Εικόνες σελίδας
Ηλεκτρ. έκδοση

must bear the loss. The important question arises, turn it in specie, or to use it and repay with other did that conversation change the relation of bailor money at his option. * * * In order for this suit aud bailee to that of creditor and debtor, without re to be successfully maintained, such a state of facts gard to whether the money was used or not? The must be shown as will warraut the idea that Caldwell, true rule is, as stated in 1 Add. Cont. 530, cited by when the money was deposited, became at once the counsel for plaintiff, and is as follows: “If a sum of debtor of the depositor; and testing the case by money be bailed by one man to another under cir Hall's own testimony, it was evideut that such was cumstances fairly leading to the presumption that the not the contemplation nor agreement of the parties. bailee bas authority from the bailor to use it or not, as The true aspect of the case, under the facts testified to he may think fit, the bailee will stand in the position by him, is this: The money was received by Caldwell of a mere depositary, or he will be clothed with the as a bailee, without reward, and was to be so held and increased duties and liabilities of a borrower, accord accounted for by him, with permission however to use ing as he may or may not have thought fit to avail | it in his business, if at any time thereafter he should himself of the privilege of user, impliedly accorded to elect to do so. If he did use it, he was to become at him. If he puts the money in a coffer or bags, and | once the debtor of the depositor. If he did not, but refrains from using it, and so preserves its identity, on the contrary, it should continually remain on dewith the intention of restoring it individuo to the posit, at all times subject to be drawn out by the debailor, he undertakes the duty of a mere depositary, positor whenever he chose, and without consultation and is bound only to take the same care of the deposit with Caldwell, the latter remained a bailee without that he is in the habit of bestowing on his own money, hire, and bound only for that ordinary care demanded and will not be responsible for loss by robbery, fire of persons occupying that position. It is not pretended or any other casualty. But if he were to mix the sum by appellee that appellant, at the time of the deposit, deposited with his own money, with the intention of | borrowed the money, or in any way indicated a pregrestoring an equivalent, and so destroy the identity ent intention to appropriate it to his own use; and and individuality of the subject-matter of the bail- the subsequent manner of dealing with it by both parment, this would be a user of the money, which would ties shows that it continued to be regarded by them at once alter the nature and character of the bail- both as the property of the depositor. Under this ment, converting it into a loan for use and consump- state of facts there was no liability upon the deposition, with its increased duties and responsibilities." tary.” Ariz. Sup. Ct., Sept. 1, 1887. Carlyon v. FitzWe cannot see that there was an absolute loan of henry. Opinion by Porter, J. money created by the conversation between plaintiff and Fitzbenry. It was contingent upon the necessity CONTRACT-PUBLIC POLICY-AGREEMENT TO SEfor the use of the money. No consideration baving | CURE LOCATION OF POST-OFFICE.- A prominent mempassed, the plaintiff did not lose dominion over the | ber and local leader of a political party in control of money till its acceptance. Fitzhenry testifies that the general government, contemplating the erection the contingency did not arise, and that the money re- of a costly building, secured from an adjacent propmained in the safe as first placed till the robbery. Weerty owner a promise of a bonus, conditioned upon find a case directly in point, not cited by counsel, in the location in the builing of the city post-office which Mississippi Reports, vol. 60, p. 330 (reported in Ameri was then, and had been for fifteen years past, on the cau Reports, vol. 45, p. 410), Caldwell v. Hall, in which next street. The promisee went to Washingthe opinion was rendered by the eminent Judge ton, and induced the United States governChalmers, which says: "Appellee Hall placed in the ment to transfer the post-office to his building; but iron safe of appellant Caldwell the sum of $35. It was there was no testimony tending to show that he used contained in an opeu box, and to it and from it Hall any improper meaus to gain his point, or that he influadded and withdrew at his pleasure, so that at one enced any senator or representative in Congress or time he had on deposit as much as $700. The any other officer of the government to interfere in his money was never mingled with Caldwell's, nor behalf. Held, that the contract was valid, being was any receipt given for it, nor any entry founded on a valuable consideration, and according of it made upon his books. His bookkeeper, to the evidence in the case, not necessarily conwho carried the key of the safe, sometimes used trary to public policy. It is contended in an able arsmall portions of it in making change, always drop- gument by the counsel for the defendant that the conping into the box tickets showing the amount so with tract is void as opposed to public policy. This argudrawu, and always replacing them within a few days. ment is based upon the assumption that Beal, who was His habit in this regard was known to and acquiesced a prominent member and leader of the then dominant in by both the depositor and depositary. Some party in the nation, sold his influence with our senamonths after the date of the original deposit Cald tors, and that this contract was given in payment for well's safe was robbed, without any fault or negligence such influeuce; that in consideration of the payment ou bis part. His own money was lost along with that of the sum therein mentioned, Beal stipulated to exert of Hall and other depositors. Caldwell was not a his personal and party influence upon an officer of the banker, but a merobant, and the deposits belonged to government. And it is claimed that such personal infriends and customers to whom he had not made him- fluence cannot be a matter of bargain and sale to be self liable. The day before the robbery his book enforced by the courts. He cites an extract from the keeper used $15 or $20 of Hall's money, which not opinion of the United States Supreme Court in the having been replaced, he paid to Hall after the rob- case of Oscanyan v. Arms Co., 103 U. S. 261, in which bery. This suit is brought by Hall to recover the bal. it is said that “personal influence to be exercised over ance of the sum stolen. The right to recover is rested an officer of the government in the procurement of upon the statement testified to by Hall, but denied by contracts is not a vendible article in our system of Caldwell, that at the time of the first deposit it was laws and morals, and the courts of the United States understood and agreed between the parties that the will not lend their aid to the vendor to collect the price money was to be used by Caldwell in his business, it of this article." We fully indorse this language, and he so desired, and that it was received on this basis. we agree in much that was said upon the argument as It is not claimed that Caldwell actually then became to the deplorable effect of corruption in the governtbe borrower of the money, and that the relation of mental service, and the necessity of courts refusing creditor and debtor then arose, but that Caldwell be in any and all cases any aid to those who are seeking came a bailee of the money, with an agreement to re- | to recover the price of their labors as lobbyists, either before Congress or any department of the govern- | enough that such is the tendency of the contract that ment. But the argument does not touch the present | it is contrary to sound morality and public policy, case. Mr. Beal had a perfect right to be heard before leading necessarily, in the hands of designing and corany officer of the government, or any department of rupt men, to the use of an extraneous secret influence the same, as to the merits of his building as a place for over an important branch of the government. It may the location of the post-office. It is not shown by the not corrupt all, but if it corrupts or tends to corrupt findings or the evidence in the case that he used any some, or if it deceives or tends to deceive some, that improper means to gain his point, or even that he in- | is sufficient to stamp its character with the seal of disfluenced any senator or representative in Congress, or approbation before a judicial tribunal.” And to the any officer of the government, to interfere in his be like effect is Brown v. Brown, 84 Barb. 533; Cook v. hall. He went to Washington personally, and while Shipman, 24 Ill. 614; Mills V. Mills, 36 Barb. 474; there secured the location of the office where he Trist v. Child, 21 Wall. 441; Wood v. McCann, 5 Dana, wanted it; but there is not the slightest testimony 366; Frost v. Belmont, 6 Allen, 152; Harris v. Simonthat he used any undue means to accomplish his end. son, 28 Hun, 318; Usher v. MoBratney, 3 Dill. 385, n.; We cannot presume that he used his personal power, Tool Co. v. Norris, 2 Wall. 45; McBratney v. Cbandwhich is said to have been very great, in a corrupt or ler, 22 Kans. 693. The last case cited states the rule unseemly manner, or in violation of any public policy. | thus: “ The contract of an attoruey for services as For aught we know, he appeared, as any citizen might such, whether the services are rendered before a court, and has a right to do, before the proper office at Wash a department of the government, or a legislative body ington, and stated the merits of his claim so convinc is valid, and upon performance of the service a recovingly and conclusively that the location desired ery can be had. The contract of a 'lobbyist,' in the seemed to be the most proper and available one. Cer sense in which that term is now used, for his services tainly there could be nothing wrong in this. It is true as such, is against public policy and void. When there is evidence in relation to some of the contracts, there is a single contrect, and the services coutracted not in suit, that Beal boasted he could control the for and rendered are partially those of an attorney senators from his State, and that he must have money and partially those of a lobbyist, and blended together to go to Washington to do so; but there is no testi- as part and parcel of a single employment, the entire mony that either one of them lifted a hand or said a contract is vitiated. “That which is bad destroys word in his behalf. And there is nothing to show that that which is good, and they perish together.'” Ore. in the present case he made any such representations Sup. Ct., Oct. 17, 1887. Sweeney v. McLeod. Opinion to obtain the contract. Mich. Sup. Ct., Oct. 6, 1887. | by Strahan, J. Beal v. Polhemus. Opinion by Morse, J.

CRIMINAL LAW – HOMICIDE — INSANITY. - The - PUBLIC POLICY -- AGREEMENT FOR “LOBBY defendant interposed the defense of insanity to the SERVICES.”—It is against public policy for a person to charge of murder in the first degree, and on the trial hire himself out to perform “lobby services" with the court charged substantially that the test of the members of the Legislature, and a contract for such defendant's responsibility was whether, at the time of services is illegal and invalid. In Powers v. Skinner, the homicide, he had capacity and reason sufficient to 34 Vt. 274, the principle is thus stated: “It has been enable him to distinguish between right and wrong as settled by a series of decisions, uniform in their rea to the particular act he was doing, and had power to son, spirit and tendency, that an agreement in respect know that the act was wrong and criminal, and would to services of a lobby agent, or for the sale by an indi- subject him to punishment. Held, that it was a vidual of his personal influence and solicitations to proper instruction; and further, held, that the omisprocure the passage of a public or private law by the sion to charge, that if the defendant knew the act to Legislature, is void, as being prejudicial to sound leg- be wrong, but was driven to it by an irresistible imislation, manifestly injurious to the interests of the pulse arising from an insane delusion, he would not State, and in express and unquestionable contraven be responsible, was not error. The "right and wrong tion of public policy. Clippinger v. Hepbaugh, 5 test” was approved by this court in State v. Nixon, Watts & S. 315; Wood v. McCann, 6 Dana, 366; Mar. 32 Kans. 205. It was there said that “where a person shall v. Railroad Co., 16 How. 314; Harris v. Roof's at the time of the commission of an alleged crime bas Ex’rs, 10 Barb. 489; Rose v. Truax, 21 id. 261; Bryan sufficient mental capacity to understand the nature v. Reynolds, 5 Wis. 200. The principle of these decis and quality of the particular act or acts constituting ions has no relation to the equities between the par the crime, and the mental capacity to know whether ties, but it is controlled solely by the tendency of the they are right or wrong, he is generally responsible if contract, and it matters not that nothing improper he commits such act or acts, whatever may be his cawas done, or expected to be done, under it. The law pacity in other particulars; but if he does not possess will not concede to any man, however honest he may this degree of capacity, then he is not so responsible." be, the privilege of making a contract, which it would This test has received the almost universal sanction not recognize when made by desiguing, corrupt men. of the courts of this country. Lawson Insan. 231-270. A person may, without doubt, be employed to conduct | The defendant urges that the instruction is erronan application to the Legislature, as well as to con- l eous, because it excluded the theory of an irresistible duct a suit at law, and may contract for, and receive impulse or moral insanity. This question received pay for, his services in preparing and presenting a pe the attention of the court, and was practically detition or other documents, in collecting evidence, in cided in State v. Nixon, supra, although the question making a statement or exposition of facts, or in pre was not fairly presented in that case. It is there recparing or making an oral or written argument; pro ognized as a dangerous doctrine, to sustain which vided all these are used, or designed to be used, either would jeopardize the interests of society and the sebefore the Legislature itself, or some committee curity of life. Mr. Justice Valentine says that “it is thereof, as a body; but he cannot with propriety be possible that an insane, uncontrollable impulse is employed to exert his personal influence, whether it sometimes sufficient to destroy criminal responsibe great or little, with individual members, or to la- bility, but this is probably so only when it destroys bor privately in any form with them out of the legis- he power of the accused to comprehend rationally the lative halls, in favor of or against any act or subject nature, character and consequences of the particular of legislation." In Clippinger v. Hepbaugh, supra, it act or acts charged against him, and not where the acis said: “It matters not that nothing improper was cused still has the power of kuowing the character of done, or expected to be done, by the plaintiff. It is the particular act or acts, and that they are wrong."

[ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small]

Further along he says "the law will hardly recognize special sections relating to such products, damage
the theory that any uncontrollable impulse may so done to the product alone, and not to the realty itself,
take possession of a mau's faculties and powers as to is no offense within the act. The words of the act are
compel him to do what he knows to be wrong and a damage "to real property," not “loss to the owner
crime, and thereby relieve him from all criminal re- thereof." To hold otherwise would render a person
sponsibility. Whenever a man understands the na- liable to be convicted of a crime, and sent to hard
ture and cbaracter of an act, and knows that it is labor for two months, for merely gathering primroses,
wrong, it would seem that he ought to be held legally | blackberries, or the like, upon proof given of some
responsible for the commission of it, if in fact he does actual loss to the owner thereof; whereas the Legisla-
commit it.' In a very recent case the Supreme Court | ture by section 24 has created the penalty of one month
of Missouri considered the refusal of the trial court to only for maliciously destroying any cultivated root or
charge, that if the defendant obeyed an uncontrollable plaut used for the use of mau. Can it be conceived
impulse springing from an insane delusion, he should that the Legislature intended that for simply gather-
be acquitted. The court repudiated that doctrine, ing mushrooms growing wild in a field and uncultiva-
and Judge Sherwood remarked, in deciding the case, ted, a person might be liable to two months' hard
that "it will be a sad day for this State when uncon labor, whereas for maliciously destroying cultivated
trollable impulse shall dictate a rule of action to our roots or plants used for food of man, he was only to
courts." State v. Pagels, 4 S. W. Rep. 931. It is true be liable to one month? It seems to us impossible.
that a few of the courts have adopted this principle, Q. B. Div., July 5, 1887. Smith, J. 57 L. T. Rep. (N. S.)
but by far the greater pumber have disapproved of it, / 265. Gardner v. Mansbridge.
and have adopted the test which was given in the

INJUNCTION-BOND-BREACH OF.- A preliminary inpresent case. Lawson Insan. 270, 308. Kans. Sup. Ct.,

junction was granted, on an undertaking to pay deOct. 8, 1887. State v. Mowry. Opinion by Johnston, J.

fendant's damages “by reason of the injunction, if - TRESPASS - PICKING MUSHROOMS.-- The ques- the court should fiually decide that plaintiff was not tion for determination in this case is whether a per entitled thereto." The injunction was vacated on son who gathers mushrooms growing in their natural motion of defendants, and the action subsequently state in a field, and who does no other damage or in dismissed for want of prosecution. Held, that this jury, except what may be done by the fact of gather-coustituted a breach of the undertaking which entiing and carrying away the mushrooms themselves, can tled defendant to a reference to assess his damages, be found guilty of having "wilfully or maliciously" | There may be good reasons for saying that an order committed any damage, or injury, or spoil, to or upon made, peuding the suit, dissolving the temporary inany real or personal property of a public or private junction, by no means determines that the party in nature, within the intent and meaning of section 52 of whose favor it was granted was not entitled to it. The the Malicious Injuries to Property Act 1861 (24 & 25 order may be reversed on appeal, or it may be decided Vict., chap. 97). It could not, in our judgment, be on the final hearing, upon the merits, that the party really contended that a person who merely picked obtaining it was entitled to that relief. The facts may niushrooms growing in a state of nature in a field was be essentially changed by proofs subsequently introguilty of maliciously committing injury to real or duced in the cause. So until the main action is finpersonal property; but it is to be noticed that in this ally disposed of, a reference to ascertain the damages 52d section the words are not "wilfully and malici may be premature. This seems to be the rule estabously,” but “wilfully or maliciously,” and it is said | lished in New York in the cases to which we were rethat an offense is created by this section is a person ferred on the argument. Shearman v. New York wilfully commits the act even though he has no malice, Ceut. Mills, 11 How. Pr. 269; Musgrave v. Sherwood, or in other words, if he does the act complained of in-| 76 N. Y. 195; Benedict v. Benedict, 15 Hun, 305; 76 tentionally and on purpose. To this proposition we N. Y. 600; Palmer v. Foley, 71 id. 106; Johnson v. assent, but the question remains, whether the act com- Elwood, 82 id. 362. “There is no breach of the condi. plained of is damage, injury, or spoil to or upon roal tion of the statutory undertaking, unless the court or personal property within the meaning of the act. It finally decide that the plaintiff was not entitled to the was argued that there are only two kinds of property, injunction, or unless something occurs equivalent to real and personal, and if the act complained of was such decision.” Palmer v. Foley, supra. "An order not damage to personal property, which in this case vacating the injunction and discontinuing the action it was not, it must consequently be injury to real entered by the plaintiff, is in effect a determination, property within the meaning of the act. To this we or at least equivalent to a determination, that the do not assent. The question is, do the words used in plaintiff was not entitled to the injunction granted.” the act creating the offense mean damage, injury, or Mail Co. v. Toel, 85 N. Y. 646. In the case at bar, the spoil to the realty itself, or to the product of the realty | cause was never tried upon its merits, nor could it, which may happen to be growing thereon at the time for the reason that the plaintiff failed to prosecute. of the commission of the act. This it appears to me | But the cause was out of court with an order upon is the point in this case. In our judgment, the Legisla- the record that the plaintiff was not entitled to the inture, in the group of sections commencing at section 16 junction which he had obtained. We are at a loss to and ending at section 24, deals with the products de know what further decision or determination of that facto growing upon the realty itself as something dis- question could be had. As we have said, the cause tinct and apart from the realty. In our judgment, to was out of court beyond recall; nothing further reconstitute an offense within section 52 for committing mained for judicial determination. We do not think damage, injury, or spoil to real property, proof must | any of the decisions in New York sustain the contenbe forthcoming of actual positive damage to use the tion of couueel that the order of reference in this case words of Best, C.J.), to the realty itsell, and if as in was premature. In Palmer V. Foley, supra, the de. this case, proof of damage is confined solely to damage fendant had consented to a discontinuance, and that to the product growing upon the realty and consequent an order to that effect might be entered, which was loss to the owner of such product, no offense is estab. done; and it was held “that this was not equivalent lished within section 52 of the act. There are numer- | to a final decision of the court, and that there was no ous sections in the act, as above pointed out, making brench and no right of action. * * * It was laid it an offen se to damage the product of realty, and in down that there was no judicial determination or our judgment, unless a case is brought within those opinion given upou the merits of the action, or the

[ocr errors]

rigbt of the plaintiff in the action to the injunction, the reason that Seig & Williams did not share the at the time it was granted, and that it was never fin losses, and had no control over the business, and were ally determined by a judicial decision. An amicable | not held out to the world as partners. It is not claimed and voluntary agreement to discontinue was not the plaintiff became security for Barnes & Sons under enough.” The case of Dowling v. Polack, 18 Cal. 625, the belief that Seig & Williams were members of such is quite similar to the present case. That was an ac- partnership. Besides this, we find that the business tion upon an injunction bond, brought after dismissal was conducted between the two partnerships in preof the cause on motion of the defendants. The court cisely the same manner after as it had been prior to say: “The suit was dismissed for want of prosecu the 1st day of August, 1884. The following authorition, and with respect to the particular case, the judg ties support our conclusions: Richardson v. Hughitt, ment of dismissal had the same effect upon the rights | 76 N. Y. 55; Loomis v. Marshall, 12 Conn. 69; Beecher of the parties as would have resulted from a trial | v. Bush, 45 Mich. 188; S. C., 40 Am. Rep. 465; Williams upon the merits. It terminated the proceediugs, v. Soutter, 7 Iowa, 435; Muuson v. Sears, 12 id.172; Rudand by its legal operation and effect set aside and dis dick v.Otis, 33 id. 402; Mollwo v.Court of Wards, L. R., charged the injunction. It was the final action of the 4 P. C. 419. These citations could be greatly enlarged. court, operating directly upon the injunction, and de We have examined the authorities cited by counsel stroying the foundation upon which it rested.” In for the appellant, and think they are distinguishable; that case a motion to dissolve the injunction had been but if mistaken in this, we regard the rule in this State denied, but the case is very much in point, as the stat to be established against the appellant in the cases ute of California is substantially like our own. See 3 cited. Iowa Sup. Ct., Oct. 12, 1887. Clark v. Barnes. Deer. Code & Stat., $ 529. We are disposed to adopt | Opinion by Seevers, J. the rule laid down in California as to the liability upon the undertaking, founded as it seems to me, on principle and good sense. Wis. Sup. Ct., Oct. 11, 1887.

Kane v. Casgrain. Opinion by Cole, C. J.

The committee appointed to make arrangements 6, tit. 11, $ 1555, wbich defined the words “ intoxicating

for the next annual meeting of the State Bar Associaliquors " wherever they occurred in the statute for

tion, to be held at the Capitol, Albany, January 17 the suppression of intemperance to mean alcohol, and

and 18, 1888, have so far completed their labors as to all spirituous and vinous liquors, with a proviso ex

be able to announce that they have envited the Hon. pressly excepting cider made from apples, was re

Daniel Dougherty, of Philadelphia, to deliver the anpealed by the twentieth General Assembly, and the

nual oration; that the invitation has been accepted; following section substituted : “Section 1555. Wherever

that Hon. Martin W. Cooke, president of the associathe words'intoxicating liquors' occur in this chapter,

tion, will deliver an opening address; Hon. Joba the same shall be construed to meau alcohol, ale, wine,

| Winslow, of Brooklyn, will read a paper on “ The Col. beer, spirituous, vinous and malt liquors, and all in

lision between the Legislature and the Judiciary of toxicating liquors whatever." Held, that cider made

Rhode Island, or The Trial of the Rhode Islayd from apples was included in the terms, "all intoxicat

Judge.” Ex-Judge Charles A. Peabody, of New ing liquors whatever."

York, will deliver a memorial address on the late There can be no doubt as to tbe effect of this section. Before its enactment, cider

Aaron J. Vanderpoel. Assistant Attorney-General manufactured from apples was expressly excluded

William A. Poste, of Albany, will read a thesis (sub

ject to be announced hereafter). The reception to be from the operation of the probibition against the sale of intoxicating liquors. It might lawfully be sold,

given the members of the association by Governor

Hill at the executive mansion on the evening of the although intoxicating. But the section thus exclud

17th of January will supersede the annual association ing it was repealed by the one in question, and while

dinner. A full programme of the proceedings will the new section does not in express words name it as

soon be published. one of the liquors the sale of which is forbidden, it

H. G. DANFORTH, does, by unmistakable language, bring intoxicating

Chairman Committee Arrangements. liquors of every kind and variety within the operation

ROCHESTER, Dec. 13, 1887. of the prohibitiou. The words, “all intoxicating liquors whatever," in the first clause, also the closing words of the section, “and all other intoxicating liq

CORRESPONDENCE. uors whatever," are incapable of any other construction; and this construction is in accord with the rule

ARREST AND TRIAL OF JESUS. invoked by counsel for defendant, that when particu

Editor of the Albany Law Journal: lar words in a statute are followed by general ones,

The thanks of your readers are due to " W. J. G." the latter are to be held as applying to persons and

for his interesting article on “The Arrest and Trial of things of the same kind as those which precede. Pot

Jesus." If any desire to read further on the subject. ter's Dwar. Stat. 236. But if it were otherwise, neither

I would refer them to two papers contributed by Alex. that nor any other recognized rule of construction

Taylor Innes to the Contemporary Review of 1877. would justify us in putting an interpretation on the

The first, published in the August number, deals with language which would defeat the manifest intention

" The Hebrew Trial;" the other, which appeared in of the Legislature; for it is the duty of the courts, in

October, is on “The Roman Trial." (These articles construing the language of a statute, to adopt that

were reprinted in Littell's Living Age for that year, gense which will promote the apparent policy and

Sept. 22, and Oct. 3. Mr. Innes refers to the work of object of the Legislature. Iowa Sup. Ct., Oct. 12, 1887.

a learned Spanish Jew, M. Salvador, who in 1822 State v. Hutchison. Opinion by Reed, J.

in the first edition of his work, “ Historie des InstituPARTNERSHIP WHAT CONSTITUTES -- AGREEMENT | tious de Moise," gave a dissertation to show that tho BETWEEN FIRMS.- An agreement between two firms Jugement de Jesus was according to law, and asserted that one should furnish the necessary money for the

and professed to prove that-admitting the facts building of a lot of wagons, and the other do the work, stated in the gospel-the process followed, and the remake the sales, pay back the money to the first firm, I sult arrived at. were alike necessary, if the Jewish and divide the profits, does not constitute the mem tribunal adhered to its own law. M. Dupin lainé), 2 bers of the first and second firms a copartuership, for I distinguished member of the French bar, in a brilliant

treatise, replied to Salvador; but he, as well as Mr. The brief discussion of theory of law in abstracto, Greenleaf (according to Mr. Innes) devoted himself which the author indulges in throughout his first rather to the substantial injustice of the trial thau to | chapter, belongs, we conceive, to works on jurispruits form according to the jurisprudence concerned. dence and philosophy only, and has no place in a book In the third edition of his "Institutions, published in treating of positive law. 1862, Salvador maintains and reprints the whole The various theories of classification, which conclude positions originally laid down by him.

the author's first chapter relating to the philosophy of At the end of his first article, Mr. Innes says: “Qur law, are only concerned with the arrangement of some conclusion on the question of Hebrew law must be system of positive law, some corpus juris, and we do this: that a process begun, continued, and apparently not know why they are blended with theories of law finished in the course of one night; with witnesses in abstracto, nor wby they are particularly concerned against the accused who were sought for by the | with the “ American theory of government." judges, but whose evidence was not sustained even by The classifications of Kent and Story for instance, them; commencing with interrogatories which He- | are purely modal, they have po earthly relation to the brew law does not sanction, and ending with a de-theories of government of these authors, or to the mand for confession which its doctors expressly for- | American system of government. Classification is bid; all followed, twenty-four hours too soon, by a | concerned with form, not with substance, and with a sentence which described a claim to be the Fulfiller definite form, not with theories indefinite. of the hopes of Israel as blasphemy-that such a pro- It is difficult to treat a work of this character sericess had neither the form nor the fairness of a judi ously, for it belongs to the class of pseudo-scientific cial trial.”

books of which the fashionable taste for speculation, He concludes his second paper as follows: “In con is vow bringing us too many. We coufess that we see sidering the most famous of all trials from a merely | nothing original and nothing lasting in the work belegal, and indeed formal point of view, we have come | fore us, although doubtless the author has read extento some cojíclusions. We have found that it was a sively, but he has written too 3000). double trial, and that both parts of it were conducted If as we hope he has really succeeded in detecting with a certain regard to the forms of the two most the great theories which segregate the National law famous jurisprudences in the world. In both the of America from the laws of other nations, he has judges were unjust, and the trial was unfair; yet in very skillfully managed to conceal his discovery at both the right issue was substantially raised. And in / least in this particular work. both that issue was the same. Jesus Christ was truly condemned on a double cbarge of treason. He died because in the ecclesiastical council He claimed to be SNYDER'S RELIGIOUS CORPORATIONS, ETC. the Son of God and the Messiah of Israel, and because

Some eight years have elapsed since the first edition before the world-wide tribunal (of Rome) He claimed

of this manual by Mr. William L. Snyder, aud the to be Christ a King."

R. V. R.

enactments and decisions have now been brought down in a comely volume of some two hundred pages.

The book includes also the important act concerning NEW BOOKS AND NEW EDITIONS. benevolent, charitable, scientific and missionary

societies, and those relating to burial grounds and CAMPBELL'S SCIENCE OF LAW.

cemeteries, and it is discreetly annotated with referThe Science of Law, according to the American Theory of ence to the decisions. Published by Baker, Voorbis

Government; by E. L. Campbell, counsellor at law. | & Co., New York.

Frederick D. Linn & Co., Jersey City, N. J., 1887.
This book belongs to that new class of books which

MAY ON FRAUDULENT CONVEYANCES. purports to treat of the theoretical phases of juris. prudence, as contradistinguished from tbe practical A Treatise on the Statutes of Elizabeth against Fraudulent phases.

Conveyances; the Bills of Sale Acts, 1878 and 1882; and the In the preface the author expresses the opinion in

law of voluntary dispositions of property ; with an apsubstance, that no serious effort has been made toward

pendix containing the above acts and some unpublished an exposition of a national theory of law, government

cases (1700-1733) from the Coxe and Melmoth U. S. Reand jurisprudence. Of course, he means of the

ports. By the late H. W May, B. A. Second edition. scientific phases of these topics. From this opinion we

By S. W. Worthington, M. A. London: Stevens & differ. Professor Terry's book is a much more acute

Haynes ; Boston, Houghton, Miflin & Co., 1887. Pp. lxxv,

647. example than any other American work.

But if the author has succeeded in any direction in This is an excellent and in every way admirable his self-imposed task, we herald him as a rising legist; book for the practitioner in the English courts, but will for even one good theory is worth a book. But has he have less value for the American practitioner. It is succeeded? Let us see. What does he mean by an designed for the English market primarily, and has American theory of jurisprudence? In the first place only occasional citations of American text-books and jurisprudence - if a science - is one in abstracto. It decisions. These are discreetly and intelligently made has no locality, it is equally relevant to all conditions in every instance, but are not ample enough for excluof men irrespective of habitat or personal environment. sive reliance in this country. For example, there is Jurisprudence is not American, not English. But no discussion of the peculiar and important doctrine when this science becomes applied, it ceases to be a of fraud as to subsequent creditors first laid down, we science of jurisprudence and becomes a system of think, in Carpenter v. Roe, 10 N. Y. 227 and repeated positive law.

in Case v. Phelps, 39 id. 164, as to solvency contingent In this respect therefore a theory of a particular on the stability of the market. But the work is so system is not a department of the science of jurispru- | important in a historical and analytical view, and dence. The book purports to be only a theory of a presents the English decisions so clearly, that we certain system of positive law, to-wit., that adminis. would recommend it to the profession in this country tered in the United States. It would we think there in connection with a distinctively American work, fore be better entitled, “ Rationale of the law of the like Bump's. The book is a joy to the eye on accouut United States.''

of the beauty of its typography, and the title-page

« ΠροηγούμενηΣυνέχεια »