the evidence was that the petitioner fired the shot, and he was found guilty of murder in the first degree. Held, that newly discovered evidence that the other convict fired the shot, could not change the result upon another trial, as the prisoner in aiding and abetting was equally guilty. And held that evidence that the original plan was to escape by the connivance of one of the guard and without violence, could not help the petitioner, inasmuch as it appeared that they both armed themselves for any encounter that might become necessary, and that he was with his fellow-convict in all the violence that followed. See Noyes v. Huntington,

Kirby, 282; Lester v. State, 11 Conn. 418; Norwich & Worcester R. Co. v. Cahill, 18 id. 493; Waller v. Graves, 20 id. 310; Parsons v. Platt, 37 id. 563; Andersen v. State, 43 id. 514. (2) When on the trial the dying declarations of the murdered man had been given in evidence against the petitioner, and upon the petition for a new trial newly discovered evidence was claimed to the effect that when the dying man made the declarations he dropped a word from which the witness inferred that he had some hopes of living, it was held that this being a mere inference of the witness, not in itself evidence, and it not being stated what was said, the court could not regard it as entitled to consideration. Connecticut Supreme Court of Errors, May term, 1880. Hamlin v. State of Connecticut. Opinion by Park, C. J. (48 Conn. 92.)

RENDITION OF FUGITIVE - WHAT COMPLAINT FOR WARRANT MUST SHOW-RECOGNIZANCE. The complaint required by section 5706 U. S. R. S., to be filed before a warrant can be issued for the arrest of a person as a fugitive from justice from another State, must show that he has been guilty of some crime against the laws of that State; and this may be either by direct averment, or by stating facts which constitute a crime at common law. If there be no direct averment of a crime, and the facts stated do not constitute one at common law (as, for example, the obtaining money under false pretenses), the officer acquires no jurisdiction, and his warrant will be void. A statement that the act was committed feloniously and against the peace and dignity of the State where it occurred, will not be sufficient. Citing Regina v. Jones, Ld. Raym. 1013; 2 Whart. Crim. Law, § 1118; Johnson v. Dicken, 25 id. 580; K. C. H. T. & C. B. R. R. v. Nelson, 62 id. 585; State v. Poston, 63 id. 522; Hard on Hab. Corp. 331; Ex parte Snyder, 64 Mo. 58. (2) A recognizance given by one in custody under a legal warrant is involuntary, and cannot be enforced against him or his sureties. State v. Hufford, 28 Iowa, 391; United States v. Horton Sureties, 2 Dill. 94. Missouri Supreme Court, October, 1881. State of Missouri v. Swope. Opinion by Sherwood, C. J. (72 Mo. 99.)

SEARCH WARRANT WHEN A PROTECTION ΤΟ OFFICER EXECUTING IT. If a search warrant issued by a justice of the peace be regular upon its face, it will protect an officer executing it, though the affidavit upon which it is founded be not in compliance with the statute. Citing Savacool v. Boughton, 5 Wend. 173; Milburn v. Gilman, 11 Mo. 68; Howard v. Clark, 43 id. 348; Sandford v. Nichols, 13 Mass. 286. Missouri Sup. Ct., October, 1881. Melcher v. Scruggs. Opinion by Henry, J. (72 Mo. 199.)

rangement made with a private person to let him know when the jury would be ready to deliver the verdict, and the failure of such person to notify him, affect the point in his favor. Georgia Supreme Court, January 31, 1882. Burton v. State of Georgia. Opinion by Jackson, C. J.

RECENT ENGLISH DECISIONS.

CARRIER-LIMITATION AGAINST LIABILITY APPLIES ONLY TO CARRIAGE AND NOT TO REFUSAL TO DELIVER. The defendants contracted to convey certain cattle belonging to the plaintiff from W. to G., at the "owner's risk rate," by which, in consideration of a reduced rate, they were to be relieved of all liability in respect of any loss, detention or injury to the cattle in the receiving or forwarding, except that arising from the willful misconduct of their servants. The carriage was prepaid, but through the carelessness of the defendants' servants at W. that fact was not communicated to the servants of G., who in consequence refused to deliver the cattle to the consiguee. The cattle were detained for two days before the mistake was discovered, whereby damage by exposure was occasioned. In an action for such detention, held, that the protection afforded by the contract was confined to the case of loss, injury or detention during the course of receiving, forwarding or delivery of the cattle, and that the refusal to deliver did not come within the meaning of detention so used, and that consequently the defendants were liable apart from the question of willful misconduct. Q. B. Div., Nov. 18, 1884. Gordon v. Great Western Railway Co. Opinions by Grove and Lopes, JJ., 45 L. T. Rep. (N. S.) 509.

DURESS -- THREAT TO COMMENCE CRIMINAL ACTION AGAINST RELATIVE. The defendants gave promissory notes to the plaintiff, the trustee in bankruptcy of one C., in payment of an alleged purchase by them of the bankrupt's stock-in-trade, and to enable a composition to be paid. Prior to the giving of the promissory notes, the plaintiff, by his agents, made representations to the defendants that criminal charges under the Debtor Act, 1869, could and were about to be brought against the bankrupt C., who was the son of one defendant and nephew of the other; and the defendants swore that they had believed these representations to be true, and would not have given the promissory notes had they not so believed. In an action by the trustee against the defendants, as makers of the promissory notes, held, after a verdict for the plaintiff, that judgment should be entered for the defendants under Order XL, r. 10, on the ground that they had been induced to enter into the contract by duress, and threats of criminal proceedings; and that it was not necessary that any particular charge under the Debtor Act should have been specified, or that any ground for such charge should have existed in fact. Authorities cited or referred to: Williams v. Bayley, L. R., 1 E. & I. App. 200; Hamilton v. Johnson, L. R., 7 Q. B. D. 129. Q. B. Div., Nov. 10, 1881. Secar v. Cohen. Opinions by Denman and Hawkins, JJ., and Huddleston, B., 45 L. T. Rep. (N. S.) 589.

NUISANCE -REVERSIONER NOT IN POSSESSION MAY NOT BRING ACTION TO RESTRAIN ONE NOT PERMANENT.

A reversioner, who is not personally in possession of land, cannot bring an action on the case in respect of acts causing a nuisance to the land and to the persons in occupation, unless it is proved that either there is actual injury to the reversion, or else that the nuisance is of so permanent a nature that injury to the rever-, sion will be necessarily implied. The owner of land adjoining a college which belonged to another person,

but was in the occupation of a third person as a weekly tenant, built a brick wall and erected a hoarding in front of windows of the cottage which had not become ancient lights, and on land which was assumed to belong to the owner of the cottage. The hoarding was so erected as to cause unpleasant noises and disturb the rest of the persons inhabiting the cottage. Held, that the reversioner was not entitled to sue alone for trespass. Held, also, that the reversioner was not entitled to sue alone in respect of the nuisance, since no actual injury to the reversion was proved, and the nuisance was not so permanent as to be necessarily injurious thereto. Authorities referred to: Mumford v. Oxford, etc., R. Co., 27 L. T. Rep. (O. S.) 58; Jackson v. Pesket, 1 M. & S. 234; Baxter v. Taylor, 4 B. & Ad. 72; Simpson v. Savage, 28 L. T. Rep. (O. S.) 204; Jones v. Chappell, L. R., 20 Eq. 539. Ch. Div., Dec. 13, 1881. Cooper v. Crabtree. Opinion by Fry, J., 45 L. T. Rep. (N. S.) 587.

STATUTE OF FRAUDS -INTEREST IN LAND. - The plaintiff was owner of certain shootings in H. under a lease. He advertised for some one to share the said shootings with him, on the terms that he was to bear all the expenses connected with the sporting, and that the party who joined him should pay a fixed sum according to his share for the right to shoot over the land, and to take a proportionate share of the game killed. The defendant eventually agreed, but not in writing, to take one-fourth share of the shootings, paying 100l. for the same. The defendant refused to carry out the terms of the agreement. The plaintiff then brought his action for the breach of contract. The defendant, among other pleas, pleaded that the agreement was within the statute of frauds. The plaintiff at the trial obtained a verdict; but the question of law was reserved. Held, that an agreement which entitles one party to it on the payment of money to go upon the land of the other party and exercise sporting rights and take away a proportion of the game killed to his own use, is more than a mere revocable license to use the land, for it conveys an interest in the land coupled with a participation in the profits, and so is within the statute of frauds, and ought to be in writing; and that judgment must be for the defendant. Cases referred to and distinguished: Wright v. Stavert, 2 El. & El. 721; Wells v. Mayor of Kingston, L. R., 10 C. P. 402; Watson v. Spratley, 24 L. J. 53, Ex.; Powell v. Jessup, 18 C. B. 336; Taylor v. Waters, 7 Taunt. 374. Q. B. Div., Dec. 10, 1881. Webber v. Lee. Opinion by Bowen, J., 45 L. T. Rep. (N. S.) 591.

RIGHT TO SHOOT OVER LAND

WILL GIFT TO "SECOND COUSINS."—. A testator, by his will, made various gifts in favor of his "second cousins." He had not any second cousins, either at the date of his will or at the time of his death; but he had first cousins once removed. Held, that under the circumstances the first cousins once removed took the benefit of the gifts in favor of the second cousins. Authorities referred to: Re Parker, L. R., 17 Ch. D. 262; Slade v. Fooks, 9 Sim. 386. Ch. Div., Nov. 8, 1881. Re Bonner Tucker v. Good. Opinion by Chitty, J., 45 L. T. Rep. (N. S.) 471.

THE CIVIL CODE:

WHAT IT IS; AND WHY IT SHOULD BE ADOPTED.

What it is.

A Code is a complete digest of the law upon a particular subject or class of subjects, analyzed, condensed, stated in distinct propositions and arranged in scientific order. A Civil Code is such a digest of the laws of personal rights and relations, of property and

of obligations. The Code now before the Legislature embraces these subjects and aims at conforming to this definition.

The Constitution directed it to be made and presented to the Legislature for adoption. The Legislature appointed a commission, taking unusual care to insure its success, by requiring a general analysis to be first made and reported and annual reports to be made afterward, and then requiring the printing and distribution of the Code twice; first, in the form of a draft circulated among the judges and other competent persons, with a view to criticism; and a second time as a Code completed, after revision and a consideration of the suggestions made.

The commissioners fulfilled their task, long, laborious and exhausting as it was, reported their analysis, circulated their draft, invited and waited for criticism, then revised their work and reported it finally to the Legislature at the session of 1865. The report thus made was brought again to the special attention of the Legislature by the governor in his annual message in 1869, and in 1873 by the commissioners, in an address to the judiciary committees of the two houses at a joint meeting.

In 1879 the Code was passed by both houses, but was vetoed by the governor. His objections went to certain details, though he took occasion to praise the arrangement and language, and to say that there was "very much in this bill which if enacted would conduce to the simplification of our law, and thus to the welfare of our people." It was repassed by the assembly of 1880, and by that of 1881, but was not acted upon in the senate.

Meantime, it was adopted by California in 1873, and has ever since been in use as the Civil Code of the State.

Why it should be adopted here.

I. Because the organic law requires it. That law directed it to be prepared and "presented to the Legislature for adoption." It is not supposable that the preparation was intended for mere ceremony. The people meant to have a Code, and the Legislature is bound to do all it can to that end. The commission charged with the duty framed one more than seventeen years ago. There has been no effort of Legislatures or lawyers since to improve it. It is idle to wait longer for somebody to make it better before its adoption. Fair criticism was invited time and time again. And now, though what Macaulay calls malignant criticism should denounce a hundred or five hundred sections, the test of experience will probably show little in the criticism worthy of serious attention. Perhaps when the Code has been once placed on the statute book, under the eyes of every lawyer in the State, all its faults will be found out in time to remedy them before it takes effect.

II. Because a Code is better than case-law; "chaos," as a late chief justice of England pronounced it; and as Tennyson calls it:

-"the lawless science of the law." "That codeless myriad of precedents" "That wilderness of single instances;"

plainer for the people, safer for the judges, easier for the lawyers.

III. Because the criminal branches of our law have been already codified. The Penal Code and the Code of Criminal Procedure comprise, in less than 1,700 sections, the whole body of the law respecting crimes, punishments, and procedure in criminal cases, displacing and superseding the accumulations, in common law and statutes, of hundreds of years. We have a Code of Civil Procedure also, and the gap which remains to be filled is the Civil Code.

IV. Because this Civil Code has been already tried

by a kindred people. California adopted it nine years ago and has found it safe and useful.

V. Because the experience of mankind has shown that a Code is the natural, not to say necessary relief, whenever there has come to be an oppressive accumulation of adjudications, enactments and treatises, obstructing and bewildering, as is now the fact in New York. Every civilized country in the world, except the British Islands and the American States, has reduced its general laws to a Code. It is a question which shall have it first, America or England. We have taken the lead so far, let us keep it.

VI. Because the diversity of laws between the different States of this Union has been found a serious inconvenience, and has led to frequent demands growing stronger day by day for an inter-State Code, or such concert in legislation as will lead to uniform laws of marriage and divorce, testament and succession, negotiable paper, insurance, average, sale, carriage, agency, trusts, and corporations, among many others affecting the daily life of au active and adventurous people. Comprehensive legislation on any one of these subjects would be, to that extent, a Code. Uniformity of law cannot be enforced by a common superior, for we have none legally competent. It can be brought about only by the influence of example. New York is a natural leader of the States; she has already wrought a change in the civil procedure of half of them-indeed of a great part of the English-speaking world. May we not hope that she will prove true to herself now and complete what she began so well?

VII. Because all the objections to this Code hitherto have come from those who object to any Code at all. Though it is lawful to learn of an enemy, it is safer to rely on the aid and counsel of friends. The objection that a Code will be followed by amendments and commentaries is not more reasonable than would be an objection to one's getting a new machine when an old one is worn out, because in time the new one may grow old and need repairing.

DAVID DUDLEY FIELD.

NEW YORK, March 14, 1882.

NEW BOOKS AND NEW EDITIONS.

GOULD'S ANNUAL DIGEST.

Gould's Annual Digest of New York Reports for 1881. A Digest of all the cases decided by all the courts of the State of New York, published in all the publications during the year 1881, including all the cases published in the following reports: Abbott's New Cases, vols. 8, 9; City Court Reports, vol. 1, parts 1, 2, 3; Howard's Practice Reports, vols. 60, 61; Hun's Reports, vols. 22, 23, 24; New York Reports, vols. 80, 81, 82, 83, 84; New York Civil Procedure Reports, vol. 1; New York Daily Register for 1881; New York Monthly Law Bulletin for 1881; New York Superior Court Reports, vol. 46; New York Weekly Digest, vols. 11, 12, 13; Redfield's Surrogate Reports, vol. 4. By Charles

HOLLAND'S INSTITUTES OF JUSTINIAN. The Institutes of Justinian, edited as a recension of the Institutes of Gaius. By Thomas Erskine Holland, D. C. L. Second edition. Oxford, 1881. Pp. xxxvi, 243.

·

The distinguished editor announces, that "the special object of the present edition of the Institutes of Justinian is to show how far they may fairly be described as a recension' of the Institutes of Gaius." He finds that the method of the two is identical, and that the proportion of text common to both is very considerable, and he infers that the compilers of Justinian must have adopted Gaius as their basis, striking out, substituting passages from them, and interpolating their own explanations, but following the order of Gaius, and reproducing the language of the passages retained. The passages from Gaius are printed in a heavier-faced type. The book will doubtless be of interest and value to civilians, and can be adequately estimated by them alone. It is exquisitely printed.

6TH SAWYER'S REPORTS.

Reports of Cascs decided in the Circuit and District Courts of the United States for the Ninth Circuit. Reported by L. S. B. Sawyer. Volume VI. San Francisco: A. L. Bancroft & Co., 1882. Pp. 701.

This fairly-printed volume contains a considerable number of cases of importance, on questions peculiar to the Pacific Coast, such as the legislation in regard to the Chinese. We have heretofore given abstracts or made comments on a number of these. There are also a number of other cases of interest, some of which have been referred to in these columns. The cases were decided in 1879 and 1880. The volume and the series are to be generally commended, and are indispensable to western lawyers.

Judgment affirmed with costs - Snyder v. Sherman; Whiton v. Snyder; Murphy v. The Onondaga Iron Co.; McGoldrick v. Traphagen.-Order of General Term reversed and order of surrogate affirmed, with costs-In re Dolan Executors v. Moeller; Same v. Nelson; Same v. Donnelly.-Judgment affirmed, with costs to respondents against defendant appellants, and without costs for or against executors Wells v. Wells. Judgment reversed and new trial granted, costs to abide the event - Crim v. Starkweather; Connelly v. The New York Central & Hudson River Railroad Co.; Moyer v. The New York Central & Hudson River Railroad Co.

NOTES.

Albany: William Gould & Son, 1882. Pp. xxxvi, 410.

THIS

is a much needed and very well executed work. The lack of supplements to Mr. Abbott's excellent digest very much detracts from the usefulness of that work, and of Mr. Brightly's alleged digest, the less said the better. The statements in the present work are uniformly excellent, and the decisions and subordinate arrangement are generally good, although we cannot see why there should be separate divisions of bills, notes, and checks," and "negotiable paper." There is an ample table of cases criticised, and a table of cases digested, stating the subjects. The printing is creditably done.

66

bar, at Shanghai, "which has proved the destruction of many a ship, is to be dredged out of existence." Probably it means drudged." But it seems hard on the Chinese bar. The Rivista Penale, for February, refers to Mr. Dawson's article on Psycometry as a test of handwriting, and Mr. Fulton's recommendation of the infliction of public whipping for heinous crimes (suggested in connection with the assassination of the late President), contributed to this journal some time since.—Bunsby has turned up in St. Louis, it seems. The Central Law Journal is of “opinion" that "the practice of taking contingent fees for legal services is unobjectionable under appropriate circumstances and within the proper limits."

The Albany Law Journal.

IN

ALBANY, MARCH 25, 1882.

CURRENT TOPICS.

[N another column may be found a capital paper by Mr. Frankenheimer on the proposed Civil Code. This paper was read by its author as part of his argument before the Assembly Judiciary Committee, last week, in favor of the adoption of the Code. We dare say that the pursuing of the test so felicitously and conclusively applied by Mr. Frankenheimer would lead to many more disclosures of the same kind. Some of the arguments resorted to by the opponents of the Code on the occasion in question were quite amusing. Professor Dwight objected, for example, to its definition of a ship as a "structure fitted for navigation." "Why," said he, "this definition includes the nautilus, the little fish sometimes called the

'Portuguese man-of-war.' This is a structure fitted for navigation'"! To such foolish quibbles are grave and presumably wise men driven in their extremity ! Prof. Dwight, perhaps without knowing it, finds fault with the common-law definition of a ship. When he consults our forthcoming dictionary of "Common Phrases judicially interpreted," he will find under the head of "Ship, Vessel, Boat, Dredge," that Mr. Field has given a good definition, but that there has been a great deal of uncertainty under the common law as to what is a "structure fitted for navigation," as for example whether a raft, or a floating dry

But

dock, or a steamboat dismantled and anchored and used for a summer hotel, comes within the definition. Mr. Turner, while he declared that the proposed Code was the nearest perfection that it was possible for man to conceive, still contended that it is impracticable to make a general Code. Of course it is impossible to make a Code so broad, comprehensive and explicit as to shut out all need of construction, definition, and adaptation. the same is true of statutes. And yet we have never seen any attempt to apply this objection to statutes. The great and ancient statutes of frauds, usury, limitation, and the like, have been the source of a vast amount of litigation, and yet very few have arisen to condemn the practicability of such enactments. How much indeed of our common law has been reduced to ancient statutes. This fact shows that men have long recognized the advantage of writing down the common law. A Code is but a framework or skeleton. Construction, under secular law, like offenses under moral law, "must needs come," but woe unto him who strives to make unnecessary construction!

a logical curiosity. Mr. Carter declares that the common law is incapable of reduction to a Code, because it rests in those eternal and immutable principles of justice which were enacted before legislators ever sat." The reports, he says, are only "evidences of the law," and "the law is not there." This is vague and unsafe generalization. The usual form of words on such occasions is, "those eternal and immutable principles of justice implanted in the human breast"; but Mr. Carter has with unconscious and unintentional accuracy adopted the expression, "enacted." God was the first legislator, and the first law-writer; He wrote a short Code of laws, and instructed Moses to form a very exhaustive and detailed Code. Would Mr. Carter say that the Commandments and Moses' institutes were not "the law"? Does he not subscribe to the Commandments as the organic law? But Mr. Carter continues: "The first inquiry you make is, what is just? You make that inquiry and come to your conclusion. You then go to see how far that conclusion will require to be strengthened by precedents established, and you also look into the decisions supporting your conclusions." You appeal "to decisions only for the purpose of guidance and instruction," etc. Now Mr. Carter has got his cart before

his horse. No man knows better than he that when he comes to the Court of Appeals to argue a case, if he has "a case in point" in that court in his favor, he presents that, without any argument upon the "justice" of the decision, and the court will not hear much argument about "justice," but will give him judgment right away. No man knows better than he the value of a precedent. This is the practical result. What is the real theory? Why, having satisfactorily ascertained what is just, precedents, pro or con, are of no use or avail. The idea of "strengthening" those "eternal and immutable principles" by precedents, is like setting wooden props to hold up Mont Blanc. Let us test Mr. Carter's "eternal and immutable principles" a little. Is it lawful to charge interest? The old laws said no. The new laws say yes. Which is "justice"? How much will Mr. Carter's guide serve him here? But men have generally thought that interest should be limited, and so they have established usury laws, and these laws have long been written. So as to limitations: if a man owes a debt it would seem right, upon the "eternal and immutable principles," that he should always be compellable to pay it. But men have thought that for peace's sake there ought to be a limit to the time for exercising this right, and so have established statutes of limitation. Mr. Carter's guide would not serve him here. And so we might go on ad infinitum. The difficulty is that men do not naturally hold the same views of what is right and just. There has always been a wide discrepancy of opinion about civil and artificial rights; and as to natural rights, there always will be some Guiteaus roaming about the world. Even at this moment, one-half the community seem to think that it was right for Mason to try to murder Guiteau ! -The arguments of our learned brethren above mentioned