views herein

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In Farrell v. Cook, Supreme Court of Nebraska, September, 1884, 18 Rep. 727, an injunction was granted against the use and occupation of premises as a place for putting jacks and stallions to mares, in full view of plaintiff's dwelling, and to the great inconvenience and discomfort of the plaintiff and his family. The court said: "A nuisance may be defined as whatever is injurious, offensive

to the senses, indecent or an obstruction to the free use of property, so as materially to interfere with the comfortable enjoyment of life or property. Regina v. Grey, 4 Fost. & F. 73; State v. Purse, 4 McCord, 472; Nolin v. Mayor, 4 Yerg. 163; Pickard v. Collins, 23 Barb. 444-453; Hackney v. State, 8 Ind. 494; State v. Taylor, 29 id. 517; 4 Wait Act. & Def. 727. It is any thing that unlawfully worketh hurt, inconvenience or damage. 3 Bl. Com. 5, 216; 2 Bouv. Law Dict. 245; Commonwealth v. R. Co., 14 Gray, 93; Coker v. Birge, 9 Ga. 425. It is a term applied to that class of wrongs that arise from the unreasonable or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of or injury to the right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage. Wood Nuis., § 1. There must not only be a violation of a right, but an essential inconvenience, annoyance or discomfort must result therefrom. Id., § 9. A party is entitled to free use and enjoyment of his own property, but he must so use it as not to interfere with the rights of others. Enjoy your property in such a manner as not to injure that of another person, is the maxim of the law. That the plaintiff in error has violated this rule is clearly shown by the petition, and also that the defendant in error has sustained special injury by such violation. In Hayden v. Tucker, 37 Mo. 214, it was held that the keeping and standing of jacks and stallions within the immediate view of a private dwelling was a nuisance. So too the keeping of a brothel near one's dwelling. Hamilton v. Whitridge,

ties on improper comments of counsel will be found in a note in 48 Am. Rep. 336, now in press.

In Commonwealth v. Keeper of County Prison, Pennsylvania Quarter Sessions, March 28, 1884, 15 W. N. C. 282, it was held that obtaining money upon a false representation that the party obtaining it can produce the spirits of deceased persons, etc., is punishable under the statute against false pretenses. The court said: "It has been held in England, under a statute similar to our own, that a defendant falsely pretending that he had power to communicate with the spirits of deceased persons, and that he could cause such spirits to be present in a material form, and play upon musical instruments, made a pretension of existing facts, and that obtaining money on such pretenses came within the statute against false pretenses. Regina v. Lawrence, 36 L. T. (N. S.) 404; Regina v. Giles, 11 id. 643. Although the fraudulent misrepresentation of an existing fact was accompanied by an executory promise to do something at a future period, it was none the less a false pretense. Regina v. West, The lady who testified in this case paid her money on 8 Cox C. C. 12; Regina v. Jennison, 9 id. 158. the faith of the representations of the relators, which proved to be false, and thus we have a clear case of obtaining money by false pretenses." See Bowen v. State, 9 Baxt. 45; S. C., 40 Am. Rep. 71, and note, 75.


HESE essays contain a great deal of matter in

11 Md. 128. We have no doubt that the plaintiff TH

below is entitled to an injunction as prayed for in his petition." See Anderson v. Doty, 33 Hun, 160; ante, 323; Marsan v. French, 61 Tex. 173; S. C., 48 Am. Rep. 272, and note, 274.

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In Simmerman v. State, Nebraska Supreme Court, Nov. 18, 1884, 21 N. W. Rep. 387, a murder case, the prisoner, being convicted, complained of misconduct of the district attorney in speaking of the plaintiff to the jury as Billy the Kid, or Jesse James sort of a cow-boy." The court said: "The plaintiff in his testimony had freely stated that he had been tending stock in New Mexico and on the plains; that he carried two revolvers and a butcherknife; and that his companion, Belmont, carried four revolvers. It is also apparent that the plaintiff displayed his weapons with something approaching braggadocio; and in fact by his conduct justified the district attorney in speaking of him in the way he did. Peaceable and law-abiding men do not find it necessary, in a peaceable community, to load themselves down with deadly weapons, and their conduct is open to criticism when they do so. There was no error therefore in using the words complained of." A very full collection of authori

teresting to Americans, and for that matter interesting to thoughtful people of all civilized countries. The first essay in the series, "Is there a True International Law," denotes the growing interest in those rules which are assumed to govern the external relations of the great powers. Modern science and commerce have done and are doing much to neutralize ancient conceptions of government, and to compel nations to adopt common principles of external action. Professor Lawrence discusses the nature of these rules, and propounds, in substance, the always interesting question, do these rules of international action respond to those conceptions of law formulated by Austin and the analytical jurists? Answering this selfpropounded question in the negative, he then seeks to show that these international rules are nevertheless entitled to be regarded as laws - not rules.

We quite agree in this conclusion, but we are not prepared to agree with Professor Lawrence that Bantham and Austin. fell into great error in their definitions of positive law. External positive law, as we prefer to call international law, is one thing and modern internal positive law is a very distinct

* Essays on Some Disputed Questions in Modern International Law. By T. J. Lawrence, M. A., L.L.M., Cambridge. Deighton, Bell & Co., 1884.

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