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Ex parte Yerger, 8 Wall. 105. In Wood v. Scofield. Opinion by Cassoday, J. [See 46 Am. U.S., 16 Pet. 362, Mr. Justice Story, speaking for the Rep. 37.) court upon a questivu of the repeal of a statute by [Decided Nov. 6, 1884.] implication, said: “That it has not been expressly or
RAILROAD-FENCES-INJURY TO CATTLE-ONUS ON by direct terms repealed is admitted, and the question
PLAINTIFF-NONSUIT PROPER.-Under section 1810 of resolves itself into the narrow inquiry whether it has
the Revised Statutes (ch. 193, L. 1881), in order to rebeen repealed by necessary implication. We say by
cover for the killing of an animal upon a railroad track necessary implication, for it is not sufficient to estab
at a point where it was uufenced, the owner must lish that subsequent laws cover some, or even all, of
show that such animal got upon the track at a point the cases provided for by it, for they may be merely
where the company is bound so maintain a fence, and affirmative, or cumulative, or auxiliary. But there
had neglected to do so. So where there was nothing must be a positive repugnancy between the provisions in the evidence to show that the animal did not go of the new laws and those of the old, and even then
upon the depot grounds, which the company was not the old law is repealed by implication only pro tanto
bound to fence, and thence along the track to the to the extent of the repugnancy.” In State v. Stoll, 17 Wall. 430, the language of the court was that “it granted. Bremmer v.
place where it was killed, a nonsuit should have been
een Bay, etc., R. Co. Opinmust appear that the latter provision is certainly and
ion by Cassoday, J. clearly in hostility to the former. If by any reason
[Decided Sept. 23, 1884.] able construction the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part | MINNESOTA SUPREME COURT ABSTRACT. or wholly, as the case may be.” See also Ex parte Crow Dog, 109 U. S. 570; S. (., 3 Sup. Ct. Rep. 396;
SIIIP AND SHIPPING-ADMIRALTY JURISDICTIONArthur v. Homer, 96 U. S. 140; Harford v. U. S., 8
OF STEAMBOAT-ACCOUNTING-SALECranch, 109. The entire argument in support of the judgment below proceeds upon the erroneous assump
STATE COURT.-S. owns one-third of a steamboat plytion that ('ougress intended to exclude all Chinese la- | ing upon the navigable waters of the United States, borers of every class who were not in the United
and K. the other two-thirds. K. had for several years States at the time of the passage of the act of 1882, in
run the same for himself and S. There being a differcluding those, who like the plaintiff in error, were here
ence between them as to the state of the accounts of when the last treaty was concluded, but were absent
her earnings and expenses, and S. being dissatisfied at the date of the passage of that act. We have stated
with K.'s management of the boat and its business, the main reasons which in our opinion forbid that
and apprehensive of loss from its continuance, S. may interpretation of the act of Congress. To these may
maintain an equitable action in a District Court of this be added the further one, that the courts uniformly
State for a partition of the boat by sale, and for au acrefuse to give to statutes a retrospective operation, counting, and upon a proper showing the court may whereby rigłts proviously vested are injuriously af- properly direct an accounting, a sale, and the appointfected, unless compelled to do so by language so clear
ment of a receiver to effect it. The directing of an acand positive as to leare no room to doubt that such
counting between persons occupying the relations of was the intention of the legislature. In L. S. v. Iloth, plaintiff and defendant, the appointment of a receiver 3 Cranch, 413, this court said that “words in a statute
and the partition of personal property by sale or othought not to have a retrospective operation unless erwiso, are not common-law, but equitable remedies. they are so clear, strong and imperative that no other
Judd v. Dike, 30 Mimn. 380; Freem. Co-tenancy, $426; meaning can be annexed to them, or unless the inten- Pom. Rem., $ 2:21; 3 Pom. Eg., $ 1329. They are theretion of the Legislature cannot be otherwise satisfied ;”.
fore properly sought in the present action (Judd v. and such is the settled doctrine of this court.
Mur- Dike, supru), and properly given by the judgment apray v. Gibson, 15 How. 4:23; McEwen v. Den, 24 id. pealed from, unless relating as they do to a vessel 244; Harvey v. Tyler, 2 Wall. 347; Sohn r. Waterson, plying upon the navigable waters of the United States, 17 id. 599; Twenty per cent cases, 20 id. 187. Chew they are such as are afforded in “civil causes of admira Ileong. Opinion by Ilarlan, J.
alty and maritimo jurisdiction," or what must be an [Decided Dec. 8, 1881.]
equivalent expression in “civil causes,” in the words of the Federal Judiciary Act (Rev. Stat. U. S., & 563), or “civil cases,” in the synonymous expression of the
Federal Constitution (art. 3, $ 2) in courts of admiralty. WISCONSIN SI'PREJE COURT ABSTRACT.
If the remedies sought in this action are not afforded
in admiralty then the subject-matter of the action is AGENCY-MIDDLEMAN-COMMISSIONS
not within admiralty jurisdiction. Spear Fed. Jud. PARTIES.—One who in the sale or exchange of prop The following propositions appear to be well settled : erty, acts merely as a middleman to bring the parties First. A court of admiralty will not direct the sale of together, they making their own contract, may re a vessel for the purpose of effecting a partition becover compensation from both parties. Herman v. tween different owners, except (1) as between two perMartineau, 1 Wis. 151; Stewart v. Mather, 32 i3. 311; sous, each of whom owns one-half of the vessel, in Barry v. Schmidt, 57 id. 172; Rupp v. Sampson, 16 which case, since the rule giving control to a majority Gray, 398; Mullen v. Keetzleb, ✓ Bush, 253; Siegel v. interest cannot operate, the court will interfere out of Gould, 7 Lans. 177; Shepherd v. IIedden, 29 N. J. L. regard for the public interest, in commerce or naviga334. But where the person so doubly employed is more tion; or except (2) (as some authorities hold), upon the than a mero middleman, and acts as broker or agent application of a majority interest in the vessel under in effecting the sale or exchange, he cannot recover; special circumstances. Steamboat Orleans v. Phæbus, especially where the party sought to be charged was at 11 Pet. 175; Tumno y. The Betsina, 5 Am. Law Reg. the time ignorant of the employment by the other 406. Second. A court of admiralty will not order an party. Meyer v. Hanchett, 39 Wis. 419; S. C., 43 id accounting as a separate and independent mode of re246; Shirland v. The Monitor, 41 id. 162; Scribner vi lief, but only as incident to other matters of which it Collar, 40 Mich. 375; Rice v. Wood, 113 Mass. 133. has admitted cognizance. Curt. Pr. 273; Tunno v. Here the evidence on the part of the plaintiff showed | The Betsina, supru; Kellum v. Emerson, 2 Curt. C.C. that Sweet acted as a middleman merely. Orton v. 79; Steamboat Orleans v. Phoebus, supra; Davis v.
Child, Davies (2 Ware), 18; The Larch, 3 Ware, 28.
CORRESPONDENCE. Third. It hardly need be added the appointment of a receiver in this case is a mere incident of the sale, and
DENIALS ON INFORMATION ANI) BELIEF. hence of course something of which a court of admi
Editor of the Albany Law Journal : ralty would have no jurisdiction, in the absence of
The communication of “ 11.” (31 A. L. J. 159) sugjurisdiction to order the sale itself. From these three propositions it follows that the subject-matter of the gests the remark that the language of the old Code as
to the contents of an answer is the same as that of the present action — the remedies sought and afforded in it — do not fall within the purview or scope of civil
new. They both say that the answer must contain a
denial of the controverted allegations or (a denial) of causes in cases in admiralty and maritime jurisdic- any knowledge or information thereof sufficient to tion. Swain v. Knupp. Opinion by Berry, J.
forni a belief (of such allegations). The answer has [Decided Nov. 25, 1881.]
nothing to do with such knowledge or information as NEGLIGENCE-SUBMISSION OF QUESTION TO JURY may be suflicient to forni a disbelief. It follows that EVIDENCE-FAILURE TO RING BELL.-In an action to dlenials and belief are superfluous, denials of knowlrecover damages for injuries from a collision at a rail- edge or information being what are demanded. Where way crossing with the wagon in which plaintiff was the answer denies any knowledge or information of a riding, her evidence tended to show that the team was fact alleged suflicient to form a belief of it, such fact driven with care, and that plaintiff and the driver is not admitted and the plaintiff is put to his proof, were watching the road, and looking and listening for and that conforms to the old chancery practice, and is indications of danger as they approached the crossing: all that the Code requires or intends. that they heard no signal, and had no warning of the
Respectfully, approach of an engine from the west, but wero unes
B. W. HUNTINGTON, pectedly overtaken by a switch engine from that di
NEW YORK, -1pril 7, 1883. rection, running backward down grade at a high rate of speed, with steam shut off, and without signals of P’ROVING WILLS IN TESTATOR'S LIFE-TIME. its approach, which they did not discover till too late
Editor of the Albumy Law Journal: to avoid a collision. They were going east, the rail
In view of the discussion lately carried on in the road being on their left, and approaching the street at a sharp angle, and above there was a cut which par-posed law for establishing wills during the life-time of
newspapers and Legislature of New York about a protially obscured tho vision, terminating about 200 feet from the crossing. The evidence also shows that they in a decision just rendered by the Supreme ('ourt of
testators, there may be some interest for your readers had previously looked soveral times up the road in that
this State, declaring inoperative the Michigan statuto direction, the last time when at a point from 50 to 70
relating to that subject. Public Acts, 1883, p. 17. feet from the crossing, and in the interval of about 10
In opinions by Judges ("ooley and Campbell, thelaw seconds they were listening for signals or indications of a coming train, their attention being also arrested by
is criticised as making no sufficient provision for its
own enforcement, without conflict with other statthe presence of another switch engine standing below
utes not meant to be repealed. This first attempt in the crossing apparently ready to move. lleld, that
our jurisprudence to compel a living person, as a conwhether the plaintiff was in the exercise of that de
dition of relief, to enter upon a contest with those who gree of care which persons of ordinary prudence and
until his death can have no recognition anywhere, and intelligence would exercise in a similar situation des
who after his death are presumed to represent him and pends upon the consideration of a variety of circum
not any hostile interest, is said to remove none of the stances and inferences of fact which were proper for
difficulties aimed at, but rather to make them worse. the judgment of a jury. And for substantially the
It is not conceived possible that a proceeding can be same reasons that controlled the decision of this court in Loucks v. Railroad ('0)., 31 Minn. 5:30, we think this
dealt with as judicial, when the chief party to it will
not bo precluded by the decree from doing exactly as case was properly submitted to the jury. French v.
he might have done had the court never been called Railroad, 116 Jass. 510; (haffee r. Railroad ('orp. 101
on to act at all. The result is that the courts cannot id. 116; Stackus v. Railroad ('o.,79 N. Y. 107; Ochsenboin v. Shapley, 85 id. 221; Baldwin v. Railroad ('0.,
be called on to administer the law.
While it was to be expected that this new and singu18 N. W. Rep. 881; Butler 1. Railroad Co., 28. Wis.
lar statuto might be faulty, the learned judges point 50+; Gaynor v. Railway ('0., 100 Vass. 212. Excep
out difficulties more radical than have before been pultions were taken by defendant's counselto certain in- licly suggested; and it may well be doubted if the law structions given by the court, to the effect that the
will ever recognize that new anomaly, what shall we failure to ring the bell or sound the whistle, and to
call it-a living testator with will annexed ? keep a lookout for the crossings, if so the jury found
Yours truly, the fact to be, was eridence of negligence, as it also
JAMES C. SMITH, JR. was to run the engine at a dangerous rate of speed. Under the circumstances these exceptions were pro..
DETROIT, MICII., alpril 11, 1855. erly overruled, both because such evidence was proper to establish defendant's negligence, and also as bear
THE INTEREST QUESTION. ing upon the question of plaintiff's conduct in the Edlitor of the ilbuny Law Journal: premises. Plaintiff in the discharge of her own duty If “ Inquirer" will consult the statutes of the comto proceed with caution, and exercise due diligence to putation of time, and of the interest of money, he will aroid danger, was, as we have before observed, entitled find a complete answer to his “interesting inquiry "in at the same time to expect the exercise of like reason to-day's issue. By the first statute il R. S. 600 time able care, and not culpable negligence, on the part of shall be computed in this State by the Gregorian or the defendant. Loucks r. Railroad Co., supra; ('on new style. By that style years rary in lengih from tinental Co. v. Stead, 95 ('. S. 161: Gaynor v. Railroad 365 to 360 days, and the years are divided into twelve Co., 100 Jass. 213; Wylde r. Railroad ('o., 5.3 X Y. calendar months which vary in length from 2 to 31 161; Eppendorf F. Railroad ('o., 69 id. 197; (wen v. days. Consequently from any day of one month to Railroad Co., 33 id. 518; Shear. & R. Neg., § 31. the corresponding day of the following or of any sucIlutchinson v. St. Paul, ete., R. Co. Opinion by Van ceeding month is one, two, or more calendar months. denburgh, J.
And in the case supposed from October 2S or any later [Decided Oct. 13, 1881.)
day in the same month 10 February:28 not bissextile)
is four calendar months; and to March 19, 4 months tral Railroad, appellant; Frank A. Miner, administraand 19 days.
tor, etc., respondent, v. City of Buffalo, appellant; JoBy the second statute (1 R. S. 773, $ 9) for the pur seph Audrade and others, administrators, appellants, pose of calculating interest, a month (by force of first v. Samuel M. Cohen, administrator, respondent; Peostatute a calendar month) shall be considered the ple ex rel. Joel W. Mason, appellant, v.John McClave, twelfth part of a year
* and interest for any respondent; Elizabeth J. Graham, executrix, appelnumber of days less than a (calendar) month, shall be lant, v. Lewis Il. Meyer, respondent; In re Settlement estimated by the proportion which such number of of account of Martin H. Yates, executor; Peter J. days shall bear to thirty. It would seem then that the Ferris, appellant, v. Roswell R. Burrows, executor, reonly correct and legal method for Inquirer to com spondent; IIenry S. Dermott, executor, appellant, v. pute his “sum ” in interest by is to reckon interest State, respondent; Susan A. Wheeler, administratrix, for a year, and for the time supposed, take four respondent, v. Delaware & Hudson Canal Company, twelfths plus nineteen-tbirtieths of one-twelfth of it. appellant. -Appeal dismissed without costs—AnsoThe time supposed from October 25 to March 19 (no nia Brass & Copper Co., appellant, v. Wm. C. Connor intercalated day intervening) would by the same rule and others, executors, respondent; George H. Con. be 4 months and 22 days. If our early answer helps verse, by guardian, appellaut, v. Artemas B. Walker, Inquirer we are gratified; only next time "give us respondent. -Order of General Term reversed, judgsomething a little harder."
ment of Special Term affirmed, with costs, payable out
PRO TEM. of the funds in the hands of the executors — Edgar ELMIRA, N. Y., April 11, 1885.
Williams and others, executors, respondents, v. Laura
man and others, respondents. —Judgment of General NEID BOOKS AND NEW EDITIONS.
Term modified by striking out provisions relating to
the “brick-house” property, and restoring as to that A very useful little pocket manual containing the
the judgment of the Special Term, and by changing rules and calendar practice of the Court of Appeals of
the option for two years for one of six months, with the State of New York, and the United States Su
permission during that period to apply to the Supreme
Court for leave to deal with the tax titles or protect preme Court; also the rules for the admission of attor
them from destruction, and as so modified affirmed, neys and counsellors at law, and other useful information in relation to the courts, has been compiled and
without costs to either party in this court-Jefferson published by Thomas W. Stevens, attendant upon the
Jackson, executor, respondent, v. Benjamin Andrews
and others, appellants. -On appeal of plaintiff; judgCourt of Appeals, in a neat form, selling at fifty cents
ment of General Term affirmed with costs. On deper copy. The book is well printed and neatly bound, and for completeness and accuracy the book is we
fendant's appeal, judgment of General Term reversed, qualed.
new trial granted, costs to abide the event-Daniel R. All orders addressed to Thomas W. Stevens, Albany,
Lyddy, executor, v. Selah Chamberlain, respondent. N. Y.
-Judgment aflirmed, without costs to either party on this appeal-George FIyland and another, adminis
trators, appellants, v. Bernard Baxter and others, reCOURT OF APPEALS DECISIONS.
spondents. -Order affirmed-Petition of the N. Y., L. E. & W. R. ("0. lands of steamboat company.
Order of General Term reversed, that of Special Term following decisions were handed down Tues
affirmeci, with costs-Henry 1). Kuight, respondent, v. day, April 14, 1885 :
N. Y., L. E. & W. R. ('o., appellant.-Judgment afOrder granting new trial affirmed, and judgment ab
firmed and judgment absolute ordered against defendsolute entered against the defendant on the stipula
ant, with costs-Mary L. Peck, respondent, v. William tion, with costs-Edward Ellsworth, executor, etc., Vandemark, executor, appellant. — Judgment of Genrespondent, v. St. Louis, Alton & Terre Haute R. ('0.,
eral Term aflirming judgment of trial court affirmed, appellant. — Order of county judge and of Supreme with costs-Peoplo ex rel. Edward T. Wood, appelCourt at General Term reversed as to the judgment lant, r. E. Ilenry Lacome, respondent. —Judgment debtor, with costs—James A. Buchanan, respondent,
reversed and complaint dismissed, with costs-Elisha v. L. Victor Ilunt, appellant.-Judgment reversed,
('arpenter, executor, etc., respondent, etc., v. N. Y., new trial granted, costs to abide the event-Richard L. E. & W. Railroad, appellant.-Judgment affirmed Burke, administrator, respondent, v. Silas II. Wither
and judgment absolute ordered against the plaintiffs, bee and others, appellants; Robert R. Westover, ex with costs-Sarah II. Peck, executrix, appellant, T. ecutor, respondent, v.Ætna Life Ing.('o., appellant. Andrew J. Peck, respondent. — Judgment of General Judgment affirmed with costs—Maria J. Myres, exec'x, Term, so far as it reversed the decree of surrogate, reappellant, v. Mutual Life Ins. Co., judgment affirmed, versed and decree of surrogate affirmed, with costs to and judgment absolute for defendant on stipulation, the appellants against the respondents, Mr. and Mrs. with costs; Alice J. Tiers, appellant, v. Alex. II. Tiers, Stimson, in the Supreme Court and in this court. executor, respondent; Malinda Mangan, administra Dennis v. Stimson, executor, and others, respondents, trix, appellant, v. C'ity of Brooklyn, respondent; ('has. v. Frederick (?. Vrooman and others, appellants.G. Alvord, administrator, appellant, v. Syracuse Sav Judgment modified without prejudice to the rights of ings Bank, impleaded, respondent; Stephen Lee and
any party in any subsequent proceeding to determine another, respondent, v. Lewis A. Stegman, sheriff, ap rights of Lucinda Comstock, whether upon an accountpellant; Randolph Burt, respondent, v. Flugh J. Jow
ing before the surrogate, or otherwise, and as so modiett, receiver, appellant; John F. Peppard, v. Albert fied affirmed, with costs, to be paid by the appellants, Daggett, sheriff; Minerva J. Dudley, administratrix, Bolton and Scriber, to the respondent, Gray-Ezra appellant, v. N. Y., L. E. & W. Railroad, respondent; Caulkins, respondent, V. Danforth D. Bolton and Wm. II. Ellis, administrator, etc., respondent, v. N. others, administrators, appellants. — Order of GenY., L. E. & W. Railroad, appellant; Isaac I. Cole, gen eral Term afirmod and judgment absolute ordered eral assignee, appellant, v. Germania Fire Ins. Co., re against the defendant on the stipulation, with costsspondent; Mary C. Langley, respondent, v. Richard Henry 1). Babcock, assignee, respondent, r. George R. Wadsworth, executor, appellant; Cyrus II. Mc('or Read, appellant. — Appeal dismissed-People, appelmick, jr., executor, respondeut, v. Pennsylvania ('en lant, v. Charles Ę. Poucher, respondent.
The Albany Law Journal.
in this city, painted by Mr. Penny, it work of exceptional merit, not only in its fidelity as a likeness, but in its strength, brilliancy, and absence of conventionalism as it painting.
ALBANY, APRIL 25, 1885.
Those who like ourselves believe in the system of A CORRESPONDENT presents a novel scheme
the popular election of judges find occasion for for the relief of our Court of Appeals. It is
regret now and then for the capriciousness of the
electors. The recent defeat of Judge Cooley in to make the judges do more work— i. l., write
Michigan furnishes such an occasion, and not only shorter opinions. The suflicient answer to this is that the judges clo not write long opinions, except
for regret but for astonishment. Julge Cooley is perhaps the Chief, who has not yet written opinions certainly one of the most learned and celebrated
lawyers of this country. IIis legal writings have long enough to be able to make them short. In
made him an authority and oracle in the departno other instance have we lately observed any undue
ment of Constitutional law; his works on Taxation tendency toward the reviewing and comparing of
and Torts are of standard excellence; his numerous cases, and the like. It may also be remarked that the length of the opinion is not the criterion of the opinions are not surpassed in learning and good
judgment by those of any of his contemporaries. time necessarily spent in the examination of the
We have been led to entertain the highest opinion It occurred to us while reading our corre
of his integrity and impartiality. His name would spondent's letter, that if the judges should write a very short opinion in a case in which his interlocutor ing jurists of this country by those best
. qualified to
umquestionably be included among the dozen leadwas concerned, the critic would be as ready as any
name them. And yet this eminent man has been one to go about cursing the court. Our
fairly "showed under ” in a recent popular election. spondent also suggests the compulsory shortening of The result will take the whole country by surprise. arguments. We think he exaggerates the length of
It must of course be presumed that there is some arguments in this court. Very seldom do counsel
alleged reason for this result, and consistency woull take their two hours in any case never a whole
leacl us to concede that the citizens of Michigan session as he declares. But the idea that the court
ought to know best about the matter. But it will can, is he intimates, possess themselves sufliciently of the points in the average case in five minutes,
be very hard to make the citizens of other States
believe that there has not been a great mistake of and that they then yawn and look at the clock, is quite incorrect , and at once gives too much creidit judgment. I veteran judge onght not to be dis
carded in his old age on account of any popular to the judges' quickness of apprehension, and too little credit to their courtesy. The suggestion for caprice or clamor, and it is probable that those who filing briefs preliminarily is in our opinion uwise.
have done this thing will regret their course within
a short time. We do not even know who Judge The court learn more of the case from a few minutes oral statement acco
Cooley's successor is, but we do know that whoever companied by the brief than from a long and tedious preliminary reading: predecessor. for granting him equal in all mental
he is he must suffer in comparison with leis great There is no escape from the conclusion that the judges are not numerous enough to do the work.
qualities, lie cannot have had that long experience But who is going to do any thing about it, or about
which has made Judge Cooley strong, and cannot ameliorating our wretched and ridiculous "system
have attained that reputation which has made his of law? The Legislature care very little for these judgments authoritative at home and respected
abroad. weighty matters.
Is it because there is no money in them? The welfare of the State is not always
The session of most dependent on bills with money in them. We
our Legislature is presumably would gladly see somebody in the Legislature evince drawing rapidly to a close, and we want to know a little positive interest in promoting the State's
what they are going to do about the code. They legal welfare. To those who oppose codification
owe it to the people of this State to do something
about it we address this appeal -- let us see if you cannot
to pass it, or reject it, or constitute a
commission to amend it. The last disposition was suggest something better than what we have, and do not content yourselves with a meie short sighted
what the last Legislature died with it, but the govopposition to what has been proposed.
crnor for some reason (or no reason) failed to appoint the commissioners. We believe, and so do
about one-half the lawyers, and a great majority of The late Isaac N. Arnold, of Chicago, was a very the laymen, that the best thing to be done is to distinguished lawyer, at patriotic and active citizen. pass the l'ode, to take effect il year or two hence. and an accomplished man of letters. IIis Lise of This is the only way to get a Code that will approxLincoln has been published since his death, and imate to satisfying everybody, Even this will not has received high praise. We were pleasantly re satisfy the small body of New York city obstrucminded of him by the view of a portrait of him now tionists who are hostile to all codification – a small on exhibition at Annesly & Vint's picture gallery | body, but highly respectable, quite influential, ad
Vol. 31 – No. 17.
are now, with remarkably few exceptions, unaniinous in its commendation."
mirably organized, and very much in earnest. and who have many advantages over their antagonists. Our Legislature must some day wake up to the fact that other people than lawyers have rights and interests in this matter.
NOTES OF CASES.
N elaborate essay against the Code in another column.
held that a city charter
“ to regulate the ringing of bells and the crying of We are always ready to give our antagonists a hear
goods, and other commodities for sale at auction ing, to show them that we are not afraid of them, if for no other reason.
or otherwise, and to prevent disturbing noises in If we are not afraid of Mr.
the streets,” does not authorize an ordinance forCowen we certainly need not be afraid of any body.
bidding all sales of watches, jewelry, silver and His communication forcibly demonstrates how little
silverplated ware, diamonds, pearls, and other jewthe greatest wit of the New York bar can find to
elers' goods by auction after sunset of any day. say against the Code. The passage of the Code
The court said: “We think it is manisest from a will increase the number of law reports, and subse
careful reading of this statute that taken together quent codifiers will tinker with it this is the
it was intended to authorize the common council to substance of Mr. ('owen's argument. We have never denied that the enactment of the Code will
pass such ordinances relating to the matters emtemporarily increase the number of law reports.
braced therein as would insure the peace and quiet But it will not do so to the same extent as the en
of the public, and prevent such noises and disturbactment of the ('oule of Procedure, because that
ances in the streets of the city as would tend to de
stroy the same. inaugurated an entirely new and strange system,
It has been, and is an almost uni
versal custom to employ persons known as criers while this will simply enact the law as now settled. Then again, in considering the number of law re
to announce sales of property at auction, such crier ports, two things must always be borne in mind; a
going about the streets ringing a bell for the purnew system is not responsible for the vast number
pose of attracting attention, and then making procof unnecessary and unauthorized reports spawned
lamation of the place where, and of the kind of by the booksellers, and the enormous increase of goods or property to be sold at auction. Webster litigation in our time will necessarily account for a
defines the word cry as follows: To make oral and considerable increase. We thank Mr. Cowen for his
public proclamation of, to notify or advertise by reference to the Statute of Frauds--the stock argu
outcry, especially things lost or found, goods to be
sold, etc., pulvic advertisements by outcry, proclament of luller wits — and ask bim not that we expect an answer is it not about time to re-enact
mation, as by hawkers of their wares.' The statute the statute in language that shall tell what it means,
authorizes the council to regulate the 'ringing of as the sum of all the constructive judicial legislation
bells, and the crying (not selling) of goods and
other commodities for sale at auction or otherwise, upon it ? As to subsequent codifiers, sufficient into the slay is the evil thereof. We must do right,
that is, the advertising of any sale of goods by oral although others may do wrong. But it is quite
and public proclamation, by outcry, and it is to possible — nay, altogether certain, that revisions of
this manner of advertising a sale that the statute any Code will be demanded and needed.
refers, and to regulate which it confers authority Whatever
upon the common council. It will be observed may occur in this way, we may be sure that the law makers will not be changing the law every day,
that the statute authorizes the council to regulate as the judges are now doing.
the crying of goods and other commodities for sale in any other manner than at auction, which, if the
sale is authorized to be made the subject of regulaBut after all, Mr. ('owen and all the rest in this tion, would extend to every sale made at retail over State are mere theorists. Testimony is to the pre
the counter in the ordinary course of business. It tical working of the Code is much more valuable will not be contended that the statute would apply than the most ingenious theories. This (ode is in such a case, or confer any authority upon the substantially the law of California, and has been council to in any manner regulate such a sale, yet the for several years, and here is what ex-Chief Justice language of the statute includes such a salc as comWallace, of that State, says of it: “I think the pletely as a sale at auction. Should a merchant Civil Code the most important and beneficial piece adopt the plan of advertising his goods for sale by of legislation that has ever been enacted in (ali. oral and public proclamation by outcry, such manfornia. It has effected more for our people than ner of advertising could be regulated by ordinance all other legislation taken together since the founda of the common council. This was the authority tion of the State. I have never seen an unfavora intended to be conferred by the Legislature in passble criticism of it which was in my judgment welling the statute under consideration, and the lanfounded. I believe that while at first there was guage employed being apt for that purpose, it cansome inclination in our profession to hesitate about not be extended to embrace other subjects not the propriety of its adoption, our bench and bar within the legislative intent. The ordinance in