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the same brought suit for money had and received. Held (1), that the deposit of the collaterals under the terms of the trust indenture was a breach of the subscription contract; (2) that inasmuch as the defendant had put it out of its power to perform an executory contract with the plaintiff, the latter had the right to treat the contract as terminated; (3) that the plaintiff could at his election sue upon the agreement and recover damages for a breach, or treat it as rescinded and recover back the money he had advanced. The defendant could maintain a suit against each subscriber upon his failure to pay the amount of the subscription; and it must follow that each subscriber has a corresponding right of action against the defendant for any breach of the contract on its part toward him. Similar contracts have been frequently adjudged to confer a several liability and a several right of action on the part of each subscriber. Thomp. Liab. Stockh., $114; Whittlesey v. Frantz, 74 N. Y. 456. It is a familiar rule that when one 'party to an executory contract puts it out of his power to perform it, the other may regard it as terminated, and has an immediate right of action to recover whatever damages he has sustained. Ford v. Tiley, 6 Barn. & C. 325; Bowdell v. Parsons, 10 East, 359; Heard v. Bowers, 23 Pick. 455-460; Shaw v. Republic Life Ins. Co., 69 N. Y. 293; U. S. v. Behan, 110 U. S. 339; Lovell v. St. Louis Mut. Life Ins. Co., 111 id. 264. The plaintiff was under no obligation to tender his receipts. They were merely vouchers. They were to be exchanged for formal certificates, but when the defendant had put it beyond its power to deliver the proper certificates, the plaintiff was not bound to tender them. No demand of the certificates was necessary after defendant had incapacitated itself from giving them. Where money is advanced upon an executory contract, which the contracting party fails to perform, it is in the election of the other party either to sue upon the agreement and recover damages for a breach, or to treat the contract as rescinded, and recover back his money as paid upon a consideration which has failed. Hill v. Rewee, 11 Metc. 271; Brown v. Harris, 2 Gray, 359; Wheeler v. Board, 12 Johns. 363; Lyon v. Annable, 4 Conn. 350; Appleton v. Chase, 19 Me. 74; Shepherd v. Hampton, 3 Wheat. 200; Smethurst v. Woolston, 5 Watts & S. 106. If there had been a part performance of the contract by which the plaintiff received some benefit, and the defendant could not be restored to the previous situation, the plaintiff's only remedy would have been for breach of the agreement, and his damages would be measured by his loss. Hunt v. Silk, 5 East, 449; Foss v. Richardson, 15 Gray, 306; Nash v. Lull, 102 Mass. 60. He has received nothing however under the contract, and the law implies a promise on the part of the defendant to pay back what it has received. Cir. Ct., S. D. N. Y., Dec., 1884. Reusens v. Mex. Nat. Const. Co. Opinion by Wallace, J.

MINNESOTA SUPREME COURT ABSTRACT.

NEGLIGENCE HAND ON BASE OF OPEN WINDOW OF CAR-QUESTION FOR JURY.-A street railway company as a carrier of passengers is bound to exercise the highest care in the management of its cars in approaching and passing structures and obstacles in the street situated unreasonably close to the track. The position which a passenger in a street car may reasonably be allowed to assume, when taking or occupying a seat is subject to no arbitrary rule. He is to exercise a degree of care commensurate with the danger to which he may be exposed, and such as men of common prudence would exercise in a like situation, having regard to all the circumstances, and considering the probability that the

carrier will exercise due care; but the degree of care to be exercised in any particular case is usually a question of fact for the jury. Where a passenger in a street car, while in the act of taking his seat, rested his hand on and partially over the base of an open window, and the same was immediately struck and injured by an upright sewer plauk standing in close proximity to the passing car, held, that the question of contributory negligence on his part was for the jury. A passenger is to be allowed a reasonable measure of liberty in the position assumed by him in taking or occupying his seat. He is expected to exercise care commensurate with the danger to which he may be exposed; but the decree of care to be exercised on a particular occasion is generally a question of fact for the jury. Stackus v. Railroad Co., 79 N. Y. 467. Thus whether the act of standing on the platform of a street car, or of getting on or off such car while in motion, is negligence, is held usually to be for the jury under the circumstances of each case. Whart. Neg. 365, 370; Meesel v. Railroad Co., 8 Allen, 234; Eppendorf v. Railroad Co., 69 N. Y. 195 Shear. & R. Neg., § 282. So in Brophy v. Germantown R. Co., Penn. Sup. Ct., 1883, it was held not negligence per se for a passenger to rest his arm on a window sill, "which is substantially the top of the back of the seat," whence by a jolt of the car his arm was thrown out of the window and injured; the court saying: "In the absence of collision with an external object his arm was in no danger of injury. He was under no legal obligation to assume or anticipate that the company would run another car against the one in which he was sitting." But if instead of resting his arm on the window-sill, he had taken hold of it as did the plaintiff, his hand extending, say, less than an inch beyond the car, the same suggestion might be made (notwithstanding the additional fact) in considering the question of negligence. Whart. Neg., § 362; Hutch. Carr., § 659; Thomp. Carr. 258; Fordham v. Railroad Co., L. R., 3 C. P. 372; Ang. Carr. (5th ed.) 514, note; Seigel v. Eisen, 41 Cal. 109; Miller v. St. Louis R. Co., 5 Mo. App. 471; Spencer v. Railroad Co., 17 Wis. 487. That is to say, whether the position or conduct of the passenger in such cases is reasonably prudent considering the circumstances, and the probability that the carrier will exercise due care, is not necessarily a question for the court (though in clear cases it of course would be), but may be and ordinarily is for the jury. It must also be considered that in order to the successful operation of cars there must be a reasonable space on each side between them, and any structures or obstacles in the street to accommodate their movements, caused by irregularities or impediments on the track, and that as respects danger from collision with such structures it is ordinarily easily averted in the case of street cars, which run at a moderate rate of speed, and are readily controlled. Lynam v. Union R. Co., 114 Mass. 88; Thomp. Carr. 258, 446. The question of the passenger's negligent conduct must be largely affected by the circumstances of each case, including any indications of danger from obstructions or interruptions, from whatever cause, which might influence the conduct of a prudent person. But in Todd v. Railroad

Co., 3 Allen, 18; 7 id. 207, it was unqualifiedly ruled that voluntarily suffering an arm, or any part of it, by a passenger to extend beyond the external surface of a car was negligence per se. And in Pittsburg R. Co. v. McClurg, 56 Penn. St. 294, it is assumed by the court that such conduct by a passenger is wholly unauthorized and presumptively negligent. These cases growing out of accidents arising upon steam railways have been followed by the courts of several other States. The same rule was also applied in Lauderbach v. People's R. Co., Penn. Sup. Ct., 1884-a street car case.

The hand of a passenger holding on to the window of a car was caught by a colliding car on a narrow street, where the cars necessarily grazed in passing. No reference is there made to any supposed distinction between the case of street and steam railroad cars. The court assume that the protruding hand or arm is in an unlawful place if in any degree outside of the car by the voluntary act of the party, thus cutting off discussion as to whether, in the absence of any regulations on the subject, such conduct in a passenger would be condemned as careless by men of ordinary prudence. The opposite doctrine is maintained as to street cars in Miller v. Railroad Co., supra; Seigel v. Eisen, supra. We do not undertake to speak as to the application of the rule to other than street railways, but confining ourselves closely to the facts of this case as presumptively found in plaintiff's favor by the jury, we are of the opinion that the case was properly submitted to them. Dahlberg v. Minneapolis, etc., R. Co. Opinion by Vandenburgh, J. [See 29 Alb. L. J. 222, 444. -ED.

[Decided Nov. 12, 1884.]

PRINCIPAL AND AGENT-CONTRACT TO SELL LAND--COMPENSATION-RATIFICATION OF CONTRACT. The plaintiffs seek to recover a stipulated compensation for their services as agents for the defendant in selling real property of the latter. At the trial, upon the plaintiff's case being closed, the court dismissed the action. The appeal is from an order refusing a new trial. It appeared upon the trial that the defendant, by a written memorandum, authorized the plaintiffs to sell for him a certain tract of land upon terms as to price and manner of payment particularly set forth; and promised upon the sale of the property to pay plaintiffs a stated commission. The evidence went to show that after this authorization the plaintiffs agreed with certain parties (Avery and Walters) for the sale of the property to them, upon terms materially different from those prescribed by the defendant; and that the plaintiffs, as agents, executed with the purchasers a writing embodying a statement of the contract of sale and a specific agreement on the part of Avery and Walters to purchase the property on the terms stated therein. In the body of this instrument the plaintiffs are recited to have made the sale as "authorized ageuts," and to their signature are added the words, "Agents of L. N. Stevens." The plaintiffs having proved the execution of this contract, and having offered evidence going to show that the defendant had ratified it, offered the contract in evidence. This was rejected. We think the court erred. There was abundaut evidence to entitle the plaintiffs to go to the jury upon the question of ratification, going to show that the defendant, after he had been advised as to the terms of the contract which had been made by his agents in his behalf, acquiesced in and confirmed their acts.

Since the agents might have been orally authorized to make the sale (Brown v. Eaton, 21 Minn. 409; Dickerman v. Ashton, id. 538) their unauthorized acts done in defendant's behalf might be ratified in any manner expressing his assent thereto. It was not necessary that the ratification be in writing. Brown v. Eaton, 21 Minn. 409, 410. Ratification of the unauthorized sale would relate back to the acts of the agent and be equivalent to prior authority. Stewart v. Mather, 32 Wis. 344; Nesbitt v. Helser, 49 Mo. 383. This contract, if ratified by the defendant so as to cure the variance from the prescribed terms of sale, would have been prima facie proof of the plaintiff's right to recover. It bound the purchasers to take the property upon the terms stated, and this constituted a sale of the property within the meaning of the agreement between the plaintiffs and the defendant. Goss v. Broom, 31 Minn. 484; Rice v. Mayo, 107 Mass. 550. The con

tract bears upon its face the character of a contract between the plaintiffs' principal, executed through them as agents, and the purchasers. In an action upon the contract parol evidence would be admissible if any proof was necessary to disclose the defendant as the principal in whose behalf the contract was made. Rowell v. Olson, 20 N. W. Rep. 227, and cases cited. Having bound the parties by an authorized contract, any inability or refusal of the principal to consummate the contract which he had authorized should not affect the agents' rights to compensation. Mooney v. Elder, 56 N. Y. 238; Delaplaine v. Turnley, 44 Wis. 31; Phelan v. Gardner, 43 Cal. 306; Nesbitt v. Helser, 49 Mo. 383. Goss v. Stevens. Opinion by Dickinson, J. [Decided Nov. 29, 1884.]

VENDOR AND VENDEE-FRAUDULENT REPRESENTATIONS AS TO VALUE.-An action will lie for fraudulent representations made by the vendor of land as to its value and situation, the land being at a distance from the place of sale, the vendee being ignorant as to the value and situation, and being purposely and by a fraudulent device induced to purchase, relying upon the truthfulness of such representations. Under ordinary circumstances an assertion by an owner of property offered for sale as to its value, although false, does not charge the vendor with legal responsibility, for the reason that it will rarely occur that a party to a contract of sale has been induced without culpable negligence on his own part to enter into it in reliance upon the expressed opinion of the adverse party as to the value of the property. Misrepresentations, in order to constitute actionable fraud, must be as to material facts of a nature to affect the conduct of others, and generally a mere statement of an opinion is not enough. But where one having, or assuming to have, knowledge of the value of property, negotiates for the sale of it with one who is known to be ignorant of it, and without equal means of knowledge with the other party, and who is purposely induced by that other party to rely upon his fraudulent representations as to its value, an action will lie for the deceit. 2 Pom. Eq. Jur., § 878; Wilder v. De Cou, 18 Minn. 470, 474 (Gil. 421); Haygarth v. Wearing, L. R., 12 Eq. Cas. 320; Simar v. Canaday, 53 N. Y. 298, 306; Chrysler v. Canaday, 90 id. 272; Cruess v. Fessler, 39 Cal. 336; Kost v. Bender, 25 Mich. 515; Picard v. McCormick, 11 id. 68. And especially is there liability, where by some trick or artifice the vendee has been induced to trust in such representations. Burr v. Willson, 22 Minn. 206; Chrysler v. Canaday, supra; Van Epps v. Harrison, 5 Hill, 63. The facts as determined by the verdict bring this case within the rule of liability. The circumstances warranted the jury in believing that the bring. ing in of this stranger was a fraudulent trick to deceive the plaintiff by means of apparently disinterested statements regarding the value of the land from one who was in reality an agent of the defendants, and that the representations of the defendants themselves were fraudulent. It is just that they should respond in damages. A further ground of liability is the misrepresentation as to the situation of the lot. Porter v. Fletcher, 25 Minn. 493; Perkins v. Partridge, 30 N. J. Eq. 82; Van Epps v. Harrison, supra. Griffin v. Farrier. Opinion by Dickinson, J. [Ante, 287.] [Decided Nov. 29, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

MUNICIPAL CORPORATION-STREETS AND ALLEYSEJECTMENT.-A city cannot maintain ejectment to recover a public alley or street. Its interest therein is a mere easement, and it is not entitled to the possessiou of the premises within the meaning of the statute. In

Kimball v. Kenosha, 4 Wis. 321, it was settled that in this State a grantee of a 'lot bounded by a street in a village or city, laid out, platted, and recorded in conformity with the statute, takes to the center of the street on which the lot abuts, subject to the public easement. The fee of the street is in the abutting owner, and the interest of the public therein, which the city or village holds in trust for it, is not a fee, but a mere easement. Goodall v. Milwaukee, 5 Wis. 32; Milwaukee v. Milwaukee & B. R. Co., 7 id. 85; Ford v. Chicago & N. W. R. Co., 14 id. 609. In Gardiner v. Tisdale, 2 id. 153, and again in Weisbrod v. Chicago & N. W. R. Co., 21 id. 602, it was held that the owner of the fee of a street might maintain ejectment against a permanent incumbrancer or occupier, inconsistent with or repugnant to the purpose of the public easement. The above rules have never been shaken, and are firmly imbedded in the jurisprudence of this State. These rules are decisive of this action, for no one will contend that an action of ejectment will lie to recover a mere right of way. Such an easement is incorporeal in its nature (Washb. Ease. 3), and ejectment lies only to recover things corporeal, which may be the subjects of seisin, entry, and possession. There can be no seisin of an incorporeal hereditament, and it cannot be the subject of entry or possession. It "lieth in grant, and not in livery." Sedg. & W. Tr. Title Land, $$ 95-98, 146, and cases cited. The plaintiff has an ample remedy under its charter. It may summarily remove obstructions to its streets, and doubtless has other remedies, but it cannot maintain ejectment. Racine v. Crotsenberg. Opinion by Lyon, J. [Decided Nov. 25, 1884.]

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ASSAULT AND BATTERY EVIDENCE REPUTED WEALTH OF DEFENDANT INSTRUCTION AS POSITIVE AND NEGATIVE TESTIMONY.-In an action for assault and battery, where punitory damages are recoverable, the financial condition of the defendant may be shown by evidence of his reputed wealth. Stanwood v. Whitmore, 63 Me. 209; Kniffen v. McConnell, 30 N. Y. 285; White v. Murtland, 71 Ill. 250-261; 1 Suth. Dam. 744, 745. See also Johnson v. Smith, 64 Me. 553. An instruction that "positive testimony of a small number of witnesses that they saw or heard a given thing occur will outweigh the negative testimony of a greater number of witnesses that they did not see or hear it, provided the witnesses are equally credible; but in connection with this instruction should be considered the relative' means or opportunity of the several witnesses to see or hear the occurrence, and it should be carefully kept in mind that it only applies when the witnesses are equally credible," held to have been proper where several witnesses testified that they saw the defendant spit upon the plaintiff, and several witnesses testified either that they did not see him spit upon her, or that he did not spit upon her. The evidence of the defendant's witnesses was essentially negative in its character, and the rule laid down by this court in the case of Ralph v. Railway Co., 32 Wis. 177-181, is clearly applicable. Justice Lyon in that case says: "The testimony of Todd is affirmative. He swears positively to the fact that he delivered the rope in the freight-room of the depot by direction of Miss Brown. There is but little room in this testimony for failure of memory. He either did so or he has probably committed perjury. The testimony of Miss Brown, although somewhat positive in form, is negative in fact. It means but little more than that she has no recollection of the transaction to which Todd testified." So in the case at bar, the witnesses of the defendant who state that the defendant did not spit upon the plaintiff reason very little more than those who testified they did not see him spit upon her. This case does not come within

the rule of Bierbach v. Goodyear Rubber Co., 54 Wis. 208-213. In that case the instruction which was held erroneous was this: "Of course if the witnesses are equally credible, and they so present themselves to the mind of the jury, then the greater number of witnesses on one side or the other would be entitled to the greater weight." In this case there was no question of positive and negative testimony, as in the present case. In that case Justice Lyon says of the instruction: "It makes no distinction between the relative weight of positive and negative testimony, a distinction well established in the law (3 Greenl. Ev., § 375; Ralph v. Railway Co., 32 Wis. 177), and it takes no account of the possible fact that some of the witnesses may have had better facilities for knowing the facts than others, or remembered them more distinctly. In the instruction excepted to in this case, both these considerations are presented to the jury. We do not consider the instruction in conflict with the rule stated in the cases of Urbanek v. Railway Co., 47 Wis. 59; Eilert v. Railroad Co., 48 id. 606. Draper v. Baker. Opinion by Taylor, J. [Decided Nov. 25, 1884.]

NUISANCE-KEEPING STOCK YARD-R. S., $$ 3180, 3181-ACTION AT LAW - DAMAGE- CONTINUING.-No party is liable to another as and for a nuisance simply because he keeps a stock-yard, if it is kept in such a place and in such a manner as not to contaminate the atmosphere to such an extent as to substantially interfere with the comfort or enjoyment of others, nor impair the use of their property In other words, the comfort, enjoyment, or use must be materially affected or impaired. Pennoyer v. Allen, 56 Wis. 511; S. C., 14 N. W. Rep. 609. The same view is supported by several cases not there cited. Sturges v. Bridgman, 32 Moak Eng. Rep. 837; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Appeal of Peun. L. Co., 96 Penu. St. 116; Fish v. Dodge, 47 Am. Dec. 254. It is conceded that the action was brought under sections 3180 and 3181, Revised Statutes. Such action, by a private person, to recover damages for and to abate the nuisance is necessarily an action at law. In so far as these sections authorized judgment of abatement in such action at law by a private party, this court has frequently held that they had the effect to abrogate the remedy in equity to abate such private nuisance. Remington v. Foster, 42 Wis. 608; Cohn v. Wausau Boom Co., 47 id. 314; S. C., 2 N. W. Rep. 546; Pennoyer v. Allen, 51 Wis. 360; S. C., 8 N. W. Rep. 268; Lohmiller v. Indian Ford W. P. Co., 51 Wis. 688; Denner v. Railway Co., 57 id. 221; S. C., 15 N. W. Rep. 158. Such abatement under those sections was, in the absence of the requisite certificate of the court, a legal consequence of the plaintiff's recovery in the action at law, and could be had only when the plaintiff prevailed. Evidently to obviate that difficulty, the statute was amended by chapter 190, Laws 1882. That amendment restores equitable jurisdiction in the particular cases therein named. To bring the cases within such jurisdiction the essential facts should be affirmatively alleged in the complaint. Here it is enough to say that the complaint fails to state facts sufficient to bring the case within any of the provisions for equitable relief in that amendment." Denner v. Railway Co., 57 Wis. 221. It follows that this action must be treated as one at law and not in equity. In such action at law the plaintiff could only recover for such damages as accrued before the commencement of the action. Such damages as might accrue after the commencement of the action, and before the verdict, could only be recovered in an action subsequently brought. Cobb v. Smith, 38 Wis. 22. This is on the ground that every continuance of a nuisance is,

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NEGLIGENCE-CONTRIBUTORY-INFERENCE EITHER WAY-QUESTION FOR JURY.-Plaintiff, who was injured, while sitting upon a stairway leading to a basement, by a block of ice which fell from the shoulder of defendant's servant, who was carrying it down to such basement, and the question of the negligence of said servant in carrying the ice, was properly submitted to the jury. The mere fact that the plaintiff on a hot day left her place of business and sat down upon the stairs near by in the shade to rest, does not authorize us to say as a matter of law that she was guilty of contributory negligence. Murray v. McShane, 52 Md. 217. When facts and circumstances, though undisputed, are ambiguous, and of such a nature that reasonable men, unaffected by bias or prejudice, may disagree as to the inference or conclusion to be drawn from them, then the case should be submitted to the jury. Townley v. Railway Co., 53 Wis. 633; Hill v. Fond du Lac, 56 id. 246; Nelson v. St. Paul, etc., R. Co., 19 N. W. Rep. 53; Abbett v. Railway Co., 30 Minn. 483. It is to be remembered that the servant of the defendants was the active agency, and had full control and management of the cake of ice in question. This being so, and the accident being such as would not in the ordinary course of things have happened if the servant had been in the exercise of proper care, and in the absence of any evidence tending to show that a piece of the ice broke off while the cake was being carried with ordinary care, we must hold that the jury were authorized to infer, from all the facts and circumstances disclosed, negligence on the part of the servant of the defendants. Scott v. London, etc., Docks Co., 3 Hurl. & C. 596; Kearney v. Railway Co., L. R., 6 Q. B. 759; S. C., 2 Thomp. Neg. 1220; Mullen v. St. John, 57 N. Y. 567; Transportation Co. v. Downer, 11 Wall. 129; Murray v. McShane, supra; Rose v. Stephens, etc., Transp. Co., 11 Fed. Rep. 438; S. C., 13 Rep. 421; Cummings v. National Furnace Co., 18 N. W. Rep. 744. In such case it is hardly accurate to say that negligence is presumed from the mere fact of the injury, but rather that it may be inferred from the facts and circumstances disclosed, in the absence of evidence showing that it occurred without the fault of the defendant. In such case the facts and circumstances speak for themselves, and in the absence of such explanation or disproof, give rise to the inference of negligence. Such a case comes within the principle of res ipsa loquitur. Briggs v. Oliver, 4 Hurl. & C. 407; Carpue v. London, etc., R. Co., 5 Q. B. 751; Cockburn, C. J., and Kelly, C. B., in Kearney v. London, etc., R. Co., supra. Since a jury may draw any legitimate inference from the unqualified and unrestricted facts and circumstances disclosed in the evidence, it follows that they would not be authorized to come to the same conclusion if such inference had been wholly removed by evidence. The case before us is certainly on the border line, and close to the line at that. Kaples v. Orth. Opinion by Cassoday, J. [Decided Nov. 25, 1884.]

CORRESPONDENCE.

RELIEF OF THE COURT OF APPEALS.

Editor of the Albany Law Journal:

Some time ago I was talking with one of the most eminent counsellors in the State on the subject of the relief of the Court of Appeals. To my question what should be done to relieve the court from the pressure

of so much business, he answered: "The remedy is easy. Let the judges do more work." Seeing my surprise, he explained that he did not consider the judges to be lazy, but that they wasted their own time in writing long opinions, and allowed counsel to waste their time with unnecessarily long arguments.

A very limited experience of my own in this court inclines me to the belief that there is much truth in what the counsellor told me. If you go into the court almost any day you will possibly find one counsel occupying the whole day with his presentation of his side of a single case. More often you will find young counsel arguing cases presenting but a single point, but consuming the whole of their two hours in the argument of that point, laboring over propositious that nobody disputes, and reading long extracts from printed opinions that these same judges have themselves written, and are perfectly familiar with. The judges listen attentively for about five minutes, or until they are possessed of the point, and then some yawn, or even go to sleep, and the rest look at the clock. All suffer in silence, and permit the speaker to run on with. out question or interruption.

It seems to me (with all due deference to so learned a court) that if the judges would themselves take part in the argument, and stop the speaker when they were fully possessed of his point, as courts in other jurisdictions do, they would save themselves not only time, but a vast amount of fatigue, for there is nothing so wearing as being bored. If the court should provide by rule that briefs should be filed a reasonable time before the argument, such a'rule would be of great assistance to the court.

Then can any one doubt that the judges write too long and too many opinions? No one can read any volume of the Court of Appeals reports without seeing that the judges, instead of declaring what the law is, have wasted time and strength in the vain effort to harmonize all the cases, to reconcile the irreconcilable and to distinguish the undistinguishable. This shows a most laudable conscientiousness on the part of the judges; and if the calendar were smaller no one could complain that they burdened themselves with so much not wholly necessary labor, but when, as at present, delay amounts to a denial of justice, the judges should not attempt to write opinions in so many cases, nor to write such long opinions.

I give you these views of my own for what they are worth. R.

MR. COWEN ON CODIFICATION. Editor of the Albany Law Journal:

Some time ago, I can't exactly recollect when, I saw a newspaper report of a lecture delivered by Mr. David Dudley Field before a New York law school, in which a civil code was, of course, the chief subject of discussion.

If I remember rightly, the main points made by Mr. Field were that the Code would greatly reduce the number of law reports, and would enable the ordinary business man to ascertain the law for himself, without the aid of counsel. Upon the first point I suppose you agree with Mr. Field, because I notice that the LAW JOURNAL most generally does agree with Mr. Field in whatever he has to say upon this subject. But inasmuch as one of your numerous and useful occupations is to edit law reports, which I have to buy, it is possible that we may look at the subject from different points of view, and it is for a few remarks from my point of view that I ask you to indulge me with a lettle space in your excellent journal.

Is it true then that a Civil Code will diminish the

number of law reports? Patrick Henry is reported to have said that we "have no way of judging of the future but by the past." A very small portion of the law of this State - that relating to practice - has been codified, and by no less a person than Mr. David Dudley Field himself.

If since the adoption of the Code of Civil Procedure there have been fewer law reports upon the subject of practice than before, Mr. Field has proved his case. If on the contrary such reports have greatly, immensely, increased, it is fair to presume that upon this point at least Mr. Field may be mistaken.

What are the facts? Prior to the adoption of the Code of 1848 the State law and equity reports were contained in about 96 volumes, covering the period from 1799 to 1849 or 1850, say fifty years. A few pages in these reports were devoted to civil and criminal practice. I calculate that if we say that the space assigned to cases of civil practice alone was equal to six volumes of the ninety-six, it will be a liberal allowance. No reports were limited to practice cases alone. Many years of legal experience had made the practice familiar to bench and bar, and no such reports were necessary. But in 1848 the Legislature passed the Code of Procedure, in which Mr. David Dudley Field had simplified the rules of practice and had made them certain, so that an "ordinary business man" could understand them without difficulty. The result must be extremely gratifying to those who hold with Mr. Field that the multiplication of law reports is an evil. Within the last thirty-five years, aside from the cases of practice in the regular reports-at least three times as numerous as in the preceding fifty years-and taking only the volumes I find in our own library, there have been issued 113 volumes of reports relating to practice alone as against ninety-six volumes of reports upon all subjects prior to 1850. Judging by this instance, which is certainly a fair test, it does not seem to me that Mr. Field's plan for reducing the number of the reports has proved an unmixed success. It has taken an average of over three volumes of reports a year to judicially establish Mr. Field's meaning in a brief statement of the successive steps for enforcing the rights of a party in a court of justice, a very small and comparatively unimportant part of the law of this State. How many will it take when he has collected all the rules govering the numberless relations of an advanced and complex civilization sawed off and stretched out to fit into his Procrustean bed of a Code?

Nor is it true that the proposed Code, or any Code, will render the present reports unnecessary. In all cases the courts will first consider what the law was before the Code was adopted. They will then consider whether or not the Code has change the former rule, and if so, in what respect. Every section, sentence and line will need judicial construction, and a knowledge of the law prior to the Code will be an indispensable requisite to such construction. Indeed the only difference between a legal system without a Code, and with one, is this: Without a Code the judges decide what the law is; with a Code the Legislature attempts to state what the law is, and the judges decide what the Legislature meant-in nine cases out of ten the most difficult task of the two.

If you do not agree with me, look at the decisions of the courts construing the "statute of frauds." This subject (the invalidity of contracts not attested by certain formalities) has always been embodied in a Code, and I know of no questions that have been more discussed, or upon which courts have more widely differed, than upon those arising under this statute. "Every special promise] to answer for, the debt, default of miscarriage of another person shall be void

unless such agreement, or some note or memorandum thereof expressing the consideration be in writing." Is not the clause above quoted perfectly plain? Would Mr. Field's future expounder of the law, the "ordinary business man," hesitate a moment as to its meaning? A promise to pay the debt of another must be in writing, and the writing must name, mention, or set forth the consideration for the promise. Could any thing be clearer? Yet as a matter of fact no question has been more fiercely disputed in the courts of this State than the meaning of the words, "expressing the consideration." Decision after decision of the Supreme Court and the Court of Appeals diametrically opposed to one another appeared from time to time, and no lawyer in the State could tell with any certainty what they did mean. Finally the Legislature cut the Gordian knot by striking the words out of the Statute.

It is hardly possible that Mr. Field has used language in his Civil Code more plain and distinct than the language I have quoted, and if the Code shall be adopted there will be hundreds and thousands of just such conflicts as to its meaning. The evil would not be so extensive if a Code were ever allowed to remain as settled by the courts.

But the passage of one Code is always an invitation for some one to try his hand at another. In some twenty-five years, by the expenditure of vast sums of money, and the aid of the judicial decisions in the 113 volumes to which I have referred, the Field Code of practice became a most excellent system.

Then an inscrutable Providence raised up Mr. M. H. Throop, who at once applied himself to the grateful task of unsettling the rules of practice, and for the last eight years the courts have been engaged in a desperate and generally unsuccessful attempt at finding out what Mr. Throop meant.

In spite of these considerations, Mr. Editor, the probability is that sooner or later we shall have a Civil Code, and that it will be Mr. Field's Code.

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The reason is that with a body like our Legislature, a single strong-willed, persistent, powerfully connected man like Mr. Field, who is willing to spend his time and money for a particular object, is likely to be more influential than all the other members of the bar, busy with their own affairs. The "malice prepense with which Mr. Field, at the age of eighty, "hangs on" to his faculties, apparently for the sole purpose of pushing this Code through the Legislature, is in itself a menace to the peace of mind of the lawyers of the State. I would not shorten his valuable life, or abridge for a single moment his time for repentance (a man who has written half a dozen Codes must have a great deal to repent of), but why, I ask, if he means fairly by the public, does he not show some signs of old age?

Why is it that "his eye is not dimmed, nor his natural force abated?"

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Why is it that when, according to all the authorities the "grasshopper" ought to be a "burden" to him, no insect lighter than a policeman's "locust seems able to affect in the least his iron endurance. I cannot repress the melancholy thought, Mr. Editor, that long years from now, when you and I have "gone over to the majority," and the cold marble is recounting our dubious virtues to an incredulous posterity, Mr. David Dudley Field will be cheerfully celebrating his hundred and twentieth birthday, making speeches before countless committees of the Senate and Assembly, and misleading the callow youth of the profession by lecturing before all our law schools on the virtues of a Civil Code. Against such an adversary the opposing lawyers, who are more or less mortal, and subject to natural decay, bave little chance of success.

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